author: DOWNING, J. GAIDRY, J.,

text:
    STATE of Louisiana v. Michael PETITTO.
    No. 2009 KA 1855.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 12, 2010.

      Scott M. Perrilloux, District Attorney, Jeffrey Johnson, Asst. District Attorney, Amite, LA, for Appellant, State of Louisiana.
    John Garrison Jordan, Hammond, LA, for Appellee, Michael Petitto.
    Before DOWNING, GAIDRY and WELCH, JJ.
   DOWNING, J.

DThe defendant, Michael Petitto, was charged by grand jury indictment with two counts of malfeasance in office, violations of La. R.S. 14:134. The defendant entered a plea of not guilty as charged. The defendant later filed a motion to quash the indictment, arguing that the indictment failed to charge an offense punishable under a valid statute and, alternatively, that the two counts in the indictment were duplicative. After a hearing, the trial court granted the defendant’s motion on the first basis. The State now appeals, arguing that the trial court erred in granting the defendant’s motion to quash the indictment. For the following reasons, we affirm the ruling of the trial court.

STATEMENT OF FACTS

The State alleges that the defendant committed the instant offenses in his capacity as an elected member of the Tangi-pahoa Parish Council. According to the State’s answer to the bill of particulars herein, the charged offenses were based on a series of events that began on or about March 12, 2006, and continued until the end of November 2006. Particularly, the defendant made a motion to approve a resolution supporting the Pine Grove Subdivision on March 13, 2006. The events resulted in the payment and cancellation of the defendant’s mortgage in Tangipahoa Parish. Thus, the State contends that the defendant received a financial benefit (by having his personal home mortgage paid in full in the amount of $49,207.12) for initiating a Parish Council resolution that supported tax benefits to Pine Grove Subdivision for the development of property that the defendant’s brother had already made plans to purchase and then sell for a nearly $200,000.00 profit.

ASSIGNMENT OF ERROR

|sThe State argues that the trial court erred in granting the defendant’s motion to quash the indictment. The State contends that La. R.S. 14:134 allows for the criminal prosecution of behavior that does not fall under the criminal statutes but nevertheless is improper to a criminal extent. The State contends that the defendant violated civil, non-criminal laws that specified his lawful duty. The State concludes that it should be given the opportunity to prove before a jury that the defendant’s actions were criminal.

In his motion to quash and supporting memorandum, the defendant, in pertinent part, specifically argued that the indictment did not adequately state an alleged criminal violation in which the defendant intentionally performed one of his duties as a councilman in an unlawful manner. The motion notes that the State relied on alleged violations of La. R.S. 42:1111(E)(1) and La. R.S. 42:1112(B)(1) to support the malfeasance charges. The defendant argued that those charges are not criminal in nature, noting that Title 42 is a codification of the Code of Governmental Ethics as it pertains to elected public officials. The defendant further argued that the appropriate remedy for a violation of a provision contained in the chapter is a fine imposed by the Louisiana Ethics Board. The defendant argued that the State cannot rely on alleged civil violations to support a prosecution for an alleged violation of malfeasance in office, contending that such a crime must be based on a criminal violation such as theft, bribery, kickbacks, extortion, or solicitation to commit a crime.

In its memorandum in opposition to the defendant’s motion to quash, the State, in pertinent part, argued that La. R.S. 14:134 does not require a violation of a separate and distinct criminal statute. The State contended that to establish malfeasance in office, it need only prove the existence of an affirmative duty delineated by statute or law upon the defendant as a public officer and that the 14 defendant intentionally performed that duty in an unlawful manner or intentionally refused or failed to perform any duty expressly imposed by law upon the official.

At the hearing on the motion to quash, the parties did not present additional argument, but submitted the matter on the memoranda. The trial court noted that the Code of [Governmental] Ethics has the force of law and establishes affirmative duties on [public] officials. The trial court concluded, however, that laws that establish ethical standards on public officials should not be the basis for prosecution of malfeasance in office.

A motion to quash may be based on the ground that “[t]he indictment fails to charge an offense which is punishable under a valid statute.” La.C.Cr.P. art. 532(1). An appellate court reviews a ruling on a motion to quash for abuse of discretion. Odom, 02-2698 at pp. 5-6, 861 So.2d at 191.

Louisiana Revised Statutes 14:134 provides that malfeasance in office is committed when any public officer or public employee shall:

(1) Intentionally refuse or fail to perform any duty lawfully required of him, as such officer or employee; or
(2) Intentionally perform any such duty in an unlawful mannerjor
(3) Knowingly permit any other public officer or public employee, under his authority, to intentionally refuse or fail to perform any duty lawfully required of him, or to perform any such duty in an unlawful manner.

Prosecutions for malfeasance in office as defined by La. R.S. 14:134(1) and 14:134(2) presuppose the existence of “a statute or provision of the law which delineates an affirmative duty upon the official.” This duty “must be expressly imposed by law upon the official because the official is entitled to know exactly what conduct is expected of him in his official capacity and what conduct will subject him to criminal charges.” State v. Perez, 464 So.2d 737, 741 (La.1985). Thus, malfeasance requires proof that a clear duty was violated. The malfeasance statute was not designed to punish all forms of misconduct in office. Some forms of misconduct by public officials are subject to other sanctions.

The Code of Governmental Ethics, in an attempt to protect against conflicts of interest between the private interests of a public servant and his public duties, sets up ethical standards of conduct. La. R.S. 42:1101 B. These standards do not require that there be actual corruption on the part of the public servant or actual loss by the state. The statute establishes an objective rather than subjective standard of conduct, and actions prohibited by that standard are sufficient to violate the statute. See United States v. Mississippi Valley Generating Co., 364 U.S. 520, 549-50, 81 S.Ct. 294, 309, 5 L.Ed.2d 268 (1961).

The Code of Governmental Ethics is not a criminal statute whose aim is the apprehension and punishment of persons guilty of public wrongdoing. Instead, the primary objective of the legislation is to prevent public officers and employees from becoming involved in conflicts of interests. A conflict of interest is a situation that would require an official to serve two masters, presenting a potential, rather than an actuality, of wrongdoing. The wrongdoing does not have to occur in order for a prohibited conflict to exist. A public official may have done no wrong in the ordinary sense of the word, but a conflict of interest may put him in danger of doing wrong. Glazer v. Commission on Ethics for Public Employees, 431 So.2d 752, 755-56 (La.1983); see United States v. Mississippi Valley Generating Co., 364 U.S. at 548-50, 81 S.Ct. at 308-10. The Code is aimed at avoiding even this danger.

For this purpose, the Code of Ethics for Governmental Employees identifies certain types of conflicts of interests and prohibits conduct by public officials that would bring these conflicts into being. Additionally, the Code empowers the Board of Ethics to determine when a conflict of interest exists and to impose certain sanctions. La. R.S. 42:1134-35,1141,1151-56.

|fiWe conclude that the Ethics Code is not criminal in nature and that the malfeasance statute was not designed to punish the forms of misconduct alleged herein. Thus, the trial court did not abuse its discretion in granting the motion to quash herein. The State’s sole assignment of error is without merit.

DECREE

For the foregoing reasons, we affirm the ruling granting the defendant’s motion to quash the indictment.

RULING GRANTING DEFENDANT’S MOTION TO QUASH INDICTMENT AFFIRMED.

GAIDRY, J., concurs with reasons.

GAIDRY, J.,

concurring.

hi concur in the result, based upon the record before us and the particular violations alleged in the indictment and the bill of particulars, as amended. In doing so, however, I wish to emphasize that the alleged violations of ethical duties might be based upon facts that conceivably could also constitute possible violations of specific affirmative duties imposed by criminal statutes, such as public bribery (La. R.S. 14:118(A)(2)), upon which an indictment could have been properly based.

      . In considering a motion to quash the indictment, the trial court considers the facts stated in the bill of particulars as true and determines whether or not, if proved, they constitute the crime charged. State v. Odom, 02-2698. p. 11 (La.App. 1 Cir. 6/27/03), 861 So.2d 187, 195.


source: Caselaw Access Project

author: PARRO, J.

license: Public Domain

text:
    STATE of Louisiana v. Jauve COLLINS.
    No. 2009 KA 1617.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 12, 2010.

      Richard J. Ward, Jr., District Attorney, Elizabeth A. Engolio, Assistant District Attorney, Plaquemine, LA, Attorneys for State of Louisiana.
    Frederick Kroenke, Louisiana Appellate Project, Baton Rouge, LA, Attorney for Defendant-Appellant, Jauve Collins.
    Before PARRO, KUHN, and McDonald, jj.

      . After the District Attorney of the Nineteenth Judicial District recused himself and his office in this matter, the Attorney General of the State of Louisiana appointed Richard J. Ward, Jr., District Attorney of the Eighteenth Judicial District, to act in the place of the recused District Attorney.

   PARRO, J.

|2The defendant, Juave Collins, was charged by grand jury indictment with second degree murder, in violation of LSA-R.S. 14:30.1. The defendant pled not guilty, but was found guilty as charged after a jury trial. The defendant was sentenced to life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. The defendant now appeals, assigning error as to the constitutionality of the sentence imposed and the effectiveness of counsel. For the following reasons, we affirm the conviction and sentence.

STATEMENT OF FACTS

On or about February 26, 2007, after 8:30 p.m., the Baton Rouge City Police Department responded to the shooting of an elderly victim, Henry Bellaire, at 221 River Crest Avenue in Baton Rouge. The victim’s daughter, Gaylyn Bellaire, was present at the time of the shooting. Gay-lyn testified that she routinely called home, as instructed by the victim, when she was within close proximity so he could meet her outside. Just before the shooting took place, Gaylyn called home and informed her parents that she was near the residence.

As she approached the residence, Gay-lyn observed three black males walking towards her home. Gaylyn pulled into the driveway and began carrying groceries into the residence. The victim opened the garage door and came out to assist her. When Gaylyn went back outside to retrieve more groceries, one of the males approached her father and stated, “Give me all your money.” The victim stated that he did not have any money, and the individual shot him. Gaylyn called for emergency assistance.

Gaylyn identified the defendant as the shooter, who was sixteen years old at the time of the shooting. The victim suffered a gunshot wound to the chest and died as a result. The other two black males at the scene of the |3shooting with the defendant, Tedrick Davis and Jonathan Dunn, also testified that the defendant was the person who shot the victim after attempting to rob him.

ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO

In assignment of error number one, the defendant contends that the trial court erred in imposing an unconstitutionally excessive punishment. The defendant contends that this case confirms the inherent difficulties in sentencing a juvenile to life imprisonment without parole. The defendant notes that the trial judge concluded that he was incapable of ever being rehabilitated even though he had never been convicted before committing this crime at the age of sixteen. The defendant cites Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), noting that the United States Supreme Court held that juvenile offenders have diminished culpability and concluded that a sentencing judge could not reliably predict a juvenile’s potential for rehabilitation and deterrence. The defendant notes that the defendant in Roper was sentenced to death as opposed to life imprisonment, but argues that the analysis in that case is still applicable to the instant case. In the second assignment of error, the defendant argues that in the event this court finds that the excessive sentence argument raised in assignment of error number one cannot be reviewed due to the lack of a motion to reconsider sentence, the failure of his trial counsel to file the motion constitutes ineffective assistance of counsel.

One purpose of the motion to reconsider sentence is to allow the defendant to raise any errors that may have occurred in sentencing while the trial judge still has the jurisdiction to change or correct the sentence. The defendant may point out such errors or deficiencies, or may present argument or evidence not considered in the original sentencing, thereby preventing the necessity of a remand for resentencing. State v. Mims, 619 So.2d 1059 (La.1993) (per curiam). Under the clear language of LSA-C.Cr.P. art. 881.1(E), failure to make or file a motion to reconsider sentence precludes a defendant from raising an objection to the sentence on appeal, including a claim of excessiveness. As noted by the defendant, a motion to reconsider sentence was not filed in this case. Accordingly, the defendant is procedurally barred from having his challenge to the sentence, raised in assignment of error number one, reviewed by this court on appeal. State v. Felder, 00-2887 (La.App. 1st Cir.9/28/01), 809 So.2d 360, 369, writ denied, 01-3027 (La.10/25/02), 827 So.2d 1173.

As noted, in assignment of error number two, the defendant argues that his trial counsel was ineffective in failing to file a motion to reconsider sentence. In the interest of judicial economy, we choose to consider the defendant’s excessiveness argument in order to address the claim of ineffective assistance of counsel. See State v. Wilkinson, 99-0803 (La.App. 1st Cir.2/18/00), 754 So.2d 301, 303, writ denied, 00-2336 (La.4/20/01), 790 So.2d 631.

As a general rule, a claim of ineffective assistance of counsel is more properly raised in an application for post-conviction relief in the trial court rather than on appeal. This is because post-conviction relief provides the opportunity for a full evidentiary hearing under LSA-C.Cr.P. art. 930. However, when the record is sufficient, this court may resolve this issue on direct appeal in the interest of judicial economy. State v. Lockhart, 629 So.2d 1195, 1207 (La.App. 1st Cir.1993), writ denied, 94-0050 (La.4/7/94), 635 So.2d 1132.

The claim of ineffective assistance of counsel is to be assessed by the two-part test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The defendant must show that counsel’s performance was deficient and that the deficiency prejudiced him. Counsel’s performance is deficient when it can be shown that he made errors so serious that he was not | functioning as the “counsel” guaranteed to the defendant by the Sixth Amendment. Counsel’s deficient performance will have prejudiced the defendant if he shows that the errors were so serious as to deprive him of a fair trial. The defendant must make both showings to prove that counsel was so ineffective as to require reversal. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. To carry his burden, the defendant “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.

The failure to file a motion to reconsider sentence in itself does not constitute ineffective assistance of counsel. Felder, 809 So.2d at 370. However, if the defendant can show a reasonable probability that, but for counsel’s error, his sentence would have been different, a basis for an ineffective assistance claim may be found. Thus, the defendant must show that but for his counsel’s failure to file a motion to reconsider sentence, the sentence would have been changed, either in the trial court or on appeal. Felder, 809 So.2d at 370.

The Eighth Amendment to the United States Constitution and Article I, Section 20, of the Louisiana Constitution prohibit the imposition of excessive punishment. Although a sentence falls within statutory limits, it may be excessive. State v. Sepulvado, 367 So.2d 762, 767 (La.1979). A sentence is considered constitutionally excessive if it is grossly disproportionate to the seriousness of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks one’s sense of justice. State v. Andrews, 94-0842 (La.App. 1st Cir.5/5/95), 655 So.2d 448, 454. The trial court has | (¡great discretion in imposing a sentence within the statutory limits, and such a sentence will not be set aside as excessive in the absence of a manifest abuse of discretion. See State v. Holts, 525 So.2d 1241, 1245 (La.App. 1st Cir.1988). Louisiana Code of Criminal Procedure article 894.1 sets forth the factors for the trial court to consider when imposing sentence. While the entire checklist of LSA-C.Cr.P. art. 894.1 need not be recited, the record must reflect the trial court adequately considered the criteria. State v. Brown, 02-2231 (La.App. 1st Cir.5/9/03), 849 So.2d 566, 569.

In State v. Dorthey, 623 So.2d 1276, 1280-81 (La.1993), the Louisiana Supreme Court recognized that if a trial judge determines that the punishment mandated by the Habitual Offender Law makes no measurable contribution to acceptable goals of punishment or that the sentence amounts to nothing more than the purposeful imposition of pain and suffering and is grossly out of proportion to the severity of the crime, he is duty bound to reduce the sentence to one that would not be constitutionally excessive. However, the holding in Dorthey was made only after, and in light of, express recognition by the court that the determination and definition of acts that are punishable as crimes is purely a legislative function. It is the legislature’s prerogative to determine the length of the sentence imposed for crimes classified as felonies. Moreover, courts are charged with applying these punishments unless they are found to be unconstitutional. Dorthey, 623 So.2d at 1278.

In State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672, 676, the Louisiana Supreme Court reexamined the issue of when Dorthey permits a downward departure from a mandatory minimum sentence, albeit in the context of the Habitual Offender Law. The court held that to rebut the presumption that the mandatory minimum sentence was constitutional, the defendant had to “clearly and convincingly” show that:

[he] is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the | .legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.

Johnson, 709 So.2d at 676. A trial judge may not rely solely upon the nonviolent nature of a crime before the court or of past crimes as evidence that justifies rebutting the presumption of constitutionality. Johnson, 709 So.2d at 676. While both Dorthey and Johnson involve the mandatory minimum sentences imposed under the Habitual Offender Law, the Louisiana Supreme Court has held that the sentencing review principles espoused in Dorthey are not restricted in application to the penalties provided by LSA-R.S. 15:529.1. See State v. Fobbs, 99-1024 (La.9/24/99), 744 So.2d 1274 (per curiam); State v. Henderson, 99-1945 (La.App. 1st Cir.6/23/00), 762 So.2d 747, 760 n. 5, writ denied, 00-2223 (La.6/15/01), 793 So.2d 1235; State v. Davis, 94-2332 (La.App. 1st Cir.12/15/95), 666 So.2d 400, 407-08, writ denied, 96-0127 (La.4/19/96), 671 So.2d 925.

At the outset, we reject any argument that the United States Supreme Court’s analysis in Roper applies with equal force to the instant case, as the court in that case was specifically analyzing whether the death penalty is a disproportionate punishment for juveniles. The court specifically held that once the diminished culpability of juveniles is recognized, it is evident that the penological justifications for the death penalty apply to them with lesser force than to adults. Moreover, in Roper the Supreme Court affirmed the Missouri Supreme Court’s setting aside the defendant’s death sentence and resentencing him to “life imprisonment without eligibility for probation, parole, or release except by act of the Governor.” Roper, 543 U.S. at 560, 125 S.Ct. at 1189.

In imposing sentence in this case, the trial court listened to an impact statement by the victim’s wife, Elizabeth Bellaire. Elizabeth stated, in part, that the victim was a church-going person and family man and that his death caused trauma to their close-knit family. The trial court noted that the ¡^defendant showed a deliberate cruelty to the victim and found any lesser sentence than the mandatory sentence would deprecate the seriousness of the offense. The trial court also took into consideration that the defendant is a youthful offender, sixteen at the time of the offense, but also noted that the defendant is a violent person.

Although the defendant was only sixteen at the time of the offense, he has failed to show how his youth justified a deviation from the mandatory sentence. See State v. Crotwell, 00-2551 (La.App. 1st Cir.11/9/01), 818 So.2d 84, 46; Henderson, 762 So.2d at 760-61. The defendant did not present any particular facts regarding his family history or special circumstances that would support a deviation from the mandatory sentence provided in LSA-R.S. 14:30.1(B). Based on the record before us, we find that the defendant has failed to show that he is exceptional or that the mandatory life sentence is not meaningfully tailored to his culpability, the gravity of the offense, and the circumstances of the case. Thus, we do not find that a downward departure from the mandatory life sentence was required in this case. The sentence imposed is not excessive and assignment of error number one lacks merit. Even if we were to conclude that the defendant’s trial counsel performed deficiently in not filing a motion to reconsider sentence, the defendant fails to show that he was prejudiced in this regard. Thus, the ineffective assistance of counsel argument raised in assignment of error number two is without merit. Accordingly, we affirm the conviction and sentence.

CONVICTION AND SENTENCE AFFIRMED.

      . The defendant would have to satisfy the requirements of LSA-C.Cr.P. art. 924 et seq., to receive such a hearing.


author: ’ GUIDRY, J.

text:
    Ron ABEL, et al v. NORTH OAKS MEDICAL CENTER, et al.
    No. 2009 CW 1186.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 12, 2010.

      Ron Abel, Donald Abel, Hammond, LA, and Melanie Dennison, Newport News, VA, Plaintiffs/Respondents.
    Stephen M. Pizzo, Guice A. Giambrone, III, Kelly A. Dugas, Metairie, LA, for Defendant/Relators, Dr. James L. Nelson and Dr. Merrill O. Hines, Jr.
    Ashley E. Sandage, Shaan M. Aucoin, Hammond, LA, for Defendant/Relator, North Oaks Medical Center.
    Before CARTER, C.J., GUIDRY, and PETTIGREW, JJ.
   ’ GUIDRY, J.

12In this writ application, medical malpractice defendants, James Nelson, M.D. and Merrill O. Hines, Jr., M.D., seek review of the May 12, 2009, judgment of the district court remanding to a medical review panel new allegations of negligence. For the reasons that follow, we grant the writ application, reverse that portion of the May 12, 2009, judgment that remanded the case to a medical review panel and vacate the remaining portions of the May 12, 2009, judgment.

