author: DREW, J.

text:
    Lena W. GREGORY and Carl Gregory, Plaintiff-Appellant v. BROOKSHIRE GROCERY COMPANY d/b/a Brookshire Food Stores, Defendant-Appellee.
    No. 45,070-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 21, 2010.
    Lavalle B. Solomon, APLC, for Appellants.
    Nelson, Zentner, Sartor & Snellings, L.L.C., by David H. Nelson, for Appellee.
    Before WILLIAMS, GASKINS and DREW, JJ.
   DREW, J.

| plaintiffs, Lena W. Gregory and her husband, Carl Gregory, sought damages for injuries sustained when Mrs. Gregory slipped and fell in the Brookshire Grocery Company store in Farmerville, Louisiana, on October 21, 2003. On September 15, 2008, the trial court signed a judgment rejecting plaintiffs’ claims and dismissing the action with prejudice. Plaintiffs appealed, contending the trial court erred in failing to find that the store had constructive knowledge of the dangerous condition which resulted in her fall.

Since the trial, both plaintiffs died. After their appeal was lodged in this court, their children were substituted as parties plaintiff; for purposes of this opinion, however, we will continue to refer to the plaintiffs as Mrs. Gregory or the Gregorys.

The judgment of the trial court is affirmed in all respects.

REASONS FOR JUDGMENT

Following the bench trial on May 8, 2008, the trial court issued Reasons for Judgment on July 23, 2008, and stated:

• Shortly before Mrs. Gregory entered Brookshire, a young girl had thrown up in a number of areas in the store.
• Vomit was along the front main aisle including the front of aisle 13 and on an aisle adjacent and parallel to aisle 13.
• Employees were cleaning the regurgitation in the locations where they observed it.
• On entering the store, Mrs. Gregory saw vomit in several places and carefully made her way past those areas.
• She stopped her buggy near the rear of aisle 13 and walked along aisle 13 toward the front of the store while cautiously looking at the floor.
|* She suddenly slipped and fell on a small clear substance about the size of a baseball. Mrs. Gregory fell as the store employees were finishing cleaning up vomit in other areas of the store.
• What the substance was or how long it had been on the floor was unknown. In addition, it is unknown whether the substance was related to the vomit in various locations in the store.
• Approximately 15 minutes elapsed from when the employees became aware of the child vomiting, until Mrs. Gregory fell.

The applicable law is La. R.S. 9:2800.6 entitled “Burden of Proof in Claims Against Merchants.” As amended by 1996 La. Acts, 1st Ex. Session, No. 8, it provides:

A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.
B. In a negligence claim brought against a merchant by a person lawfully on the merchant’s premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant’s premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of the following:
(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence.
(3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.
C. Definitions:
(1) “Constructive notice” means the claimant has proven that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care. The presence of an employee of the merchant in the vicinity in which the condition exists does not, alone, constitute constructive notice, unless it is Isshown that the employee knew, or in the exercise of reasonable care should have known, of the condition. (2) “Merchant” means one whose business is to sell goods, foods, wares, or merchandise at a fixed place of business. For purposes of this Section, a merchant includes an innkeeper with respect to those areas or aspects of the premises which are similar to those of a merchant, including but not limited to shops, restaurants, and lobby areas of or within the hotel, motel, or inn.
D. Nothing herein shall affect any liability which a merchant may have under Civil Code Arts. 660, 667, 669, 2317, 2322, or 2695.

The trial court relied upon Williams v. Wal-Mart Stores, Inc., 29,940 (La.App.2d Cir.10/29/97), 702 So.2d 8, 10-11, which was decided under the 1991 version of the statute in effect at the time of Williams’s fall:

In Welch v. Winn-Dixie Louisiana, Inc., the Louisiana Supreme Court held that a plaintiff seeking recovery under La. R.S. 9:2800.6 had the burden of proving that she slipped and fell due to a condition on the defendant’s premises which presented an unreasonable risk of harm that was reasonably foreseeable, that defendant either created the condition or had actual or constructive notice of the condition prior to the occurrence and that the defendant failed to exercise reasonable care. Welch v. Winn-Dixie Louisiana, Inc., 94-2331 (La.5/22/95), 655 So.2d 309; Tanner v. Brookshire Grocery Co., 29,276 (La.App.2d Cir.4/2/97), 691 So.2d 871. The Welch court stated that a lack of reasonable care may be inferred from a merchant’s failure to have in place a uniform, mandatory, non-discretionary clean-up and safety procedure. The court further stated that the length of time a foreign substance is on the floor diminishes in relevance if the defendant merchant has no mechanism in place to discover such a hazard. Welch, supra.
In the recent case of White v. Wal-Mart Stores, Inc., however, the Louisiana Supreme Court expressly overruled Welch. White v. Wal-Mart Stores, Inc., 97-0393 (La.9/9/97), 699 So.2d 1081, rehearing denied. In White, the court found the Welch case improperly shifted the burden to the defendant to prove lack of constructive notice by allowing a plaintiff to carry her burden of proving constructive notice by showing the absence of written inspection procedures, written documentation of inspections and lack of a consistent inspection policy. White, supra. Such burden-shifting, the |4court concluded, is contrary to the clear meaning of La. R.S. 9:2800.6. White, supra.
White states that, in addition to all other elements of the cause of action, a plaintiff seeking recovery under La. R.S. 9:2800.6 must prove each of the enumerated requirements of Section (B) of the statute. Thus, Sections (B)(1), (B)(2) and (B)(3) are all mandatory. White, supra.
Section (B)(2) of the statute requires that a plaintiff prove that the merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence. La. R.S. 9:2800.6; White, supra. As defined by Section (C)(1) of the statute, “constructive notice” means that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care. La. R.S. 9:2800.6; White, supra.
As newly pronounced in White, to prove constructive notice, a plaintiff must make a positive showing of the existence of the damage-causing condition for some time period prior to the fall. White, supra.
As stated by the White court:
A claimant who simply shows that the condition existed without an additional showing that the condition existed for some time before the fall has not carried the burden of proving constructive notice as mandated by the statute. Though the time period need not be specific in minutes or hours, constructive notice requires that the claimant prove the condition existed for some time period prior to the fall. White, supra.
While a plaintiff must show that the damage-causing condition existed for “some time period” before the fall, no “bright line time period” is required. White, supra.

The trial court concluded that Mrs. Gregory failed to prove by a preponderance of the evidence that Brookshire “created or had actual or constructive knowledge of the substance that plaintiff slipped on prior thereto.” The statute requires that plaintiff show that the substance had been on the floor for such a period of time that the merchant would have discovered its existence through the exercise of ordinary care. Mrs. Gregory presented no positive evidence that the substance had been on the floor for any period of time prior to her fall. It was unknown what the | .^substance was, whether it was related to the vomit, or how long it had been on the floor. Since a necessary element of plaintiffs’ case was not established, their claim was denied.

