text:
    Nathaniel DOWL, Jr., Individually and as Administrator of the Succession of Nathaniel Dowl, Sr. v. REDI CARE HOME HEALTH ASSOCIATION d/b/a Redi Care/Primary Medical Group and the XYZ Insurance Company c/w Nathaniel Dowl, Jr. v. Scottsdale Insurance Company and Louisiana Patients’ Compensation Fund.
    No. 2010-CP-0700.
    Supreme Court of Louisiana.
    May 28, 2010.
   In re Dowl Jr., Nathaniel;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div K, Nos. 2001-6899, 2004-31; to the Court of Appeal, Fourth Circuit, Nos. 2009-CA-1300, 2009-CA-1301.

Denied.


source: Caselaw Access Project

license: Public Domain

text:
    Robert Thomas McGREGOR, son of Donald H. McGregor, and Ruth McGregor, individually and on behalf' of her deceased husband, Donald H. McGregor v. HOSPICE CARE OF LOUISIANA in BATON ROUGE, L.L.C. d/b/a Hospice of Baton Rouge; Hospice Care of Louisiana, Inc.; The Hospice Foundation of Greater Baton Rouge d/b/a Hospice of Baton Rouge; Kathryn Grigsby; Cynthia Logan; Melanie Hyatt; and Katherine Braud Robert Thomas McGregor, individually, and Ruth McGregor, individually and on behalf of the Succession of Donald H. McGregor v. Dr. Gerald Miletello and Dr. Georgia A. Reine.
    No. 2010-C-0701.
    Supreme Court of Louisiana.
    May 28, 2010.
   In re Braud, Katherine; Grigsby, Kathryn; Hospice Foundation of Greater Baton Rouge d/b/a; Hospice of Baton Rouge; Hyatt, Melanie;—Defendant(s); Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. O, Nos. 524,336, 512,840; to the Court of Appeal, First Circuit, Nos. 2009 CA 1357, 2009 CA 1358.

Denied.

VICTORY, J., would grant.


text:
    Mary E. WHITE v. Stuart RABNER, Chief Justice, Supreme Court of New Jersey.
    No. 2010-OC-0702.
    Supreme Court of Louisiana.
    May 28, 2010.
   In re White, Mary E.;—Plaintiff; Applying For Supervisory and/or Remedial Writs.

Denied.


text:
    John AARON, et al. v. McGOWAN WORKING PARTNERS, McGowan Working Partners, Inc., McGowan Working Partners Southeast Louisiana and/or MWP Southeast Louisiana, L.L.C., and/or Avondale Oil and Gas, L.L.C., and Federal Insurance Company c/w Rafael Adams, et al. v. McGowan Working Partners, McGowan Working Partners, Inc., McGowan Working Partners Southeast Louisiana and/or MWP Southeast Louisiana, L.L.C., and/or Avondale Oil and Gas, L.L.C., and Federal Insurance Company c/w Andrew L. Hicks, Jr. v. McGowan Working Partners, McGowan Working Partners, Inc., McGowan Working Partners Southeast Louisiana and/or MWP Southeast Louisiana, L.L.C., and/or Avondale Oil and Gas, L.L.C., and Federal Insurance Company.
    No. 2010-CC-0704.
    Supreme Court of Louisiana.
    May 28, 2010.
   In re Aaron, John et al.; Adams, Rafael; Hicks Jr., Andrew;—Plaintiff(s); Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, Jefferson Parish Second Court, Nos. 91885, 96153, 96599; to the Court of Appeal, Fifth Circuit, Nos. 09-C-1095, 09-C-1098.

Denied.


text:
    John C. SKANNALL v. Dennis BAMBURG, Margie Dumas Bamburg & Sligo Hills, L.L.C.
    No. 2010-C-0707.
    Supreme Court of Louisiana.
    May 28, 2010.
   In re Bamburg, Dennis et al.; Bamburg, Margie Dumas; Sligo Hills, LLC;—Defendant(s); Applying For Writ of Certiorari and/or Review, Parish of Bossier, 26th Judicial District Court Div. B, No. 116,576; to the Court of Appeal, Second Circuit, No. 44,820-CA.