FACTS AND PROCEDURAL HISTORY

On September 14, 1998, Doris Abel underwent surgery to correct a severe gas-troesophageal reflux problem. After the surgery, Ms. Abel developed complications showing signs of a suspected esophageal leak. Ms. Abel’s condition worsened and Ms. Abel died on October 1,1998.

Plaintiffs submitted their malpractice complaints against Drs. Nelson and Hines and North Oaks Medical Center (“NOMC”) for review by a medical review panel. On September 17, 2008, a medical review panel convened and rendered an opinion in favor of the defendants.

On November 17, 2003, plaintiffs filed suit against Drs. Nelson and Hines and NOMC. Over the next several years, discovery was conducted and the district court set a discovery cut-off date of October 16, 2008. On October 29, 2008, Drs. Nelson and Hines filed a motion for a status conference to select a trial date, which the district court set for November 20, 2008.

Days before the status conference was to be held, plaintiffs requested leave of court to file a “First Supplemental and Amending Petition for Damages.” The defendants objected, urging that the filing expanded the allegations and included additional claims not previously submitted to the medical review panel. Plaintiffs then filed a motion and order with the district court requesting the district court to Dremand the matter for resubmission to a new medical review panel for review of the new claims outlined in the First Supplemental and Amending Petition for Damages. The district court signed the order without a contradictory hearing. Thereafter, Drs. Hines and Nelson and NOMC filed motions for new trial on the remand issue. On May 12, 2009, the district court entered judgment denying defendants’ motions for new trial, denying plaintiffs’ motion for leave to file the first amended and supplemental petition, and granting plaintiffs’ motion for remand and remanded the matter to a medical review panel for the sole purpose of reviewing the new allegations of negligence raised in plaintiffs’ first supplemental and amending petition.

Drs. Nelson and Hines filed the instant writ application urging that the district court erred in granting plaintiffs’ motion to remand the case back to a medical review panel as there is no procedure in the MMA for remanding a case back to a panel once an opinion has been rendered and suit has been filed.

DISCUSSION

This court granted certiorari in order to determine whether the medical review panel procedure enumerated under La. R.S. 40:1299.47 authorizes a district court to remand to a medical review panel new allegations of medical malpractice discovered after the panel rendered an opinion and suit has been filed.

The facts are not in dispute with respect to this writ application. Therefore, the issue before this court is whether the trial court correctly interpreted and applied the law. Appellate review of questions of law is simply a review of whether the trial court was legally correct or incorrect. Williams v. Notami Hospitals of Louisiana, Inc., 2004-2289 (La.App. 1 Cir. 11/04/05), 927 So.2d 368, 372.

|4In reviewing the provisions of the Louisiana Medical Malpractice Act, La. R.S. 40:1299.41 et seq. (the “Act”) to determine the issue presented in this writ application, we are mindful that the Act must be strictly construed because it provides limitations on the liability of a health care provider and provides advantages to health care providers in derogation of the rights of tort victims. Williams, 927 So.2d at 373. One such advantage is that all malpractice claims against health care providers covered under the Act “shall be reviewed by a medical review panel.” Williams, 927 So.2d at 373; La. R.S. 40:1299.47(A)(1)(a).

Louisiana Revised Statute 40:1299.47 governs the medical review panel proceeding. The Act requires that all medical malpractice claims against covered health care providers are to be submitted to a medical review panel prior to filing suit in any court. Williams, 927 So.2d at 372; La. R.S. 40:1299.47(B)(1)(a)(i). Section A of La. R.S. 40:1299.47 governs the procedure for filing a request for review of malpractice complaints by a medical review panel.

As to initiating such a request, La. R.S. 40:1299.47(A)(2)(b) provides that a request for review of a malpractice claim “shall be deemed filed on the date of receipt of the request stamped and certified by the division of administration or on the date of mailing of the request if mailed to the division of administration by certified or registered mail.” Likewise, the Act requires that all requests for review of a malpractice claim identifying additional health care providers “shall also be filed with the division of administration.” La. R.S. 40:1299.47(A)(2)(a). The use of the term “shall” in these statutory provisions indicate that these procedures are mandatory. While the Act does not specifically address reviewing malpractice claims that are discovered after a panel has rendered an opinion and suit has been 15filed, we conclude that the procedures the legislature mandates for filing a request for review by a medical review panel also encompass malpractices claims that are discovered after the panel has rendered an opinion and suit has been filed.

We also find that the language in La. R.S. 40:1299.47 describing the medical review panel’s duty in the panel proceeding also provides support for our conclusion. In this regard, the Act provides that the panel shall have the sole duty to express its expert opinion as to whether or not the evidence supports the conclusion that the defendant or defendants acted or failed to act within the appropriate standards of care. La. R.S. 40:1299.47(G). In discharging this duty, the Act specifically requires the panel to render one or more of the following expert opinions. The panel may find:

(1) The evidence supports the conclusion that the defendant or defendants failed to comply with the appropriate standard of care as charged in the complaint.
(2) The evidence does not support the conclusion that the defendant or defendants failed to meet the applicable standard of care as charged in the complaint.
(3) That there is a material issue of fact, not requiring expert opinion, bearing on liability for consideration by the court.

La. R.S. 40:1299.47(G)(1)(2)(3) (Emphasis added).

Clearly, to fulfill these requirements, the panel must be presented with a medical malpractice complaint as provided in Section A. Moreover, we find that once a panel renders an expert opinion on a malpractice complaint filed with the division of administration, its duty has been discharged. Therefore, if additional malpractice claims are discovered after the panel has rendered an expert opinion, which were not considered by the panel, a new attorney chairman must be selected and these new claims must be presented for review by a new medical review panel established according to La. R.S. 40:1299.47.

|fiIn the instant case, the parties do not dispute that plaintiffs’ First Supplemental and Amending Petition for Damages outlines claims that were not presented to a medical review panel. The Act provides that the exclusive manner available to plaintiffs to have their new malpractice claims submitted to a medical review panel for review is by the claimant filing a new request for review to the division of administration as provided in La. R.S. 40:1299.47. The ruling of the court is limited to the issue presented for review. We express no opinion on any exceptions or defenses available to the defendants pursuant to La. R.S. 40:1299.47(B)(2)(a).

CONCLUSION

The Louisiana Medical Malpractice Act, La. R.S. 40:1299.41 et seq., provides the procedures and process for submitting a malpractice claim for pre-suit review by a medical review panel. La. R.S. 40:1299.47. Under the Act, a request for review of a malpractice claim is initiated when a claimant files a request for review with the division of administration. La. R.S. 40:1299.47(A)(l)(b), (2)(b). The Act does not provide a procedure that allows the trial court to remand to a new medical review panel new claims of malpractice discovered after the medical review panel has rendered its expert opinion and suit has been instituted. A pre-suit review of any new claims of malpractice that are developed during the litigation of the medical malpractice action, which were not encompassed in the complaint and evidence considered by the medical review panel when it rendered its expert opinion, can only be presented for review by filing a new request for review with the division of administration. For the foregoing reasons, we find that the district court erred in remanding the matter back to a medical review panel. Accordingly, that portion of the May 12, 2009 judgment that remanded the case to |7a medical review panel is reversed, the remainder of the May 12, 2009 judgment is vacated, and the case is remanded to the district court for action in accordance with this ruling. Plaintiffs also filed a motion to dismiss the writ application. Plaintiffs’ motion to dismiss the writ application is denied.

WRIT GRANTED, JUDGMENT REVERSED IN PART, VACATED IN PART, REMANDED.

      . No action against a health care provider covered by this Part, or his insurer, may be commenced in any court before the claimant’s proposed complaint has been presented to a medical review panel established pursuant to this Section. La. R.S. 40:1299.47(B)( 1 )(a)(i).

      . In their motion for remand, plaintiffs acknowledge that these new claims were not submitted to a medical review panel for pre-suit review.


author: McDonald, j.

text:
    CHARLES ROBERT CARTER PROPERTIES, INC. and Studio Properties, L.L.C. v. ECOSCIENCE RESOURCE GROUP, L.L.C.
    No. 2009 CA 1163.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 17, 2010.
    Rehearing Denied April 14, 2010.
    Roy H. Maughan, Jr., Baton Rouge, Louisiana, for Plaintiffs/Appellants, Charles Robert Carter Properties, Inc. & Studio Properties, L.L.C.
    Troy J. Charpentier, Baton Rouge, Louisiana, for Defendant/Appellee, EcoScience Resource Group, L.L.C.
    Before PARRO, KUHN, and McDonald, jj.
   McDonald, j.

■ 12This appeal is from a judgment in the Nineteenth Judicial District Court, granting a motion for summary judgment by defendant, EcoScience Resource Group, L.L.C., and denying a motion for summary judgment by plaintiffs, Charles Robert Carter Properties, Inc. and Studio Properties, L.L.C. The judgment also dismissed all claims of the plaintiffs with prejudice and reserved defendant’s right to pursue claims raised in its reconventional demand.

The record in the appeal of a judgment on a motion for summary judgment is reviewed by this court de novo. We find that the dispositive legal issue is defendant’s contention that under Louisiana Civil Code article 2016, EcoScience had the right to consider the contract of lease dissolved. Louisiana Civil Code article 2016 provides:

When a delayed performance would no longer be of value to the obligee or when it is evident that the obligor will not perform, the obligee may regard the contract as dissolved without any notice to the obligor.

The material facts in this case are that in July 2005 EcoScience signed a three-year renewal of a lease that originated that in 1999. The original lease was of suite 113, Lakeland Park, located at 12010 Lakeland Park Boulevard, Baton Rouge, Louisiana. During the course of its tenancy, EcoScience had amended and renewed its lease to occupy suites 117 and 121, rather than suite 113. Later, EcoScience had reoccupied suite 113 in addition to suites 117 and 121 pursuant to another addendum to the lease.

In July 2005, the lease renewal was negotiated by Stacy Thibodeaux, majority partner in EcoScience, and Simone Frater-nali, owner of the Lakeland Park property, through his company, American Overseas Company of Baton Rouge. Mr. Fraterna-li’s company also occupied office space at Lakeland Park. The lease addendum and renewal signed by both parties, provided for: a three-year term; | .¡lessee to expand into adjacent Suite #109 during the term of the lease; an increased rental rate; a new total square footage of 5,700 sq. ft.; and tenant’s proportionate share of CAM (common area maintenance) expenses of 12%. It further provided that “[TJenant has an option to expand to adjacent suite # 125 during the term of the Lease. A written notice must be given 60 days prior to exercise of such option.”