DISCUSSION

The Louisiana Legislature has created in La. R.S. 9:2800.6 a heavy burden of proof for plaintiffs who slip and fall in merchants’ premises. Failure by a plaintiff to prove any of the three required elements in La. R.S. 9:2800.6(B) is fatal to the plaintiffs case. Rowell v. Hollywood Casino Shreveport, 43,306 (La.App.2d Cir.9/24/08), 996 So.2d 476.

The Gregorys complained on appeal that the trial court erred because no testimony established formal safety precautions were routinely taken by the store. Plaintiffs argued that Brookshire failed to exercise reasonable care because there was no written or verbal cleanup policy and there was no testimony about procedures taken that day to check the aisles for substances. In determining reasonable care, the absence of a written or verbal uniform cleanup policy is insufficient alone to prove failure of the exercise of reasonable care. La. R.S. 9:2800.6(B)(3).

Plaintiffs cite Brown v. Brookshire’s Grocery Co., 38,216 (La.App.2d Cir.3/12/06), 868 So.2d 297, in which Brookshire’s was found negligent because an employee was aware of the spill and took measures, but the employee guarding the spill did not see or warn a customer who approached, slipped and fell in the spill. That matter is factually distinguishable. Brookshire had actual knowledge of the spill in which Brown fell. The employee was standing by the spill when Brown approached from behind, stepped into the spill and fell. On the other hand, Mrs. Gregory slipped and fell in a spill, the existence of which was unknown to the Brookshire staff and to Mrs. Gregory. Additionally, the small area of clear substance leading to Mrs. Gregory’s fall was some distance down the aisle toward the rear of the store while the vomitas being guarded by the Brookshire employee was in the large front aisle traversing the front of the store.

The Gregorys complained that Brook-shire was aware of a known danger (vomit in several areas) and took no steps to warn patrons of the hazard. However, Mrs. Gregory testified she saw the large soiled area on the floor and took care to go around that and to walk very carefully thereafter. Mrs. Gregory knew of the problem and made efforts to protect herself.

Brookshire employees testified a small, unaccompanied child entered the store, apparently ill and trying to get to the bathroom at the rear of the store. She threw up in front of aisle 13 and along the aisle between the pharmacy and the back of the store and again down the hall leading to the restrooms. This was observed by several store employees, who immediately began cleaning up the vomit. Some minutes later, Mrs. Gregory fell toward the back of the store on aisle 13 when she stepped into a small area of clear liquid substance. Whether or not the unidentified child had been on aisle 13 where the accident occurred was not established.

The law requires that a plaintiff establish that the substance had been on the floor for a period of time. Both Mrs. Gregory and the longtime |7Brookshire employee, Linda Powell, testified they had no knowledge about how long the clear substance had been on the floor toward the rear of aisle 13. It was unknown what the substance was, whether it was related to the vomit, how it got on the floor, or how long it had been there.

Powell testified she returned from lunch to see vomit on the floor and learned that a child had thrown up. Powell stationed another employee to guard the large area of vomit in front of aisle 13 and immediately called over the loudspeaker for emergency assistance, a bucket and mop along with cleanup help. When she returned to the soiled area and no one had come to clean (undoubtedly because they were already occupied cleaning up vomit near the pharmacy and the hall to the restrooms), Powell went to get paper towels and other cleaning supplies from the office at the rear. When she returned, Mrs. Gregory had fallen toward the rear of aisle 13. As she assisted the plaintiff, Powell noticed a small clear substance on the floor but did not know what it was, how it got there, or how long it had been there. At trial, Powell marked areas of vomit which were away from the area of Mrs. Gregory’s fall. Additionally, her description of the child’s regurgitation was different from clear substance described by Powell at Mrs. Gregory’s accident site.

Kathy Barnes, who worked in the Brookshire Pharmacy area, testified about the areas where the child was ill and the immediate efforts of several employees to clean the multiple areas where the vomit was located. Barnes testified that any employee who sees a problem is charged with the duty to Relean it. Further, the assistant store manager had the overall responsibility to monitor the floor periodically.

As demonstrated by the actions of all the employees in immediately addressing the multiple soiled areas created by the sick child, Brookshire had an effective system for cleaning spills. Lacking a Petri' dish in which to collect a sample for analysis and access to timed video surveillance of the spot on which she fell, the Gregorys testified truthfully (along with the Brook-shire employees) that they did not know what the substance was, how it got there, or how long it had been there. The Greg-orys were unable to establish, even roughly, how long the substance had been on the floor. Accordingly, the trial court correctly found that Mrs. Gregory did not meet her burden of proof.

DECREE

For the foregoing reasons, at plaintiffs’ costs, the judgment is AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    Gracie SMITH, Individually, and on Behalf of the Estate of Brian E. Smith, Plaintiff-Appellee v. LOUISIANA FARM BUREAU CASUALTY INSURANCE COMPANY, et al., Defendants-Appellees Gracie Smith, Individually, and on Behalf of the Estate of Brian E. Smith, Plaintiff-Appellee v. Progressive Security Insurance Company and Broubar, Inc., Defendant-Appellant and Defendant-Appellee.
    Nos. 45,013-CA, 45,014-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 23, 2010.

      Nelson, Zentner, Sartor & Snellings, by Fred Williams Sartor, Jr., for Appellant Progressive Security Insurance Company.
    Charles Dean Jones, Rosalind D. Jones, for Appellee Gracie Smith, Individually, and on Behalf of the Estate of Brian E. Smith.
    Cotton, Bolton, Hoychick & Doughty, L.L.C., by John Hoychick, Jr., for Appel-lees Louisiana Farm Bureau Casualty Insurance Co., Acadia Crawfish, Inc., Scott Broussard, and Joshua Pruett.
    Wiener, Weiss & Madison, by Franklin H. Spruiell, Jr., Edwards, Stefanski & Zaunbrecher, by Scott A. Stefanski, for Appellee Broubar, Inc.
    Before STEWART, DREW and LOLLEY, JJ.
   DREW, J.

| tin this tragic auto accident case that resulted in a fatality, Progressive Security Insurance Company appeals a judgment finding that it provided primary insurance coverage to a temporary substitute vehicle and ordering it to pay damages.

We reduce the wrongful death award for loss of support from $160,000.00 to $122,000.00. In all other respects, the judgment is affirmed.

FACTS

On the morning of May 28, 2005, Brian Smith was driving a 2003 Nissan Altima on U.S. Highway 425 in Morehouse Parish. Smith was driving to Arkansas to deliver the car to his mother, Gracie Smith, as a surprise gift. At the same time, a 1998 Dodge Ram pickup truck (“1998 Dodge”) being driven by Joshua Pruett was proceeding southbound in the opposite direction on the two-lane highway. Pruett, who had left Crowley, Louisiana, nearly six hours earlier to deliver crawfish to businesses in North Louisiana on behalf of his employer, Broubar, Inc., was heading to his last stop.