Denied.


text:
    Mary Phyllis SOILEAU v. SMITH’S TRUE VALUE AND RENTAL, et al.
    No. 2010-CC-0711.
    Supreme Court of Louisiana.
    May 28, 2010.
   In re Soileau, Mary Phyllis;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Evangeline, 13th Judicial District Court Div. B, No. 69,770; to the Court of Appeal, Third Circuit, No. CW 09-01358.

Denied.


text:
    Esther LINGONI v. HIBERNIA NATIONAL BANK and St. Paul Fire and Marine Insurance Company.
    No. 2010-C-0714.
    Supreme Court of Louisiana.
    May 28, 2010.
   In re Lingoni, Esther;—Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. E, No. 2000-18649; to the Court of Appeal, Fourth Circuit, No. 2009-CA-737.

Denied.


text:
    William STRICKLAND, Evan Strickland and William Strickland on behalf of his Minor Daughter, Meridith Strickland v. Lenore GORDON.
    No. 2010-C-0717.
    Supreme Court of Louisiana.
    May 28, 2010.
   In re Strickland, William et al.;—Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. J, No. 2005-12428; to the Court of Appeal, Fourth Circuit, No. 2009-CA-0856.

Denied.


text:
    Michelle MARSHALL, et al. v. AIR-LIQUIDE-BIG THREE, INC., et al.
    No. 2010-CC-0976.
    Supreme Court of Louisiana.
    May 28, 2010.
   In re Air Liquide America Corp.; Air Liquide America L.P. F/K/A; Air Liquide-Big Three Inc. F/K/A et al.; Lincoln Big Three Inc.;—Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. M, No. 2005-08706; to the Court of Appeal, Fourth Circuit, No. 2010-C-0614.

Denied.


text:
    Michelle MARSHALL, et al. v. AIR-LIQUIDE-BIG THREE, INC., et al.
    No. 2010-CC-0987.
    Supreme Court of Louisiana.
    May 28, 2010.
   In re Air Liquide America Corp.; Air Liquide America L.P. F/K/A; Air Liquide-Big Three Inc. F/K/A et al.; Lincoln Big Three Inc.;—Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. M, No. 2005-08706; to the Court of Appeal, Fourth Circuit, No. 2010-C-0613.

Denied.


text:
    STATE of Louisiana in the Interest of A.L.
    No. 2010-CJ-1017.
    Supreme Court of Louisiana.
    May 28, 2010.
   In re Lange, Michael;—Other; Applying For Writ of Certiorari and/or Review, Parish of Acadia, 15th Judicial District Court Div. A, No. JU 4545; to the Court of Appeal, Third Circuit, No. 09-1565.

Denied.


text:
    STATE ex rel. Eddie L. JONES v. STATE of Louisiana.
    No. 2010-KH-0868.
    Supreme Court of Louisiana.
    May 28, 2010.
   In re Jones, Eddie L.;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. F, Nos. 04-3377, 09-4768.

Granted for the sole purpose of transferring the motion for production of documents to the Court of Appeal, Fifth Circuit, for its consideration on the merits.


text:
    Amy Cashio SEARLES v. Troy B. SEARLES.
    No. 2010-OC-0709.
    Supreme Court of Louisiana.
    May 28, 2010.
   In re Searles, Amy Cashio;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, Baton Rouge City Court, No. 09-05033; 19th Judicial District Court Div. I, No. C584009.

Granted for the sole purpose of transferring the application to the court of appeal for its consideration pursuant to La. Const. art. V, Section 10(A). See La.Sup.Ct. Rule X, Section 5(b)(b); see also Bradley v. Hostead, 03-1256 (La.9/5/03), 852 So.2d 1038.


text:
    Alphonse WASHINGTON v. Lorraine Watford WASHINGTON.
    No. 2010-CC-0449.
    Supreme Court of Louisiana.
    May 28, 2010.
   In re Washington, Lorraine Watford;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. M, No. 2007-12803; to the Court of Appeal, Fourth Circuit, No. 2010-C-0068.

