author: Judge Roland L. Belsome

text:
    Ken DESPAUX v. RSC EQUIPMENT RENTAL INC., et al.
    NO. 2017-CA-0765
    Court of Appeal of Louisiana, Fourth Circuit.
    April 25, 2018 Rehearing Denied May 8, 2018
    David D. Bravo, BRAVO LAW FIRM, 1100 Poydras Street, Suite 1502, New Orleans, LA 70163, Leo J. Palazzo, PALAZZO LAW FIRM, APLC, 732 Behrman Highway, Suite F & G, Gretna, LA 70056, Scott A. Decker, 3324 N. Causeway Blvd., Metairie, LA 70002, COUNSEL FOR PLAINTIFF/APPELLEE
    Paul M. Lavelle, Sarah Perkins Reid, COTTEN SCHMIDT & ABBOTT, L.L.P., 650 Poydras Street, Suite 2810, New Orleans, LA 70130, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Judge Roland L. Belsome, Judge Rosemary Ledet, Judge Tiffany G. Chase )
   Judge Roland L. Belsome

This lawsuit arises from an accident that occurred on September 22, 2009, when the boom on a Terex AL4000 portable light tower fell and struck the appellee, Kenneth Despaux, on the back of his head at the ConocoPhillips Alliance Refinery in Belle Chase, Louisiana. At the time of the accident, Mr. Despaux was employed by Kellogg, Brown & Root ("KBR") who was the general maintenance contractor at the Conoco refinery. Conoco had leased the light tower from RSC Equipment Rental, Inc. ("RSC"), for the use of Cajun Constructors, Inc. ("Cajun"), another contractor at the refinery.

On September 21, 2009, the day before the accident, Mr. Despaux's KBR work crew, was assigned to replace an underground waterline at the refinery. Unable to complete the work before sundown, KBR Foreman, Pernell LeBlanc, decided to borrow a light tower from Cajun's work site. After moving the tower to KRB's job site, LeBlanc was able to raise the boom in a vertical position but was unable to raise or "telescope" the lights to a higher position. When the work was completed, the light tower was left in the vertical but not fully telescoped position.

The following morning, on September 22, 2009, the KRB crew was ordered to return the light tower to Cajun's work site. Mr. Despaux hitched the tower to a pickup truck and another member, Elden Russ, checked the telescopic pin on the tower boom. At that time, the boom fell down and struck Mr. Despaux on the head.

As a result of the injuries sustained, Mr. Despaux filed suit against Conoco; RSC; its insurer, Liberty Mutual Insurance Company; two employees of RSC, Lynn Hurst and Richard Babin; and Cajun. Plaintiff later amended the petition to add the manufacturer of the tower, Amida Industries, Inc.

After a two-week jury trial, a verdict was returned finding Mr. Despaux 5% at fault and his co-workers 55% at fault for the accident. Additionally, Amida Industries was found 25% at fault and RSC Equipment 15% at fault. In accordance with the verdict, a judgment was rendered as follows: $527,086.25 against Amida Industries, Inc., and $316,252.05 against the RSC Equipment Rental, Inc. Amida moved for a JNOV, which was denied; and this appeal followed.

On appeal, Amida claims that the trial court erred in denying its Motion in Limine to exclude evidence of a 2013 incident and further erred by denying its Motion for Judgment Notwithstanding the Verdict.

Motion in Limine

The trial court has great discretion in its consideration of evidentiary matters such as motions in limine. A ruling on a motion in limine will not be disturbed unless it is determined on appeal that the trial court abused its great discretion. Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. La. C.E. art. 401. All relevant evidence is generally admissible. La. C.E. art. 402. Nonetheless, relevant evidence may be excluded "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time." La. C.E. art. 403.

Just prior to this case's first trial date, Mr. Despaux's counsel received information regarding a 2013 incident involving another Terex AL4000 portable light tower. In December of 2013, another accident involving the same make and model of light tower occurred at the same refinery then operated by Phillips 66 Company. In that incident, Daniel Mouton, an employee of Turner Industries, was ordered to get a light tower. The light tower was owned by United Rentals, Inc., which had purchased all of RSC assets. At the time United Rentals had leased the tower to PSC Industrial Services. The light tower was already in a vertical telescoped position when Mouton came upon it. Mouton started to crank the winch to lower the light boom from the vertical position assuming that the "vertical" locking pin was fully engaged. As he was lowering the tower, he experienced a "jerking" motion and the boom fell and hit another piece of equipment.

There was an incident investigation report prepared by Peter Ernst, Phillips 66 Maintenance Supervisor. The light tower model at issue in both 2009 and 2013 accident has one winch that performs two separate functions: raises the mast from the horizontal position and telescopes the mast out vertically. After the 2013 accident, Phillips 66 decided to utilize a model that had two separate winches to manage the separate functions and prohibited the use of single winch light towers at the refinery.

Four of the Defendants, (RSC, Liberty Mutual, Lynn Hurst, and Richard Babin), filed motions in limine to exclude any evidence related to the 2013 light tower incident. The motion came for hearing before the trial court; and, after hearing arguments of counsel, the matter was taken under advisement. Later, the trial court issued a judgment denying the motions in limine and permitted the incident investigation report into evidence. Relying on the criteria set forth in Lee v. K-Mart , the trial court found that the probative value of the challenged evidence outweighed any prejudicial effect it might have. Additionally, the trial court found the incident investigation report was admissible under the business record exception to the hearsay rule.

In Lee, the First Circuit discussed the admissibility and the relevance of other accidents. The court stated that the other incident must be closely related to the accident, injury, or hazard in the current case. Thus, as it pertains to relevance, the court must consider if the accident occurred at substantially the same place and under substantially the same conditions, and it must have been caused by substantially the same or similar defect or danger.

Here, the similarities in the two incidents cannot be denied. The light towers that collapsed were the same model with the same winch system used at the same refinery. In both instances, the equipment was owned and rented by RSC and the witnesses' accounts of the handling of the equipment prior to the collapse are more similar than distinguishable. Lastly, the conclusion of the 2013 incident report that the Terex AL4000 portable light tower should no longer be used on the job site had a probative value that outweighed the prejudicial impact.

Considering that both accidents occurred at the same place, involved the same model of light tower that was on lease from the same equipment rental company, that damage occurred when the boom fell from a vertical position when a crewmember attempted to rotate the boom down, and that the fall may have been caused by a malfunctioning winch and/or locking pin; that the investigation report links the 2009 and 2013 accidents together; and that great discretion is afforded to the trial court in evidentiary matters, the trial court did not errin finding that the 2013 accident was substantially similar and relevant in the present case. As such, the trial court did not abuse its discretion in denying the motion in limine filed by Amida.

Judgment Notwithstanding the Verdict

Amida further appeals the trial court's denial of its motion for a judgment notwithstanding the verdict (JNOV). It is well established that a JNOV is only warranted when the facts and evidence are so overwhelmingly in favor of the moving party that reasonable jurors could not arrive at a contrary verdict. This Court, in Loconte Partners, LLC v. Montgomery and Associates, Inc., set forth the standard of review for the denial of a JNOV stating:

A trial court's authority to overrule a jury's findings and grant a JNOV is limited to situations in which the facts point so strongly in favor of the moving party that the court feels a reasonable jury could not arrive at a contrary verdict. Where two permissible views of the evidence exist, the fact-finder's choice between them cannot be manifestly erroneous. Therefore, a jury's verdict should not be set aside as long as a fair interpretation of the evidence supports it. All reasonable inferences from the evidence are to be construed in the light most favorable to the non-moving party. The trial court's refusal to render a JNOV can only be overturned if it is manifestly erroneous.

Mr. Despaux's claims against Amida arise under the Louisiana Products Liability Act (LPLA). Amida based its motion for JNOV on a lack of sufficient evidence to prove a claim under LPLA. More specifically, Amida maintained that Mr. Despaux failed to carry his burden of proof as to the essential elements of reasonably anticipated use, defective design, and proximate cause. Again, we must determine whether the record supports that the facts and evidence are so strongly and overwhelmingly in favor of Amida that reasonable jurors could not have arrived at a contrary verdict.

The LPLA provides the exclusive theories of liability against manufacturers for damage caused by a characteristic of their product "that renders the product unreasonably dangerous when such damage arose from a reasonably anticipated use of the product by the claimant, another person or entity." La. R.S. 9:2800.54(A) provides four ways in which a product can be deemed unreasonably dangerous: 1) construction or composition; 2) design; 3) inadequate warnings; or 4) failure to conform to an express warranty.

Under the LPLA a plaintiff asserting liability for damage caused by a product must prove that: 1) the defendant manufactured the product; 2) the product was unreasonably dangerous for reasonably anticipated use; and 3) the dangerous characteristic of the product existed at the time the product left the manufacturer's control. " La. R.S. 9:2800.54(D), specifically places the burden of proving the elements of Subsections A, B, and C of 9:2800.54 on the claimant."

The Terex AL4000 portable light tower has a cabinet which encloses the motor, winch, and cable, which are used to raise and lower the mast. The AL4000 is designed with a single internal winch and cable, which are enclosed in a cabinet. The internal braking system includes a pawl and a ratchet socket, which are designed to stop the mast from falling. The pawl and ratchet socket are also concealed in the cabinet.

To raise the mast, the user cranks the winch handle. Once the mast is in a vertical position, a vertical locking pin engages and locks the mast, so that it cannot fall back to a horizontal position. If it is necessary to further extend the mast to raise the lights, the user then pulls out a pin called the telescoping locking pin. The telescoping locking pin is located higher up on the mast from the automatic locking pin. After releasing the telescoping locking pin, the mast can extend to its full height. The process is reversed to lower the mast and return it to a horizontal position.

At trial, Mr. Despaux asserted that he was injured when the light tower collapsed, and the collapse was caused by defects in the product. The defects alleged were a defective vertical locking pin, a defective pawl, spooled cable hidden inside the light tower cabinet, a wallowed out ratchet socket, and a broken winch handle.

The jury found that Mr. Despaux proved that: 1) the light tower was being used as reasonably anticipated at the time of the incident; 2) the light tower was unreasonably dangerous in construction; 3) the light tower was unreasonably dangerous in design; 4) the light tower was not unreasonably dangerous due to inadequate warnings; and 5) the unreasonably dangerous characteristics of the light tower were a proximate cause of Despaux's injuries.

