author: CONERY, Judge.

text:
    Shantanya THIBEAUX v. GOAUTO INSURANCE COMPANY
    18-333
    Court of Appeal of Louisiana, Third Circuit.
    March 27, 2019
    Jason W. Burge, Fishman Haygood LLP, 201 St. Charles Avenue, 46th Floor, New Orleans, Louisiana 70170-4600, (504) 586-5252, Attorney for Appellant/Defendant GoAuto Insurance Company
    W. Alan Lilley, Goforth & Lilley, PLC, 109 Stewart Street, Lafayette, Louisiana 70501, (337) 237-5777, Attorney for Appellee/Plaintiff Shantanya Thibeaux
    Court composed of Sylvia R. Cooks, Elizabeth A. Pickett, John E. Conery, D. Kent Savoie, and Candyce G. Perret, Judges.
   CONERY, Judge.

The defendant, GoAuto Insurance Company (GoAuto), appeals the trial court's partial summary judgment in favor of its insured, Shantanya Thibeaux (Mrs. Thibeaux), in which the trial court found that GoAuto was liable under its policy's collision coverage for damages to Mrs. Thibeaux's 2008 Ford Mustang (Mustang). The vehicle at issue was involved in a one car accident while being driven by Jairi Thibeaux, an excluded driver under the terms of policy number 88797-20 issued to Mrs. Thibeaux by GoAuto. For the following reasons, we reverse the judgment of the trial court and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

On May 11, 2016, while Ms. Thibeaux was not at home, Jairi Thibeaux, her seventeen-year-old son, took her Mustang without permission and was in a single vehicle collision a few hundred yards from their home causing extensive damage to the vehicle. The accident did not involve third party fault. The GoAuto Policy denied coverage for the accident based on the "Named Driver Exclusion Endorsement" which specifically excluded Jairi as a driver of the Mustang under the terms of the policy.

When GoAuto denied Mrs. Thibeaux's claim for damages to the Mustang, she filed suit and moved for partial summary judgment on the issue of collision coverage. The deposition testimony of Mrs. Thibeaux and Jairi Thibeaux, as well as Mrs. Thibeaux's affidavit filed in support of the motion for partial summary judgment, are clear that Jairi did not have permission to drive his mother's Mustang on the day of the accident or any other day.

The trial court, "after considering the law, memoranda and argument of counsel and the insurance policy, affidavits and deposition testimony[,]" found as follows in its December 29, 2017 judgment:

IT IS ORDERED, ADJUDGED AND DECREED that Summary Judgment is granted in favor of Shantanya Thibeaux, the Court finding that there is no genuine issue of material fact that Jairi Thibeaux did not have permission to operate the 2008 Mustang owned by Shantanya Thibeaux on the day of the collision, May 11, 2016, and there is property damage collision coverage afforded to Shantanya Thibeaux for the 2008 Mustang arising out of the collision of May 11, 2016[,] under the GoAuto Policy of Insurance policy no. 88797-20.

GoAuto now timely appeals the trial court's December 29, 2017 judgment on the basis that the insurance policy at issue excludes collision coverage when the vehicle is being operated by Jairi Thibeaux, a named excluded driver.

ASSIGNMENT OF ERROR

GoAuto appeals the trial court's ruling asserting one assignment of error as follows: "The district court's granting of summary judgment on coverage in favor of Ms. Thibeaux was contrary to the terms of the Named Driver Exclusion Endorsement, was contrary to Louisiana statutes providing that such exclusion is enforceable, and was error."

LAW AND DISCUSSION

Standard of Review

An appellate court reviews a trial court's granting of a motion for summary judgment de novo . Duncan v. U.S.A.A. Ins. Co. , 06-363 (La. 11/29/06), 950 So.2d 544. This standard of review requires the appellate court to use the same criteria as the trial court in determining if summary judgment is appropriate, which is whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. Id.

A de novo review simply asks whether the trial court was legally correct or legally incorrect. Domingue v. Bodin, 08-62 (La.App. 3 Cir. 11/5/08), 996 So.2d 654. "[T]he appellate court assigns no special weight to the trial court[.]" Id. at 657. Instead, the appellate court reviews the record in its entirety and determines "whether the trial court's decision was legally correct in light of the evidence." Id.

Assignment of Error One - Exclusion of Coverage And Statutory Construction

GoAuto argues that the trial court erred by not applying the terms of the GoAuto policy issued to Mrs. Thibeaux, more particularly the "Named Driver Exclusion Endorsement " "Policy Number: 88797-16, which states:

PLEASE READ THIS ENDORSEMENT CAREFULLY. THIS ENDORSEMENT CHANGES THE TERMS OF YOUR POLICY.
This endorsement is attached to and, forms a part of the policy to be issued as of the date this endorsement is prepared. This endorsement will apply to this policy and any amended, renewal, reinstatement or substitute policy issued to the same Named Insured by the Company. This endorsement supersedes and excludes from the policy any contrary provision(s).
In consideration of the premium charged, the Named Insured agrees that no coverage provided by the Company is afforded while any vehicle listed on this policy is being used, driven, operated or manipulated by, or under the care of:
Robyn Thibeaux, Jairi D. Thibeaux.

(Emphasis in original).

It is undisputed that Mrs. Thibeaux signed the Named Driver Exclusion Endorsement on April 12, 2014, and the endorsement was in effect on May 11, 2016, the date of the accident at issue.

Likewise, the "Named excluded operator" is also clearly and specifically defined in the GoAuto policy as:

"Named excluded operator " means any person who by written agreement, contained in the application or by endorsement to this Policy, signed by any applicant for this Policy, or the applicant's legal representative, is listed as a person who shall be excluded from coverage under this Policy, whether or not that listed excluded person is you , the named insured , the spouse of the named insured , a family member of the named insured , or any other person who but for being named as an excluded operator would have been a person insured under the terms of this Policy or by operation of law.

(Emphasis in original).

Further, the portion of the policy entitled, "Exclusions for Parts D, E, F, AND G[ ,]" the "named excluded operator" provision in Section 1 also provides:

There is no Coverage For Damage To Your Auto for:

1. Arising out of the operation or use of any auto insured under Parts D, E,[Collision Coverage] F, and/or G by a named excluded operator .

(Emphasis in original).

Louisiana Revised Statutes 32:900(L)(1) expressly permits named driver exclusions and states in pertinent part:

Notwithstanding the provisions of Paragraph (B)(2) of this Section, an insurer and an insured may by written agreement exclude from coverage the named insured and the spouse of the named insured. The insurer and an insured may also exclude from coverage any other named person who is a resident of the same household as the named insured at the time that the written agreement is entered into, and the exclusion shall be effective, regardless of whether the excluded person continues to remain a resident of the same household subsequent to the execution of the written agreement. It shall not be necessary for the person being excluded from coverage to execute or be a party to the written agreement. For the purposes of this Subsection, the term "named insured" means the applicant for the policy of insurance issued by the insurer.

(Emphasis added).

The sole purpose for the exclusion in La. R.S. 32:900(L) is premium reduction. Williams v. Watson , 01-0495, p.7 (La. 10/16/01), 798 So.2d 55, 59. As we recognized in Joseph v. Dickerson , 99-1046, p.9 (La. 1/19/00), 754 So.2d 912, 917, the purpose of the exclusion "is to allow the named insured the option of paying a reduced premium in exchange for insurance that affords no coverage while a covered vehicle is operated by the excluded driver."

Bryant v. United Servs. Auto. Ass'n , 03-3491, p. 8 (La. 9/9/04), 881 So.2d 1214, 1219 (emphasis added).

Jairi was excluded from collision coverage in exchange for a reduced policy premium, all in accordance with the stated purpose of the statute. The collision at issue did not involve any third parties and there is nothing in the policy language that allows collision coverage in a single vehicle accident if the excluded driver is operating the vehicle without permission.

Mrs. Thibeaux urges the application of Khaliq v. Progressive Security Ins. Co. , 06-1207 (La.App. 3 Cir. 2/7/07), 950 So.2d 933, writ denied , 07-471 (La. 4/27/07), 955 So.2d 688. In Khaliq , a panel of this court found that collision coverage was available because no permission was given to the excluded driver to operate the vehicle at issue. However, the panel in Khaliq was also guided by the supreme court's holding and rational in Bryant. See id.