The 1998 Dodge was pulling a 1994 Wolverine utility trailer. Unfortunately, the ball on the truck was too small for the trailer hitch and there were no safety chains being used to ensure that the trailer and truck remained attached. Pruett estimated the trailer carried 5,000 pounds of crawfish and ice when he left Crowley, so that weight was probably what kept the trailer attached to the truck, but when the load became lighter as Pruett made his deliveries, the risk of a terrible accident increased. At approximately 8:01 a.m., the trailer disconnected, crossed the center-line, |2and collided with the driver’s side of Brian’s vehicle. Brian died from the injuries he sustained in the accident. Pruett was cited for failing to use safety chains to attach the trailer to the truck.

Broubar, Inc., d/b/a Acadia Crawfish, was a crawfish wholesaler owned and operated by Scott Broussard. Pruett was employed by Broubar. Ordinarily, a 2005 Dodge Ram 3500 Quad Cab pickup truck (“2005 Dodge”) with a cooler attached to its bed would have made the trip to North Louisiana. However, the 2005 Dodge, which was insured by Progressive, was in the shop for repairs, so Broussard substituted the 1998 Dodge, which was insured by Farm Bureau. Unlike the 2005 Dodge, the 1998 Dodge could not hold a cooler for the crawfish in its bed. Therefore, the trailer was used to hold a cooler.

On June 10, 2005, Gracie Smith, individually and on behalf of her son, filed suit against Acadia Crawfish, Pruett, and Farm Bureau as liability insurer and as Brian Smith’s UM insurer. The petition was amended to add Scott Broussard as a defendant.

On November 3, 2005, Gracie Smith, individually and on behalf of her son’s estate, filed a separate lawsuit against Progressive Security Insurance Company and Broubar, Inc. The two lawsuits were later consolidated.

Mrs. Smith settled her claims against Farm Bureau to the policy limits of $100,000.00 under the liability coverage and $10,000.00 under the UM coverage. Farm Bureau filed a cross claim and third party demand against ^Progressive, seeking indemnification for the $110,000.00 that it paid to Mrs. Smith.

The parties stipulated to liability and proceeded to trial. The trial court concluded that the 1998 Dodge and the trailer constituted a temporary substitute vehicle operating as a single unit, and Progressive was bound to provide primary insurance coverage.

The court found that Brian Smith briefly survived the accident, and awarded $250,000.00 in damages on the survival claim. On the wrongful death claim, the court awarded damages of $450,000.00 in compensatory damages, $160,000.00 for loss of support, $5,000.00 for loss of services, and $7,368.30 for funeral expenses. The court ruled in favor of Farm Bureau on its subrogation claim of $110.000.00. Progressive has appealed.

DISCUSSION — INSURANCE COVERAGE

Broubar, Inc., d/b/a Acadia Crawfish, was the named insured on a Commercial Auto Policy issued by Progressive. Joshua Pruett was named as a rated driver on the policy, along with the other drivers who delivered crawfish for Broubar. The relevant policy term began on April 1, 2005. The premium was $26,681.00. The vehicles scheduled on the policy were a 1993 International Refrigerator Truck and two 2005 Dodge Ram 3500 Quad Cab pickup trucks (“2005 Dodges”).

The 2005 Dodges were used to deliver crawfish. Broussard purchased these trucks in his name because that was the only way he could get 0% financing on the purchase. The 2005 Dodges remained titled and registered in Broussard’s name. However, he considered the 2005 Dodges |4as owned by Broubar because they were purchased for Broubar’s purposes and Broubar paid the notes and insurance on them.

Scott Broussard had an auto liability insurance policy with Farm Bureau with a policy period from April 9, 2005, to April 9, 2006. Although the policy was issued to Broussard personally, it covered vehicles used at Scott Broussard Farm and the premiums were paid from the farm account. The policy premium was $11,663.46. Among the eight vehicles listed on the policy schedule was the 1998 Dodge, which was titled and registered in Broubar’s name after it was acquired in January of 2003. A customer had owed money to Broubar, so the truck was taken for partial payment of the debt.

Broussard thought of the 1998 Dodge as owned by him because he used it at his farm. The 1998 Dodge was originally used to deliver crawfish for Broubar, and it had a cooler in its bed. After June of 2003, it was no longer used to deliver crawfish and Broussard’s son took it with him to college in Texas until December of 2004.

Broussard explained that for tax reasons, he had not changed the titles on the 1998 and 2005 Dodges to accurately reflect their ownership; also, he considered it a hassle to make the changes.

In 2003, Farm Bureau dropped coverage of the trucks that delivered for Broubar. When Broubar applied for insurance with Progressive in April of 2003, the 1998 Dodge, a horse trailer, and a Chevrolet vehicle were included in the original quote. Broussard subsequently asked that these vehicles be deleted from the quote, so that the Progressive policy initially | Jisted a 1993 International truck and two Ford 2001 pickup trucks on its auto coverage schedule.

Broussard related that the original quote from Progressive included the 1998 Dodge because he wanted a quote including every vehicle that had been listed on the Farm Bureau policy. He eventually had the vehicles used at the farm removed from the quote, so that only the vehicles used by Broubar were scheduled vehicles on the Progressive policy.

Temporary Substitute Vehicle

The coverage of temporary substitute vehicles is now governed by La. R.S. 22:1296, which was renumbered from La. R.S. 22:681 in 2008. At the time of the accident, La. R.S. 22:681 provided:

Every approved insurance company, reciprocal or exchange, writing automobile liability, physical damage, or collision insurance, shall extend to temporary substitute motor vehicles as defined in the applicable insurance policy and rental private passenger automobiles any and all such insurance coverage in effect in the original policy or policies. Where an insured has coverage on multiple vehicles, at least one of which has comprehensive and collision insurance coverage, that comprehensive and collision substitute coverage shall apply to the temporary substitute motor vehicle or rental motor vehicle. Such insurance shall be primary. However, if other automobile insurance coverage is purchased by the insured for the temporary substitute or rental motor vehicle, that coverage shall become primary. The coverage purchased by the insured shall not be considered a collateral source.

Prior to rendering its ruling, the trial court submitted 15 questions to the parties for consideration. The trial court later provided “answers” to these questions that in effect supplemented its written reasons for judgment. Among the court’s answers was that the definition of “temporary substitute vehicle” required in a policy by La. R.S. 22:681 needed to be sufficient to | (¡make clear the meaning of “temporary substitute vehicle” in such a way that explanation, interpretation, or clarification was not needed. The trial court concluded that the necessary definition was not found in the Progressive policy.