Reasonably Anticipated Use of the Product

Recently, in Marable v. Empire Truck Sales of Louisiana, LLC, this Court set out the standard to be applied when determining "reasonably anticipated use" as follows:

Under the LPLA, a claimant must initially prove that his damages arose from a reasonably anticipated use of the product. La. R.S. 9:2800.54(A). The LPLA defines the term "reasonably anticipated use" as "a use or handling of a product that the product's manufacturer should reasonably expect of an ordinary person in the same or similar circumstances." La. R.S. 9:2800.53(7). The standard for determining a reasonably anticipated use is an objective one; i.e., an ordinary person in the same or similar circumstances. Peterson v. G.H. Bass and Co., Inc. , 97-2843, p. 5 (La. App. 4 Cir. 5/20/98), 713 So.2d 806, 809. Thus, under the LPLA, a manufacturer is liable only for those uses it should reasonably expect of an ordinary consumer. See Kennedy, John, A Primer on the Louisiana Products Liability Act , 49 La. Law Rev. 565, 586 (1989).

Amida submits that Mr. Despaux failed to prove that he was using the light tower in a reasonably anticipated way and further maintains that the jury's finding in that regard was inconsistent with their other finding that the warnings were sufficient.

More specifically, Amida claims that it could not anticipate that: 1) the light tower would be borrowed by other contractors doing work within the refinery; 2) that a crewmember pulling the vertical locking pin, 3) untrained personnel using the equipment, and 4) the crew using the light tower when it was broken.

The testimony at trial indicated that the light tower collapsed as the KBR crew was preparing to transport the equipment. The light tower was a piece of equipment commonly used around the refinery, and the testimony established that it is common practice on such job sites for equipment to be borrowed and lent among contractors. As for Amida's assertions that the vertical locking pin was removed and that was the cause of the collapse, there was no testimony that supported that the vertical locking pin was removed. The testimony by KBR crewmember Elden Russ was that he pulled the telescoping locking pin, which is located higher on the mast. Amida's expert stated that pulling the telescoping locking pin should not have caused the light tower to collapse. Further, it was established at trial that the operation of the light tower does not require any specific training or licensing; the KBR crew was well within their skill level to be operating and transporting the equipment. Additionally established at trial was that no one on the KBR crew suspected that the light tower was broken.

Lastly, Amida seeks to discredit the jury's finding of reasonably anticipated use by focusing on their finding of adequate warnings. Essentially, Amida argues that the findings are inconsistent in that they contradict one another in a manner that warrants the granting of a JNOV. We disagree.

Relying on the United States Fifth Circuit cases Kampen v. American Isuzu Motors, Inc. and Lockart v. Kobe Steel Ltd., Amida argues that a finding of reasonably anticipated use, while also finding adequate warnings existed is clear error. In Kampen, the plaintiff used a car jack to elevate a car so that he could get underneath and inspect the brakes in direct contravention of the car jack's manufacturer's warning. The car fell on the plaintiff. In Lockart, workers were injured when a pontoon fell. The workers had used an excavator to suspend a heavy pontoon by chaining it to the bucket's teeth in direct violation of the warnings provided in the equipment manual. In both cases, the court found that the warnings were adequate and the violation of the warnings was not a reasonably anticipated use within the meaning of the LPLA.

We find those cases distinguishable because in both cases the products were not being used for their intended purposes. In Kampen, the car jack was not used to change a tire, but rather, used to suspend the car so that the brakes could be examined. Likewise in Lockart, the excavator was being used for something other than excavating. In this case, the light tower was being used for its intended purpose. Further, the warnings that Amida claims were ignored by the KBR crewmembers include the potential danger of releasing the light tower's vertical lock pin with slack in the winch cable, crush hazards posed by a falling boom or mast, and the danger of standing behind the light tower. The jury found that those warnings were adequate to alert a user of those potential dangers but that did not absolve Amida of liability if one of those things occurred due to a defect. Again, Mr. Russ had no contact with the vertical locking pin, only the telescoping locking pin, and the warning of a falling boom is a generic cautionary statement that does not warn of unexpected collapse due to defect. Lastly, the warning to clear all personnel before lowering the light tower was not a warning that was violated by the KBR crewmembers. The testimony at trial was that they were not ready to lower the tower and that when they were, Mr. Despaux would have relocated in compliance with the warning.

Accordingly, on this record, we find that the jury was reasonable in finding that the KBR crewmembers were engaged in a reasonably anticipated use at the time of the accident and that the warnings were adequate to warn of potential dangers.

Unreasonably Dangerous in Design and Constuction

Once the threshold finding of reasonably anticipated use is established, a party claiming that the product is unreasonably dangerous must prove that when the product left the manufacturer's control, 1) there was an alternate design was capable of preventing the claimant's damage; and 2) the risk avoided by the alternative design outweighed the burden of its adoption by the manufacturer, and any adverse effect the alternative design would have had on the product's utility.

In this appeal, Amida argues that Mr. Despaux failed to provide any evidence that would support the jury's finding that the light tower was unreasonable dangerous in design and construction.

The jury was provided testimony from Luke Webber and Jeremy Hoffpauir, both experts in mechanical engineering. The jury was also provided the eyewitness testimony of the crewmembers present at the time of the incident as well as the testimony of Donald Mouton. Mr. Mouton experienced the collapse of the same model light tower in 2013.

At the time of trial, Amida's expert Mr. Webber was employed as a product safety manager for Terex, the entity that owns Amida. He acknowledged that he had not inspected the specific light tower that was involved in the accident any time before or after the accident. He was only provided pictures of the light tower after the accident. He concluded that the tower collapsed because the vertical locking pin was pulled. That fact was contested by Mr. Russ, the KBR crewmember that was preparing the light tower for transport. Mr. Webber also stated that there is a warning that slack in the cable could cause a rapid lowering of the tower, resulting in injury. The jury was told that when there is slack in the line, the tower will begin to lower rapidly and the pawl can become overwhelmed, resulting in the equipment crashing. RSC's expert, also a mechanical engineer, concluded that there must have been slack in the cable. Yet, as Amida's expert recognized, the cable is not visible given the design of the AL4000 as a single winch system with the winch inside a cabinet. The jury further heard that, in 2008, Terex manufactured the RL4000, a safer light tower with a two winch system that has the winch systems on the outside of the machine.

The jury was also informed about the inner workings of the winch system. Basically, the winch handle is attached to the ratchet socket, which engages the shaft of the winch. It is undisputed that the ratchet socket was wallowed out and therefore compromised. The pawl and ratchet socket are necessary integral parts of the light tower which prevents it from falling. Both experts agreed that it would take extensive wear and tear on the equipment to cause the ratchet socket to be wallowed out. However, the evidence indicated that the light tower was relatively new and was primarily used as a generator rather than a light source. Therefore, its main use did not entail raising and lowering the mast or using the winch system at all. The experts also agreed that the accident did not cause the ratchet socket to wallow out.

In Mr. Mouton's testimony, he stated that he and Mr. Despaux worked at the same refinery. In 2013, he was sent to transport a light tower on the refinery grounds. Mr. Mouton discussed how he started to crank the winch to lower the light mast from the vertical position assuming that the automatic vertical locking pin was fully engaged. As he was lowering the tower, he experienced a jerking motion and the boom fell and hit another piece of equipment. The jury was also given evidence on the incident investigation and refinery's response to the equipment failure. There was an incident investigation report prepared by Peter Ernst, Phillips 66 Maintenance Supervisor. The light tower model at issue in both the 2009 and 2013 accidents has one winch that performs two separate functions: raises the mast from the horizontal position and telescopes the mast out vertically. After the 2013 accident, Phillips 66 decided to utilize a model that had two separate winches to manage the separate functions and prohibited the use of single winch light towers at the refinery.

Taking the totality of the evidence presented, the jury had a reasonable basis for its findings regarding the design and construction of the Terex AL4000 portable light tower.

Conclusion

In conclusion, we find no error in the trial court's evidentiary rulings regarding the 2013 accident and report. Additionally, after reviewing all of the evidence presented to the jury and weighing it in the light most favorable to the non-moving party, we cannot find that the trial court erred in denying Amida's JNOV. Accordingly, the judgment in this matter is affirmed.

AFFIRMED

      Initially, Terex was named as the defendant, but Amida was eventually substituted.

      Cooper v. Pub. Belt R.R., 2002-2051, p. 3 (La.App. 4 Cir. 1/22/03), 839 So.2d 181, 183 (citing Heller v. Nobel Insurance Group , 2000-0261, p. 1 (La. 2/2/00), 753 So.2d 841, 841 ; Furlough v. Union Pacific R.R. Co. , 33,658, p. 7 (La.App. 2 Cir. 8/31/00), 766 So.2d 751, 757 ).

      Id. ; see also, Orleans Par. Sch. Bd. v. State, Div. of Admin., Bd. of Supervisors , 2014-0654, p. 9 (La.App. 4 Cir. 1/7/15), 158 So.3d 846, 852.

      483 So.2d 609 (La.App. 1st Cir. 1985).

      The motions in limine were the subject of a supervisory writ application to this Court, which was denied. Despaux v. RSC Equipment Rental, Inc., et al, unpubl. 2016-0846 (La.App. 4 Cir. 9/12/16).

      See also, Jones v. Parish of Jefferson, 98-0659, p. 5 (La.App. 5 Cir. 11/28/95), 665 So.2d 570, 572 (evidence of subsequent accidents is relevant to establish that a thing is defective, provided that the accidents occurred at substantially the same place and under substantially the same conditions and are caused by the same or a similar defect as the accident sued upon).

      Marable v. Empire Truck Sales of Louisiana, LLC, 2016-0876, 2016-0877, 2016-0878, p. 13 (La.App. 4 Cir. 6/23/17), 221 So.3d 880, 892 (citing Anderson v. New Orleans Public Service, 583 So.2d 829 (La. 1991) ).

      Loconte Partners, LLC v. Montgomery & Assocs., Inc. , 2012-0691, pp. 11-12 (La.App. 4 Cir. 5/15/13), 116 So.3d 904, 911-12 (citations omitted).

      La. R.S. 9:2800.52.

      La. R.S. 9:2800.52(A).

      La. R.S. 9:2800.54(B).

      George v. Hous. Auth. of New Orleans , 2004-2167, p. 6 (La.App. 4 Cir. 6/29/05), 906 So.2d 1282, 1286.

      Id.

      A pawl is a sliding bolt on a machine part that is made to fall into notches of another part so as to permit motion in only one direction. Merriam-Webster Online Dictionary. http://www.merriamwebster.com.

      A ratchet is a mechanism that consists of a bar or wheel having inclined teeth into which a pawl drops so that motion can be imparted to the wheel to allow effective motion in one direction only. Id.

      The term wallowed out is another expression for a component being stripped.