However, Bryant , 881 So.2d 1214, did not involve a first party collision claim by the policy holder against its insurer for collision coverage and therefore is inapplicable to the instant case. Because Khaliq relied on Bryant , it is distinguishable from this case. Bryant involved compulsory liability coverage under La.R.S. 32:900(L), cited above. In Bryant , the plaintiff vehicle owner sought coverage under the tortfeasor's liability policy; however, the driver of the plaintiff's vehicle at the time of the accident was an excluded driver under the policy. As stated by the court:

the narrow issue presented by these cases is whether the "no pay, no play" law applies to bar a portion of a named insured's recovery of her own bodily injury and/or property damages when an excluded driver is involved in an accident while driving the named insured's vehicle. The resolution of this issue requires a determination of the scope of La.R.S. 32:866 and a balancing of the competing policies underlying La.R.S. 32:866 and La.R.S. 32:900(L).

Id. at 1220 (emphasis added).

Because the applicability of the "no pay, no play" statute depended upon whether the plaintiff vehicle owner carried the requisite compulsory liability coverage required by La.R.S. 32:900, the supreme court in Bryant first considered whether the vehicle owner "owned or maintained" the requisite liability insurance. It concluded that the Bryant policy did not provide the requisite liability coverage, stating:

Had [the excluded driver] been at fault in causing the accident, [the vehicle owner's] insurance coverage would not have been available to an injured third party. Likewise, any property damage claim that [the vehicle owner] would have otherwise been able to make against her own coverage would not have been available had [the excluded driver] been at fault in causing an accident while driving her vehicle. Because no insurance coverage was afforded by [the vehicle owner's] policy for any claim arising out of accidents that occurred when [the excluded driver] was driving [the owner's] vehicle, we must conclude that she failed to maintain compulsory motor vehicle liability security at the time of the accident at issue.

Id. at 1222 (emphasis added).

The supreme court specifically considered the issue of "permission" in connection with La.R.S. 32:866, the "no pay, no play" statute, and La.R.S. 32:900, which requires liability coverage but also allows a vehicle owner to exclude certain individuals as insureds under the liability policy. Id. It found the two statutes were:

best reconciled by limiting the application of La. R.S. 32:866 [the "no pay, no play" statute] to situations in which a named insured has given permission to operate a covered vehicle to a driver validly excluded pursuant to La.R.S. 32:90[0](L) , and then seeks to recover his or her own damages when the excluded driver is involved in an accident.

Id. at 1223 (emphasis added).

In Bryant , 881 So.2d 1214, the issue of permission did not affect the determination of whether coverage was afforded under the vehicle owner's own policy. In fact, the supreme court recognized that no liability or collision coverage was available when an excluded driver drove the vehicle. Rather, the court considered the issue of permission only in connection with determining whether the "no play, no pay" statute barred the vehicle owner from recovering from the tortfeasor's liability insurer. Id.

In this case there is no third party fault at issue for the collision claim damage to the Mustang, and the applicability of "no play, no pay" is not at issue in this case. The language of the GoAuto policy clearly provides there is no insurance coverage of any kind, which would include collision coverage, provided to a vehicle which is being driven by a named excluded driver such as Jairi Thibeaux. Under the provisions of La.R.S. 32:900(L), an individual and its insurer are free to contract for no coverage for certain named excluded drivers in exchange for a reduced premium. Williams , 798 So.2d 55.

We note that a panel of our sister circuit in Taylor v. Gramercy Ins. Co. , 12-795 (La.App. 1 Cir. 2/13/13) (unpublished opinion) reached the same result. In Taylor , the owner of a 2006 Cadillac CTS (Cadillac), Cynthia Taylor, executed a named driver exclusion endorsement with her insurer, Gramercy Insurance Company (GIC), in which her daughter, Charrion Taylor, was named as an excluded driver for the Cadillac. Charrion was driving the Cadillac in Ethel, Louisiana, "when she lost control of the vehicle and hit a culvert." Id. at p. 1. The Cadillac was a total loss. Id.

Both parties filed motions for summary judgment and the trial court granted the motion filed by GIC. The first circuit affirmed, distinguishing Bryant on the basis that the supreme court had "specifically noted that had Ms. Bryant's excluded driver been at fault in causing the accident, any property damage claim that Ms. Bryant would have been otherwise able to make against her own coverage would not have been available to her. Bryant , 881 So.2d at 1222." Taylor , 12-795 at p. 6. The panel also found that the Khaliq case was factually distinguishable from Taylor. See id. The appellate court affirmed the trial court's ruling granting summary judgment in favor of GIC, and denying summary judgment in favor of the Taylors, finding there was no coverage for the damages to the Cadillac under the GIC policy for the named excluded driver, Charrion Taylor. See id.

We find that the named driver exclusion in this case is clear and unambiguous. Accordingly, we reverse the partial summary judgment of the trial court in favor of Shantanya Thibeaux and remand this matter for further proceedings.

CONCLUSION

Based on the foregoing, we reverse the trial court's December 29, 2017 partial summary judgment in favor Shantanya Thibeaux and remand this matter for further proceedings. All costs of this proceeding are assessed to Shantanya Thibeaux.

REVERSED AND REMANDED.

Cooks, J., dissents and assigns reasons.

COOKS, J., dissents.

Shantanya Thibeaux (Mrs. Thibeaux) was the owner of a 2008 Ford Mustang. On May 11, 2016, while Mrs. Thibeaux was at work, her young son, Jairi Thibeaux (Jairi), took the car without permission and headed down the road to school. Mrs. Thibeaux and Jairi testified Jairi knew he was forbidden to drive the car. Both testified his mom did not know Jairi took the car without her permission on the morning of the accident. Jairi testified the accident occurred when he was forced onto the shoulder of the road by an oncoming vehicle veering into his lane of travel. Despite this uncontradicted testimony the majority says this was a one-car accident and concludes "there is no third-party fault at issue." This is not supported by the record.

Following the accident Mrs. Thibeaux filed a claim with GoAuto for payment in accordance with the insurance policy's provision covering damage or loss resulting from a collision. GoAuto denied coverage and refused to pay any amount to Mrs. Thibeaux for the loss of her vehicle because it construed the provision listing Jairi as an excluded driver to be an all-inclusive proviso. Mrs. Thibeaux sued GoAuto and moved for partial summary judgment on the issue of liability for the loss of the vehicle. The trial court granted partial summary judgment in favor of Mrs. Thibeaux.

Upon de novo review the majority finds GoAuto has no liability to Mrs. Thibeaux for the loss of the Mustang because Jairi was an excluded driver at the time of the accident. It finds the excluded driver provision in this insurance contract is an all-inclusive provision which renders irrelevant any consideration of whether Jairi had implied or express permission or was driving without permission at the time of the accident. But the Louisiana Supreme Court in Bryant v. United Servs. Auto. Ass'n., 03-3491 (La. 9/9/04), 881 So.2d 1214, consolidated with McCray v. Jenkins , 04-28, (La. 9/9/04), 881 So.2d 1214, and this court in Khaliq v. Progressive Security Insurance Company , 06-1207 (La.App. 3 Cir. 2/7/07), 950 So.2d 933, writ denied , 07-471 (La. 4/27/07), 955 So.2d 688, rejected such an all-inclusive argument finding there are instances, such as the tort of conversion or theft, which are exceptions. Bryant and Khaliq are instructive and controlling, but the majority ignores those decisions by "distinguishing" the holdings in Bryant and Khaliq from the case before us. I believe the majority errs in ignoring the clear rationale of Bryant and this court's holding in Khaliq . This decision effectively overrules Khaliq without expressly saying so.

In Bryant , the supreme court resolved conflicting circuit court decisions regarding the applicability of Louisiana's "no pay no play" auto insurance statute, La. R.S. 32:866, which places limitations on recovery for personal injury and property damage. In the McCray case the insured parent gave the excluded driver permission to drive the family vehicle thus the court found the provisions of the statute applicable. However, in the Bryant case the record on summary judgment was "unclear [as to] whether Justin Bryant was operating Marolyn Bryant's vehicle with her permission." Id. at 1222. Marolyn Bryant's policy contained a designated driver exclusion endorsement which stated:

"In consideration of the premium charged for the policy to which this endorsement applies, it is hereby understood and agreed that any insurance afforded by this policy shall not apply or accrue with respect to any claim arising from accidents which occur when any vehicle described in the declarations of the policy or any other vehicle to which the terms of the policy are extended is being used or operated, either with or without permission, by the following excluded members of the insured's household: Justin Bryant son. "

Bryant , 881 So.2d at 1222.