Although “temporary substitute vehicle” was not given its own line item in the general definitions section of its policy, Progressive contends its policy complies with La. R.S. 22:681 in the manner in which it defines “temporary substitute vehicle.” Progressive cites the following provisions in its policy:

9. “Your insured auto” or “insured auto” means:
c. Any non-owned auto while you or an employee of yours is temporarily driving it as a substitute for any other auto described in this definition because of its withdrawal from normal use for a period of not greater than 30 days without notification to us due to breakdown, repair, servicing, loss or destruction. Coverage for PART III — DAMAGE TO YOUR AUTO does not apply to these temporary substitute autos.
11. “Non-owned auto” means any auto which is:
a. not owned by or registered to you, your nonresident spouse or a resident of the household in which you reside; [or]
b. not hired, owned by or borrowed from your employees or members of their households^]

Progressive contends that the 1998 Dodge was registered and titled in Brou-bar’s name, making Broubar its owner. As such, the 1998 Dodge could not have been a “non-owned auto” as defined by the policy.

Progressive further argues that even if the 1998 Dodge was owned by Scott Broussard, it would still not be a “non-owned auto” under the policy because Broussard was an employee of Broubar. Broussard was the owner |7and operator of Broubar. However, he received a Form W-2 from Broubar in 2004, and wages paid by Broubar to Broussard were reported to the state for each quarter of 2005.

In support of its argument that its policy adequately defines a temporary substitute vehicle as a non-owned auto, Progressive cites State Farm Mut. Auto. Ins. Co. v. U.S. Agencies, L.L.C., 2005-0728 (La.App. 1st Cir.3/24/06), 934 So.2d 745, writ denied, 2006-0933 (La.6/16/06), 929 So.2d 1288, and Reynolds v. U.S. Agencies Cas. Ins. Co., 41,598 (La.App.2d Cir.11/1/06), 942 So.2d 694. Both cases concerned whether an insurer could avoid the requirements of La. R.S. 22:681 by not defining “temporary substitute vehicle” in its policy.

In State Farm, supra, the insurers disputed how their policies should be ranked. Drivers insured by U.S. Agencies caused auto accidents while driving vehicles borrowed from State Farm insureds. State Farm argued that U.S. Agencies provided primary coverage pursuant to La. R.S. 22:681. U.S. Agencies responded that because it chose not to define “temporary substitute vehicle” in its policies, the statute was not applicable, and the borrowed autos were to be treated under its policies as “non-owned autos,” making its coverage excess. The U.S. Agencies policies had defined the term “temporary substitute vehicle” until the definition was removed in 2002. U.S. Agencies believed this action exempted it from the provisions of the statute. The First Circuit disagreed, holding that the statute was mandatory, and that an insurer could not opt out of the statute by not defining “temporary substitute vehicles” in its policy. Finally, the court |8concluded that U.S. Agencies had complied with the statute by subsuming the definition of “temporary substitute vehicles” within its definition of “non-owned auto,” and this coverage was primary.

In Reynolds, supra, this court was faced with the same issue. The tortfeasor, whose truck was insured by U.S. Agencies and unsafe to drive, borrowed a truck that was owned by his grandmother and insured by Allstate. U.S. Agencies again contended that the statute was not applicable because “temporary substitute vehicle” was not defined in its policy, and that its policy provided only excess coverage for “non-owned” vehicles such as the grandmother’s truck. This court followed the reasoning of the First Circuit in State Farm, supra, and concluded that U.S. Agencies was bound by the statute to provide primary coverage.

We agree with Farm Bureau’s contention that the statement in State Farm,, supra, that the definition of “temporary substitute vehicles” was subsumed within its definition of “non-owned auto,” was dictum. The court had already noted that the definition of “temporary substitute vehicle” had been removed from the U.S. Agencies policies.

In regard to the interpretation of insurance policies, our supreme court stated in Valentine v. Bonneville Ins. Co., 96-1382, p. 3 (La.3/17/97), 691 So.2d 665, 668:

An insurance policy is a contract between the parties and should be construed using general rules of interpretation of contracts set forth in the civil code. If the wording of the policy at issue is clear and expresses the intent of the parties, the agreement must be enforced as written. The parties’ intent, as reflected by the words of the policy, determines the extent of coverage and such intent is to be determined in accordance with the general, ordinary, plain, and popular meaning of words [9used in the policy, unless the words have acquired a technical meaning. An insurance policy 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 absurd conclusions. If ambiguity still remains after applying other general rules of construction, ambiguous provisions are to be construed against the insurer and in favor of the insured.

(Citations omitted.)

Progressive could have given a clear definition of what constitutes a “temporary substitute vehicle,” but instead chose to bootstrap it to the definitions of “non-owned auto” and “insured auto” found in the General Definitions section of the policy-

Interestingly, the definition of “temporary substitute vehicle” that Progressive contends is found within the definitions of “non-owned auto” and “insured auto” is actually more limited than what is defined as an “insured” under the policy’s UM-bodily injury provisions:

As used in this endorsement:

(1) “Insured” means:
(a) You or a relative.
(b) Any other person occupying an insured auto or a temporary substitute for an insured auto out of service due to breakdown, repair, servicing, loss, or destruction.

Broussard thought Broubar’s use of the 1998 Dodge on the date of the accident was as a “temporary substitute vehicle,” and as such it was covered under Progressive’s policy. Marian Laughlin, a producer for the Landry-Harris Insurance Agency, testified that she informed Brous-sard that because Progressive was writing a Symbol 7 (scheduled auto) policy, all vehicles owned by Broubar had to be listed on the policy in order to be covered.

| mA “temporary” vehicle is one that is used for a limited time, as opposed to a vehicle that is used permanently. Yagel v. Sanders, 36,101 (La.App.2d Cir.7/17/02), 828 So.2d 448, writ denied, 2002-2211 (La.11/8/02), 828 So.2d 1121. “Substitute” connotes the replacement of one thing for another. Id.

Broubar generally used the 2005 Dodge to deliver crawfish. It was out of service on May 28, 2005, because it was at the dealership for repairs. Broubar’s manager received a call at 4:30 the day prior to the accident that the 2005 Dodge would not be ready to make deliveries. Brous-sard told the manager to haul the crawfish in a trailer attached to the 1998 Dodge. The 2005 Dodge resumed hauling crawfish after it was repaired. When the 1998 Dodge was used in place of the 2005 Dodge, it served as a “temporary substitute vehicle” as those words are commonly used and understood, and it was extended any and all such insurance coverage in effect in the Progressive policy.