In December 2005, Charles Robert Carter Properties, Inc. and Studio Properties, L.L.C. purchased Lakeland Park. The purchase was of three office buildings located at 12010, 12020, and 12030 Lakeland Park Boulevard. As evidenced by the addenda to the 1999 lease, EcoScience was a growing business. On January 26, 2006, Stacy Thibodeaux sent a letter via facsimile to Charles Robert Carter Properties, Inc. stating, “As we discussed in our prior meeting, this letter serves as a 60-day notice to allow EcoScience Resource Group to occupy a portion of the adjacent Suite # 125 that is now occupied by Guarino Real Estate & Development.”

On March 20, 2006, a letter was addressed to Ms. Thibodeaux stating:

I represent Charles Robert Carter Properties, Incorporated. Your January 26th letter has been forwarded to me for response. I understand EcoScience Resource Group, L.L.C. claims the right to expand into Unit 125 after giving sixty-(60-)day notice based on a provision in an addendum dated July 13, 2005. Unfortunately, that agreement, if valid, was not made with the current owners of the property and your lease was not recorded. As an additional complication, Suite 125 is presently occupied by American [Overseas] Company, Incorporated, under a lease agreement with the current owner of the property.
If it will accommodate you, Suite A-109, located at 12030 Lakeland Park Boulevard will be available in May 2006. If you are interested in this suite, we will reserve it for you. If any other suites become available in the complex, we will likewise notify you. We sincerely regret any inconvenience this confusion causes, but cannot take responsibility for it and have no means of displacing the current tenant in Unit 125.

The attorney representing Charles Robert Carter Properties, Inc. was also a partner in Studio Park Properties, L.L.C., co-owner of the Lakeland Park property.

14Upon receipt of the letter, Ms. Thibo-deaux began looking for another site that would accommodate her growing business. On April 27, 2006, she signed a binding purchase agreement on a property at 11827 Sunray Avenue, subject to a 45-day contingency period, during which the property could be inspected and the agreement cancelled at purchaser’s sole discretion. On May 4, 2006, an agreement was signed committing to closing on the Sunray Avenue property within 60 days.

By letter of June 25, 2006, counsel for Carter Properties wrote to Ms. Thibo-deaux to confirm that it had been arranged for EcoScience to move into “the adjacent space referred to in the most recent lease renewal document.” The letter also stated that it was understood that “you are no longer in need of that space and will not be moving into same” and “we will consider ourselves relieved of any obligation to provide that space in the future.” On June 30, 2006, by letter from counsel, Ms. Thi-bodeaux gave notice that any lease obligation EcoScience may have for space in the Lakeland Park Office Building was terminated effective July 31, 2006, and EcoScience would vacate the building on or before July 31, 2006.

On July 11, 2006, plaintiffs filed a petition for writ of sequestration to enforce lien and to command the Sheriff of East Baton Rouge Parish to seize the furniture and other movables contained in the leased premises located at 12010 Lakeland Park Boulevard, Suites 113, 117, and 121. It also prayed for judgment against the defendant in the sum of $103,140.00, together with interest at the rate of 18% per annum on all rental installments, common area maintenance charges, taxes, attorney fees, and all costs.

A motion for summary judgment was filed by plaintiffs in November 2008, alleging that defendant had breached the lease and therefore, owed $105,109.90 for rent, tenant improvements required to re-lease the premises, and common area maintenance charges, together with legal interest from the date each debt became due. In January 2009, EcoScience filed a motion for partial summary judgment, ^seeking dismissal of plaintiffs’ claims and reserving EcoScience’s right to pursue its claim for the damages caused by plaintiffs’ breach of the lease. By judgment dated March 30, 2009, the trial court denied the plaintiffs’ motion for summary judgment and granted EcoScienee’s motion for partial summary judgment, dismissing plaintiffs’ claims, and further ordered that the rights of defendant, EcoScience Resource Group, L.L.C., to pursue claims raised in its re-conventional demand shall be retained.

Plaintiffs appealed alleging four assignments of error: (1) the trial court erred in granting EcoSeience’s motion for summary judgment, dismissing all of plaintiffs’ claims, and finding that EcoScience was entitled to dissolve the lease without judicial action; (2) the trial court erred when it dismissed plaintiffs’ claims when there was evidence of substantial performance under the lease agreement, no evidence of substantial impairment to the interests of EcoScience, and no notice of default; (3) the trial court erred in denying plaintiffs’ motion for summary judgment requesting judgment for rent due under the lease after EcoScience moved out of the property, costs, repairs, and common area maintenance charges, together with legal interest and attorney fees; and (4) genuine issues of material fact exist precluding summary judgment.

We agree there are facts in dispute. The record is unclear as to exactly what space Ms. Thibodeaux intended to occupy. Suite 125 may not have been occupied by either Guarino Real Estate Development, as claimed by Ms. Thibodeaux’s letter of January 26, 2006, or by American Overseas, as claimed in Carter Properties’ letter of March 20, 2006. Fráternali testified in his deposition that suite 125 was occupied by LCR; that they were tenants prior to EcoScience’s original occupancy; |fiand that their lease was for a term of at least one year and would not expire by 60 days from Ms. Thibodeaux’s January notice of intention to expand into the “adjacent suite.” The testimony in the depositions of both Stacy Thibodeaux and Rennie Carter, a property manager of Carter Properties, was quite confused on the subject of suite numbers. However, we have determined that this factual information is not material to settling the legal dispute in this matter.

The essential question is whether Ms. Thibodeaux had the legal right to consider the lease breached and her obligation dissolved upon receipt of the March 20, 2006 letter from counsel representing her landlord. We note that the letter was received only days before the expiration of the 60-day notice required by the lease before she could expand into the requested space necessary for her business; that she had been advised by a Carter Properties representative prior to sending the January notice letter that moving into the needed space was not a problem; and that the March 20, 2006 letter advised that she could not move into the space as agreed.

Regardless of which “adjacent space” EcoScience intended to occupy, the lease agreement that was signed in July 2005 should have served to insure that space would be available to it on 60 days notice. The deposition testimony of Rennie Carter and Simone Fraternali was vague or it completely disavowed recollection of the time frames in which some conversations took place. However, there is sufficient evidence, documentary and testamentary, to establish the necessary material facts. Ms. Thibodeaux’s affidavit, deposition testimony, and the circumstantial evidence all support the belief, as asserted by Ms. Thi-bodeaux, that the 2005 lease renewal would not have been signed, and the contractual obligation assumed, without assurance that space for the expanding business would be available.

Plaintiffs contend that it was not a breach of the contract, only a delay in performance, as evidenced by the June 25, 2006 letter. They also posit substantial |7contract performance by virtue of the space occupied as opposed to the additional space needed. We have considered these arguments, but reject them. We also do not find persuasive the plaintiffs’ recent interpretation of what information was intended to be conveyed in the March 20, 2006 letter. We consider the import of the letter to be what was reasonably conveyed to Ms. Thibodeaux at the time it was received.

We are particularly mindful of the legal requirement that contracts be performed in good faith. La. C.C. art. 1983. We also consider that procedural rules are intended to implement the substantive law and are not an end in themselves. Unwired Telecom Corp. v. Parish of Calcasieu, 03-0732, p. 10 (La.1/19/05), 903 So.2d 392, 401. Therefore, we find that a deviation from the lease’s options for giving notice, when the information was delivered and received, is not of legal significance.

After a careful review of the record in this case and extensive research into the applicable law, we conclude that Ms. Thi-bodeaux had the legal right to consider her obligations dissolved without judicial action, as provided for in Civil Code article 2016. Therefore, the judgment appealed is affirmed. Costs are assessed to plaintiffs, Charles Robert Carter Properties, Inc. and Studio Properties, L.L.C.

AFFIRMED.

      . A panel of this court found that the March 30, 2009 judgment appealed in this matter appeared to be a partial final judgment that had not been designated as final in accordance with La. C.C.P. art. 1915(B). Therefore, a rule to show cause order was issued by this court. On August 3, 2009, the trial court issued a judgment designating the March 30, 2009 judgment as final, which was filed into this record.


text:
    ALLSTATE INSURANCE COMPANY as Subrogee Of Rebecca Waldrop and Eric Miller v. Habib MOHAMADIAN, ABC Insurance Company, Lamb’S Repair Service, L.L.C, XYZ Insurance Company, DEF Manufacturing Company and GHI Insurance Company.
    No. 2009 CA 1126.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 17, 2010.
    Charles E. Riley, IV, Christopher B. Conley, New Orleans, LA, for Plaintiff/Appellant, Allstate Insurance Company.
    Amos H. Davis, Baton Rouge, LA, for Defendants/Appellees, Lamb’s Repair Service, L.L.C, and Colony Insurance Company-
    Before: PARRO, KUHN, and McDonald, jj.
   McDonald, j.

| ?In December of 2006, Rebecca Waldrop and Eric Miller were each renting one townhouse in a four-townhouse building located on East Riverdale Road in Baton Rouge. One of the townhouses in the building was owned by Dr. Habib Moha-madian, who rented it to a tenant. On December 14, 2006, Dr. Mohamadian had his townhouse’s HVAC system serviced by Lamb’s Repair Service, L.L.C., which replaced two burned supply lines/heating coils in the system.

On December 23, 2006, a fire occurred at the four-unit building, and after an investigation, the East Baton Rouge Parish Fire Department determined that the fire originated at the HVAC unit located in the attic of Dr. Mohamadian’s townhouse. Ms. Waldrop and Mr. Miller both had renter’s insurance policies with Allstate Insurance Company (Allstate); both filed claims with Allstate, and both were paid for their damages.