The supreme court expressly stated that it therefore had to "determine whether the granting of permission, or lack thereof, by a named insured to an excluded driver to operate a covered vehicle makes a difference in the applicability of La.R.S. 32: 866 to a particular case." Id. The high court found that it did make a difference despite the all-inclusive language denying coverage for use by a named excluded driver. In Khaliq we found the court's reasoning in Bryant provided clear guidance in determining the effect on coverage when an excluded driver operates the insured auto without permission . The Bryant court reasoned as follows:

It would serve no valid purpose, however, to apply the provisions of the "no pay, no play" law to a situation in which the excluded driver operated the vehicle without the permission of the named insured . In such a situation, the named insured has not thwarted the law by receiving a reduced premium in exchange for excluding a driver and then permitting that excluded driver to operate the vehicle in contravention of the Motor Vehicle Safety Responsibility Law. Additionally, it would be absurd to contend that a named insured should not be allowed to recover a portion of his or her damages pursuant to the provisions of La. R.S. 32:866 in a situation where the vehicle was stolen and then involved in an accident, perhaps an accident that was not caused by the fault of the thief. This view is supported by the provisions of La. R.S. 32:865, which impose criminal sanctions on an owner who allows the operation of a motor vehicle that is not covered by proper security. The terms of the statute, however, do not apply when the vehicle is operated without the permission of the owner. Additionally, the legislative committee that considered the enactment of the bill that eventually added La. R.S. 32:900(L) specifically declined to amend La. R.S. 32:900(B)(2) to limit required coverage to validly licensed drivers because it was concerned about the situation in which a young child accidentally caused a vehicle to move and cause damage. See Minutes of Meeting, House Insurance Committee, May 13, 1992. In light of the policies served by La. R.S. 32:866, we find it would be absurd to apply the "no pay, no play" law to partially reduce an owner's recovery for damages arising out of the operation of his or her vehicle by an excluded driver who is involved in an accident when the owner did not give the excluded driver permission to operate the vehicle.

Bryant , 881 So.2d at 1223-24 (emphasis added).

The supreme court's decision in Bryant recognized the important public policy provided in La.R.S. 32:861 -66. Louisiana Revised Statute 32:865 provides criminal penalties for failure to carry compulsory liability insurance required under La.R.S. 32:861. Louisiana Revised Statute 32:866 places limitations on the amount a person may recover for personal injury and/or property damages when they have failed to comply with the compulsory liability insurance law. This statute did not include any language regarding authorized versus unauthorized users, whereas, La.R.S. 32:865(A) 3(b) expressly provides that the statutory criminal penalties do not apply: "To the owner of a motor vehicle if at the time of the accident the vehicle was being operated without his permission, express or implied, or was parked by a person who had been operating such motor vehicle without such permission." It was therefore necessary for the supreme court to decide the issue in Bryant regarding the applicability of the "no pay, no play" civil penalties to an unauthorized user. The reasoning in Bryan t and Khaliq making the civil penalties provided in La.R.S. 32:866inapplicable to unauthorized users , even where that user is a named excluded driver , is consistent with the statutory scheme in La.R.S. 32:865 which expressly does not hold an owner culpable under the criminal statute for failure to carry compulsory liability insurance when the driver is an unauthorized user.

The import of the supreme court's decision in Bryant was clear to this court in Khaliq and I believe the majority errs in ignoring this court's previous decision. Mr. Khaliq's son, like Jairi, was an excluded driver. Khaliq's son, like Jairi, took the vehicle without his parent's permission or knowledge. This, we said, was "no different from a thief taking and wrecking the vehicle." Khaliq , 950 So.2d at 936. We further noted "it has long been recognized that an insured may recover for property damage under the collision coverage when the damage is sustained while the insured vehicle is in the possession of an unauthorized person. " Id. at 936-37(citation omitted) (emphasis added). The majority finds that the decision in Bryant is "distinguishable" and was limited to the "no pay, no play" situation. But a panel of this court rejected that assertion in Khaliq and it should be rejected here. As this court's panel said in Khaliq , it is a "distinction[ ] without a difference." Id. at 936. The distinction here, without a real difference, is that the unauthorized person, Jairi, was not a thief. He was engaged in the tort of conversion, and a loss occasioned by conversion is covered under GoAuto's policy except when the person is a permissive user . The policy expressly excludes a permissive driver but does not include an exception for a named excluded driver.

The insurance contract is the law between the parties. The majority recognizes this, GoAuto asserts it is so, but, more importantly, La.R.S. 32:900(F) 4 expressly provides: "The policy, the written application therefor, if any, and any rider or endorsement which does not conflict with the provisions of the Chapter shall constitute the entire contract between the parties " (emphasis added).

The insurance policy provides in pertinent part (emphasis in original and added):

NAMED DRIVER EXCLUSION ENDORSEMENT
In consideration of the premium charged, the Named insured agrees that no coverage provided by the Company is afforded while any vehicle listed on this policy is being used, driven, operated or manipulated by, or under the care of: Robyn Thibeaux or Jairi Thibeaux.
POLICY
Words and phrases that appear in bold have special meaning: refer to terms specifically defined in the DEFINITIONS sections of the Policy...
"Your insured auto " means:
a. Any auto owned by you listed on the declaration page...
An "auto accident " is an unexpected and unintended event or occurrence arising out of the ownership, maintenance, operation or use of your insured auto or a non-owned auto that causes bodily injury or property damage .
"Loss " means direct, sudden and accidental loss of or damage to your insured vehicle ...
"Named excluded operator " means any person who by written agreement, contained in the application or by endorsement to this Policy, signed by any applicant for this Policy, or the applicant's legal representative, is listed as a person who shall be excluded from coverage under this Policy, whether or not that listed excluded person is you , the named insured , the spouse of the named insured , a family member of the named insured , or any other person who but for being named as an excluded operator would have been a person insured under the terms of this Policy or by operation of law.
COVERAGE FOR DAMAGE TO YOUR AUTO
PART D - COMPREHENSIVE LOSS COVERAGE
PART E - COLLISION COVERAGE
As used in Parts D and E, of this Policy, subject to any applicable provision or exclusion in this Policy or endorsement to this Policy:
"Collision " means:
1. your insured auto's or temporary substitute vehicle's coming into direct physical contact with another object which is not otherwise excluded herein; or
2. your insured auto's or temporary substitute vehicle's upset or overturning.
Exclusions for Parts, D, E, F and G
There is no coverage For Damage To Your Auto for:
1. Arising out of the operation or use of any auto insured under Parts D, E, F, and/or G by a named excluded operator ...
11. Loss occurring while any auto insured under Parts D, E, F, and/or G is used in the commission of any crime by any person to whom you granted express or implied permission to operate the auto .
15. Loss caused by the theft or conversion of any auto insured under Parts D, E, F, and/or G by a person to whom you have voluntarily entrusted your insured auto . This exclusion does not apply when the auto is stolen from the person to whom you have loaned it...
Limits of Liability for Parts D, E and F
Our limit of liability for loss covered under this Part shall not exceed the lesser of:
1. The actual cash value of the stolen or damaged property at the time of loss ; reduced by the applicable deductible; or
2. The amount necessary to repair or replace the property with other of the like, kind and quality less depreciation, reduced by the applicable deductible.

Under the express terms of the GoAuto policy set forth above, Mrs. Thibeaux is not covered for the loss of her vehicle as the result of a collision when the "loss [is] caused by the theft or conversion of any auto insured [under the policy] by a person to whom [she] [ ] voluntarily entrusted [her] insured auto" (emphasis added). This provision in the insurance contract means that Mrs. Thibeaux is covered for loss by conversion (or theft) when she has not given permission to such an individual . This is precisely the circumstance we have here and nothing distinguishes it from the same circumstance we decided in Khaliq .