      Marable , 2016-0876, pp. 15-16, 221 So.3d at 893-94.

      157 F.3d 306 (5th Cir. 1998), and 989 F.2d 864 (5th Cir. 1993).

      Marable, 2016-0876, p.18 (La.App. 4 Cir. 6/23/17), 221 So.3d at 895 (citing La. R.S. 9:2800.56).


source: Caselaw Access Project

author: STONE, J.

license: Public Domain

text:
    Ruby Lee LEWIS, Respondent v. GEICO CASUALTY COMPANY, Applicant
    No. 51,864-CW
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered April 27, 2018 Rehearing Denied May 22, 2018
    JOHN BRADLEY SMITHERMAN, Shreveport, Counsel for Applicant
    ANTHONY J. BRUSCATO, Monroe, Counsel for Respondent
    Before WILLIAMS, PITMAN, and STONE, JJ.
   STONE, J.

The applicant, GEICO Casualty Company ("GEICO"), filed a motion for summary judgment asserting that its automobile insurance policy issued to Asha Sade Johnson ("Johnson") did not provide liability coverage for property damage sustained by Ruby Lee Lewis ("Lewis"). The trial court denied the motion, and GEICO now seeks this court's supervisory review. For the reasons assigned below, the writ is granted and made peremptory. GEICO's motion for summary judgment is granted, and Lewis' action against GEICO is dismissed.

FACTS AND PROCEDURAL HISTORY

This application stems from a single-vehicle accident that occurred on July 11, 2016. At the time of the accident, Johnson was the permissive driver of a Jeep Cherokee owned by her mother, Lewis. The vehicle sustained significant property damage as a result of the accident. Lewis did not maintain collision or comprehensive coverage with her own insurer; however, Johnson owned a vehicle that was insured by GEICO. On January 3, 2017, Lewis filed a petition for damages against GEICO seeking to recover damages to her vehicle under Johnson's automobile insurance policy.

On March 6, 2017, GEICO filed a motion for summary judgment, arguing Johnson's policy excluded liability coverage for damage to property operated by Johnson. A hearing on the matter was held on May 18, 2017. After taking the matter under advisement, the trial court filed a written judgment on July 7, 2017, denying GEICO's motion for summary judgment. On August 4, 2017, GEICO filed this application for supervisory review of the trial court's judgment. On October 5, 2017, this court ordered GEICO's writ granted to docket for our review.

DISCUSSION

Summary judgment is favored and is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by law. La. C. C. P. art. 966(A)(2). After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C. C. P. art. 966(A)(3). Appellate courts review summary judgment de novo under the same criteria governing the trial court's consideration of whether summary judgment is appropriate. Costello v. Hardy , 03-1146 (La. 01/21/04), 864 So.2d 129 ; Schelmety v. Yamaha Motor Corp., USA , 50,586 (La. App. 2 Cir. 04/13/16), 193 So.3d 194, 198, writ denied , 2016-0903 (La. 09/06/16), 205 So.3d 919 ; Walters v. City of West Monroe , 49,502 (La. App. 2 Cir. 02/04/15), 162 So.3d 419, writ denied , 15-0440 (La. 05/15/15), 170 So.3d 161.

The interpretation of an insurance contract is usually a legal question that can be properly resolved by means of a motion for summary judgment. Bernard v. Ellis , 11-2377 (La. 07/02/12), 111 So.3d 995 ; Cutsinger v. Redfern , 08-2607 (La. 05/22/09), 12 So.3d 945 ; Bumgardner v. Terra Nova Ins. Co. Ltd ., 35,615 (La. App. 2 Cir. 01/23/02), 806 So.2d 945. However, 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 v. Continental Cas. Co. , 06-1505 (La. 02/22/07), 949 So.2d 1247 ; Reynolds v. Select Properties, Ltd. , 93-1480 (La. 04/11/94), 634 So.2d 1180.

An insurance policy is a contract between the parties and should be construed using the general rules of interpretation of contracts set forth in the Louisiana Civil Code. Green ex rel. Peterson v. Johnson , 14-0292 (La. 10/15/14), 149 So.3d 766 ; Marshall v. La. Farm Bureau Cas. Ins. Co. , 50,190 (La. App. 2 Cir. 11/18/15), 182 So.3d 214. An insurance contract must be "construed according to the entirety of its terms and conditions as set forth in the policy, and as amplified, extended, or modified by any rider, endorsement, or application attached to or made a part of the policy." La. R.S. 22:881 ; Schelmety, supra . When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent. La. C.C. art. 2046. In such cases, the insurance contract must be enforced as written. Schelmety, supra .

Insurance companies may limit coverage in any manner they desire, so long as the limitations do not conflict with statutory provisions or public policy. Schelmety, supra ; Elliott, supra ; Bumgardner, supra . However, exclusionary provisions in insurance contracts are strictly construed against the insurer, and any ambiguity is construed in favor of the insured. Schelmety, supra ; Elliott, supra ; Bumgardner, supra . The burden is on the insurer to prove that a loss comes within a policy exclusion. Rodgers v. State Farm Mut. Auto. Ins. , 15-0868 (La. 06/30/15), 168 So.3d 375 ; Schelmety, supra.

The Louisiana Motor Vehicle Safety Responsibility Law, La. R.S. 32:851 through La. R.S. 32:1043, sets forth a mandatory, comprehensive scheme to protect the public from damage caused by motor vehicles. Hawkins v. Redmon, 2009-2418 (La. 07/06/10), 42 So.3d 360, 362. La. R.S. 32:900 provides the minimum, mandatory coverage for automobile liability policies in Louisiana as follows:

A. A "Motor Vehicle Liability Policy" as said term is used in this Chapter, shall mean an owner's or an operator's policy of liability insurance, certified as provided in R.S. 32:898 or 32:899 as proof of financial responsibility, and issued except as otherwise provided in R.S. 32:899, by an insurance carrier duly authorized to transact business in this state, to or for the benefit of the person named therein as insured.
B. Such owner's policy of liability insurance:
(1) Shall designate by explicit description or by appropriate reference all motor vehicles with respect to which coverage is thereby to be granted; and
(2) Shall insure the person named therein and any other person, as insured, using any such motor vehicle or motor vehicles with the express or implied permission of such named insured against loss from the liability imposed by law for damages arising out of the ownership, maintenance, or use of such motor vehicle or motor vehicles within the United States of America or the Dominion of Canada, subject to limits exclusive of interest and costs with respect to each such motor vehicle as follows:
(a) Fifteen thousand dollars because of bodily injury to or death of one person in any one accident, and
(b) Subject to said limit for one person, thirty thousand dollars because of bodily injury to or death of two or more persons in any one accident, and
(c) Twenty-five thousand dollars because of damage to or destruction of property of others in any one accident.
(d) An owner may exclude a named person as an insured under a commercial policy if the owner obtains and maintains in force another policy of motor vehicle insurance which provides coverage for the person so excluded which is equal to that coverage provided in the policy for which the person was excluded. The alternative coverage is required for both primary and excess insurance.
C. Such operator's policy of liability insurance shall insure the person named as insured therein against loss from the liability imposed upon him by law for damages arising out of the use by him of any motor vehicle not owned by him , within the same territorial limits and subject to the same limits of liability as are set forth above with respect to an owner's policy of liability insurance.
* * *
E. Such motor vehicle liability policy need not insure any liability under any worker's compensation law nor any liability on account of bodily injury to or death of an employee of the insured while engaged in the employment, other than domestic, of the insured, or while engaged in the operation, maintenance or repair of any such motor vehicle nor any liability for damage to property owned by, rented to, in the charge of or transported by the insured .

(Emphasis added).

The parties do not argue there are any issues of material fact but dispute whether or not Johnson's automobile insurance policy with GEICO violates La. R.S. 32:900. Under Section 1 of Johnson's policy, GEICO provides the following liability coverage:

[W]e will pay damages which an insured becomes legally obligated to pay because of:
1. bodily injury, sustained by a person, and;
2. damage to or destruction of property, arising out of the ownership, maintenance or use of the owned auto or a non-owned auto. We will defend any suit for damages payable under the terms of this policy.
We may investigate and settle any claim or suit. (Emphasis added.)

The liability coverage includes the mandatory minimum of $25,000 in damage to or destruction of property of others in any one accident.

Furthermore, Section 1 states liability coverage is limited by numerous exclusions, including the following:

9. We do not cover damage to :
(a) property owned, operated or transported by an insured ; or
(b) property rented to or in charge of an insured other than a residence or private garage. (Emphasis added).

GEICO argues, pursuant to La. R.S. 32:900(E), an automobile liability insurer may exclude from coverage damage to property owned, operated, or in the charge of an insured. Since Johnson's policy specifically excludes liability coverage for "damage to... property...in charge of an insure[d]", GEICO claims it is not liable for the damage caused to Lewis' vehicle while Johnson was the permissive driver of the vehicle.

In support of its argument, GEICO cites Allstate Ins. Co. v. Reid , 04-1620 (La. App. 1 Cir. 11/30/05), 934 So.2d 56. In that case, a subrogation action was brought against a defendant-driver who got in an accident while pulling a boat and trailer owned by a friend. The boat and trailer, both insured by Allstate, were damaged in the accident. Allstate paid the friend $7,324.74 for damages to the boat and trailer and then sought to recover the amount from the defendant-driver. The defendant-driver filed a third-party demand against his automobile insurer, State Farm, which denied coverage. The defendant-driver's policy excluded the following from liability coverage: "DAMAGES TO PROPERTY OWNED BY, RENTED TO, IN THE CAR OF OR TRANSPORTED BY AN INSURED." State Farm subsequently filed a motion for summary judgment asserting, among other things, the policy specifically excluded liability coverage for damage to property being transported by the insured. However, the trial court denied State Farm's motion for summary judgment as to the policy exclusion claim, and ultimately, found State Farm liable with the defendant-driver and friend for the damages to the boat and trailer.

Reversing the judgment of the trial court by a 3-2 decision, the Reid court found the defendant-driver's insurance policy with State Farm plainly excluded the boat being transported by the insured and only provided coverage for the non-owned trailer up to the $500 limit enumerated in the policy. The majority concluded the exclusion did not violate La. R.S. 32:900, which requires liability insurers to insure the person named in the policy "against loss from the liability imposed by law for damages arising out of the ownership, maintenance, or use of such motor vehicle." La. R.S. 32:900(B)(2). The majority noted La. R.S. 32:900(E) listed three permissible exemptions from the liability coverage mandated by La. R.S. 32:900 B(2):

Properly read, Subsection E provides that the policy need not insure: (1) any liability under any workers' compensation law; (2) any liability on account of bodily injury to or death of an employee of the insured while engaged in the employment, other than domestic of the insured, or while engaged in the operation, maintenance or repair of any such motor vehicle, and (3) any liability for damage to property owned by, rented to, in the charge of or transported by the insured.