Granted. The case is remanded to the court of appeal, which is instructed to allow relator to supplement her application with the appropriate documentation, and to consider the application, as supplemented, on the merits.


text:
    Peterson M. YOKUM, et al. v. Nicholas S. KARNO II Inc., et al.
    No. 2010-CC-0664.
    Supreme Court of Louisiana.
    May 28, 2010.
   In re James River Insurance Company;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. N, No. 09-6340; to the Court of Appeal, Fourth Circuit, No. 2010-C-0272.

Granted. Although relator was unable to produce a copy of the order setting the return date, the evidence attached to the application reveals the application to the court of appeal was filed timely. See Rambo v. Willis-Knighton Bossier Health Center, 00-2157 (La.7/28/00), 766 So.2d 1262. Accordingly, the application is remanded to the court of appeal for consideration on the merits.


text:
    STATE of Louisiana v. Edward Charles JACKSON.
    No. 2009-K-2406.
    Supreme Court of Louisiana.
    May 28, 2010.
   In re State of Louisiana;—Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Rapides, 9th Judicial District Court Div. B, No. 282,528; to the Court of Appeal, Third Circuit, No. 09-45.

Granted.


text:
    Janice S. SULLIVAN v. Priscilla WALLACE, et al.
    No. 2010-C-0388.
    Supreme Court of Louisiana.
    May 28, 2010.
   In re Sullivan, Janice S.;—Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Claiborne, 2nd Judicial District Court Div. A, No. 32,787; to the Court of Appeal, Second Circuit, No. 44,-853-CA.

Granted and docketed.


text:
    Robert Thomas McGREGOR, Son of Donald H. McGregor, and Ruth McGregor, Individually and on Behalf of her Deceased Husband, Donald H. McGregor v. HOSPICE CARE OF LOUISIANA IN BATON ROUGE, L.L.C. d/b/a Hospice of Baton Rouge; Hospice Care of Louisiana, Inc.; The Hospice Foundation of Greater Baton Rouge d/b/a Hospice of Baton Rouge; Kathryn Grigsby; Cynthia Logan; Melanie Hyatt; and Katherine Braud c/w Robert Thomas McGregor, Individually and Ruth McGregor, Individually and on Behalf of the Succession of Donald H. McGregor v. Dr. Gerald Miletello and Dr. Georgia A. Reine.
    No. 2010-C-0832.
    Supreme Court of Louisiana.
    May 28, 2010.
   In re McGregor, Donald H.; McGregor, Robert Thomas et al.; McGregor, Ruth S.;—Plaintiff(s); Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. O, Nos. 512,840, 524,336; to the Court of Appeal, First Circuit, Nos. 2009 CA 1355, 2009 CA 1356.

Denied.


text:
    STATE ex rel. Steven REINHOLT v. STATE of Louisiana.
    No. 2009-KH-1806.
    Supreme Court of Louisiana.
    June 4, 2010.
   In re Reinholt, Steven;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. A, No. 5318-07; to the Court of Appeal, Third Circuit, No. KH 08-01563.

Writ granted; case remanded to the district court. The district court is ordered to appoint counsel for purposes of holding a hearing at which time it will determine whether relator is entitled to an out-of-time appeal under the rule of State v. Counterman, 475 So.2d 336, 340 (La.1985) (out-of-time appeal may be appropriate in cases in which either “the defendant was not substantially notified at sentencing of his right to appeal or those in which the defense attorney was at fault in failing to file or perfect a timely appeal.”).


text:
    Deneen SMITH v. Dr. Gregg WILLIAMS.
    No. 2010-CC-0675.
    Supreme Court of Louisiana.
    June 4, 2010.
   In re Williams Dr., Gregg;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. c, No. 675-653; to the Court of Appeal, Fifth Circuit, No. 10-C-20.