The trial court found that on the day of the accident Jairi took the car without Mrs. Thibeaux's permission and he knew he was forbidden from driving the car. Nothing in the record suggests any reason to upset the factual findings of the trial court. Interpreting this policy language to provide coverage for conversion by an unauthorized named excluded driver is consistent with other policy provisions that exclude coverage when the owner authorizes a named excluded driver to use the vehicle. Under any of the policy provisions regarding coverage for loss of the vehicle there is no coverage when the loss is caused either by theft, conversion, for criminal purposes, or by a named excluded driver, when such is done with the owner's permission or authorization. Likewise, the policy consistently provides coverage in a variety of circumstances when damage or loss results from the actions of an unauthorized user.

To understand the application of the applicable language in the policy to Jairi's actions it is necessary to examine the jurisprudence concerning the tort of conversion as that term is used in the legal context.

The tort of conversion is an intentional act done in derogation of the plaintiff's possessory rights. It is committed when one wrongfully does any act of dominion over the property of another in denial of or inconsistent with the owner's rights. Any wrongful exercise or assumption of authority over another's goods, depriving him of the possession, permanently or for an indefinite time, is a conversion ... Kinchen v. Louie Dabdoub Sell Cars, Inc., 05-218 (La.App. 5 Cir. 10/6/05), 912 So.2d 715, 718 (emphasis added) (citations omitted), writ denied, 05-2356 (La. 3/17/06), 925 So.2d 544.

Louisiana Health Care Grp., Inc. v. Allegiance Health Mgmt., Inc. , 09-1093 p. 7 (La.App. 3 Cir. 3/10/10), 32 So.3d 1138, 1143 (emphasis added).

There can be no question that Jairi's taking of the car without Mrs. Thibeaux's knowledge or permission was a tortious conversion of her property . The insurance policy clearly includes coverage for such conversion of Mrs. Thibeaux's property by an unauthorized user . The only caveat to this coverage provided in the policy is that this coverage is forfeited if the person who commits the tortious conversion was a permissive user. This provision in the policy does not include any language in the policy excluding coverage for conversion by a named excluded driver acting without permission . It would have been easy to include such a provision, but the contract is silent.

The provisions in this insurance contract are consistent with Louisiana law on conversion. "Issues of fault, intent, negligence, knowledge or ignorance, and/or good faith are not involved in actions for tortious conversion." Labbe v. Premier Bank , 618 So.2d 45, 46 (La. Ct. App. 1993) citing Hagberg v. Manuel, 525 So.2d 19 (La.App. 3 Cir.1988). Thus, in the case of the unauthorized user's tortious conversion of the insured's property there is no need to explore any "issue of fault, intent, negligence, knowledge, ignorance and/or good faith." Id. The only dispositive fact is the determination that Jairi was an unauthorized user who damaged the car while possessing it through tortious conversion. Questions of whether his mom should have employed more heroic efforts to foreclose the possibility of his tortious conversion or whether she was negligent in failing to foreclose all possibility of Jairi taking the car against her instruction cannot form a basis in determining her right to recover for the loss of her property due to tortious conversion. This loss by conversion is exactly one of the types of coverage for which Mrs. Thibeaux paid her premiums. Thus, GoAuto's argument that requiring it to pay for the loss of the car under these circumstances gives Mrs. Thibeaux the benefit of something she did not pay for is simply not true. Because this insurer provided coverage for damages occasioned by unauthorized users in several circumstances, they have undoubtedly considered such loss in the calculation of premiums. Thus, it seems disingenuous for GoAuto to assert that if it is made to pay for Mrs. Thibeaux's car, she would be getting such coverage free. The majority implicitly accepts this argument stating: "Under the provisions of La.R.S. 32:900(L), an individual and its insurer are free to contract for no coverage for certain named excluded drivers in exchange for a reduced premium." The supreme court expressly rejected this notion in Bryant .

The policy provisions for determining the amount of the insured's recovery for loss by conversion is also consistent with the jurisprudential determination of damages for conversion: "The measure of damages for tortious conversion, when the property cannot be returned to the plaintiff[ ], is the value of the property at the time of conversion. See Dual Drilling [Co. v. Mills Equipment Investments, Inc., [98-343 (La. 12/1/98), ] 721 So.2d [853] at 857-858 ; Matherne v. Terrebonne Parish Police Jury, 462 So.2d 274, 279 (La.App. 1st Cir.1984), writs denied, 463 So.2d 1321 (La.1985). See also, Gurst v. City of Natchitoches, 428 So.2d 502, 504-505 (La.App. 3d Cir.1983)." Commercial Flooring & Mini Blinds, Inc. v. Edenfield , 13-0523 p. 13 (La.App. 1 Cir. 2/14/14), 138 So.3d 30, 39. This is precisely the recompense provided for in this insurance policy, and it is exactly the measure of damages Mrs. Thibeaux seeks, and to which she is entitled, less the "applicable deductible" or "depreciation" as provided in the policy.

Likewise, had the damage to Mrs. Thibeaux's vehicle been caused by a thief the policy provides coverage for loss occasioned by such an unauthorized user. Not only does the policy provide such coverage, we made it clear in our holding in Khaliq , 955 So.2d 688, that loss caused by a thief is covered. Our decision in Khaliq was guided by the Louisiana State Supreme Court's holding and rationale in Bryant , 881 So.2d 1214 and both are applicable here. The majority errs in finding otherwise.

Subsequent to Khaliq , a panel of this court was again confronted with the question of coverage when a named excluded driver was driving a car at the time of an accident. In Martin v. Safeway Insurance Co. of La. , 08-1419 (La.App. 3 Cir. 4/15/09), 26 So.3d 777, another panel of this court rejected the claim for coverage from the "tortfeasor, a named excluded driver, seek[ing] protection from personal liability by seeking to become an insured, under a Safeway policy which specifically excluded him from coverage." There is no indication in that opinion as to whether the excluded driver was driving the vehicle with or without permission. That panel reasoned that "to allow plaintiff to recover from the defendant, Safeway, in this case would make the terms of La.R.S. 32:900(L) meaningless." Id. at 780. That statute deals with motor vehicle liability coverage and provides in pertinent part:

Notwithstanding the provisions of Paragraph (B)(2) of this Section, an insurer and an insured may by written agreement exclude from coverage the named insured and the spouse of the named insured. The insurer and an insured may also exclude from coverage any other named person who is a resident of the same household as the named insured at the time that the written agreement is entered into, and the exclusion shall be effective, regardless of whether the excluded person continues to remain a resident of the same household subsequent to the execution of the written agreement...

La.R.S. 32:900(L) 1.

The panel in Martin said it "did not disagree with the outcome in Khaliq " Supra . at 779, but found it was not applicable to that case. It also discussed the Bryant decision but likewise found it inapplicable. The decision in Martin is not inconsistent with Bryant and Khaliq nor with my position here.

The insurance contract here provides coverage for the damages caused by the tortious conversion of Mrs. Thibeaux's property by an unauthorized user who was a named excluded driver. Mrs. Thibeaux is entitled to coverage for the loss of her Mustang as provided in the GoAuto insurance policy. For the reasons stated I believe there was no error in the trial court's ruling.

Furthermore, we must certainly all be aware that in today's world many households have any number of licensed drivers residing with their parent and/or grandparents. One can easily imagine a household of three, four and five individuals residing with their parent or grandparent and the extremely burdensome dilemma the majority decision will impose on many people. To interpret the insurance contract at issue and the cited jurisprudence as the majority has will mean that no one can take the risk that will now be included in failing to insure all persons of driving age living in the owner's residence at the time the policy is issued. The cost would be prohibitive for many. Because the decision of this panel is at odds with a decision by a previous panel of this court and with the prior holdings of the Louisiana Supreme Court, I believe this case merits an en banc hearing. I respectfully dissent.


source: Caselaw Access Project

author: PERRET, Judge.

license: Public Domain

text:
    Catherine COBB v. LAFAYETTE PARISH SCHOOL BOARD, et al.
    18-819
    Court of Appeal of Louisiana, Third Circuit.
    April 3, 2019
    Michael B. Miller, Miller & Associates, Post Office Drawer 1630, Crowley, LA 70527-1630, (337) 785-9500, COUNSEL FOR PLAINTIFF-APPELLANT: Catherine Cobb
    L. Lane Roy, Brown Sims, 600 Jefferson St., Suite 800, Lafayette, LA 70501, (337) 484-1240, COUNSEL FOR DEFENDANT-APPELLEE: Lafayette Parish School Board
    Catherine M. Landry, Mandy A. Simon, Preis, PLC, Post Office Drawer 94-C, Lafayette, LA 70509, (337) 237-6062, COUNSEL FOR DEFENDANT-APPELLEE: Lafayette Parish School Board
    Court composed of John D. Saunders, Van H. Kyzar, and Candyce G. Perret, Judges.
   PERRET, Judge.