Allstate, as the subrogee of Ms. Waldrop and Mr. Miller, then filed suit against Dr. Mohamadian, ABC Insurance Company (his insurer), Lamb’s Repair Service, L.L.C., XYZ Insurance Company (its insurer), DEF Manufacturing Company (manufacturer of the HVAC system and the parts used by Lamb’s Repair Service), and GHI Insurance Company (the manufacturer’s insurer), asserting that Dr. Mo-hamadian, his agents, and employees breached their duty by negligently maintaining the townhouse and by negligently installing and maintaining the HVAC system. In the alternative, Allstate asserted that Lamb’s Repair Service and its agents and employees breached their duty by negligently performing the HVAC repair work; and also in the alternative, Allstate asserted that DEF and its agents and employees negligently designed and manufactured the HVAC system and parts. Allstate asserted that it had suffered damages in the amount of $142,911.40, plus Ms. Waldrop and Mr. Miller had each paid a $500.00 deductible under their | (¡policies. Allstate prayed for payment of its damages, together with costs and legal interest.

Lamb’s Repair Service answered the petition with a general denial and asserted that any negligence or fault on the part of third parties, for which Lamb’s Repair Service was not responsible, would diminish the plaintiffs recovery. Lamb’s Repair Service further asserted that if one or more parties had failed to preserve and spoliated the evidence, that would bar recovery. It also claimed credit for any money paid or available from insurance or income in kind and prayed for judgment in its favor.

Thereafter, Dr. Mohamadian filed a motion for summary judgment, asserting that there was no genuine issue of material fact that the East Baton Rouge Parish Fire Department report stated that the fire originated in the area of the air conditioning unit, but not how or why; that it did not find that anyone did something they should not have done or failed to do something they should have done, nor did it suggest what could have been done to prevent the fire; and that the factors contributing to the ignition were found to be “none” and “undetermined.” Dr. Moha-madian asserted that the report by Allstate’s fire investigator, Mervin A. Stringer, stated that the specific cause of the fire and the source of ignition were undetermined. Thus, again, the report did not find something that anyone should not have done or failed to do, nor did it suggest what could have been done to prevent the fire.

Dr. Mohamadian asserted that Allstate could not produce factual support sufficient to establish that it could satisfy its evidentiary burden of proof at trial that Dr. Mohamadian was negligent; that res ipsa loquitor did not apply where direct evidence was available; that there was no spoliation of evidence by Dr. Mohamadian, as two investigations were done of the fire, and cleanup work was not begun until six weeks after the fire. Therefore, there was no genuine issue of |4material fact, and the motion for summary judgment should be granted dismissing Allstate’s claim with prejudice.

Lamb’s Repair Service and its insurer, Colony Insurance Company, also filed a motion for summary judgment, asserting that on December 14, 2006, Dr. Mohamadi-an had called Willard Jerome Lamb, the owner of Lamb’s Repair Service, who was certified in air conditioning and heating repair, and advised that the heating system at his townhouse was not working. Mr. Lamb investigated and discovered that the breaker had tripped and that one of the supply lines needed to be replaced. Mr. Lamb replaced the supply line and checked the system, using an amp meter. Lamb’s Repair Service asserted that if it had installed the supply line improperly, the breaker would have tripped, and the amp meter would have demonstrated it was not working properly. However, this did not happen. Thus, the system was in proper working order when Mr. Lamb completed the job. Lamb’s Repair Service asserted that while Allstate alleged that it failed to use reasonable care in replacing and installing the HVAC unit, Allstate had no factual support sufficient to satisfy its evidentiary burden of proof at trial, and res ipsa loquitor did not apply to establish liability on the part of Lamb’s Repair Service. Thus, there was no genuine issue of material fact, and as a matter of law, Lamb’s Repair Service was entitled to a summary judgment dismissing Allstate’s claims.

On May 1, 2008, Allstate dismissed its claims against Dr. Mohamadian. On July 11, 2008, the trial court denied the motion for summary judgment filed by Lamb’s Repair Service and Colony Insurance Company. On July 16, 2008, Lamb’s Repair Service and Colony Insurance Company filed a motion and order for written findings of fact and reasons for judgment. Thereafter, the trial court set|fithe request for written reasons for a contradictory hearing on August 11, 2008. The hearing was passed without date.

On November 18, 2008, Lamb’s Repair Service filed a “MOTION FOR NEW TRIAL AND/OR RECONSIDERATION OF PREVIOUSLY FILED MOTION FOR SUMMARY JUDGMENT; ALTERNATIVELY, MOTION TO SET ASIDE OR RECALL THE JUDGMENT SIGNED JULY 10, 2008.” In its motion, Lamb’s Repair Service stated:

1.
Lamb’s Repair Service, LLC filed a Motion for Summary Judgment on liability on April 9, 2008 which was heard on May 19, 2008. At the conclusion of oral argument, the Court initially granted this Motion for Summary Judgment. At the urging of counsel for Allstate Insurance Company, the Motion for Summary Judgment was then taken under advisement. On June 30, 2008, a Minute Entry was faxed to us denying the Motion for Summary Judgment without reasons. A Judgment was signed on July 10, 2008.
2.
A Motion and Order for Written Findings of Fact and Reasons for Judgment was filed pursuant to Louisiana Code of Civil Procedure article 1917 on July 16, 2008. On July 22, 2008, Your Honor scheduled a contradictory hearing relative to our Motion for Written Findings of Fact and Reasons for Judgment, said hearing being scheduled on August 11, 2008. On July 30, 2008, the only other party, Allstate Insurance Company, through its attorneys, Charles E. Reilly and Joshua M. Hudson, filed a formal Memorandum advising the Court that Allstate Insurance Company had no opposition to our Motion and Order for Written Findings of Fact and Reasons for Judgment. Accordingly, Allstate Insurance Company’s attorney and I concluded that there was no reason to have a contradictory hearing. To date, we have received no written findings of fact or reasons for judgment.
3.
On November 10, 2008, the Court was contacted to find out when written findings of fact and reasons for judgment could be expected. Undersigned counsel was instructed by Your Honor’s Judicial Assistant, Ms. Eileen Knight, to file this Motion for New Trial and/or Reconsideration relative to Lamb’s Repair Service, LLC’s previously filed Motion for Summary Judgment.

| (¡Allstate filed an opposition to the motion for new trial, asserting that the motion was untimely, as La. C.C.P. art. 1974 provided a seven-day delay to file a motion for new trial, and four months had passed between the trial court’s judgment denying the motion for summary judgment and Lamb’s Repair Service’s filing of a motion for new trial. After a hearing, the trial court granted Lamb’s Repair Service’s motion for new trial and signed a judgment on December 31, 2008, granting Lamb’s Repair Service’s motion for summary judgment. Allstate is appealing that judgment, asserting that the trial court erred in granting the motion for summary judgment in favor of Lamb’s Repair Service.

ANALYSIS

A motion for new trial can be taken from a final judgment. The denial of a motion for summary judgment is not a final judgment. Clement v. American Motorists Insurance Company, 98-504 (La.App. 3 Cir. 2/3/99), 735 So.2d 670, 672, writ denied, 99-0603 (La.4/23/99), 742 So.2d 886. The denial of a motion for summary judgment is an interlocutory judgment that is not appealable. La. C.C.P. art. 968; Ascension School Employees Credit Union v. Provost Salter Harper & Alford, L.L.C., 06-0992 (La.App. 1 Cir. 3/23/07), 960 So.2d 939, 940. The denial of a motion for summary judgment is reviewable by supervisory writ. See Clement v. American Motorists Insurance Company, 98-504, 735 So.2d at 671-72.

Thus, if Lamb’s Repair Service sought review of the denial of its motion for summary judgment, rather than filing a motion for new trial, it should have filed an application for supervisory writs. We find that the trial court committed legal error in granting Lamb’s Repair Service’s motion for new trial and then granting its [./motion for summary judgment. Thus, we reverse the trial court judgment granting Lamb’s Repair Service’s motion for new trial and its motion for summary judgment, and we remand the case to the trial court. Costs are assessed against Lamb’s Repair Service.

REVERSED AND REMANDED.

      . Although this judgment lacks decretal language, that issue is not before the court on appeal.

      . This judgment was signed July 11, 2008.

      . We note that the Louisiana Code of Civil Procedure has no provisions for a "Motion to Reconsider.” The proper designation when seeking reconsideration of a judgment is a "Motion for New Trial.” See La. C.C.P. arts. 1971-1979; Boudreaux v. Mid-Continent Casualty Co., 05-2453 (La.App. 1 Cir. 11/3/06), 950 So.2d 839, 842 n. 4, writ denied, 06-2775 (La.1/26/07), 948 So.2d 171.

      . We note that Lamb's Repair Service can file a new motion for summary judgment with the trial court.


author: WHIPPLE, J.

text:
    Laurie Ann SENSEBE v. CANAL INDEMNITY COMPANY, Mississippi Farm Bureau Casualty Insurance Company, Top Hatch, Inc. and Deborah Boudreaux.
    No. 2009 CA 1325.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 24, 2010.

      Michael Hingle, Austin McElroy, Slidell, LA, Thomas M. Discon, Mandeville, LA, for Plaintiff/Appellee, Laurie Ann Sensebe.
    Ashley E. Sandage, Hammond, LA, for DefendantyAppellee, State Farm Mutual Automobile Insurance Company.
    Michael J. Bourquard Genevieve K. Jacques Nicholas J. Chauvin New Orleans, LA for Defendants/Appellants, Canal Indemnity Company, Top Hatch, Inc., and Deborah Boudreaux.
    Dan Richard Dorsey, Caroline D. Bark-erding, Covington, LA, for Defendant/Ap-pellee, Mississippi Farm Bureau Casualty Insurance Company.
    Before WHIPPLE, HUGHES and WELCH, JJ.
   WHIPPLE, J.

|2This matter is before us on appeal by defendants, Canal Indemnity Company (“Canal Indemnity”) and Top Hatch, Inc. (“Top Hatch”), from a judgment of the trial court granting summary judgment in favor of Mississippi Farm Bureau Casualty Company (“Mississippi Farm Bureau”) and dismissing all claims against Mississippi Farm Bureau with prejudice. For the following reasons, we reverse and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

On November 16, 2006, plaintiff, Laurie Ann Sensebe, who was operating a 2006 Ford Escape, was traveling westbound on the 1-10 “twin span” in St. Tammany Parish when her vehicle was rear-ended by a 2006 Dodge Ram 3500 truck, owned by Gregory Hyneman, but being operated by Deborah Boudreaux, in the course and scope of Boudreaux’s employment as a driver with Top Hatch.