The trial court considered the 1998 Dodge and the trailer to be a single unit. Progressive contends that the trial court erred in ruling that the policy provided coverage for the trailer. Progressive states the trailer was not connected to an “insured auto.” Progressive also directs the court to a provision in its policy which stated:

Coverage under this PART I and our duty to defend does not apply to:
22. Bodily injury or property damage if your insured auto or a non-owned auto is attached to a trailer with load capacity in excess of two thousand (2,000) pounds if it is not listed in the Declarations and it:
a. is owned by you or your employee[J

|nThe trailer was acquired in April of 2001 by Broubar, in whose name it remained registered. It was not listed on any insurance policy. The trailer also had a label stating its weight capacity was 12,000 pounds. Nevertheless, the trial court correctly treated the 1998 Dodge and the trailer as a single unit.

The 2005 Dodge had a cooler that fit in its bed. This cooler could not fit in the bed of the 1998 Dodge. Therefore, in order for the 1998 Dodge to function as a temporary substitute vehicle for the 2005 Dodge, it needed to pull a trailer that could hold a cooler to keep the crawfish refrigerated. Compare Yagel v. Sanders, supra, where a pickup truck was being used in the same capacity as a trailer which was out of service. Moreover, the trailer did not lose its insured status when it accidentally became disconnected from the towing vehicle while in tow. See Gardner v. Allstate Ins. Co., 575 So.2d 883 (La.App. 2d Cir.1991), writ denied 578 So.2d 139 (La.1991).

Accordingly, we find no error in the trial court’s conclusion that the 1998 Dodge truck and the trailer together constituted a temporary substitute vehicle operating as a single unit, and that Progressive was bound to provide primary coverage for damages caused by its insured while operating this temporary substitute vehicle.

Progressive as Primary Insurer

Progressive contends in the alternative that the trial court erred in ruling that its coverage was primary to Farm Bureau’s coverage. Progressive likens Broubar and Broussard’s other business entities to a l^single business enterprise, making Scott Broussard the insured as contemplated by La. R.S. 22:681, such that Farm Bureau’s insurance becomes primary to Progressive’s.

In determining whether a corporation is an “alter ego” or part of a “single business entity,” the court must look at the substance of the corporation rather than the form. Town of Haynesville, Inc. v. Entergy Corp., 42,019 (La.App.2d Cir.5/2/07), 956 So.2d 192, writ denied, 2007-1172 (La.9/21/07), 964 So.2d 384.

In Green v. Champion Ins. Co., 577 So.2d 249 (La.App. 1st Cir.1991), writ denied, 580 So.2d 668 (La.1991), the court supplied a non-exclusive list of factors to consider that are similar to those used to pierce a corporate veil. These factors are:

• Corporations with identity or substantial identity of ownership, that is, ownership of sufficient stock to give actual working control.
• Common directors or officers.
• Unified administrative control of corporations whose business functions are similar or supplementary.
• Directors and officers of one corporation acting independently in the interest of that corporation.
• A corporation financing another corporation, and inadequate capitalization (“thin incorporation”).
• A corporation causing the incorporation of another affiliated corporation.
• A corporation paying the salaries and other expenses or losses of another corporation.
• A corporation receiving no business other than that given to it by its affiliated corporations.
• A corporation using the property of another corporation as its own.
| ia* Noncompliance with corporate formalities.
• Common employees; or services rendered by the employees of one corporation on behalf of another corporation.
• Common offices and centralized accounting.
• Undocumented transfers of funds between corporations, and unclear allocation of profits and losses between corporations.
• Excessive fragmentation of a single enterprise into separate corporations.

Broubar, Inc., d/b/a Acadia Crawfish, was a wholesale business that purchased, sold, and delivered crawfish. It also did catering. Broubar was owned by Scott Broussard and his wife. Broubar had a full-time secretary at its office, and Brous-sard’s wife, who was secretary-treasurer, supervised the secretary. Broubar had a phone number that was separate from Broussard’s personal number. Broubar did not share a business address with Broussard Farm.

Scott Broussard Farm was a sole proprietorship owned by its namesake that farmed crawfish and sold them, mostly to Broubar. The farm also traded crawfish with other farms.

SKB Farms, LLC, also farmed crawfish and sold them. Scott Broussard and his brother, Kevin Broussard, were the only members of SKB in 2005. Scott Brous-sard made the decisions concerning SKB; Kevin kept the records. When SKB sold crawfish to a wholesaler, it sold them exclusively to Broubar. It traded crawfish with others. SKB had a telephone number that was separate from Broubar’s number.

Broussard Farm contracted with SKB to provide “alien” labor. During the farming season, the alien labor would harvest the crawfish at 114Broussard Farm in the morning and then process the crawfish at Broubar in the afternoon. The entities also borrowed employees from one another if needed. Records were kept when an employee was borrowed. The borrowed labor was not always directly paid for, as sometimes the entities would just make a bookkeeping adjustment for cash flow purposes instead of making a payment.

The entities also borrowed equipment and trucks. Records were kept when equipment was loaned. Nothing was charged if a truck was borrowed. During the crawfish off-season, the coolers were removed from the 2005 Dodges and the trucks were used to transport seasonings for Cajun Shaker, which was a part of Broubar. After Broussard sold part of Cajun Shaker, Broubar began billing Cajun Shaker if the trucks made special trips to deliver seasonings. Broussard or a manager was asked before equipment or a vehicle was borrowed from any entity.

A CPA did separate tax returns for all the entities. The CPA also did separate quarterly reviews and financial statements.

Broubar held informal shareholder meetings in which Broussard and his wife, and his children involved in the corporation, met to discuss Broubar. Minutes were not kept of these meetings.

The record does not support Progressive’s theory that Broussard’s businesses operated as a single business enterprise. The trial court correctly found that Progressive was the primary liability insurer for all damages sustained in the accident.

J^DISCUSSION — QUANTUM

The trier of fact has much discretion when assessing damages in cases of offenses, quasi offenses, and quasi contracts. La. C.C. art. 2324.1. Before an appellate court may disturb an award for general damages, the record must clearly reveal that the trial court abused its broad discretion in making the award, based on the facts and circumstances peculiar to the case and the individual under consideration. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993). The discretion afforded the trier of fact to assess special damages is narrower or more limited than the discretion to assess general damages. Eddy v. Litton, 586 So.2d 670 (La.App. 2d Cir.1991), writ denied, 590 So.2d 1203 (La.1992).

It is only after an articulated analysis of the facts discloses an abuse of discretion that resort to prior awards in similar cases is proper. Dixon v. Tillman, 29,483 (La.App.2d Cir.5/7/97), 694 So.2d 585, writ denied, 97-1430 (La.9/19/97), 701 So.2d 174. The proper procedure for examining whether an award is excessive is to determine whether the amount can be supported under the interpretation of the evidence most favorable to the plaintiff which reasonably could have been made by the trier of fact. Manuel v. State Farm Mut. Auto. Co., 30,765 (La.App.2d Cir.8/19/98), 717 So.2d 277.