On July 5, 2018, the Workers' Compensation Judge (WCJ) signed an ex parte order granting defendant's, Lafayette Parish School Board's (LPSB), Motion for Satisfaction of Judgments. Plaintiff, Catherine Cobb, appeals this judgment alleging as her sole assignment of error that the WCJ "erred in signing the satisfaction of judgment[s] without a hearing as required by [La.Code Civ.P.] art. 963." For the following reasons, we reverse and remand.

FACTS:

The underlying facts of this case were discussed previously in Cobb v. Lafayette Parish School Board , 16-990, p. 1-2 (La.App. 3 Cir. 5/17/17), 220 So.3d 825, 826-827writ denied , 17-1481 (La. 11/13/17), 230 So.3d 209 as follows:

On May 8, 2001, Catherine Cobb filed a disputed claim for compensation alleging she was injured in September 2000, during the course and scope of her employment with the Lafayette Parish School Board (LPSB). On July 20, 2005, the parties stipulated that Ms. Cobb was entitled to temporary total disability benefits. LPSB then terminated these benefits on August 30, 2006. However, it did not file a motion seeking to modify Ms. Cobb's benefits until May 30, 2008.
On August 31, 2009, the Office of Workers' Compensation (OWC) rendered judgment in favor of Ms. Cobb, awarding indemnity benefits in the amount of $ 195.25 payable from September 12, 2000 through May 30, 2008, as well as $ 3,000.00 in penalties, which was 24% of unpaid benefits from August 31, 2006 through May 30, 2008. Ms. Cobb was also awarded $ 10,000.00 in attorney fees, $ 1,135.53 in costs, and legal interest. No other benefits were awarded.
Ms. Cobb appealed the August 31, 2009 judgment to the extent it failed to award her with any other benefits, and LPSB appealed the award of penalties and attorney fees. The August 31, 2009 judgment was affirmed in all respects by this court on November 3, 2010. Cobb v. Lafayette Parish School Bd ., 10-430 (La.App. 3 Cir. 11/3/10), 49 So.3d 597, writ denied , 10-2692 (La. 1/28/11), 56 So.3d 958.
On July 7, 2010, Ms. Cobb filed a motion seeking additional penalties and attorney fees for LPSB's failure to pay the August 31, 2009 judgment. The workers' compensation judge granted Ms. Cobb's motion and awarded her $ 3,000 in penalties and $ 2,500 in attorney fees pursuant to a judgment dated March 27, 2012.
Ms. Cobb filed another motion seeking penalties and attorney fees on October 12, 2012, alleging LPSB failed to pay the March 27, 2012 judgment. She then filed an amended motion on December 14, 2012, additionally alleging that LPSB failed to pay certain medical bills incurred by Ms. Cobb, and therefore, that she was entitled to penalties and attorney fees. Ms. Cobb did not seek payment of those bills from LPSB.
The bills at issue include $ 4,999 for services rendered by Michael Berard, Ph.D. from October 17, 2005, through February 14, 2008; $ 4,730 for services rendered by Michael Berard, Ph.D. from March 2008 through August 2010; three separate bills totaling $ 80 each for services rendered by Dr. Pervez Mussarat on December 1, 2009, February 24, 2010, and June 15, 2010; and receipts for medication prescribed by Dr. Mussarat that Ms. Cobb purchased from CVS pharmacy from January 2010 through July 2010.
A hearing was held on June 28, 2013. On April 23, 2015, the OWC rendered judgment granting Ms. Cobb's motions and awarding her $ 3,000 in penalties in accordance with La.R.S. 23:1201(G) for LPS's failure to pay the 2012 judgment, $ 6,000 in penalties in accordance with La.R.S. 23:1201(F) for LPSB's failure to pay medical bills, $ 5,000 in attorney fees, together with costs and legal interest.
LPSB filed a motion for new trial on May 4, 2015, asserting for the first time that Ms. Cobb's claims for penalties and attorney fees with respect to the unpaid medical bills were barred by res judicata , given the finality of the August 31, 2009 judgment. A hearing was held on June 9, 2015. Judgment was rendered on June 8, 2016, denying LPSB's motion. LPSB has appealed. In addition, Ms. Cobb has submitted a motion to this court to remove evidence from the record before us.

On May 17, 2017, this court reversed the award of $ 6,000.00 in penalties for failing to pay the medical bills and reduced the attorney fee award to $ 2,500.00. Thereafter, Ms. Cobb filed a supervisory writ of review with the Louisiana Supreme Court, which was denied on November 13, 2017.

On December 20, 2017, LPSB sent counsel for Ms. Cobb a letter and check in the amount of $ 41,057.14 stating it was "in connection with the outstanding Judgments from August 31, 2009, March 27, 2012, and April 23, 2015 including interest paid through December 22, 2017." The letter further stated, "In addition [to the check], enclosed please find a Satisfaction of Judgments which we ask that you execute and return to our office for further handling. Please advise immediately if you will not execute the Satisfaction of Judgments and we will seek Court intervention."

In response, on January 8, 2018, counsel for Ms. Cobb requested a breakdown of the amounts paid and advised that he "would like to negotiate the check" but that he has "no plans to execute the Satisfaction of Judgment." On March 16, 2018, LPSB provided the requested breakdown and again requested that Ms. Cobb "execute the Satisfaction of Judgment for these outstanding judgments."

On June 26, 2018, LPSB issued a replacement check to Ms. Cobb due to the fact that the previous check for $ 41,057.14 had not been negotiated and became stale. On June 29, 2018, LPSB then filed a Motion for Satisfaction of Judgments seeking to have the WCJ declare that "all outstanding amounts have been paid to Claimant [Ms. Cobb] and there is no basis for not having the judgments rendered satisfied." In support of its motion, LPSB attached nine exhibits to prove that the previous judgments had been satisfied.

On July 5, 2018, the WCJ granted LPSB's Motion for Satisfaction of Judgments. On August 3, 2018, Ms. Cobb appealed the granting of LPSB's motion arguing that La.Code Civ.P. art. 963 requires there to be a hearing because the motion was disputed and required supporting proof.

STANDARD OF REVIEW:

"Factual findings in workers' compensation cases are subject to the manifest error or clearly wrong standard of appellate review. In applying the manifest error standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one." Foster v. Rabalais Masonry, Inc. , 01-1394, p. 2 (La.App. 3 Cir. 3/6/02), 811 So.2d 1160, 1162, writ denied , 02-1164 (La. 6/14/02), 818 So.2d 784 (citations omitted). However, "a legal error by the WCJ presents a question of law, which is reviewed by determining whether the WCJ's ruling is legally right or wrong." Burke v. Venture Transport Logistics, LLC , 13-753, p.5 (La.App. 3 Cir. 1/22/14), 131 So.3d 530, 536.

DISCUSSION:

The issue before this court is whether the WCJ erred in granting the LPSB's Motion for Satisfaction of Judgments ex parte. Ms. Cobb argues that the LPSB "attached nine exhibits (twenty-seven pages) to its motion in an attempt to prove it paid several judgments rendered against it" and that "[o]bviously, [LPSB's] motion is disputed and will require evidence." In response, LPSB cites to Allen v. Affordable Home Furnishings , 13-176 (La.App. 3 Cir. 11/13/13), 130 So.3d 345 and Derouen v. Wal-Mart Stores, Inc ., 09-278 (La.App. 3 Cir. 10/7/09), 23 So.3d 389 for the proposition that the WCJ possess the inherent "authority to determine whether the judgments had been satisfied" and "was able to do so without a contradictory hearing." However, after reviewing the two cases cited by LPSB, we agree with Ms. Cobb that they do not "entitle the School Board to an ex parte judgment or even a judgment at all" as the Derouen case actually had a contradictory hearing prior to the trial court granting the partial satisfaction of judgment and the parties in the Allen case submitted the satisfaction of judgment with the motion to dismiss to the workers' compensation judge and thus, the dismissal itself was not in dispute.