On the day of the accident, Boudreaux had traveled in a company vehicle from Top Hatch’s office in Metairie, Louisiana, to the Dub Herring Ford Dealership in Picayune, Mississippi, to pick up Hyne-man’s vehicle and drive it back to Top Hatch, where the truck was scheduled to have leather upholstery installed. As a driver for Top Hatch, Boudreaux routinely travelled to dealerships to pick up and transport vehicles to Top Hatch for the installation of leather upholstery or sunroofs, and then drove back to the dealership after completion of the service/repair. Thus, Top Hatch provided Boudreaux with a company vehicle to travel to and from the dealerships and also provided a cell phone.

At the time of the accident, Canal Indemnity provided a garage operations policy to Top Hatch, and Mississippi Farm Bureau provided an automobile liability policy to Gregory Hyneman for the Dodge truck.

|sAs a result of the accident, plaintiff filed a suit for damages naming as defendants Top Hatch, Canal Indemnity, Mississippi Farm Bureau, and Deborah Bou-dreaux. By amending petitions, Dub Herring Ford and plaintiffs UM carrier, State Farm Mutual Automobile Insurance Company, were also named as defendants. On October 16, 2008, Canal Indemnity and Top Hatch filed a motion for summary judgment, contending that Canal’s policy only provided excess coverage after the limits in Mississippi Farm Bureau’s policy were exhausted. On January 21, 2009, Mississippi Farm Bureau filed a motion for summary judgment, contending that the automobile business exclusion in its policy precluded coverage for the accident herein. The matters were heard by the trial court on April 1, 2009, after which the court denied the motion for summary judgment filed by Canal Indemnity and Top Hatch, and granted summary judgment in favor of Mississippi Farm Bureau, dismissing all demands against Mississippi Farm Bureau with prejudice. A written judgment was signed on April 15, 2009.

Canal Indemnity and Top Hatch then filed the instant appeal, contending that the trial court erred in granting summary judgment where: (1) the Louisiana Supreme Court has held that business use exclusions violate public policy; (2) the activities of Top Hatch do not fall within the “automobile business” definition in the policy so as to exclude coverage; and (8) the Canal Indemnity policy is excess over any other collectible insurance.

DISCUSSION

A motion for summary judgment is a procedural device used to avoid a full-scale trial, where there is no genuine factual dispute. Sanders v. Ashland Oil, Inc., 96-1751 (La.App. 1st Cir.6/20/97), 696 So.2d 1031, 1034, writ denied, 97-1911 (La.10/31/97), 703 So.2d 29. It should be granted only if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966.

The summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action and is now favored. LSA-C.C.P. art. 966(A)(2). The initial burden continues to remain with the mover to show that no genuine issue of material fact exists. If the moving party points out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action or defense, then the nonmoving party must produce factual support sufficient to satisfy his evidentiary burden at trial. LSA-C.C.P. art. 966(C)(2). If the nonmoving party fails to do so, there is no genuine issue of material fact and summary judgment should be granted. LSAC.C.P. arts. 966 and 967; Berzas v. OXY USA, Inc., 29,835 (La.App. 2nd Cir.9/24/97), 699 So.2d 1149, 1153-1154.

Appellate courts review summary judgments de novo under the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Bezel v. Original Library Joe’s, Inc., 2001-1586, 2001-1587 (La.App. 1st Cir.11/08/02), 838 So.2d 796, 800. Because it is the applicable substantive law that determines materiality, whether or not a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Rambo v. Walker, 97-2371 (La.App. 1st Cir.11/6/98), 722 So.2d 86, 88, writ denied, 98-3030 (La.1/29/99), 736 So.2d 840. An insurer seeking to avoid coverage through summary judgment must prove some exclusion applies to preclude coverage. Henly v. Phillips Abita Lumber Company, 2006-1856 (La.App. 1st Cir.10/3/07), 971 So.2d 1104, 1108.

| .¡Applicability of the “Business Use” Exclusion (Assignment of Error Number Two)

Because a finding by this court that the automobile business use exclusion does not apply herein, as asserted in assignment of error number two, would negate the need to address or decide whether such an exclusion violates public policy, as asserted in assignment of error number one, we elect to address Canal Indemnity and Top Hatch’s second assignment of error initially. In the second assignment of error, Canal Indemnity and Top Hatch contend that the exclusion in the Mississippi Farm Bureau policy is inapplicable and cannot serve to preclude coverage, because the activities conducted by Top Hatch do not constitute or fall within the policy’s definition of an excluded “automobile business.”

The pertinent exclusionary language in Mississippi Farm Bureau’s policy provides, under the definition of an “insured,” that “[t]he insurance with respect to any person or organization other than the named insured or spouse does not apply ... to any person or organization, or to any agent or employee thereof, operating an automobile business, with respect to any accident arising out of the operation thereof.” An “automobile business” is further defined in the policy as “an automobile sales agency, repair shop, service station, storage garage or public parking place.”

An insurance policy is an agreement between the parties and should be interpreted by using ordinary contract principles. Smith v. Matthews, 611 So.2d 1377, 1379 (La.1993). If the language in an insurance contract is clear and unambiguous, the agreement must be enforced as written, LSA-C.C. art. 2046; Dunn v. Potomac Insurance Company of Illinois, 94-2202 (La.App. 1st Cir.6/23/95), 657 So.2d 660, 663, and the court should not strain to find ambiguity where none exists. Strickland v. State Farm Insurance Companies, 607 So.2d 769, 772 (La.App. 1st Cir.1992). However, if there is any doubt or ambiguity as to the (¡meaning of a provision in an insurance policy, it must be construed in favor of the insured and against the insurer. See LSA-C.C. art. 2056. When the ambiguity relates to an exclusionary clause, the law requires that the contract be interpreted liberally in favor of coverage. Borden, Inc. v. Howard Trucking Company, Inc., 454 So.2d 1081, 1090 (La.1983). Whether a contract is ambiguous is a question of law. Strickland, 607 So.2d at 772.

An insurer has the burden of proving that a loss falls within a policy exclusion. Louisiana Maintenance Services, Inc. v. Certain Underwriters at Lloyd’s of London, 616 So.2d 1250, 1252 (La.1993). Additionally, in determining whether an exclusion applies to preclude coverage, courts are guided by the well-recognized rule that an exclusionary clause in an insurance policy must be strictly construed. Calogero v. Safeway Insurance Company of Louisiana, 99-1625 (La.1/19/00), 753 So.2d 170, 173. Nonetheless, an insurance policy, including its exclusions, should not be interpreted in an unreasonable or strained manner so as to enlarge or to restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion. North American Treatment Systems, Inc. v. Scottsdale Insurance Compa ny, 2005-0081 (La.App. 1st Cir.8/23/06), 943 So.2d 429, 443, writs denied, 2006-2918, 2006-2803 (La.2/16/07), 949 So.2d 423, 424.

In the instant case, Mississippi Farm Bureau had the burden of proving that the accident at issue herein arose from the operation of an “automobile business” in order to exclude coverage under the policy. In response to the appeal, and the appellants’ contention that the exclusion does not apply herein, Mississippi Farm Bureau argues that Top Hatch candidly acknowledged in its answers to interrogatories that it “installs leather interiors and performs repairs to sunroofs.” Thus, Mississippi Farm Bureau contends, because Top Hatch performs “repairs” or “services” to automobile leather upholstery and sun roofs, Top Hatch qualifies 17as an automobile “repair shop” or “service station,” and, consequently, is an excluded “automobile business” under the terms of the policy. Mississippi Farm Bureau further argues that the arguments of Canal Indemnity and Top Hatch must fall because the appellants have erroneously focused on the purpose of the particular job, ie., having leather upholstery installed for purely aesthetic reasons, rather than the nature of Top Hatch’s business as a whole, in determining whether the exclusion applies. Mississippi Farm Bureau argues that it does not matter why the vehicle was being transported at the time of the accident, only that the accident arose from the operation of Top Hatch’s automobile repair business.

We disagree. The application of the business use exclusion depends upon the purpose of the activity at the time of the accident. Stills v. Mims, 42,799 (La.App. 2nd Cir.12/5/07), 973 So.2d 118, 123. The undisputed facts show that the accident occurred while the vehicle was being driven to Top Hatch’s office. Further, at the time of the accident, the vehicle was being transported to Top Hatch by its employee solely for the purpose of installing leather upholstery. On review, we find that the installation of leather upholstery is an after-market upgrade and not an automobile repair or service as reasonably contemplated by these terms. Accordingly, after strictly construing the policy exclusion, as we must, we find that Top Hatch’s business of installing leather seat upgrades did not render Top Hatch an “automobile repair shop” or “automobile service station” so as to invoke application of the policy’s “automobile business” exclusion. Thus, the trial court erred in finding otherwise and in granting summary judgment in favor of Mississippi Farm Bureau.

Because we find that the activities being conducted by Top Hatch at the time of the accident do not strictly fall with the automobile business exclusion in Mississippi Farm Bureau’s policy, we pretermit discussion of Canal Indemnity and Top Hatch’s first assignment of error.

| ^Coverage (Assignment of Error Number Three)

In its final assignment of error, Canal Indemnity and Top Hatch argue that coverage under the Canal Indemnity policy is “excess” and only provides coverage for the subject accident after the Mississippi Farm Bureau policy limits of $100,000.00 are exhausted. This same argument was asserted in their motion for summary judgment, which was denied by the trial court in the same judgment that granted Mississippi Farm Bureau’s motion for summary judgment, which judgment was designated as final pursuant to LSA-C.C.P. art. 1915(B)(1).

Given the trial court’s grant of summary judgment in favor of Mississippi Farm Bureau, the trial court did not determine the issue of the amount and extent of any coverage afforded under the Mississippi Farm Bureau policy. Moreover, Canal Indemnity and Top Hatch did not seek review of the denial of their motion for summary judgment, which is an interlocutory judgment and is generally not appealable. See LSA-C.C.P. art. 968; Triche v. Martin, 2008-1220 (La.App. 1st Cir.5/8/09), 13 So.3d 649, 653, n. 6, writ denied, 2009-1284 (La.9/25/09), 18 So.3d 76; Young v. City of Plaquemine, 2004-2305 (La.App. 1st Cir.11/4/05), 927 So.2d 408, 410-411. Thus, although LSA-C.C.P. art. 1915(B) allows a trial court to designate a partial summary judgment as a final judgment, the trial court’s certification that the judgment was final and appealable was ineffectual regarding these issues now asserted by Canal Indemnity and Top Hatch. See Miller v. Superior Shipyard and Fabrication, Inc., 2001-2683 (La.App. 1st Cir.11/8/02), 836 So.2d 200, 203, n. 4.