Survival Damages

Progressive complains that there was no evidence that Smith survived the accident even for an instant, and thus the award of $250,000.00 in damages on the survival action was excessive and should be reduced.

| [fíA survival action, which compensates for the damages suffered by the victim from the time of injury to the moment of his death, differs from the wrongful death action, which compensates the beneficiaries for their own injuries which they suffer from the moment of the victim’s death and thereafter. Warren v. Louisiana Medical Mut. Ins. Co., 2007-0492 (La.12/2/08), 21 So.3d 186; Taylor v. Giddens, 618 So.2d 834 (La.1993). Damages for a survival action may include the decedent’s pre-impact fear. See Thomas v. State Farm Ins. Co., 499 So.2d 562 (La.App. 2d Cir.1986), writs denied, 501 So.2d 213, 215 (La.1987).

If there is even a scintilla of evidence showing any pain or suffering by a victim prior to his death, damages are warranted in a survival action. King v. Brown Development, Inc., 43,827 (La.App.2d Cir.2/4/09), 4 So.3d 281, writ denied, 2009-0499 (La.4/17/09), 6 So.3d 796.

After Pruett saw the trailer collide with Brian’s car, Pruett pulled his car to the side of the road and caught his breath for a moment. He turned his truck around and drove it a short distance to where Brian’s car was located. Pruett exited his truck and ran down into a ditch to Brian’s car. He estimated this took no more than three or four minutes. One of Brian’s legs was cut off and he was not moving. The only sound he was making was the gurgling of blood, which sounded to Pruett like it was coming from Brian’s mouth. Pruett never checked to see if Brian had a pulse because he thought Brian was already dead.

The Morehouse Parish Sheriff’s Department responded to a 9-1-1 call that was received at 8:01 a.m. concerning the accident. An ambulance was |17called at 8:09 and it arrived at 8:16. State Police were notified at 8:12, and State Trooper Mark Dennis arrived at 8:29. Trooper Dennis stated that because of the prevalence of cell phones, the time an accident is called in to 9-1-1 is generally used as the time of the accident.

Trooper Dennis stated he could not determine the time of death. When Trooper Dennis was asked about the Deputy Coroner’s determination that the time of death was 8:01, Dennis responded that the Deputy Coroner asked what time he was using for the reported crash, and then used that time for the time of death. Trooper Dennis thought the Deputy Coroner arrived at the scene after him.

Brian, who was 42, died in a horrific manner. The impact from the runaway trailer completely removed his door, the car’s “B-pillar,” and the left rear passenger door. The death certificate listed severe chest and abdominal trauma and head trauma as the causes of death. Brian was pronounced dead at the scene.

According to the autopsy report, Brian sustained multiple injuries predominantly involving the chest and abdomen. His injuries included partial amputation of the left lower leg, multiple bilateral rib fractures with lacerations of both lungs and the pericardial sac, extensive lacerations of his liver and spleen, and multifocal areas of subarachnoid hemorrhage involving the brain.

Brian was undoubtedly placed in great fear as he maneuvered his vehicle in an attempt to avoid the collision. The narrative from Trooper Dennis states that it appeared that Brian saw the trailer and attempted to |1smove his car to the right shoulder. The Altima came to rest in grass approximately 30 feet from the point of impact.

Pruett heard gurgling sounds coming from Brian when he approached him several minutes after the accident. The record supports a finding that Brian did not die instantly, but briefly survived. Accordingly, the award of $250,000.00 in compensatory damages on the survival action was not an abuse of discretion.

Wrongful Death Damages

Progressive contends in the alternative that the award of wrongful death damages was excessive and should be reduced.

The elements of damages for a wrongful death action are loss of love and affection, loss of services, loss of support, medical expenses and funeral expenses. Clark v. G.B. Cooley Service, 35,675 (La.App.2d Cir.4/5/02), 813 So.2d 1273.

Awards for lost future income, or support, are intrinsically insusceptible of calculation with mathematical certainty. Sledge v. Continental Cas. Co., 25,770 (La.App.2d Cir.6/24/94), 639 So.2d 805. Speculation, probabilities, and conjecture cannot form the basis of the loss, which must be shown with reasonable certainty. Id.

Brian was the 11th of 12 children, and the only child to finish a four-year college. He was considered the family’s leader and was active in organizing family reunions. His younger brother Randy looked up to him as a father figure. He was a mentor to all the family members, and he encouraged them in their endeavors. His death was and remains devastating 119to his family. One niece would sometimes even go to his grave to talk to him.

Mrs. Smith was very close to Brian. Brian took her on vacation with him, and he went to church with her. She also went to his fraternity banquets with him.

Mrs. Smith lived in Joiner, Arkansas, which is in the northeastern part of the state. Brian lived in Monroe, Louisiana. Mrs. Smith estimated that Brian drove to Joiner from Monroe at least 10 times a year, and he always came home for Christmas, Easter, and Mother’s Day.

Brian helped his mother with her garden each year by tilling the ground and planting and maintaining the garden. His brother Stanley did a lot of upkeep around the house on a regular basis, but Brian paid for the equipment that Stanley used. His sister Beverly also helped to cut the grass and to keep the house clean.

Randy Smith described his mother as being devastated and heartbroken after learning of Brian’s death. Randy thought his mother had both good and bad days since Brian was killed.

Mrs. Smith has not sought counseling from a physician, but has sought comfort through prayer, and her faith has helped her persevere. Mrs. Smith looks at Brian’s picture and talks to him every day. She did not learn until after he died how much he had helped others.

Randy related that he and his siblings were discussing getting together to buy a car for their mother because her car, a 1991 Ford Tempo, had stopped working, and she lacked the financial means to get a new car. |2oBrian, knowing his siblings’ financial conditions, took it upon himself to buy the car, a Nissan Altima, on his own. The cost of the Altima was $18,917.00. The purchase was financed for 60 months, so including the finance charge, the total cost was $22,416.00. There were to be 60 monthly payments of $373.60 each.

Mrs. Smith did not know Brian had purchased the Altima for her. In fact, Brian was driving to Joiner to surprise her with the car when the tragic accident occurred.

Mrs. Smith last saw Brian in person at her home on Mother’s Day, 2005. He had worked in her garden all day, and when she came home from church, she saw a check and card he had placed on her ironing board. The last time she spoke with him was when he called her house to speak to his brother after returning to Monroe that night. She received a phone call at 10:30 on the morning of the accident telling her that Brian had been killed. She had to go to the emergency room that night to receive a sedative.