"As a matter of procedural law, a workers' compensation judge may only issue an ex parte order in the circumstances set forth in La.Code Civ.P. art. 963 [.]" Pac. Employers Ins. Co. v. Wolff , 99-648, p.2 (La.App. 3 Cir. 11/3/99), 746 So.2d 782, 782. Louisiana Code of Civil Procedure Article 963 provides (emphasis added):

If the order applied for by written motion is one to which mover is clearly entitled without supporting proof, the court may grant the order ex parte and without hearing the adverse party.
If the order applied for by written motion is one to which the mover is not clearly entitled, or which requires supporting proof, the motion shall be served on and tried contradictorily with the adverse party.

The rule to show cause is a contradictory motion.

Applying the above legal precepts to this case, we find that LPSB should have attached an order to its motion to have the matter set for contradictory hearing before the WCJ, especially in light of the fact that Ms. Cobb failed to negotiate the check for $ 41,057.14, continued to refuse to sign the satisfaction of judgments, and LPSB's motion required supporting proof for its claim. The trial court's failure to set the matter for contradictory hearing deprived Ms. Cobb of her right to dispute the claim that the judgments had, in fact, been satisfied.

CONCLUSION:

Accordingly, the WCJ's judgment granting Lafayette Parish School Board's Motion For Satisfaction of Judgments ex parte is reversed. The matter is hereby remanded to the trial court for a hearing on the Motion For Satisfaction of Judgments filed by Lafayette Parish School Board. All costs of this appeal are to be assessed against Lafayette Parish School Board.

REVERSED AND REMANDED.


author: KYZAR, Judge.

text:
    Dustin AUCOIN & Ashley Aucoin v. COPPER MEADOWS HOMEOWNERS ASSOCIATION, INC.
    18-811
    Court of Appeal of Louisiana, Third Circuit.
    April 3, 2019
    Shane E. A. Romero, Jr., Law Office of Shane E. Romero, L.L.C., 110 E. Pershing Street, New Iberia, LA 70560, Phone (337) 321-6945, COUNSEL FOR DEFENDANT/APPELLANT: Copper Meadows Homeowners Association, Inc.
    Stuart Paul Bowie, Colomb and Saitta, LLC, 113 Oil Center Drive, Lafayette, LA 70503, Phone (337) 231-5250, COUNSEL FOR PLAINTIFFS/APPELLEES: Dustin Aucoin Ashley Aucoin
    Court composed of John D. Saunders, Van H. Kyzar, and Candyce G. Perret, Judges.
   KYZAR, Judge.

The defendant, Copper Meadows Homeowners Association, Inc., appeals from a trial court judgment declaring the property of the plaintiffs, Dustin and Ashley Aucoin, free from a restriction set forth in the subdivision's covenants, enjoining it from further attempting to enforce the restriction, and ordering the return of a fine imposed for an alleged violation of the restriction. For the reasons set forth, we affirm.

DISCUSSION OF THE RECORD

The plaintiffs, Dustin and Ashley Aucoin, are the owners of a house and lot located at 107 Meadow Lake Drive in Youngsville, Louisiana, which is part of the Copper Meadows Subdivision, Phase II, established through the defendant, Copper Meadows Homeowners Association, Inc. (Copper Meadows). On September 1, 2017, the Aucoins filed a Petition for Declaratory Judgment and Request for Permanent Injunction against Copper Meadows, seeking to have their property declared free from the effects of a subdivision restriction prohibiting the parking of trailers on or in front of the homes located within the subdivision. The petition specifically pled the two-year liberative prescription period for enforcement of restrictive covenants after a noticeable violation, as set forth in La.Civ.Code art. 781. The petition also sought the return of a $ 25.00 fine imposed and drafted from the Aucoins' bank account by Copper Meadows for an alleged violation of the restriction.

It is undisputed that at the time the Aucoins purchased their house and lot in February 2010, Provision 18 of the Act of Dedication and Restrictive Covenants of Copper Meadows Subdivision, Phase II, read as follows:

The placing and parking of house trailers or mobile homes on any lot in the subdivision shall be prohibited. No motor home, travel trailer, camper or other similar recreational vehicle may be used as a residence on any lot and any such vehicle, as well as any boats and boat trailers, must be parked and kept behind the front set-back line within a closed building or behind a fence at least six (6') in height. No vehicle may be parked on the street in front of any residence longer than twenty-four (24) hours and no vehicle may be placed on blocks or any immovable positions on any lots or street in this subdivision.

At that time, Provision 20 of the Act of Dedication and Restrictive Covenants of Copper Meadows Subdivision, Phase II, also read, in part, as follows:

Notwithstanding anything to the contrary contained herein, until all of the lots in the Subdivision are disposed of by the Developer, these restrictions, including, but not limited to, front, side, or rear line set-back requirements, may be amended unilaterally by an act executed by Developer without the written consent of any other owner or purchaser of said lot or lots provided, however, that no amendments may be enacted without the written consent of all owners where such amendments affect restrictions related to the manner in which these lots may be utilized (i.e. residential).

On January 10, 2014, Copper Meadows amended Provision 18 of the Act of Dedication and Restrictive Covenants of Copper Meadows Subdivision, Phase II, to read as follows:

The placing and parking of house trailers or mobile homes on any lot in the subdivision shall be prohibited. No motor home, travel trailer, camper or other similar recreational vehicle may be used as a residence on any lot, and any such vehicle, as well as any boats, boat trailers, or other trailers, must be parked and kept behind the front set-back lines within a closed building or behind a fence at least six feet (6') in height. No vehicle may be placed on blocks or an immovable position on any lots or streets in this subdivision.

The Aucoins claim that Dustin Aucoin works as a professional plumbing contractor and utilizes a cargo trailer in connection with his business. The Aucoins assert that the trailer has been parked in front of their home on almost every evening during the workweek, between the hours of 6:00 p.m. and 6:00 a.m., and all day and evening during the weekends since they purchased their home in February 2010. Copper Meadows attempted to cite and fine the Aucoins in 2013, for violating the original Provision 18 of the Covenants, but withdrew the action after protest by the Aucoins. After this incident, Copper Meadows amended Provision 18 on January 10, 2014, to specifically prohibit the parking of trailers in front of the lots within the subdivision. The Aucoins assert that they continued to park their trailer in front of their home after the amendment, and that in August 2017, Copper Meadows again cited and fined them another $ 25.00, which they again protested. The fine was auto-drafted from the Aucoins' bank account. While cited numerous times thereafter for alleged successive violations of the same provision, Copper Meadows did not draft the requested fine amounts from the Aucoins' account.

Copper Meadows answered the petition, denying the claim that Provision 18, as amended, was unenforceable as prescribed based on the Aucoins' continuous use of the property in violation of the provision for over three years. Copper Meadows further filed a reconventional demand that alleged that the Aucoins were cited numerous times for violations of the restriction and that they owed a total of $ 750.00 in fines for these violations.

The matter was tried on May 8, 2018. At trial, the Aucoins and Copper Meadows entered into a formal stipulation for the testimony of various witnesses. The parties stipulated that Floyd and Alice Kidder would testify that they have lived at 110 Meadow Lake Drive since 2008, are members of Copper Meadows, and that when the Aucoins moved into the neighborhood in 2010, Mr. Aucoin immediately started parking his trailer on the street outside of his home. The Kidders testified that Mr. Aucoin's trailer was always attached to his truck and that he typically parked his trailer outside his home between the hours of 6:00 p.m. and 6:00 a.m., Monday through Friday. They further testified that he also parked his truck outside his home on holidays, during the weekends, and sometimes randomly during the week. The Kidders further testified that they never reported the Aucoins' violations to Copper Meadows.

The parties stipulated that Tim and Stacie Doucet would testify that they have lived at 112 Meadow Lake Drive since 2007, are members of Copper Meadows, and that after the Aucoins moved into the neighborhood in 2010, Mr. Aucoin immediately started parking his trailer on the street outside of his home. The Doucets testified that Mr. Aucoin's trailer was always attached to his truck, that he typically parked his truck and trailer outside his home between the hours of 6:00 p.m. and 6:00 a.m., Monday through Friday, but that he also parked his truck and trailer outside his home on holidays, during the weekends, and sometimes randomly during the week. They further testified that they never reported the Aucoins to the Copper Meadows.