Accordingly, the record procedurally presents nothing for our review on this issue and we decline to address it in the instant appeal.

^CONCLUSION

Based on the above and foregoing reasons, the April 15, 2009 judgment of the trial court granting summary judgment in favor of Mississippi Farm Bureau is reversed and this matter is remanded to the trial court for further proceedings. All costs of this appeal are assessed against the appellee, Mississippi Farm Bureau Casualty Insurance Company.

REVERSED AND REMANDED.

      . According to Top Hatch's answers to interrogatories, Top Hatch installs leather interiors and performs repairs to sun roofs.


author: PER CURIAM.

text:
    Clara STAMPS and Demon Stamps, Individually and On Behalf of Their Minor Children, Demon Stamps, Jr. and Damonte Stamps v. CANAL INDEMNITY INSURANCE, Auto Source of the South, L.L.C. and William G. D’Aubin.
    No. 2009 CW 1961.
    Court of Appeal of Louisiana, First Circuit.
    March 1, 2010.

      Rene S. Paysse, Jr., Genevieve K. Jacques, New Orleans, LA, for Relators Canal Indemnity Company and Auto Source of the South, L.L.C.
    Craig D. Gremillion, Baton Rouge, LA, for Respondent State Farm Mutual Automobile Insurance Company.
    Before PARRO, KUHN, and McDonald, jj.
   PER CURIAM.

12At issue in this writ application is whether the trial court erred in denying a peremptory exception raising the objection of prescription as to a cross-claim that was not filed until almost ten months after the cross-claimant was added as a party defendant and served with the suit.

FACTS

This litigation arises out of an automobile accident that occurred on November 10, 2003, when a vehicle driven by William D’Aubin and owned by his employer, Auto Source of the South, L.L.C. (“Auto Source”), rear-ended a vehicle operated by Clara Stamps that was stopped at a red light on Airline Highway in Baton Rouge. As a result of the accident, it was alleged that Stamps sustained injuries, including but not limited to a torn rotator cuff requiring surgical repair. Accordingly, on October 1, 2004, Clara Stamps and her husband, individually and on behalf of their minor children (hereinafter collectively referred to as “plaintiffs”), filed suit against D’Aubin and Auto Source, together with Auto Source’s liability insurer, Canal Indemnity Company (“Canal”). Thereafter, on or about November 9, 2007, the plaintiffs filed a supplemental and amending petition for damages other than property damage, naming State Farm Mutual Automobile Insurance Company (“State Farm”) as a defendant in its capacity as their insurer. State Farm was served on December 12, 2007, and answered the suit on January 29, 2008. Later, on October 10, 2008, State Farm filed a cross-claim against Auto Source and Canal to assert subrogation rights based on its previous payment of | ,<¡$8,480.00 to the plaintiffs under the collision coverage provisions of their policy for the total loss of their vehicle. In response to the cross-claim, Canal and Auto Source filed a peremptory exception of prescription, arguing that State Farm’s claim was prescribed, referencing La.Code Civ. P. art. 1067. State Farm opposed the exception, arguing that it is a subrogee of the plaintiffs and that since the main cause of action was timely filed, it served to interrupt prescription as to State Farm’s subrogated claim.

The trial court considered the exception of prescription at a hearing on May 11, 2009, at which time it overruled the exception in open court and indicated that it would sign a judgment upon submission. Thereafter, a written judgment was signed on May 20, 2009, with notice being sent to the parties on May 22, 2009.

Prior to that hearing, the plaintiffs agreed to settle their claims on the main demand, and an order was signed on March 12, 2009, dismissing the plaintiffs’ claims against Auto Source, Canal, and D’Aubin, with prejudice. Thus, the sole remaining claims against Auto Source and Canal stem from State Farm’s cross-claim. This writ application on behalf of Auto Source and Canal (hereinafter collectively referred to as “relators”) raises the question of whether that cross-claim was timely filed.

TIMELINESS OF THE WRIT APPLICATION

Before considering the merits of the issues raised in the writ application as to the relators’ exception of prescription, we note that a question has been raised as to the timeliness of the writ application itself. Accordingly, we will address that issue first.

Writ applications are governed by Rule 4 of the Uniform Rules for Louisiana Courts of Appeal. Specifically, Rule 4-3 sets forth the delay for applying for writs, as follows:

l/The judge who has been given notice of intention as provided by Rule 4-2 shall immediately set a reasonable return date within which the application shall be filed in the appellate court. The return date in civil cases shall not exceed 30 days from the date of notice, as provided in La. C.C.P. art. 1914....
Upon proper showing, the trial court or the appellate court may extend the time for filing the application upon the filing of a motion for extension of return date by the applicant, filed within the original or an extended return date period. An application not filed in the appellate court within the time so fixed or extended shall not be considered, in the absence of a showing that the delay in filing was not due to the applicant’s fault. The application for writs shall contain documentation of the return date and any extensions thereof; any application that does not contain this documentation may not be considered by the appellate court.

In interpreting the foregoing rule, the courts have held that a writ application will be deemed timely if the notice of intent and request for return date are filed within 30 days after the ruling at issue and the writ is filed by the return date set by the trial court, even if the return date is more than 30 days after the ruling at issue. Barnard v. Barnard, 96-0859 (La.6/24/96), 675 So.2d 734.

Previously, on August 14, 2009, the rela-tors filed a writ with this court, seeking review of the May 20, 2009 judgment overruling their exception of prescription. Upon receipt of the original writ, we noted that the notice of intent to seek supervisory writs was not filed until June 23, 2008, beyond the 30-day period for seeking supervisory review provided by Rule 4-3. Since the writ appeared untimely and there was no mention or evidence of any prior fax filing of the notice of intent, this court refused consideration of the application, explaining that the notice of intent was filed more than 30 days from the date of the hearing, more than 30 days from the date the judgment was signed, and more than 30 days from the date the notice of judgment was mailed to the parties. Stamps v. Canal Indem. Ins., 2009-1497 (La.App. 1 Cir. 9/28/09) (unpublished writ action). In the action, we did not afford the relators a specified period of time for filing a new writ | r,application but rather noted that supplementation of the writ or an application for rehearing would not be considered.

Subsequent to our writ action in 2009CW1497, however, the relators took writs to the Louisiana Supreme Court on October 28, 2009, therein apparently arguing that the notice of intent was actually fax filed on June 17, 2009, within 80 days of both the signing and notice of the judgment at issue. In the interim, on October 27, 2009, the relators filed the instant application with this court, attaching a fax-file receipt evidencing that the notice of intent was faxed to the district court clerk’s office on Thursday, June 17, 2009, which would be timely pursuant to Rule 4-3 if the facsimile filing was proper.

Louisiana Revised Statute 13:850, which provides for facsimile filing in civil cases, states in pertinent part:

A. Any paper in a civil action may be filed with the 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 that the facsimile transmission is received and a receipt of transmission has been transmitted to the sender by the clerk of court. The facsimile when filed has the same force and effect as the original.
B. Within five days, exclusive of legal holidays, after the clerk of court has received the transmission, the party filing the document shall forward the following to the clerk:
(1) The original signed document.
(2) The applicable filing fee, if any.
(3) A transmission fee of five dollars.

Having reviewed the attachments to the instant writ, we note that it is now clear that the notice of intent was submitted to the district court clerk’s office via facsimile on Wednesday, June 17, 2009, and a hard copy was filed on Tuesday, June 23, 2009. Since the hard copy was filed within five days (exclusive of legal holidays) of the facsimile transmission, the notice of intent was timely under La. R.S. 13:850. Moreover, in compliance with Rule 4-3, the notice of intent was filed | ¿within thirty days of the notice of judgment, and the relators filed the original writ application within the extended return date set by the district court. As such, although we declined to consider the relators’ original writ application, we now believe that this matter is appropriate for consideration based on the additional information provided in the instant writ. Thus, we will proceed to address the merits of the relators’ exception of prescription.

LAW AND ARGUMENT

Generally speaking, delictual actions are subject to a liberative prescription of one year pursuant to La. Civ.Code art. 3492. However, La.Code Civ. P. art. 1067 creates a limited exception for incidental demands. The article provides that “Fain incidental demand is not barred by prescription or peremption if it was not barred at the time the main demand was filed and is filed within ninety days of date of service of main demand or in the case of a third party defendant within ninety days from service of process of the third party demand.”

Applying the foregoing law to this case, the relators point out that State Farm paid $8,480.00 to the plaintiffs on November 23, 2003. When the plaintiffs filed suit on October 1, 2004, the relators aver that State Farm’s claim for subrogation was not prescribed, thereby satisfying the first prong of La.Code Civ. P. art. 1067. However, the relators submit that State Farm did not file its cross-claim until October 10, 2008, four years after service of the original suit. Moreover, the cross-claim was not filed within ninety days of service of the supplemental and amending petition on December 12, 2007. Thus, the relators submit that the cross-claim is clearly prescribed under La.Code Civ. P. art. 1067.

In support of the argument that State Farm’s cross-claim is barred by prescription, the relators cite Baldi v. Mid-Am. Indem. Co., 526 So.2d 281 (La.App. 3rd Cir.), writ denied, 531 So.2d 276 (La.1988). In Baldi, the plaintiff brought an action against Mid-American Indemnity Company, the liability insurer |7of her husband, as a result of a two-car accident that occurred when she was traveling as a guest passenger in her husband’s auto. On February 25, 1986, Mid-American answered the suit and filed a third party demand against the driver of the other vehicle, Kevin Lewing, and the liability insurer of his employer, Royal Insurance Company. The third party demand filed by Mid-American was followed by a cross-claim filed by Royal on October 6, 1986. The third party demand filed by Mid-American prayed for indemnity or contribution from Lewing and Royal for all sums which Mid-American might be required to pay the plaintiff, while the cross-claim filed by Royal sought indemnity or contribution from Mid-American. Additionally, Royal sought to recover from Mid-American a total of $11,555.20, which was paid to the plaintiff and her husband for damages to their vehicle involved in the accident. In response to Royal’s cross-claim, Mid-American filed exceptions of no cause of action and prescription. The exceptions were sustained by the trial court in two separate judgments, and Royal and Lewing appealed.