Randy related that his parents had lived in what was basically a shack. In 1998, they moved into a home that Brian had built for them. Brian paid the mortgage note and made sure the home was kept up. On June 5, 2003, a mortgage for $76,000.00 was taken on the house in Joiner. The note was for 30 years, with an interest rate of 6%. Not counting escrow, the monthly note was $455.66. At the time of Smith’s death, the note was $555.01.

Mrs. Smith was born on April 18, 1930. Her husband died in 2001. Social Security was her only source of income. Brian was able to 12i financially help his elderly mother because he was unmarried, had no children, and had a good job with Entergy. In the few years before his death, his annual salary ranged from $84,462.00 to $94,401.00. Randy testified that he and a sister in Illinois also gave their mother money, but Brian was her primary support system. Although Mrs. Smith’s other children helped her out after Brian died, their level of financial support does not approach what Brian provided to her.

Randy related that Brian would try to meet whatever financial needs his mother had. Brian would give her money for the light bill if she was unable to pay it, and he gave her money for gas, but not on a monthly basis. In terms of regular monthly support, Brian paid the mortgage note and had an automatic monthly withdrawal of $150.00 from his checking account to Mrs. Smith. The automatic withdrawals began in May of 2004. Brian also paid for her medications.

The record reflects that checks in the following amounts were written by Brian either to or on behalf of his mother: (i) $200.00 for gas on February 5, 2008; (ii) $500.00 for her birthday on April 18, 2003; (iii) $500.00 on April 25, 2003; (iv) $300.00 for an appraisal on May 12, 2003; (v) $110.00 to Bugmobile for a yearly inspection on June 30, 2003; (vi) $150.00 on September 22, 2003; (vii) $150.00 on December 1, 2003; (viii) $100.00 for Christmas on December 25, 2003; (ix) $400.00 on February 9, 2004; (x) $120.00 to Bugmo-bile for a yearly inspection on June 2, 2004; (xi) $20.00 to Bugmobile on June 25, 2004; (xii) $100.00 for a Christmas |⅞>£⅞ on January 7, 2005; and (xiii) $500.00 for Mother’s Day, Birthday, and gravel on May 8, 2005.

Mrs. Smith explained that sometimes Brian gave her money because she needed it, and at other times he gave her money because he felt like doing it. She received money each month from Brian, but the amounts would vary. She recalled that he wrote her a check for $1,000.00 in 2000 just so she would have money.

Mrs. Smith disagreed that except for the automatic withdrawal, payments to her would usually be for a gift marking a special day. She stated that whenever Brian came home, he normally gave her cash, in amounts ranging from $100.00 to $300.00.

In the judgment of possession in Brian’s succession, Mrs. Smith was placed in possession of all his property, including his home in Monroe, the Joiner home, and a 2004 Ford F150 truck. She also received a check from the bank for $4,629.74, which was what remained in his checking account. She paid the mortgage on the Monroe home for eight months and then sold it in January of 2006 for a profit of $1,400.00. The furniture was given to family members. She still lives in the Joiner home, which remains burdened by a mortgage. She paid off the balance owed on the 2004 Ford truck and gave it to one of her sons. Her surviving sons bought a car for her.

The trial court awarded $160,000.00 in damages for loss of support. At trial, the court heard testimony from expert economists Dr. W. Patton Culbertson, on behalf of Mrs. Smith, and Dr. Melvin Harju, on behalf of Progressive. Dr. Culbertson testified that he calculated the present, | ^discounted value of the loss of support to Mrs. Smith to be $162,000.00, which is close to the amount awarded by the court.

Dr. Harju’s original estimates for loss of support ranged from $91,463.00 to $81,703.00, depending on the discount rate that he used. When making his original calculations, Dr. Harju did not take into account any allowance for a car, and he used a monthly stipend of $150.00.

In reaching his figure of $162,000.00, Dr. Culbertson took into account monthly cash support of $250.00 (which included the $150.00 automatic withdrawal), the mortgage payment, and the payment of the car note. Dr. Culbertson mistakenly believed that the monthly car note was for $680.00 and had a term of 36 months. When it was pointed out that the car payments were spread over 60 months and the monthly car note was $373.00, he recalculated the loss of support to be $122,000.00.

The trial court did not abuse its discretion in accepting Dr. Culbertson’s methodology. However, the trial court abused its discretion in not taking into account the adjustment for the lower car note. Accordingly, the award of $160,000.00 for loss of support is excessive, and we reduce this award to $122,000.00. In all other respects, the damage awards for the wrongful death claim are affirmed.

DECREE

With the award for loss of support reduced to $122,000.00, the judgment is AFFIRMED at appellant’s costs.

AMENDED, AND, AS AMENDED, AFFIRMED.


text:
    STATE of Louisiana In the Interest of T.D.S. and C.R.S.
    No. 45,390-JAC.
    Court of Appeal of Louisiana, Second Circuit.
    April 23, 2010.
    John Bradley Smitherman, for Appellant, Sharee Divette South.
    Pamela Harper Jacob, for Appellee, State of Louisiana, through the Department of Social Services.
    Joseph Christopher Seyler, for Appel-lees, Minor Children T.D.S. and C.R.S.
    Wilbert Dale Pryor, for Appellee, Father, Carl Lewis, and Curator ad hoc for any unknown father.
    Before DREW, MOORE and LOLLEY, JJ.
   DREW, J.

|,S.D. South (“South”) appeals the termination of her parental rights relative to her biological minor children, T.D.S., born January 11, 2007, and C.R.S., born April 17, 2008 (“the children”). Overwhelming evidence was adduced reflecting South’s stunted or nonexistent parenting skills. The trial court justifiably found clear and convincing evidence that termination was appropriate, and we affirm in all respects.

FACTS

The sad facts are undisputed. In December of 2005, two and three years prior to the birth of these children, two other offspring of South had been taken from her, despite the best efforts of the Department of Social Services (“the Department”). These older children were placed with their paternal aunt.

The two children at issue here, T.D.S. and C.R.S., were born 15 months apart, apparently fathered by Carl Lewis. Each of the children was addicted to cocaine at birth, as was South.

T.D.S. was taken from his parents by Instanter Order on January 26, 2007. On April 11, 2007, T.D.S. was adjudicated as a child in need of care and continued in the custody of the Department.

On April 18, 2008, C.R.S. was taken from the parents by Instanter Order. On August 14, 2008, C.R.S. was adjudicated as a child in need of care and continued in the custody of the Department.

The Department tried to familiarize South with T.D.S. and C.R.S., to no avail. All efforts of the Department were rejected by the mother.

|2The Department went to great lengths to put together reasonable case plans seeking reunification of the children with their mother. South failed to cooperate in every way possible. It is clear from this record that there is no chance for rehabilitating South as a parent.

As the months piled up, with absolutely zero progress by South, the Department decided to apply for termination of her parental rights relative to T.D.S. and C.R.S.