The parties stipulated that Derek Aucoin, Mr. Aucoin's brother and employer, would testify that Mr. Aucoin worked as an emergency contact plumber, that he has taken the trailer home with him for the past thirteen years, and that every time he visited Mr. Aucoin, which was once or twice a month, the trailer was parked outside of the Aucoins' home.

The parties stipulated to the testimony of Bess Trahan, a resident of Copper Meadows Subdivision since 2012, and a member of Copper Meadows' board of directors and its violations committee since 2012. As a member of the violations committee, she testified that she conducted inspections for violations of the restrictive covenants on Tuesdays, between the hours of 8:00 a.m. and 5:00 p.m. She stated that she regularly passed through the subdivision at other times, and if she noticed a violation of the restrictive covenants, she reported the matter to the board of directors. Ms. Trahan testified that each member of the violations committee conducted inspections on a rotating weekly schedule. Her inspections took approximately one and one-half hours and consisted of driving in front of each home on every street in the subdivision. At no time prior to July 19, 2017, did she ever notice the Aucoins parking a trailer adjacent to the sidewalk or on the street in front of their residence. Ms. Trahan testified that on July 19, 2017, the board of directors received an anonymous report that the Aucoins were parking a trailer in front of their residence. She stated that the board of directors conducted an investigation into the matter and determined that the Aucoins were in violation of Provision 18 of the January 10, 2014 Amended Restrictive Covenants. She said that a fine was issued to the Aucoins based on the violation, and the board of directors continued to check on the Aucoins for the same violation. Ms. Trahan testified that the board of directors cited the Aucoins a total of five times. She stated that the board of directors intended to enforce the restrictive covenants for the subdivision, enjoin the Aucoins from parking their trailer in front of their residence, and seek all attorney fees and costs associated with this lawsuit, as provided by the restrictive covenants.

The stipulation further included the testimony of Heather Abshire, a resident of Copper Meadows Subdivision since 2013, and a member of Copper Meadows' board of directors and violations committee since 2014. As a member of the violations committee, she testified that she conducted inspections for violations of the restrictive covenants on Tuesdays, between the hours of 9:00 a.m. and 6:00 p.m. and that she regularly drove through the subdivision at other times. She stated that if she noticed a violation of the restrictive covenants, she reported the matter to the board of directors. Ms. Abshire testified that each member of the violations committee conducted inspections on a rotating weekly schedule. She stated that her inspections took approximately one and one-half hours and consisted of driving in front of each home on every street in the subdivision.

Ms. Abshire testified that at no time prior to July 19, 2017, did she ever notice the Aucoins parking a trailer either adjacent to the sidewalk or on the street in front of their residence. She stated that the board of directors received an anonymous report on July 19, 2017, that the Aucoins were parking a trailer in front of their residence. She stated that the board of directors conducted an investigation into the matter and determined that the Aucoins were in violation of Provision 18 of the January 10, 2014 Amended Restrictive Covenants. She said that as a result of the violation, the Aucoins were issued a fine. Ms. Abshire testified that the board of directors continued checking the Aucoins for the same violation and that it eventually cited them a total of five times. She stated that the board of directors desired to enforce the restrictive covenants for the subdivision, enjoin the Aucoins from parking their trailer in front of their residence, and seek all attorney fees and costs associated with this lawsuit, as provided by the restrictive covenants.

Mrs. Aucoin testified before the trial court that she and Mr. Aucoin moved into the house at 107 Meadow Lake Drive in Youngsville, part of the Copper Meadows Subdivision, Phase II, on February 2, 2010. Since then, she stated that Mr. Aucoin has parked his work truck and trailer in front of their home seven days per week. She stated that during the normal workweek, Mr. Aucoin would leave the house around 6:00 a.m. and then return home around 6:00 p.m. She said that he also parked his truck and trailer in front of their home on the weekends and that his weekend work schedule was more sporadic. Mrs. Aucoin testified that Mr. Aucoin was home for the majority of holidays unless he was called out for an emergency plumbing job. She stated that unless he was out working, his truck and trailer were always parked in front of their home.

Mrs. Aucoin testified that in addition to the other witnesses, she knew that Copper Meadows' board of director members Jamie Abshire and Dave Pierrett knew that Mr. Aucoin parked his truck and trailer in the front of their home, as she and Mr. Aucoin had spoken to them about the issue. She stated that Copper Meadows attempted to fine them for the alleged violation in 2013, but that it backed off. Mrs. Aucoin identified a series of pictures taken during their residence at 107 Meadow Lake Drive, that showed the trailer parked in front of their home on various dates, including five pictures that were after 2014, specifically May 18, 2014; October 31, 2014; May 27, 2015; June 6, 2015; and August 9, 2017. These five photographs, along with other similar ones, were introduced into the record as evidence. Mrs. Aucoin testified that it was not until July 19, 2017, that they began to be fined for violating Provision 18. She stated that the first $ 25.00 fine was auto-drafted from their bank account because they had set up a bank draft with Copper Meadows to pay their homeowners association dues. Mrs. Aucoin testified that Copper Meadows issued the following fines against them: a $ 50.00 fine on August 3, 2017; a $ 100.00 fine on August 8, 2017; a $ 200.00 fine on August 17, 2017; and a $ 400.00 fine on August 22, 2017. She stated that they only paid the first fine. She finally stated that they were not cited for violating Provision 18 between the beginning of 2014 until July 19, 2017.

Mr. Aucoin testified that he is employed as a surface plumber by his brother Derek Aucoin. He stated that his normal work hours have him leaving his home at 6:15 a.m. and then returning at approximately 6:00 p.m. He said that he is typically on call during the weekend, and he may work either in the morning or the afternoon if he is called out for an emergency. He stated that he is normally home on holidays, unless he is called out on an emergency. Mr. Aucoin testified that Dave Pierrett, a four-year president of Copper Meadows and member of the board of directors, has known for years that he parks his trailer in the front of his home. He stated that he specifically spoke to Mr. Pierrett, who is also a plumber, about this issue.

Jeffery Segura testified that he moved into the Copper Meadows Subdivision, Phase II, in August 2014, and was a member of Copper Meadows' board of directors from August 2015 to February 2018. He stated that he served as secretary to the board of directors and that he was chair of the violations committee, which consisted of three or four members. Mr. Segura testified that it was the duty of the violations committee to enforce the subdivision covenants through weekly inspections, which consisted of driving through the subdivision and checking for noticeable violations. He stated that the inspections were done every Tuesday, and the duties were rotated weekly between the various members of the violations committee. He said that if a violation was noticed, the homeowner was forwarded a notice of a fine. Mr. Segura testified that in addition to the formal inspections, the members of both the violations committee and the board of directors were instructed to look for violations whenever they drove through the subdivision. He stated that every time he left his house, jogged, or rode his bicycle, he looked for violations. He said that despite the fact that he lived a couple of blocks from the Aucoins and that he and his children rode their bikes frequently by their house, he never witnessed a trailer parked in front of the Aucoins' house. Mr. Segura further testified that neither he nor Copper Meadows had notice that the Aucoins were violating Provision 18 until 2017, shortly before the citations were issued, and that the notice was based on an anonymous tip.

Judgment was rendered in favor of the plaintiffs at the conclusion of the trial on May 8, 2018, pursuant to the trial court's oral reasons. A formal judgment was signed on July 11, 2018, and this appeal followed.

Copper Meadows asserts three assignments of error on appeal, as follows:

1. The District Court erred as a matter of law and the July 17, 2018 judgment maintaining Provision 18 of the Act of Dedication and Restrictive Covenants of Copper Meadows Subdivision, Phase II, to be inapplicable to Dustin Aucoin and Ashley Aucoin, 107 Meadow Lake Drive, Youngsville, Louisiana should be reversed.
2. The District Court erred as a matter of law in denying Copper Meadows Homeowners Association's injunction to enjoin Dustin Aucoin and Ashely Aucoin from parking a trailer in front of their residence in violation of the restrictive covenants of the subdivision.
3. The District Court erred as a matter of law in denying Copper Meadows Homeowners Association's fines, as well as an award of attorney fees, relative to the violation of the restrictive covenants of the subdivision by Dustin Aucoin and Ashely Aucoin.