Remanded to Court of Appeal for briefing, argument and opinion.


author: JAMES F. McKAY III, Judge.

text:
    Glenn D. SCHURR and Lori Schurr v. Christopher M. GAGNON, Milton L. Gagnon, United States Automobile Association (USAA) and Liberty Mutual Fire Insurance Company.
    No. 2009-CA-0499.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 23, 2009.
    Donna Bramlett Wood, Michael R. Sis-trunk, McCranie Sistrunk Anzelmo Hardy Maxwell & McDaniel, Metairie, Louisiana, for Defendant/Appellee, United States Automobile Association.
    D. Russell Holwadel, Johnston Hoefer Holwadel & Eldridge, L.L.C., New Orleans, Louisiana, for Defendant/Appellant, Liberty Mutual Fire Insurance Company.
    (Court composed of Judge JAMES F. McKAY III, Judge TERRI F. LOVE, Judge ROLAND L. BELSOME).
   JAMES F. McKAY III, Judge.

| liberty Mutual Fire Insurance Company (“Liberty Mutual”), appeals the judgment of the trial court granting the United States Automobile Associates’ (“USAA”) motion for summary judgment finding that the policy held by the insured, Christopher Gagnon, contained an applicable exclusion and as such coverage was denied. After conducting a de novo review of the record, we find no error in the district court’s granting USAA’s motion for summary judgment and affirm its judgment.

FACTS AND PROCEDURAL HISTORY

On September 13, 2004, Christopher Gagnon was traveling westbound on a two-lane highway, La. Hwy. 624. As he approached the bridge at Bayou Laloutre, in an attempt to avoid hitting a parked abandoned vehicle without warning signals, he entered the east bound lane hitting a vehicle driven by Glenn Schurr as it was coming off of the bridge. Christopher Gag-non testified that the brakes on the truck he was driving failed. He testified that he swerved and hit the rear tire of the |2abandoned vehicle and the front driver’s side tire of the Schurr vehicle. As a result of this accident, Glenn Schurr sustained injuries. His spouse Lori is seeking damages for loss of consortium. USAA is Christopher Gagnon’s personal automobile liability insurer. The named insured are Christopher and Shannon Gagnon. The two vehicles listed on the subject policy are a 2002 Chevrolet Suburban and a 2001 Chevrolet Silverado pickup. In the present case the above policy has an exclusion clause B(l)(a), which states that:

B. We do not provide Liability Coverage for the ownership, maintenance, or use of:
1. Any vehicle that is not your covered auto unless that vehicle is:
a. A four or six wheel land motor vehicle designed for use on public roads with a rated load capacity of no more than 2000 pounds;
* * *
3. Any vehicle, other than your covered auto, that is owned by, or furnished or available for the regular use of, any family member. This exclusion (B.3) does not apply to your maintenance or use of such vehicle.

The 1985 Ford F-8000 boom truck had a rated load capacity in excess of 2000 pounds. The vehicle was owned by Milton Gagnon.

On April 27, 2007, the district court denied USAA’s first motion for summary judgment finding that the USAA policy was ambiguous.

On October 15, 2008 USAA re-urged their motion for summary judgment. The district court found that based upon “the new documentation that have been filed in the evidence and argument, the Motion for Summary Judgment is granted ...” On December 3, 2008, the district court signed the judgment granting |3USAA’s motion for summary judgment and finding that there was no coverage under the policy for Christopher Gagnon’s operation of the 1985 Ford F-8000 truck that was involved in the subject auto accident. Subject to this judgment, Liberty Mutual filed a motion for a new trial which was denied by the district court. This present appeal followed.

DISCUSSION

The sole issue for this Court to review is whether the district court erred in granting USAA’s motion for summary judgment based upon an exclusion clause in the personal auto liability policy held by Christopher and Lori Gagnon.

An insurance policy is a contract between the parties and should be construed by using the general rules of contract interpretation set forth in the Louisiana Civil Code. Cadwallader v. Allstate Insurance Co., 02-1637 (La.6/27/03), 848 So.2d 577. Words and phrases used in an insurance policy are to be construed using their plain, ordinary and generally prevailing meaning, unless the words have acquired a technical meaning. La. Civ. C. art. 2047; Cadwallader, supra. Ambiguous policy provisions are generally construed against the insurer and in favor of coverage. Carrier v. Reliance Insurance Co., 99-2573 (La.4/11/00), 759 So.2d 37. Equivocal provisions seeking to narrow an insurer’s obligation are strictly construed against the insurer. Carrier, Id. The insurer has the burden of proving that a loss comes within a policy exclusion. Louisiana Maintenance Services, Inc. v. Certain Underwriters at Lloyd’s of London, 616 So.2d 1250 (La.1993). The determination of whether a contract provision is clear or ambiguous is a question of law. Cadwallader, supra.