Allstate Ins. Co. v. Reid , supra at 62-63 (emphasis added).

Accordingly, the majority declared La. R.S. 32:900(E) permitted the exclusion of liability coverage for damage to property transported by the insured, and State Farm could not be held liable for the damage to the friend's boat. See also State Farm Fire & Cas. Ins. Co. v. Delatte , 01-1001 (La. App. 5 Cir. 12/26/01), 806 So.2d 806.

To the contrary, Lewis argues La. R.S. 32:900(E) is inapplicable because this case does not involve an employer-employee relationship. In support of her argument, Lewis cites the dissenting opinion in Reid, supra , where Judge John T. Pettigrew opined that La. R.S. 32:900(E)"only allows insurers to exclude coverage for situations covered under the Louisiana Workers' Compensation statutes and commercial liability policies."

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. art. 9. After reviewing La. R.S. 32:900 in its entirety, we agree with the majority in Reid and find Subparagraph E is a list of three permissible exclusions to La. R.S. 32:900B(2). As stated by the Reid majority, "[t]his reading is dictated by the legislature's use of the word "nor" to separate the three situations for which liability coverage is not mandated." Reid , supra at 62. One of those situations is liability for "damage to property owned by, rented to, in the charge of or transported by the insured" notwithstanding Louisiana Workers' Compensation statutes and commercial liability policies.

While Reid dealt with the exclusion for damage to property being "transported" by the insured, the exclusion pertinent to the instant matter is damage to property "in the charge of an insured." This court has previously defined the meaning of "in charge of" in an insurance contract as "the right to exercise dominion or control over[.]" Commercial Union Ins. Co. of New York v. Hardcastle , 188 So.2d 698, 700 (La. App. 2 Cir. 1966) ; see also White v. State Farm Mut. Auto. Ins. Co. , 419 So.2d 1279, 1280 (La. App. 1 Cir. 1982), writ denied , 422 So.2d 164 (La. 1982). Since Johnson was driving the vehicle with Lewis' permission when the accident occurred, she clearly had the right to exercise dominion or control over Lewis' vehicle when it was damaged.

Although Johnson's policy provided liability coverage up to $25,000 for damage to property arising out of her use of a non-owned vehicle, it specifically excluded liability coverage for damage to property in her charge. For example, if Johnson had caused a two-vehicle accident while driving Lewis' vehicle and was found liable for damage to the other vehicle, GEICO would be obligated to for pay the damage. However, GEICO would not be obligated to pay for the damage to Lewis' vehicle. Since the exclusion at issue does not interfere with liability coverage for damage to the property of others arising out of Johnson's use of non-owned vehicles, it is a permissible exclusion pursuant to La. R.S. 32:900(E) and the trial court erred in denying GEICO's motion for summary judgment.

CONCLUSION

For the foregoing reasons, GEICO's writ application is granted and made peremptory. We reverse the judgment of the trial court and grant GEICO's motion for summary judgment. Lewis' action against GEICO is dismissed and she is assessed costs of appeal.

WRIT GRANTED AND MADE PEREMPTORY; SUMMARY JUDGMENT IN FAVOR OF GEICO IS GRANTED; ACTION DISMISSED.

APPLICATION FOR REHEARING

Before WILLIAMS, GARRETT, PITMAN, COX and STONE, JJ.

Rehearing denied.

      State Farm had already tendered $500 to Allstate for the damage to the friend's trailer.


author: WICKER, J.

text:
    Clarence SMITH, Jr., Individually and as Natural Tutor of his minor son, Kyle S. Smith v. ST. CHARLES PARISH PUBLIC SCHOOLS
    NO. 17-CA-475
    Court of Appeal of Louisiana, Fifth Circuit.
    May 1, 2018
    COUNSEL FOR PLAINTIFF/APPELLANT, CLARENCE SMITH, JR., INDIVIDUALLY AND AS NATURAL TUTOR OF HIS MINOR SON, KYLE S. SMITH, Charles M. Stevenson
    COUNSEL FOR DEFENDANT/APPELLEE, ST. CHARLES PARISH PUBLIC SCHOOLS, Paula Haydel Jeansonne, Patrick M. Amedee
    Panel composed of Judges Fredericka Homberg Wicker, Robert A. Chaisson, and Hans J. Liljeberg
   WICKER, J.

This appeal arises from the district court's grant of an exception of prescription dismissing plaintiff's petition for damages. For the reasons that follow, we affirm the district court's judgment.

Factual and Procedural History

This action arises out of injuries allegedly sustained by Kyle Smith, plaintiff Clarence Smith's minor son, on October 6, 2015. Kyle Smith's alleged injuries were caused while riding a defective zip-line at Lakewood Elementary School in Luling, which plaintiff alleges was under the custody of defendant, St. Charles Parish Public Schools. In the petition, plaintiff claims St. Charles Parish Public Schools is responsible for Kyle Smith's injuries, and that St. Charles Parish Public Schools had actual and constructive knowledge of the zip-line's defect prior to the accident but failed to fix the defect.

On October 5, 2016, plaintiff fax-filed a petition for damages in the Twenty-Ninth Judicial District Court for the Parish of St. Charles. As required by the fax-filing statute, La. R.S. 13:850, plaintiff delivered the original hard-copy petition to the St. Charles Parish Clerk of Court within seven days of transmitting the petition by fax to the court. The original hard-copy petition was clocked in as delivered to the St. Charles Parish Clerk of Court on October 12, 2016.

In response to plaintiff's petition, on November 2, 2016, St. Charles Parish Public Schools filed an answer and peremptory exception of prescription. In the exception of prescription, St. Charles Parish Public Schools asserted that plaintiff failed to meet the statutory requirements of La. R.S. 13:850 because the fax-filed petition differs from the original petition delivered to the clerk of court. Because the petition delivered to the clerk's office was not identical to the fax-filed petition, St. Charles Parish Public Schools argued that the fax-filed petition lacked the force and effect of law necessary to interrupt prescription. Therefore, St. Charles Parish Public Schools contended that the effective filing date of the petition was October 12, 2016-the day the original petition was delivered to the clerk's office-and plaintiff's claim, which occurred on October 6, 2015, had prescribed.

In support of its exception of prescription, St. Charles Parish Public Schools attached copies of both plaintiff's October 5, 2016 fax-filed petition, and the original petition delivered to the clerk of court on October 12, 2016. The fax-filed petition alleges the injury occurred on October 6, 2005, while the original petition delivered to the clerk's office on October 12, 2016 states the injury occurred on October 6, 2015. In his reply memorandum, plaintiff admits to correcting a typographical error contained in the October 5, 2016 faxed-filed petition.

The district court heard arguments on the exception of prescription on May 31, 2017, and issued a judgment, including written reasons for judgment, sustaining the exception on June 27, 2017. In the district court's reasons for judgment, the court found that plaintiff did not comply with the statutory requirements of La. R.S. 13:850(B). The district court concluded that the effective filing date of plaintiff's petition was October 12, 2016, the date that the original petition was delivered to the clerk's office-over a year from the date of the alleged injury.

On appeal, plaintiff contends the trial court erred in sustaining the exception of prescription and dismissing the petition, pointing to the Louisiana Legislature's 2016 amendment to La. R.S. 13:850. The 2016 amendment changed the language of La. R.S. 13:850(B)(1) from requiring the party filing a pleading via facsimile to deliver to the clerk of court's office within seven days an "original signed document" to requiring delivery of "[t]he original document identical to the facsimile filing in number of pages and in content of each page including any attachments, exhibits, and orders. A document not identical to the facsimile filing or which includes pages not included in the facsimile filing shall not be considered the original document." See Acts 2016, No. 109, eff. Aug 1, 2016. Plaintiff argues the amended statutory language as written does not contemplate the correction of a typographical error. Rather, plaintiff contends that the amended language should be interpreted to define "identical" to mean documents with the same content and number of pages.

Analysis

Prescription is a peremptory exception governed by La. C.C.P. art. 927. When the exception of prescription is tried before a trial on the merits, evidence may be introduced in support or in contravention of the exception, when the grounds for granting or denying the exception do not appear in the facts pled in the petition. La. C.C.P art. 931. When evidence is introduced to support or contravene the exception, the ruling is reviewed by the appellate court under the manifest error standard of review. Alvarez v. Southeast Commer. Cleaning, LLC , 13-657 (La. App. 5 Cir. 2/26/14), 136 So.3d 329, 333 (citing Dugas v. Bayou Teche Water Works , 10-1211 (La. App. 3 Cir. 4/6/11), 61 So.3d 826, 829-30 ). However, if the parties fail to introduce evidence, the appellate court's role is to determine whether the district court's ruling was legally correct. Id. Here, the exception of prescription was tried before trial and neither party submitted evidence at the hearing on the exception, therefore, we will review the exception to determine whether it is legally correct.

The exception of prescription at issue on this appeal concerned the proper interpretation of La. R.S. 13:850. La. R.S. 13:850, as amended by Acts 2016, No. 109, eff. Aug. 1, 2016, provides the statutory framework for fax-filing pleadings. The statute provides:

A. Any document in a civil action may be filed with the clerk of court by facsimile transmission. All clerks of court shall make available for their use equipment to accommodate facsimile filing in civil actions. Filing shall be deemed complete at the time the facsimile transmission is received by the clerk of court. No later than on the first business day after receiving a facsimile filing, the clerk of court shall transmit to the filing party via facsimile a confirmation of receipt and include a statement of the fees for the facsimile filing and filing of the original document. The facsimile filing fee and transmission fee are incurred upon receipt of the facsimile filing by the clerk of court and payable as provided in Subsection B of this Section. The facsimile filing shall have the same force and effect as filing the original document, if the filing party complies with Subsection B of this Section.
B. Within seven days, exclusive of legal holidays, after the clerk of court receives the facsimile filing, all of the following shall be delivered to the clerk of court:
(1) The original document identical to the facsimile filing in number of pages and in content of each page including any attachments, exhibits, and orders. A document not identical to the facsimile filing or which includes pages not included in the facsimile filing shall not be considered the original document.
(2) The fees for the facsimile filing and filing of the original document stated on the confirmation of receipt, if any.
(3) A transmission fee of five dollars.
C. If the filing party fails to comply with any of the requirements of Subsection B of this Section, the facsimile filing shall have no force or effect. The various district courts may provide by court rule for other matters related to filings by facsimile transmission.
D. The clerk may purchase equipment and supplies necessary to accommodate facsimile filings out of the clerk's salary fund.