Trial was had on July 9, 2009. South did not attend, even though she had been served with notice over two months before the trial date. By the time of trial, South had not seen, written, called, or supported T.D.S. for 22 months, and she had not seen C.R.S. for over a year. About a month before trial, a case worker visited South to ask if she wanted to visit with the children. She responded, “No, not at this time.”

During the infancy of T.D.S. and C.R.S., the Department set up many opportunities for South to visit and possibly bond with the children. South wasted these visitation opportunities and chose to remain a stranger to them. Both children are now in pre-adoptive homes.

|¾ ARGUMENT

Lack of Compliance with La. Ch. C. art. 672.1

South alleges that the trial court erred in terminating her parental rights without requiring the Department to prove that reunification efforts were not required by this article.

We have recently examined this precise issue, concluding that the wording in La. Ch. C. art. 672.1 is permissive, not mandatory, and simply does not apply when the Department is pursuing termination via La. Ch. C. art. 1015.

\ ¿Failure to Prove Lack of Parental Compliance with the Case Plan

This argument has no legs whatsoever. South does not visit, does not come to juvenile court, does not stay out of criminal court, will not attend |sher substance abuse improvement, parenting, and mentoring classes, and refuses to stay away from drugs. Since the birth of T.D.S. and C.R.S., she has given birth to another son, who is in the custody of the state of Georgia. Her life has been one bad choice after another. Even with considerable state resources at her disposal, she chose to keep inching down her wormhole of drugs and unwanted children.

Though South has had numerous “wake-up” calls in the last few years, nothing indicates at this point that she has the remotest intention of discontinuing her aberrant and destructive lifestyle.

The best interest of these children clearly is to be adopted in a loving home. No one has ever said that all mothers should be perfect, but South appears to be the worst of the worst.

CONCLUSION

These children need a chance at life, and the only way to secure that for them is adoption. We find the trial court chose the only possible choice for the sake of these kids. The parental rights of South were lawfully terminated.

DECREE

The judgment terminating South’s parental rights as to both children is AFFIRMED.

      . The case plans presented these straightforward requirements:
      1) Submit to a substance abuse assessment and complete any recommended program;
      2) Submit to random drug screens;
      3) Avoid criminal activity;
      4) Obtain and maintain stable and clean housing, with working utilities;
      5) Attend and complete parenting and mentoring classes;
      6) Attend and participate in the children's medical appointments;
      7) Provide support for her children;
      8) Keep the case manager informed as to her employment and residence situation;
      9) Provide any family contacts interested in being placement resources for the children; and
      10) Visit the children (two Wednesdays per month, for an hour per visit).

      . Art. 672.1. Reunification efforts determination
      A. At any time in a child in need of care proceeding when a child is in the custody of the department, the department may file a motion for a judicial determination that efforts to reunify the parent and child are not required.
      B. The department shall have the burden of demonstrating by clear and convincing evidence that reunification efforts are not required, considering the health and safety of the child and the child's need for permanency-
      C. Efforts to reunify the parent and child are not required if a court of competent jurisdiction has determined that:
      (1) The parent has subjected the child to egregious conduct or conditions, including but not limited to any of the grounds for certification for adoption pursuant to Article 1015.
      (2) The parent has committed murder or manslaughter of another child of the parent or has aided or abetted, attempted, conspired, or solicited to commit such a murder or manslaughter.
      (3) The parent has committed a felony that results in serious bodily injury to the child or another child of the parent.
      (4) The parental rights of the parent to a sibling have been terminated involuntarily.
      D. If the court determines that reunification efforts are not required, it shall document that determination by written findings of fact. A permanency hearing, which considers instate and out-of-state permanent placement options for the child, may be conducted immediately and shall be conducted within thirty days after the determination.

      . In the Interest of R.L.T., 45,168-JAC (La.App. 2 Cir. 1/27/10), 30 So.3d 1085. We adopt the reasoning of R.L.T., as it applies to this case.

      . Art. 1015. Grounds
      The grounds for termination of parental rights are:
      (1) Conviction of murder of the child’s other parent.
      (2) Unjustified intentional killing of the child’s other parent.
      (3) Misconduct of the parent toward this child or any other child of the parent or any other child in his household which constitutes extreme abuse, cruel and inhuman treatment, or grossly negligent behavior below a reasonable standard of human decency, including but not limited to the conviction, commission, aiding or abetting, attempting, conspiring, or soliciting to commit any of the following:
      (a) Murder.
      (b) Unjustified intentional killing.
      (c) Aggravated incest.
      (d) Rape.
      (e) Sodomy.
      (f) Torture.
      (g) Starvation.
      (h) A felony that has resulted in serious bodily injury.
      (i) Abuse or neglect which is chronic, life threatening, or results in gravely disabling physical or psychological injury or disfigurement.
      (j) Abuse or neglect after the child is returned to the parent’s care and custody while under department supervision, when the child had previously been removed for his safety from the parent pursuant to a disposition judgment in a child in need of care proceeding.
      (k) The parent's parental rights to one or more of the child’s siblings have been terminated due to neglect or abuse and prior attempts to rehabilitate the parent have been unsuccessful.
      (Z) Sexual abuse, which shall include, but is not limited to acts which are prohibited by R.S. 14:43.1, 43.2, 80, 81, 81.1, 81.2, 89 and 89.1.
      (4) Abandonment of the child by placing him in the physical custody of a nonparent, or the department, or by otherwise leaving him under circumstances demonstrating an intention to permanently avoid parental responsibility by any of the following:

        (a) For a period of at least four months as of the time of the hearing, despite a diligent search, the whereabouts of the child's parent continue to be unknown.
      (b) As of the time the petition is filed, the parent has failed to provide significant contributions to the child’s care and support for any period of six consecutive months.
      (c) As of the time the petition is filed, the parent has failed to maintain significant contact with the child by visiting him or communicating with him for any period of six consecutive months.
      (5)Unless sooner permitted by the court, at least one year has elapsed since a child was removed from the parent's custody pursuant to a court order; there has been no substantial parental compliance with a case plan for services which has been previously filed by the department and approved by the court as necessary for the safe return of the child; and despite earlier intervention, there is no reasonable expectation of significant improvement in the parent’s condition or conduct in the near future, considering the child's age and his need for a safe, stable, and permanent home.
      (6) The child is in the custody of the department pursuant to a court order or placement by the parent; the parent has been convicted and sentenced to a period of incarceration of such duration that the parent will not be able to care for the child for an extended period of time, considering the child’s age and his need for a safe, stable, and permanent home; and despite notice by the department, the parent has refused or failed to provide a reasonable plan for the appropriate care of the child other than foster care.
      (7) The relinquishment of an infant pursuant to Chapter 13 of Title XI of this Code.
      (8) The commission of a felony rape by the natural parent which resulted in the conception of the child.