On appeal, the Louisiana Third Circuit Court of Appeal stated that the only issue presented for consideration was whether or not the trial court erred in sustaining the exception of prescription filed by Mid-American, which resulted in the dismissal of Royal’s cross-claim seeking recovery of property damage paid by Royal to the plaintiff and her husband. Baldi, 526 So.2d at 283. At the outset, the appellate court noted that upon paying for property damage, Royal was subrogated to all rights and claims of the plaintiff and her husband for property damage to their vehicle. Id. The appellate court pointed out that the accident in question took place in July 1985, and no claim for property damage was made against Mid-American until Royal filed its cross-claim in October 1986. Id. Thus, the court noted that the cross-claim for property damage was prescribed unless it was somehow preserved by La. Code Civ. P. art. 1067. Id. In looking to Article 1067, the court held that the provisions of the article were clearly applicable to the facts |8of that case. Id. The cross-claim filed by Royal was clearly an incidental demand, as contemplated by the article. Id. Furthermore, the plaintiffs original suit was filed within one year of the accident and, therefore, Royal’s subrogation claim for property damage was not barred at the time the main demand was filed. However, the court went on to find that the applicability of Article 1067 did not operate to preserve Royal’s claim for property damage. Id. The record indicated that Royal was served with Mid-American’s third-party demand in February 1986, but did not file its cross-claim until October 1986. Id. Thus, at the time the cross-claim was filed, the court concluded that the ninety-day grace period provided by Article 1067 had expired and, therefore, Royal’s cross-claim was prescribed. Id.

Applying the rationale of Baldi to this case, the relators argue that the trial court’s decision to overrule the exception of prescription was erroneous. The rela-tors reiterate that the incidental demand in this case involves a separate cause of action and was filed four years after the plaintiffs filed suit against Canal and eleven months after State Farm was added as a party defendant. Given the facts, the relators submit that the plaintiffs’ suit for personal injuries did not interrupt prescription as to State Farm’s claim for property damage.

In opposition to the writ application, State Farm vehemently denies that La. Code Civ. P. art. 1067 is controlling herein. State Farm argues that the purpose of Article 1067 is to provide an exception to prescription for a claim that would otherwise have been prescribed, but is filed within ninety days from the date of service of the main demand. State Farm argues that it is a partial subrogee of the plaintiffs. Since suit by the plaintiffs interrupted prescription on the main cause of action and that suit was still pending (although later settled and dismissed) at the time State Farm filed its cross-claim, it argues that the main demand interrupted prescription as to its subrogated claim. Thus, State Farm submits that La.Code Civ. P. art. 1067 is not applicable.

|,,In support of its argument that its cross-claim is not prescribed, State Farm cites Louviere v. Shell Oil Co., 440 So.2d 93 (La.1988), which it contends is factually analogous to the instant case. In Louviere, the United States Fifth Circuit Court of Appeals certified a question of state law to the Louisiana Supreme Court concerning the effect of the interruption of prescription by the filing of a suit. The specific issue was whether a timely petition by an employer’s workers’ compensation insurer, seeking recovery for compensation benefits paid to an injured employee against a tortfeasor who caused the injury to the employee, interrupted prescription, thereby permitting the employee to file an action for his own damages after the anniversary date of the accident. Noting that the federal appellate court’s question was based on the assumption that the filing of suit by the compensation insurer interrupted prescription on claims by the injured employee, the Louisiana Supreme Court stated that the reason for the interruption must be considered in determining the effect of the interruption. Louviere, 440 So.2d at 95. In considering that issue, the supreme court reasoned that the filing of suit by one party to recover his damages usually does not affect the running of prescription against other parties who sustained separate damages in the same accident. Id. However, the court went on to explain that a timely petition by a workers’ compensation insurer, seeking recovery of compensation benefits paid to an injured employee against a tortfeasor who caused the injury to the employee, interrupts prescription, thereby permitting the employee to file an action for his own damages after the anniversary date of the accident. Id. The rationale underlying that decision is that there is only one principal cause of action, and the compensation insurer is asserting part of the employee’s cause of action, because the insurer has paid part of the employee’s damages and is entitled to recover to the extent of those payments as partial subrogee. Id. In reaching that conclusion, the court explained that a cause of action consists of the material facts which form the |inbasis of the right claimed by the party bringing the action. Id. In that instance, the court noted that the claims of both the employee and the compensation insurer were based on the cause of action consisting of the material facts which were the basis of the employee’s right to recover damages, and suit by either the employee or the employer’s compensation insurer interrupted prescription for both as to that single cause of action. Id. Once prescription was interrupted, the court held that it was continuously interrupted as to both claims during the pendency of the insurer’s suit. Louviere, 440 So.2d at 98.

Under the rationale of Louviere, State Farm submits that, through payment, it has become partially subrogated to the plaintiffs’ property damage claims. Moreover, State Farm suggests that the same facts that gave rise to the claims made in the suit by the plaintiffs also gave rise to the property damages claimed by State Farm. As such, it submits that the plaintiffs’ suit for damages against Canal interrupted prescription on its own subrogation claim. In other words, State Farm avers that the plaintiffs had the right to amend their petition by leave of court at any time during the pendency of the main demand. Accordingly, since it is standing in the shoes of the plaintiffs as subrogee, State Farm argues that it likewise had the right to assert its claim for property damages against Canal at any time while the main demand was still pending.

In considering the respective arguments of the parties, we find that Louviere is distinguishable, because that case involved two separate lawsuits regarding only one principal cause of action by the employer’s workers’ compensation insurer and |nthe injured employee and did not involve any incidental demands. Louviere did not involve application of La.Code Civ. P. art. 1067. This case, by contrast, involves claims for personal injury damages brought against a tortfeasor and his liability insurer, together with the plaintiffs’ insurer, and involves a cross-claim by the plaintiffs’ insurer for property damage, thereby implicating two separate causes of action. Thus, notwithstanding State Farm’s arguments to the contrary, we find that La.Code Civ. P. art. 1067 clearly applies herein.

Turning then to the language of La. Code Civ. P. art. 1067, the article provides that an incidental demand is not barred by prescription or peremption if it was not barred at the time the “main demand” was filed and is filed within ninety days of the date of service of the “main demand,” or in the case of a third party defendant, within ninety days from service of process of the third party demand. In interpreting that article, the Louisiana Supreme Court has held that the term “main demand,” as used in Article 1067, is not confined to the demand in the original petition, but also encompasses the claim as amended or supplemented once the petition has been validly amended. See Moore v. Gencorp, Inc., 93-0814 (La.3/22/94), 633 So.2d 1268.

Applying the provisions of La.Code Civ. P. art. 1067 to the facts of this case, it is clear that State Farm’s subrogation claim based on sums paid to the | j .¿plaintiffs for property damage in November 2003 was not barred at the time the plaintiffs originally filed suit in October 2004. The original suit was filed within one year of the accident. Thus, the first prong of La.Code Civ. P. art. 1067 is satisfied.

The second prong of the article, however, is more problematic. The statute affords litigants a period of ninety days from service of the main demand, including any supplemental and amending petitions, to file an incidental demand. The plaintiffs filed the supplemental and amending petition naming State Farm as a party defendant on November 9, 2007, and State Farm was served on December 12, 2007. Thereafter, State Farm did not file its cross-claim against Auto Source and Canal until October 10, 2008, almost ten months after it was served with the suit. As was the case in Baldi, the ninety-day grace period provided by Article 1067 had expired at the time State Farm filed its incidental demand. State Farm’s cross-claim is, therefore, prescribed.

For the reasons assigned, we reverse the judgment of the trial court rendered in open court on May 11, 2009, and signed May 20, 2009, and render judgment sustaining the relators’ peremptory exception of prescription.

WRIT GRANTED. JUDGMENT REVERSED AND RENDERED.

      . The amended petition alleges that D'Aubin, Auto Source, Canal, and State Farm are "jointly, severally, individually and in solido indebted unto the plaintiff for all amounts reasonable under the premises."

      . In its answer, State Farm denied that D'Au-bin and/or Auto Source was underinsured and claimed a credit to the extent of the policy limits of any and all underlying policies of automobile liability insurance available to any defendant or to any responsible party. Further, State Farm claimed the full amount of any sums it paid or could potentially pay in the future to the plaintiffs under its own policy as a credit and set-off.

      . The holding in Louviere that all prescriptions affecting a given cause of action are interrupted when a proper party judicially asserts the cause of action was based in part on La. R.S. 9:5801. At the time of the accident in that case, La. R.S. 9:5801 provided that “[a]ll prescriptions affecting the cause of action therein sued upon are interrupted as to all defendants ... by the commencement of a civil action in a court of competent jurisdiction and in the proper venue.” In a footnote, the Louviere court noted La. R.S. 9:5801, as originally enacted, was repealed in 1982, but the substance of the statute was included in La. Civ.Code art. 3462, which provides that "[pjrescription is interrupted when the owner commences action against the possessor, or when the obligee commences action against the obligor, in a court of competent jurisdiction and venue.”

      . In addressing the merits of the prescription issue, we note that the plaintiffs’ original petition, which was timely filed within one year of the accident at issue, interrupted prescription as to State Farm. Moreover, although La. Civ.Code art. 3463 provides that "[¡Interruption is considered never to have occurred if the plaintiff ... voluntarily dismisses the action at any time either before the defendant has made any appearance or thereafter,” this court and at least one other appellate court have rejected the characterization that a plaintiff alone voluntarily dismisses an action by virtue of settlement, since both parties resolve it by transaction or compromise. See Pierce v. Foster Wheeler Constructors, Inc., 04-0333 (La.App. 1 Cir. 2/16/05), 906 So.2d 605, 610, writ denied, 05-0567 (La.4/29/05), 901 So.2d 1071; see also Boyd v. Farmers Ins. Exchange, 42,701 (La.App. 2 Cir. 12/5/07), 973 So.2d 154. Thus, it appears that the dismissal of D’Aubin, Auto Source, and Canal did not nullify the alleged interruption of prescription as to State Farm under La. Civ.Code art. 3463. Moreover, State Farm has not challenged the timeliness or the validity of the claims against it, and this court cannot raise prescription on its own motion. See La.Code Civ. P. art. 927(B). Accordingly, the only issue before this court is whether the remaining cross-claim by State Farm against Auto Source and Canal for sums paid under the collision coverage provision of the plaintiffs’ liability policy is prescribed.