La. R.S. 13:850.

The Louisiana Legislature authorized filing pleadings via facsimile in 1991. See Acts 1991, No. 463. The legislature amended the statute in 1995, 2012 and 2016. See Acts 1995, No. 1119; Acts 2012, No. 826, eff. Aug. 1, 2012; Acts 2016, No. 109, eff. Aug. 1, 2016. The 1995 amendment required each clerk of court's office in the state to have the proper equipment to accommodate litigants filing documents via facsimile. Acts 1995, No. 1119. The amendment in 2012 changed the time limitation within which a party must deliver the original document to the clerk of court's office from five days to seven days. Acts 2012, No. 826. The amendment in 2016 had the most wide ranging effect on the substance of La. R.S. 13:850. The amendment changes the requirement that the original document be "forwarded" to the clerk's office within seven days to a requirement that the clerk's office receive the original document within seven days. Acts 2016, No. 109, eff. Aug. 1, 2016. The amendment also expands the statutory definition of "original signed document" in La. R.S. 13:850(B)(1) as quoted above.

Under the statute, a party may file a pleading, with the same force and effect as a pleading physically filed at the courthouse or via mail, if each requirement of subsection (B) is met. Under subsection (B), the party filing via facsimile must deliver to the clerk of court within seven days: (1) the original document identical to the document filed by facsimile; (2) filing fees requested by the court listed on the facsimile confirmation receipt from the clerk's office; and (3) an additional mandatory transmission fee of five dollars. La. R.S. 13:850(B)(1)-(3). If the party filing by fax fails to meet any of the requirements of subsection (B), the document filed by fax has no legal force or effect. La. R.S. 13:850(C). In other words, if a party does not deliver to the clerk of court an "original document identical" to the fax-filed pleading within seven days, only the purported original pleading delivered in person or by mail to the clerk's office will have full legal force and effect.

Jurisprudence interpreting La. R.S. 13:850 demands mandatory satisfaction of the requirements of subsection (B). Turner v. Marine Inland Transp. Co. , 06-342 (La. App. 5 Cir. 10/31/06), 946 So.2d 185, 187 ; Antoine v. McDonald's Restaurant , 98-1736 (La. App. 3 Cir. 5/5/99), 734 So.2d 1257, 1261. The Louisiana Supreme Court requires litigants to abide by the literal meaning of the statute. See Hunter v. Morton's Seafood Rest. & Catering , 08-1667 (La. 3/17/09), 6 So.3d 152, 156.

This Court recently considered La. R.S. 13:850(B) in Palazola v. IMC Consulting Eng'rs , 16-22 (La. App. 5 Cir. 6/30/16), 197 So.3d 782. In Palazola , the plaintiff filed a petition for damages via facsimile on January 6, 2015. In the petition, the plaintiff alleged the incident causing injury occurred on January 9, 2014. The clerk of court's office physically received plaintiff's original petition delivered to the clerk of court on January 23, 2015. The original document contained different formatting and pagination from the petition faxed to the court by the plaintiff. The defendants filed a peremptory exception of prescription alleging the plaintiff did not meet the requirements to file via facsimile pursuant to La. R.S. 13:850(B). The defendants argued that because the original petition was not forwarded to the clerk's office within seven days of the facsimile filing and the original petition delivered had different formatting and pagination from the document filed via fax it could not be given full force and effect under La. R.S. 13:850. On appeal, we found that the plaintiff did not satisfy two obligations under La. R.S. 13:850(B), and that either deficiency would have been sufficient for the trial court to sustain the defendants' exception of prescription. Id. at 785. With respect to the purported original petition mailed to the clerk's office, we found:

... despite the fact that the substantive text of the mailed petition and the facsimile filed petition are the same, and the only difference between the two is in formatting, there can be no dispute that the mailed petition is not the "original signed document" that was facsimile filed, as is required by La. R.S. 13:850(B). Therefore, to the extent that the trial court's ruling was based upon a finding that the "original signed document" was not forwarded to the clerk's office, we do not find this determination to be manifestly erroneous.

Id.

Other Louisiana Courts of Appeal have also strictly construed La. R.S. 13:850. In Dunn v. City of Baton Rouge , 07-1169 (La. App. 1 Cir. 2/8/08), 984 So.2d 129, 130, the plaintiff filed a petition via facsimile, and physically filed the original with the clerk's office within the five day time period required by La. R.S. 13:850. However, the petition filed by facsimile differed from the original physically filed petition.

Dunn , 984 So.2d at 131. The original petition named a different plaintiff and prayed for relief from a different defendant than the petition filed via facsimile. Id. The court found that the facsimile filed petition had no effect, because plaintiff did not file the original document as required by subsection (B) of the statute. Id. Therefore, the district court found the plaintiff's case prescribed because the fax-filed petition did not carry force or effect, and the original document forwarded to the clerk's office was filed after prescription had accrued. Id.

The Second Circuit considered the issue in Taylor v. Broomfield , 46,590 (La. App. 2 Cir. 9/21/11), 73 So.3d 485. In Taylor , the plaintiff fax-filed his petition on September 17, 2010. Id. at 486. That petition was not notarized. Id. The plaintiff had until September 24, 2010, to deliver the original document to the clerk. Id. The original petition did not arrive until October 5, 2010. Further, the original hard-copy differed from the fax-filed petition as the verification on the original petition was notarized on September 20, 2010-three days after the fax-filed petition was transmitted to the court. Id. at 147. The defendant filed an exception of prescription arguing that (1) the original was not filed with the court within the five day period required at that time by La. R.S. 13:850 and (2) the copy filed with the clerk of court was not the original document filed via fax. The district court denied the exception of prescription and the defendant appealed. Id. On appeal, the Second Circuit reversed the district court's denial of the defendant's exception of prescription, in part, because the court could not "find authority authorizing changes between the fax-filed petition, and the 'original signed document.' " Id. at 489.

Although each of the cases discussed above were decided before the current amended language of La. R.S. 13:850 was enacted by the Legislature on August 1, 2016, the plain language of the current statute is clear that a litigant seeking to fax-file must deliver to the clerk's office "the original document identical" to the faxed pleading. La. R.S. 13:850, as amended in 2016, clarifies that the legislature intends litigants to deliver the same exact document faxed to the court. The reference to the requirement that the document must be identical in "number of pages and in content of each page including any attachments, exhibits and orders" is illustrative of what defines an original document. When a statute is clear and unambiguous and the application of the statute does not lead to absurd consequences, the statute must be applied as written. Hunter , 6 So.3d at 155 (citing La. R.S. 1:4; La. C.C. art. 9). The legislature is presumed to enact statutes with full knowledge of existing laws on the same subject, with awareness of jurisprudence and well-established principles of statutory interpretation. Id. (citing State v. Johnson , 03-2993 (La. 10/19/04), 884 So.2d 568, 576 ; Theriot v. Midland Risk Insurance , 95-2895 (La. 5/20/97), 694 So.2d 184, 186 ). The jurisprudence is clear that the clerk of court must receive the identical original that was filed by fax. The language of the new statute does not indicate an intent to change the jurisprudential interpretation of the statute.

Conclusion

Accordingly, we affirm the district court's grant of St. Charles Parish School's exception of prescription. There is no dispute that the petition delivered to the clerk of court on October 12, 2016 differs in substance from the petition transmitted by fax on October 5, 2016. The October 5, 2016 petition alleges the injury occurred on October 6, 2005, and the petition delivered to the Clerk's office specifies the injury as occurring on October 6, 2015. Accordingly, the plaintiff did not follow the procedure required by La. R.S. 13:850 and, therefore, the petition carrying the force and effect of law is the facially prescribed October 12, 2016 petition. The district court did not err in granting St. Charles Parish Public School's exception.

AFFIRMED

      Both the October 5, 2016 fax-filed petition and the original petition delivered to the clerk on October 12, 2016 were clocked in by the St. Charles Parish Clerk of Court as filed in the trial court record. However, the original appellate record lodged in this court on August 28, 2017 contained only the October 12, 2016 original petition delivered to the clerk. On March 22, 2018, this court ordered the St. Charles Parish Clerk of Court to supplement the appellate record within ten days with the Petition for Damages filed by fax on October 5, 2016. On April 2, 2018, the clerk supplemented the record with the original fax-filed petition dated October 5, 2016.

      According to La. C.C. art. 3492, delictual actions are subject to liberative prescription of one year running from the date of injury.

      At that time, delivery of the original document to the clerk of court needed to be made within five days of the facsimile transmission. See Acts 1995, No. 1119.


author: PERRET, Judge.

text:
    Mary ORTEGA v. CANTU SERVICES, INC., et al.
    17-1123
    Court of Appeal of Louisiana, Third Circuit.
    Opinions Rendered May 2, 2018
    George Arthur Flournoy, Flournoy, Doggett & Losavio, P. O. Box 1270, Alexandria, LA 71309-1270, (318) 487-9858, COUNSEL FOR CLAIMANT/APPELLANT: Mary Ortega
    Gregory John Laborde, Daigle Rayburn, LLC, P. O. Box 3667, Lafayette, LA 70502, (337) 234-7000, COUNSEL FOR DEFENDANTS/APPELLEES: Liberty Mutual Insurance Company, Cantu Services, Inc.
    Court composed of Marc T. Amy, Van H. Kyzar, and Candyce G. Perret, Judges.
   PERRET, Judge.

Mary Ortega appeals the judgment of the Office of Workers' Compensation denying her Motion to Enforce Settlement and for penalties and attorney fees after concluding the settlement was conditioned on CMS approval of a Medicare Set-Aside Agreement.

FACTS AND PROCEDURAL HISTORY

This workers' compensation case arises out of a work injury that Claimant-Appellant, Mary Ortega ("Ms. Ortega"), sustained while she was employed by Cantu Services, Inc. ("Cantu"). Ms. Ortega filed a Disputed Claim for Compensation on June 27, 2014. The parties reached a settlement agreement in 2016, which was judicially approved and recited in open court on September 1, 2016. The agreement was explained on the record by counsel for Cantu and its insurer, Liberty Mutual Insurance Company, as follows:

Mr. Laborde: Your Honor, we've agreed to compromise all claims asserted by Ms. Ortega in each docket number for the total sum of $120,000.
We will file with CMS [Centers for Medicare and Medicaid Services] approval for a Medicare set-aside agreement [MSA] in the amount of $56,049. The balance that would then be paid in benefits is $63,951.
Now, the proviso is if CMS does not approve the requested amount, but alters it in any way, we will fund the MSA as directed by CMS and then adjust the amount to be paid in benefits accordingly, so that the total of the settlement still amounts to $120,000. And we will continue to pay benefits until we get the CMS approval and the funds tendered to claimant.
Mr. Flournoy [counsel for Ms. Ortega]: .... Yeah, that's right.
Judge Braddock: And you understand the nature of this compromise, Ms. Ortega?
....
Ms. Ortega: Yes, sir.