In the present case, the appellee, USAA, argues that the 1985 Ford F-8000 is excluded by the policy because: (1) The 1985 Ford F-8000 has a rated load capacity in excess of 2000 pounds, and (2) the truck in question is owned by Milton Gagnon, Christopher Gagnon’s father.

Exclusion B(l)(a), as noted above, excludes coverage for any vehicle that is not a covered auto unless that vehicle has a rated load capacity of no more than 2000 pounds (one ton). A covered vehicle is defined by the policy as: (1) an auto specified in the declarations, (2) a newly acquired auto, (3) a trailer, (4) a temporary substitute vehicle, or (5) a rented auto, pickup or van.

Christopher Gagnon, admitted that his father owned the vehicle and that he was helping his father to evacuate the vehicle from Shell Beach prior to the ensuing landfall of Hurricane Ivan. He testified that he was not using the vehicle as a replacement or substitute vehicle. The deposition testimony of mechanical engineer, David Boone, provide that the rated load capacity of a 1985 Ford F-8000 grossly exceeded the 2000 pound rated load capacity allowed specifically set forth in the exclusions of Christopher Gagnon’s USAA policy. This undisputed evidence supports the district court conclusion that the 1985 Ford-F 8000 vehicle was not a covered vehicle under the USAA policy. Summary judgment was appropriate.

AFFIRMED.

      . The abandoned vehicle was owned by Gary J. Perez and insured by Direct General Insurance Company of Louisiana. Liberty Mutual is the Schurr’s uninsured motorist insurer.

      . The truck was owned by a defunct company, Bayou Land and Marine Contractors Inc.; the owners of the company are Milton Gag-non, father of Christopher Gagnon and Michael Thompson.


author: PAUL A. BONIN, Judge.

text:
    Alton J. COTTON, Jr. v. DELTA QUEEN STEAMBOAT COMPANY, INC. and Delta Queen Steamboat, LLC.
    No. 2009-CA-0736.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 6, 2010.

      Lawrence Blake Jones, David C. Whit-more, Julie M. Sumrall, Scheuermann and Jones, New Orleans, LA, for Alton J. Cotton, Jr.
    Wilton E. Bland, III, Patrick E. Costello, Jacques P. Degruy, Mouledoux Bland Legrand & Brackett, L.L.C., New Orleans, LA, for Delta Queen Steamboat Company.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN).
   PAUL A. BONIN, Judge.

11 Alton Cotton, Jr., sued his employer, Delta Queen Steamboat Company, Inc. (Delta Queen), claiming that while working aboard the riverboat vessel DELTA QUEEN he was injured in the course of offloading the ship’s garbage up a levee. Claiming that he slipped and fell, hurting his back, he sought damages under the Jones Act and the general maritime law as well as the maintenance and cure due him as a seaman.

Initially paying Mr. Cotton maintenance and cure, Delta Queen after further investigating the alleged incident and Mr. Cotton’s conduct during his brief employment before the unwitnessed incident, denied Mr. Cotton’s claim. Delta Queen terminated his maintenance and cure based upon medical records and evidence of preexisting back pain not disclosed to Delta Queen when Mr. Cotton entered its employ; evidence of his drug dependence and drug-seeking activities; contradictory medical histories; and an array of evidence suggesting that Mr. Cotton was less than credible regarding his past medical history and his alleged slip and fall.

RNot only did Delta Queen deny the allegations of Mr. Cotton’s petition, it also filed a reconventional demand seeking to recover sums spent in providing maintenance and cure to Mr. Cotton, as well as attorneys’ fees and costs, based upon Mr. Cotton’s alleged material misrepresentations during his hiring process and his misconduct while he was receiving maintenance and cure.

Pursuant to La. C.C.P. art. 970, Delta Queen made an offer of judgment to Mr. Cotton which he refused. The case proceeded to a bench trial. After hearing and observing the plaintiffs and other witnesses’ testimony and reviewing documentary evidence, the trial court entered judgment dismissing with prejudice all of Mr. Cotton’s claims. The trial court judgment was silent as to the disposition of Delta Queen’s reconventional demand. Following the trial court’s action, Delta Queen filed a motion for judgment, seeking to enforce its offer of judgment. The trial court denied the motion.