The question presented on appeal is whether a noticeable violation of Provision 18, as amended effective January 2014, occurred for over two years, such that the provision is unenforceable against the Aucoins' property. In its brief, despite having designated the alleged errors of the trial court as errors of law, Copper Meadows correctly asserts that the standard of review on appeal is manifest error. The manifest error standard of review applies to the trial court's factual finding that a noticeable violation of the restrictive covenant in question occurred for over two years without action on the part of the other property owners or Copper Meadows itself. Cosby v. Holcomb Trucking, Inc ., 05-470 (La. 9/6/06), 942 So.2d 471.

Under the manifest error standard of review, a factual finding cannot be set aside unless the appellate court finds that it is manifestly erroneous or clearly wrong. Smith v. Louisiana Dept. of Corrections , 93-1305 (La. 2/28/94), 633 So.2d 129, 132 ; Stobart v. State through Dept. of Transp. and Development , 617 So.2d 880, 882 (La.1993) ; Rosell v. ESCO , 549 So.2d 840, 844 (La.1989). In order to reverse a fact finder's determination of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Id. The appellate court must not re-weigh the evidence or substitute its own factual findings because it would have decided the case differently. Id. ; Pinsonneault v. Merchants & Farmers Bank & Trust Co. , 01-2217 (La. 4/3/02), 816 So.2d 270, 278-79. Where there are two permissible views of the evidence, the fact finder's choice between them cannot be manifestly erroneous or clearly wrong. Id. However, where documents or objective evidence so contradict the witness's story, the court of appeal may find manifest error or clear wrongness even in a finding purportedly based on a credibility determination. Rosell , supra at 844-45. But where such factors are not present, and a fact finder's finding is based on its decision to credit the testimony of one or two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Id.

Id. at 479.

The supreme court, in Cosby , 942 So.2d at 475, further set out the nature, history, and legal precepts of building restrictions and restrictive covenants on real property in Louisiana:

In 1977, the Louisiana Legislature enacted a new Title V of Book II of the Louisiana Civil Code regulating building restrictions. Accordingly, Articles 775 - 783 of the Louisiana Civil Code now define and govern building restrictions. Because prior to 1977 the Civil Code did not specifically address building restrictions, these new articles generally codified the existing jurisprudence.
Building restrictions are defined as "charges imposed by the owner of an immovable in pursuance of a general plan governing building standards, specified uses, and improvements." La. C.C. art. 775. "The plan must be feasible and capable of being preserved." La. C.C. art. 775. "The law is clear that building restriction clauses constitute real rights, not personal to the vendor, and inure to the benefit of all other grantees under a general plan of development, and are real rights running with the land; and that the remedy of the other grantees to prevent a violation of the restrictions by another is by injunction." Oakbrook Civic Ass'n, Inc. v. Sonnier , 481 So.2d 1008, 1010 (La.1986) (citing Edwards v. Wiseman , 198 La. 382, 3 So.2d 661 (1941) ). "Building restrictions may impose on owners of immovables affirmative duties that are reasonable for the maintenance of the plan." La. C.C. art. 778.

As reflected above, our laws governing building restrictions and restrictive covenants are set forth in the Louisiana Civil Code. Louisiana Civil Code Article 779 provides that "[b]uilding restrictions may be enforced by mandatory and prohibitory injunctions without regard to the limitations of Article 3601 of the Code of Civil Procedure." Building restrictions can terminate by the abandonment of the whole plan set forth in the restrictions, whereby the entire plan is abandoned and the affected area is freed of all restrictions, or by a general abandonment of any particular restriction, causing the affected area to be freed of only that restriction. La.Civ.Code art. 782. Finally, any "[d]oubt as to the existence, validity, or extent of building restrictions is resolved in favor of the unrestricted use of the immovable." La.Civ.Code art. 783.

Louisiana Civil Code Article 781 (emphasis added) sets forth the time period within which a party must institute a lawsuit based upon violation of a building restriction:

No action for injunction or for damages on account of the violation of a building restriction may be brought after two years from the commencement of a noticeable violation. After the lapse of this period, the immovable on which the violation occurred is freed of the restriction that has been violated.

According to the Official Comments to this article, "[t]his prescription does not merely bar actions for the enforcement of building restrictions as sui generis real rights; it extinguishes the real right itself in the same way that the prescription of nonuse extinguishes the right of a servitude." La.Civ.Code art. 781, Official Revision Comments (b). In Nepveaux v. Fitzgerald , 480 So.2d 346 (La.App. 3 Cir. 1985), we held that the time period provided in La.Civ.Code art. 781 is a peremptive period, and thus, upon expiration of the two-year period after a noticeable violation, a cause of action or substantive right based on the violation of a building restriction no longer exists to be enforced.

The trial court gave extensive oral reasons for its judgment, as follows:

The Aucoins, I find they purchased the lot in 2010, wherein they continued to park a truck and trailer, noticeably a large truck and trailer, and that would not even fit in his backyard because of the size of it, in 2010, and parked it there through 2013, and parked it there through 2017 continually. I know 2013 because the homeowners association at that point fined the Aucoins in regard to some violations for parking on the road.
Even though at that point it may have been unenforceable, from what I'm gathering from the evidence, but in any event, the fines were waived at that point. But I find that the homeowners association had knowledge at that time that they were parking on the road and actually fined the Aucoins.
In 2013, November, the restrictions were amended to go into effect in January 2014, wherein during that period Mr. Aucoin continued to park on the road. From that point on, all the way through August, I believe, of 2017, the parking of the truck and trailer continued on the road.
I find that the continued parking of the large truck and trailer wherein the pictures were entered into evidence, as well as the stipulations of the neighbors, constituted a noticeable violation of the Aucoins and of Section 18. The problem is there was no violation or notice brought to their attention and no fines being submitted until well after two years. It was over 2-1/2 years before the homeowners association even took any action.
I find the plaintiff has met his burden of proof [sic]. What else I find interesting is for 2-1/2 years, from '14 until August of '17 when Mr. Aucoin continued to park on the road, the homeowners association never found any violations. But then therein after August of '17, they were able to find weekly violations and noticed the Aucoins for that for five weeks in a row.
With that being said, I declare that the lot that - the Aucoins lot at 107 Meadow Lake Drive in Copper Meadows Subdivision is free of the restriction in Paragraph 18 of the covenants.

We find no manifest error in the decision reached by the trial court. Multiple witnesses, including members of Copper Meadows, testified that Mr. Aucoin always kept his trailer attached to his truck and parked his truck and trailer outside their home between the hours of 6:00 p.m. and 6:00 a.m., Monday through Friday. There was also testimony that he parked his trailer outside his home on weekends and holidays. It is evident that Copper Meadows knew in 2013, that the trailer was being parked in front of the Aucoins' home because it attempted to fine them. However, the inference can be drawn from the evidence that it decided that Provision 18, as then written, did not precisely cover the issue because the fine was withdrawn. We agree that it did not, and Copper Meadows has so acknowledged in brief and in argument.

Provision 18 was amended effective January 2014, to directly restrict such parking, yet the Aucoins continued to park their trailer in front of their home without action on the part of Copper Meadows. Derek Aucoin, Mr. Aucoin's brother testified that Mr. Aucoin, for the past thirteen years, took the trailer home any time he was off duty. He said that every time he visited Mr. Aucoin, the trailer was parked outside of his home. In addition, photographic evidence clearly showed the trailer parked in front of the Aucoins' house on various dates from 2014 onwards. Thus, there was a reasonable factual basis for the trial court's conclusion that there was a noticeable ongoing violation of Provision 18 for more than two years prior to Copper Meadows' attempt to enforce the amended version of Provision 18.

Furthermore, the trial court, based on its explicit findings of fact, gave little, if any, weight to the testimony of two Copper Meadows' directors, who despite the fact that they made routine inspections of the subdivision, claimed that they never saw the trailer parked in front of the Aucoins' house until 2017. As such, we cannot declare this finding of fact to be manifestly erroneous.

Rosell v. ESCO , 549 So.2d 840 (La.1989). Accordingly, the trial court judgment declaring the Aucoins' property to be free from the restriction contained in Provision 18, enjoining Copper Meadows from further attempts to enforce the same against the Aucoins' property, and ordering the return of the fine paid, is affirmed.

Based on these findings and our affirmation of the trial court judgment, Copper Meadows' remaining arguments are rendered moot.

DISPOSITION

For the reasons specified herein, the judgment of the trial court is affirmed. The costs of this appeal are assessed against the defendant, Copper Meadows Homeowners Association, Inc.

AFFIRMED.