Judge Braddock then approved the compromise and stayed the docket numbers until he heard from the parties in the future, after CMS approved the MSA, to then close out the cases.

On December 22, 2016, Ms. Ortega filed a Motion and Order to Amend 1008, adding penalties and attorney fees under La.R.S. 23:1201(F) and/or 1201(G) for Appellees' failure to pay the settlement within thirty days after the recitation of the agreement in open court. Ms. Ortega also filed a Motion to Enforce Settlement and for penalties and attorney fees, which was heard on June 1, 2017. The court considered the minutes from the September 1, 2016 hearing, the testimony of Ms. Ortega that she was present at the September hearing and understood the settlement was conditioned on CMS approval, and argument of counsel. The court, relying on Harrelson v. Arcadia , 10-1647 (La.App. 1 Cir. 6/10/11), 68 So.3d 663, writ denied , 11-1531 (La. 10/7/11), 71 So.3d 316, concluded the settlement was conditioned on CMS approval of an MSA and accordingly denied Ms. Ortega's Motion to Enforce Settlement and for penalties and attorney fees. Ms. Ortega filed a "Motion and Order for New Trial for Reargument Only" and, after a hearing was held on August 21, 2017, this was also denied.

Ms. Ortega now appeals and asserts two assignments of error: (1) that the workers' compensation judge ("WCJ") erred in finding the settlement of $120,000.00 did not need to be paid within thirty days of the judicial approval of the settlement agreement and therefore denying La.R.S. 23:1201(G) sanctions, and (2) that the WCJ erred in finding CMS approval was a suspensive condition that must be fulfilled before paying Ms. Ortega the $120,000.00 settlement.

Additionally, on appeal and in response to Appellees' opposition brief, Ms. Ortega filed a Motion to Strike with this Court, requesting that two portions of Appellees' brief be stricken for lack of support in the record. This motion was referred to the merits in this case. For the following reasons, we grant Ms. Ortega's Motion to Strike, but affirm the WCJ's judgment.

MOTION TO STRIKE

Ms. Ortega requests we strike two portions of Appellees' brief for lack of support in the appellate record. Specifically, on page two of Appellees' brief:

Appellees submitted a request to the Center for Medicare Services for approval of the negotiated Medicare Set Aside Agreement, submitting the appropriate medical records and information. However, the request for approval was denied by CMS. Appellant was informed of the denial and provided with the reasons for denial and informed of what additional information was needed from Appellant and Appellees in order to address the concerns of CMS regarding the sufficiency of the Medicare Set Aside Agreement. To date, Appellant has not furnished to Appellees any of the requested information.

Also, Ms. Ortega moves to strike a portion of Appellees' brief on page 5:

Appellant has been advised of the reasons for the denial of the Medicare Set Aside Agreement and has yet to furnish to Appellees any of the information needed in order to respond to the objections of CMS.

This court must render judgment upon the record that is on appeal. La.Code Civ.P. art. 2164. "This court has no authority to consider on appeal facts referred to in appellate briefs if those facts are not in the record on appeal." In re Succession of Badeaux , 08-1085, pp. 5-6 (La.App. 1 Cir. 3/27/09), 12 So.3d 348, 352, writ denied , 09-822 (La. 5/29/09), 9 So.3d 166.

A review of Appellees' brief shows that counsel refers to actions he took in contacting CMS for approval of the MSA funding, the CMS denial and request for additional information, and Appellant's failure to furnish that information to Appellees. Although this argument by Appellees' counsel is found in his pre-trial statement to the WCJ, as well as in argument to the WCJ, when counsel asked the court to recognize his pre-trial statement as an officer of the court under oath, his request was never addressed or responded to by the court. Therefore, because was no evidence submitted with counsel's statement and his statement was not admitted as fact, counsel's statements are mere argument and not evidence. Argument by counsel "is not evidence and cannot be considered as proof of fact." Taiae v. City of Baton Rouge , 00-915, p. 4 (La.App. 1 Cir. 6/22/01), 808 So.2d 677, 680, n. 3 ; see also Maxie v. McCormick , 95-1105 (La.App. 1 Cir. 2/23/96), 669 So.2d 562, Harrison v. La. State Univ. Med. Ctr. , 623 So.2d 707 (La.App. 4 Cir. 1993).

Accordingly, we grant Ms. Ortega's Motion to Strike.

STANDARD OF REVIEW

The first circuit in Harrelson , 68 So.3d at 665-66, set forth the standard of review for a factually similar case:

In workers' compensation cases, our standard of review to be applied to findings of fact is the manifest error-clearly wrong standard. Dean v. Southmark Construction, 03-1051 (La. 7/6/04), 879 So.2d 112, 117. However, when legal error interdicts the fact-finding process in a workers' compensation proceeding, the de novo standard of review applies. Brantley v. Delta Ridge Implement, Inc., 41,190 (La.App.2d Cir. 6/28/06), 935 So.2d 308, 314. We also use the de novo standard of review for determining if the WCJ was legally correct when interpreting statutes pertaining to workers' compensation, because the interpretation of a statute is a question of law. Lirette v. Patterson Services, Inc., 05-2654 (La.App. 1st Cir. 11/17/06), 951 So.2d 223, 226. This case involves the interpretation of a statute and the determination of whether that statute was violated; thus, we review de novo the WCJ's statutory interpretation, while using the manifest error standard of review for the WCJ's factual findings regarding any statutory violation.

DISCUSSION OF APPEAL

Ms. Ortega's first assignment of error depends on the outcome of the second assignment of error, namely, whether the CMS approval of the MSA funding was a condition that suspended the payment of $120,000.00 to Ms. Ortega. The WCJ held that CMS approval was a suspensive condition. We agree and find no manifest or legal error with this finding.

Louisiana Revised Statutes 23:1201(G) (emphasis added) provides for penalties and attorney fees in workers' compensation cases as follows:

If any award payable under the terms of a final, nonappealable judgment is not paid within thirty days after it becomes due, there shall be added to such award an amount equal to twenty-four percent thereof or one hundred dollars per day together with reasonable attorney fees, for each calendar day after thirty days it remains unpaid, whichever is greater, which shall be paid at the same time as, and in addition to, such award, unless such nonpayment results from conditions over which the employer had no control . No amount paid as a penalty under this Subsection shall be included in any formula utilized to establish premium rates for workers' compensation insurance. The total one hundred dollar per calendar day penalty provided for in this Subsection shall not exceed three thousand dollars in the aggregate.

A final, nonappealable judgment includes a workers' compensation settlement agreement, and triggers La.R.S. 23:1201(G) upon court approval and entry into judgment. Williamson v. Liberty Mut. Ins. Co. , 12-148 (La.App. 3 Cir. 6/6/12), 92 So.3d 1218.

However, obligations may be suspended by a suspensive condition which prevents enforcement of the obligation until an uncertain event occurs. La.Civ.Code art. 1767. "Conditions may be either expressed in a stipulation or implied by the law, the nature of the contract, or the intent of the parties." La.Civ.Code art. 1768. When the suspensive condition "depends solely on the whim of the obligor[,]" the obligation is null. La.Civ.Code art. 1770. The first circuit in Harrelson , 68 So.3d 663, found that a settlement agreement requiring CMS approval of funding for an MSA was a suspensive condition that suspended the obligation to fund the MSA account until CMS approval was received. The WCJ in this case correctly recognized that this case is factually like Harrelson .

In Harrelson , the employer agreed to pay the claimant "$125,000.00, with $42,010.00 of that amount to be placed in a MSA account to cover future medical expenses and $82,990.00 to be paid in one lump sum." Id. at 664. The agreement further contained a clause stating:

[Bestaff] and insurer agree that, if CMS ... requires that additional money be placed into the [MSA] in this case, [Bestaff]/insurer will, at its option, pay all such additional amounts and comply with all Medicare requirements regarding such, or will withdraw the proposal for a [MSA], and the claim for future medical care will remain open.

Id. (Emphasis and alterations in original). The agreement was judicially approved on December 10, 2009. The employer immediately paid the claimant $82,990.00 and withheld the remaining amount for the MSA funding while awaiting CMS approval. CMS ultimately approved the amount on January 27, 2010, and the employer issued a check for the balance of the funds on February 2, 2010, within thirty days of CMS's approval, but over thirty days from the date of judicial approval of the agreement. The claimant then filed a motion to enforce settlement judgment seeking penalties and attorney fees pursuant to La.R.S. 23:1201(G) for the employer's failure to pay the entirety of the settlement agreement within thirty days of the judgment. On appeal, the first circuit affirmed the WCJ, agreeing that "[t]he approval by CMS was an uncertain event that once it occurred made the WCJ's order approving the entire settlement agreement final and enforceable." Id. at 666. "Additionally, we find that the timing of this uncertain event-CMS approval-was completely out of [the employer's] control since the payment of the MSA funds was entirely dependent upon whether CMS approved the funding." Id.

As in Harrelson , the agreement between the parties in this case was that CMS needed to approve the funding of the MSA. The difference between this case and Harrelson , is that in Harrelson , $82,990.00 was to be paid in one lump sum regardless of the outcome of the CMS approval. In Harrelson , if CMS did not approve of the MSA funding, the employer had two options-to pay the additional amount requested by CMS or withdraw the proposal for a MSA. However, in the case before this Court, the calculation of the amount to be paid to Ms. Ortega in benefits is entirely dependent on the amount required to fund the MSA. The judicially approved agreement as evidenced by the court transcript was that:

Now, the proviso is if CMS does not approve the requested amount, but alters it in any way, we will fund the MSA as directed by CMS and then adjust the amount to be paid in benefits accordingly, so that the total of the settlement still amounts to $120,000.

Additionally, Exhibit P-2, submitted by Ms. Ortega and which is the affidavit of her counsel, states:

Furthermore, it was agreed that post-settlement documents would be prepared by defense counsel with the understanding that whatever amount for medical expenses was approved by CMS would be designated in the settlement documents as a full and final compromise of all claims for medical expenses and the remainder of the $120,000.00 settlement fund would be attributed to a full and final settlement of all claims for indemnity benefits, penalties and attorney fees.

Finally, the settlement documents signed by Ms. Ortega specify that Appellees would write two checks, one to Ms. Ortega, and one to the Mary Ortega MSA Account. Appellees could not possibly write these two checks without knowing the amount CMS approved to fund the MSA account. Therefore, we agree with the WCJ that the need for CMS's approval of the MSA funding was a suspensive condition.

The next question is whether the suspensive condition depends on the whim of the employer, making the obligation null according to La.Civ.Code art. 1770, or whether the employer had no control over CMS approving the MSA funding.

Ms. Ortega argues that the suspensive condition depends on the whim of the employer to file the request with CMS. This issue was also raised in Harrelson , however, in that case, the court received evidence that the request was in fact made to CMS, and therefore Appellees could not do anything more without the CMS approval. Ms. Ortega, on the other hand, asserts Appellees have not sought CMS approval and that there was no requirement in the settlement that Appellees do so within a certain timeframe. Therefore, under the WCJ ruling, Appellees can continue not funding the settlement because they were not required to obtain CMS approval by any specific date.

Ms. Ortega correctly stated that there is no evidence in the record that Appellees have sought CMS approval. The only contrary argument is just that, merely argument and not proof of fact. Taiae , 808 So.2d 677 ; Maxie , 669 So.2d 562 ; Harrison , 623 So.2d 707. However, regardless of when Appellees apply for CMS approval, that approval will ultimately be beyond Appellees' control. Therefore, the WCJ did not err in concluding that Appellees were not required to pay Ms. Ortega the settlement funds prior to CMS approval of the MSA funding. Additionally, because we conclude nonpayment was the result of conditions over which the employer had no control, the WCJ did not err in denying statutory penalties and attorney fees, in this case, for Appellees' failure to pay the funds within thirty days of the final and nonappealable judgment. Costs of this appeal are assessed to Appellant, Mary Ortega.

MOTION TO STRIKE GRANTED; JUDGMENT AFFIRMED.

      At the time of the Motion to Enforce Settlement hearing, the parties and court only had the minutes of the September 1, 2016 hearing because there was an issue getting the transcript from the court reporter. However, a copy of the transcript was obtained and is contained in this record on appeal. The transcript was prepared by and considered by the workers' compensation judge at the hearing on Ms. Ortega's Motion and Order for New Trial.


author: KEATY, Judge.

text:
    Terry LEONE v. Don WARE, et al.
    17-638
    Court of Appeal of Louisiana, Third Circuit.
    May 2, 2018
    C.R. Whitehead, Jr., Whitehead Law Offices, Post Office Box 697, Natchitoches, Louisiana 71458-0697, (318) 352-6481, Counsel for Plaintiff/Appellant: Terry Leone
    Lottie L. Bash, Laura B. Matthews, Faircloth, Melton & Sobel, LLC, 105 Yorktown Drive, Alexandria, Louisiana 71303, (318) 619-7755, Counsel for Defendant/Appellee: Republic Fire and Casualty Insurance Company
    Court composed of Sylvia R. Cooks, Elizabeth A. Pickett, and Phyllis M. Keaty, Judges.
   KEATY, Judge.

Plaintiff/Appellant, Terry Leone, appeals the judgment of the trial court granting a peremptory exception of no right of action in favor of Defendant/Appellee, Republic Fire and Casualty Insurance Company. For the following reasons, the trial court's judgment is reversed, and the matter is remanded for further proceedings.

FACTS & PROCEDURAL HISTORY

This personal injury matter arose after Terry Leone (Terry), a bail bondsman, sustained injuries on May 20, 2015, in Woodworth, Louisiana, after he fell out of the back door of a mobile home owned by Don Ware (Don) and occupied by his son, Aaron Lee Ware (Aaron). Prior to the incident, Don was a guarantor on Aaron's criminal surety bond. Don contacted Terry, the bondsman, and advised that he wanted to withdraw as guarantor. Thereafter, Terry went to the mobile home to assist Don in apprehending Aaron to be turned over to the police. During the subsequent physical altercation which ensued between the three individuals, Terry fell out of the mobile home's back door onto the ground and injured his knee.

On October 1, 2015, Terry filed a "Petition For Damages, Medical Expenses, Loss Wages And Personal Injury" against Don and Aaron. He subsequently filed an amended petition and named Don's homeowners' insurer, Republic Fire and Casualty Insurance Company (Republic), as a co-defendant. Republic answered the petition and amended petition, asserting therein a motion to strike and dilatory exception of vagueness and ambiguity. The allegations contained in the petition, which formed the basis of the exception, were thereafter stricken, and the dilatory exception was dismissed pursuant to a consent judgment signed by the trial court on February 22, 2017. Republic thereafter filed a peremptory exception of no right of action, alleging that the insured's actions being intentional were excluded under Republic's policy and the location of the alleged events was not a covered location under the policy. Terry filed an opposition memorandum. Following a hearing on April 24, 2017, the trial court orally granted the peremptory exception in favor of Republic, dismissing Terry's claims against it. A written judgment was signed on May 3, 2017. In its subsequent written reasons for judgment dated May 23, 2017, the trial court adopted its oral reasons given on April 24, 2017. Terry appealed.

On appeal, Terry contends the trial court committed legal error when it granted Republic's peremptory exception of no right of action, determining that the allegations contained in the petition constituted an intentional tort and were excluded under Republic's policy.

STANDARD OF REVIEW

A peremptory exception of no right of action poses a question of law and is reviewed de novo. Washington Mut. Bank v. Monticello , 07-1018 (La.App. 3 Cir. 2/6/08), 976 So.2d 251, writ denied , 08-530 (La. 4/25/08), 978 So.2d 369.

DISCUSSION

In his sole assignment of error, Terry contends the trial court legally erred when it granted Republic's peremptory exception of no right of action, finding that the allegations contained in the petition constituted an intentional tort and were excluded under Republic's policy.

In Louisiana, an exception of no right of action is raised through a peremptory exception pursuant to La.Code Civ.P. art. 927. The exception's function "is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit." Reese v. State Dep't of Pub. Safety & Corrs. , 03-1615, pp. 2-3 (La. 2/20/04), 866 So.2d 244, 246. The supreme court has noted that when reviewing a trial court's ruling on an exception of no right of action, an appellate court "should focus on whether the particular plaintiff has a right to bring the suit and is a member of the class of persons that has a legal interest in the subject matter of the litigation, assuming the petition states a valid cause of action for some person." Eagle Pipe & Supply, Inc. v. Amerada Hess Corp. , 10-2267, 10-2272, 10-2275, 10-2279, 10-2289, p. 7 (La. 10/25/11), 79 So.3d 246, 256. The burden of proof rests with the movant. Montgomery v. Lester , 16-192 (La.App. 3 Cir. 9/28/16), 201 So.3d 966, writ denied , 16-1944 (La. 12/16/16), 212 So.3d 1173. Evidence introduced in support of a peremptory exception is governed by La.Code Civ.P. art. 931, which provides, in pertinent part: "On the trial of the peremptory exception pleaded at or prior to the trial of the case, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition." Additionally, the court begins its analysis on an exception of no right of action "with an examination of the pleadings." Howard v. Adm'rs of Tulane Educ. Fund , 07-2224, pp. 17-18 (La. 7/1/08), 986 So.2d 47, 60.

In this case, an examination of the pleadings reveals Terry alleged he was injured at a residence located at 319 Railroad Avenue and owned by Don. Terry then asserted the following allegations against Republic in his amended petition:

8.
As plaintiff and Don were attempting to apprehend Aaron and take him into custody a physical encounter was engaged between plaintiff, Don and Aaron. During the time of the apprehension Don used excessive physical force on Terry Leone and pushed him out the backdoor of the mobile home.
9.
Don Ware failed to advise Terry Leone that there was a defect in the backdoor of the premises and when Don Ware and Aaron Ware pushed Terry Leone up against a wall in the mobile home there was no porch attached to the backdoor and plaintiff Terry Leone was pushed out of the backdoor of the mobile home by Aaron and Don and fell approximately five (5) feet to the ground.
13.
Defendants Don and Aaron used excessive and negligent conduct causing injuries to plaintiff when they pushed Terry Leone out of the backdoor of the mobile home and did not warn Terry Leone that there was no outside porch or stairs attached to the backdoor.

In response to Terry's allegations, Republic filed an exception of no right of action, alleging that the insured's actions were excluded under Republic's policy. In support, it offered into evidence a homeowners' liability insurance policy, number H13 1979835 01, which it issued to Don and Patsy Ware as the insureds. The residence premises, which is an insured location under the policy, is listed as 43 Butler Drive. Section II(1)(e) of the policy excludes coverage for bodily injury arising "out of a premises" which is "[o]wned by an 'insured' ... that is not an 'insured location[.]' " In the instant case, Terry's petition asserts the incident occurred at 319 Railroad Avenue.

Republic's policy also contains an intentional acts exclusion in Section II(1)(b) of the "Special Provisions" endorsement to the policy. According to the endorsement, bodily injury caused by an insured is excluded from coverage as follows:

With respect to loss caused by a peril other than fire and with respect to all "insureds" covered under this policy;
1) Which is expected or intended by one or more "insureds" even if the "bodily injury" or "property damage":
(i) Is of a different kind, quality, or degree than initially expected or intended; or
(ii) Is sustained by a different person, entity, real or personal property, than initially expected or intended.
However, this Exclusion 1.b.(1) does not apply to "bodily injury" resulting from the use of reasonable force by one or more "insureds" to protect persons or property.

After hearing oral arguments for both sides, the trial court granted the exception. In the trial court's written reasons for judgment dated May 23, 2017, it adopted its oral reasons given on April 24, 2017, wherein it stated:

[W]hen you did your amendment you made it even more muddy so that you used the language of excessive force and says particularly Don pushed, and it wasn't just the struggle that there might have been going on when you're trying to apprehend someone, so I am going to agree with Ms. Bash that your allegations look like there is an intentional tort, which would not be something that's going to be covered by the insurance company. So I'm granting her no right of action.

Although the language employed in Terry's pleadings may contain allegations of intentional acts, we disagree with the trial court's judgment because the exclusion in Republic's policy is an affirmative defense which may not be raised through an exception of no right of action. See Cole v. State Farm Mut. Auto. Ins. Co. , 14-329 (La.App. 3 Cir. 10/1/14), 149 So.3d 831, writ denied , 14-2145 (La. 1/9/15), 157 So.3d 598 ; see also Beslin v. Andarko Petroleum Corp. , 11-1523 (La.App. 3 Cir. 4/4/12), 87 So.3d 334. In Cole , 149 So.3d at 833, this court agreed that "exclusions to insurance contracts must be specifically pleaded as affirmative defenses."

In Beslin , 87 So.3d at 338 (emphasis added), this court reversed the trial court's grant of summary judgment stating:

The basis of Grey Wolf's Motion for Summary Judgment is that Liberty waived its right to reimbursement. Waiver is an affirmative defense which must be expressly plead [sic] in the answer. Garland v. Town of Ville Platte , 198 So.2d 451 (La.App. 3 Cir.1967). Furthermore, the exception of no right of action cannot be used to raise an affirmative defense. Madisonville State Bank v. Glick , 05-1372 (La.App. 3 Cir. 5/3/06), 930 So.2d 263. Therefore, the proviso of Article 1005 does not assist Grey Wolf, and its failure to plead Liberty's waiver of its right to subrogation as an affirmative defense renders the trial court's grant of summary judgment erroneous.

Pursuant to Cole and Beslin , Republic cannot raise an affirmative defense regarding exclusions in its policy by an exception of no right of action. Therefore, the trial court's grant of Republic's exception of no right of action is erroneous, and its judgment is reversed.

DECREE

The trial court's judgment in favor of Defendant/Appellee, Republic Fire and Casualty Insurance Company, is reversed, and the matter is remanded for further proceedings. All costs of this appeal are assessed to Defendant/Appellee, Republic Fire and Casualty Insurance Company.

REVERSED AND REMANDED.


text:
    McKinley TAYLOR v. CAJUN CONSTRUCTORS, INC.
    18-237
    Court of Appeal of Louisiana, Third Circuit.
    May 2, 2018
    J. Craig Jones, Jones & Hill, LLC, 131 Highway 165 South, Oakdale, Louisiana 71463, (318) 335-1333, Counsel for Plaintiff/Appellee: McKinley Taylor
    Craig Ray Hill, Jones & Hill, LLC, Post Office Box 1260, Oberlin, Louisiana 70655, Counsel for Plaintiff/Appellee: McKinley Taylor
    Eric R. Miller, The Kullman Firm, APLC, 4605 Bluebonnet Boulevard, Suite A, Baton Rouge, Louisiana 70809, (225) 906-4250, Counsel for Defendant/Appellant: Cajun Constructors, Inc.
    Court composed of Phyllis M. Keaty, John E. Conery, and Van H. Kyzar, Judges.
   KEATY, Judge.

This court issued a rule ordering Appellant/Defendant, Cajun Constructors, Inc., to show cause, by brief only, why its appeal should not be dismissed for lack of a final judgment. See La.Code Civ.P. art. 2083. For the reasons that follow, we dismiss the suspensive appeal, but remand the matter with instructions and for supplementation.

FACTS AND PROCEDURAL HISTORY

Plaintiff, McKinley Taylor, filed suit against Defendant for unpaid wages during his employment with Defendant as a carpenter from March 16, 2012, through March 19, 2013. Following a trial on the merits, on October 24, 2017, the trial court issued a six-page untitled document which appears to be written reasons for ruling as opposed to a final judgment. The trial court found therein that Taylor was never paid a per diem upon which the parties had agreed for his first week of work. The trial court also found that Defendant's failure to pay the daily per diem was not in good faith and awarded penalty wages and attorney fees as provided in La.R.S. 23:632.

On December 4, 2017, Defendant filed a motion for suspensive appeal. The order of appeal was signed on January 11, 2018. In due course, the record was lodged in this court, at which time a rule was issued ordering Defendant to show cause why the appeal should not be dismissed for the above-stated reason. Defendant timely filed its brief in response to the rule wherein it acknowledges that the October 24, 2017 written reasons for ruling did not contain the necessary decretal language, "ORDERED, ADJUDGED AND DECREED," as repeatedly suggested by this court. See GBB Props. Two, LLC v. Stirling Props., LLC , 17-384 (La.App. 3 Cir. 7/5/17), 224 So.3d 1001 ; Barlow v. Barlow , 13-1092 (La.App. 3 Cir. 10/23/13), 161 So.3d 24 ; Parker v. S. Am. Ins. Co. , 578 So.2d 1021 (La.App. 3 Cir.), rev'd on other grounds , 590 So.2d 55 (La.1991). Defendant also acknowledges there is no separate document apart from the written reasons as contemplated by La.Code Civ.P. art. 1918.

Defendant explained that, faced with the uncertainty of a delay period for appealing the ruling as to liability, it "opted to preserve its right to appeal" the October 24, 2017 ruling. Nevertheless, it agrees that the subject ruling "does not appear to be a final appealable judgment according to this Court's precedent." Defendant also notes that the trial court has not yet determined the amount of attorney fees to be awarded. As such, Defendant requests that this court retain the lodged record, dismiss the appeal without prejudice, and remand the case to the trial court for the entry of a judgment, allowing reasonable time for the resolution of the attorney fees issue and supplementation of the record with the matters being docketed for final disposition by this court.

DISCUSSION

In Barlow , 161 So.3d at 26-27, this court addressed the exact issue herein:

"Appeals are taken from the judgment, not the written reasons for judgment."
Greater New Orleans Expressway Comm'n v. Olivier , 02-2795, p. 3 (La. 11/18/03), 860 So.2d 22, 24. "A final judgment shall be identified as such by appropriate language. When written reasons for the judgment are assigned, they shall be set out in an opinion separate from the judgment." La.Code Civ.P. art. 1918. "A judgment and reasons for judgment are two separate and distinct documents." Olivier , 860 So.2d at 24. "A valid judgment must be precise, definite, and certain. A final appealable judgment must contain decretal language, and it must name the party in favor of whom the ruling is ordered, the party against whom the ruling is ordered, and the relief that is granted or denied." State v. White , 05-718, p. 2 (La.App. 3 Cir. 2/1/06), 921 So.2d 1144, 1146 (quoting Jenkins v. Recovery Tech. Investors , 02-1788 (La.App. 1 Cir. 6/27/03), 858 So.2d 598 ) (citations omitted).
Louisiana Code of Civil Procedure Article 1918 was enacted to avoid confusion and recording of lengthy opinions. Hinchman v. Int'l Bhd. of Elec. Workers, Local Union No. 130 , 292 So.2d 717 (La.1974). Thus, the trial court's disregard of La.Code Civ.P. art. 1918 does not automatically nullify a judgment, and the article should not be applied mechanically. Id. As long as the instrument contains the essentials of a judgment, it should be regarded as a valid judgment. Id. In Hinchman , the court reasoned:
Except for the inclusion of reasons, this instrument contains the essentials of a judgment. The document rendered on December 14, 1972 determines the rights of the parties and awards the relief to which they are entitled. C.C.P. 1841. The final judgment was read and signed by the judge in open court. C.C.P. 1911. The instrument is identified as a final judgment by appropriate language. C.C.P. 1918.
Id. at 719. Where an instrument titled "Reasons for Judgment" was argued to constitute a judgment for the purposes of appellate delays, this court reasoned:
We see a distinction in the facts of Hinchman and the facts of the case before us. Here, the parties were not alerted in the title, as they were in Hinchman , that what followed was intended to be a judgment. The parties might have reasonably assumed that the title "REASONS FOR JUDGMENT" was meant to convey the fact that reasons were all that was intended by the document. Further, in Hinchman , the language of the judgment in that case concluded with a formal decree employing the words "IT IS ORDERED, ADJUDGED AND DECREED that...." In the case before us the document appears to be nothing more than reasons for judgment but concludes with the one sentence reading: "Accordingly[,] the exception of prescription is maintained and plaintiff's suit is dismissed at her costs." While this language is no doubt technically sufficient to constitute a valid decree, we feel that it is of such an ambivalent nature following what was so far reasons for judgment, that counsel were not placed on adequate notice that the document was intended to be a judgment.
Parker v. S. Am. Ins. Co. , 578 So.2d 1021, 1023-24 (La.App. 3 Cir.), rev'd on other grounds , 590 So.2d 55 (La.1991).

In the instant case, the document at issue has no title, but the notation "WYATT, J," the name of the trial judge, appears at the beginning of the six-page document. The document discusses the law and evidence of the case and concludes:

Applying the applicable law as it relates to amounts due and potential penalties this Court determines that this employer-Cajun-failure to pay wages due-$75.00 per day per diem, was not in good faith. The evidence clearly reflects that there was an acknowledged confusion or reflection of disconnect between the person who hired Taylor and the person who actually made the call of the eligibility for per diem. Documentation clearly reflects that corrections were made by Cajun to address the issue, but all without addressing the matter of what had already been determined to have been an offer, and subsequent failure to pay an employee. Applying the above referred to penalty provision, Taylor is owed additional "wages" of $75.00 per day per diem, for the week of March 16, 2012, with [sic] comes to an addition [sic] $375.00. And for 90 days extra per diem which by this court[']s calculation is an additional $6,750.00. The matter of attorney fees also provided for in LSA-R.S. 23:632, will be awarded. Plaintiff counsel is permitted to submit a post trial attorney fee application documenting counsel's time and expenses which will be considered by the Court with defense counsel given the opportunity to address and/or dispute. All other Court costs to defendant.

We find that, because of the lack of a title on the aforementioned document, it fails to alert the parties that what followed was intended to be a judgment. Thus, the parties could have reasonably assumed that the document was intended to convey only the trial court's reasons for ruling. Additionally, in the absence of a separate document and/or the lack of a formal decree employing the words "IT IS ORDERED, ADJUDGED AND DECREED that...," we conclude that the document appears to be nothing more than the trial court's reasons for ruling. Although the language may be technically sufficient to constitute a valid decree, we find that parties were not placed on adequate notice that the document was intended to be the final judgment.

Accordingly, we find that there was no final judgment from which Defendant could appeal.

DECREE

For all the reasons given herein, this court lacks jurisdiction to consider the merits of Defendant's appeal without a final judgment. We dismiss this appeal without prejudice and remand the matter to the trial court for the entry of a final judgment. The trial court is instructed that a judgment shall be rendered within sixty days of the issuance of this opinion. In keeping with Simple Enterprises, Inc. v. Texas Property , LLC, 17-222, p. 1 (La.App. 3 Cir. 11/2/17) (unpublished opinion), this record will "remain lodged in this court and the final judgment on remand may be added to supplement this record."

APPEAL DISMISSED WITHOUT PREJUDICE. REMANDED WITH INSTRUCTIONS.