Both parties appealed from the judgment on the merits. Delta Queen additionally appealed the denial of its motion on the article 970 issue. After full review of the record, we affirm the judgment of the trial court for the reasons which follow.

I

Mr. Cotton assigns a single error to the trial court: the failure to award maintenance and cure. In Vaughan v. Atkinson, 369 U.S. 527, 531, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962), the United States Supreme Court stated:

Maintenance and cure is designed to provide a seaman with food and lodging when he becomes sick or injured in the ship’s service; and it extends during the period when he is incapacitated to |3do seaman’s work and continues until he reaches maximum medical recovery.

The trial judge, Mr. Cotton argues, committed manifest error in making an adverse credibility determination about him especially and in her other credibility determinations about the other witnesses along with her assessment of the documentary evidence, including medical records. In her Reasons for Judgment, the trial court specified her reasons for finding Mr. Cotton lacking in credibility: Mr. Cotton failed to disclose that he had treated earlier with Dr. Giambelluca for severe, chronic back pain; he failed to tell Dr. Giambellu-ca about the alleged event while working for Delta Queen; Mr. Cotton had a longstanding drug addiction problem; the fact that this was an unwitnessed accident; Mr. Cotton’s fellow seamen, who no longer work for Delta Queen, testified that Mr. Cotton never pushed a garbage container up a ramp at the Helena, Arkansas port or any other port; Mr. Cotton never told the Human Resources Coordinator aboard the Delta Queen about the alleged accident, although he did complain about a cold and his rate of pay; without Dr. Phelan’s knowledge, Mr. Cotton treated at Integrity Pain Clinic and Global Pain Clinic and received astonishing numbers of pain relieving drugs such as Oxycontin, Lortab, Soma and Xanax; and Mr. Cotton disliked the work on the Delta Queen and planned to quit after his first hitch.

Because Mr. Cotton claimed to have suffered injury in an unwitnessed accident, the trial judge had an intensified duty to examine the testimony and evidence to determine whether, in fact, she believed that an injury-causing accident even occurred. The trial judge could reasonably conclude based on the testimony of Mr. Cotton’s fellow shipmates and company employees that Mr. Cotton had duties which encompassed handling the ship’s garbage, but the particulars of the alleged accident — moving a container of garbage (weighing approximately 250 |4pounds) uphill up a levee along the Mississippi River, and the loaded container pushing Mr. Cotton backward, making him fall — strained the credulity of the trial judge. Among all the witnesses called by both parties, not one corroborated Mr. Cotton’s account of his accident. To counter the self-serving claims of Mr. Cotton, other ship employees heard him complaining about his work, saying he was going to quit when the ship returned to home port, and complaining about back pain.

The propensity to lie or behave in a drug-seeking manner, and to manipulate medical care was a tapestry of prior and relevant behavior on which was woven the accident claim. Mr. Cotton had addiction to medication; he had a previous lumbar injury for which he received medical treatment and medication, which condition he failed to report when he was hired by Delta Queen. His subterfuge, or omission of this pertinent information, when added to his behavior regarding the alleged back injury which is the subject of this litigation, created a pattern of deception which the trial judge could reasonably have believed included a false claim of sustaining a work-related accident which indeed provided Mr. Cotton medical care, medications, and an alternative to regular employment.

The burden to prove that a work-related accident occurred is heavier when it is unwitnessed.

In Bruno v. Harbert International, Inc., 593 So.2d 357, 361 (La.1992), our Supreme Court held that a worker’s testimony may be sufficient to discharge his burden of proving a work-related accident by a preponderance of the evidence, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident.

Lewis v. River City Construction, 01-2100, p. 5 (La.App. 4 Cir. 4/17/02), 816 So.2d 906, 909 (wherein the trial judge, stating that inconsistencies cast serious doubt on the claimant’s credibility as to an unwitnessed accident, held that the claimant | ¡¡failed to prove that an accident occurred and that an accident resulted in injury and disability to him).

The trial court’s determinations as to whether the worker’s testimony is credible and whether the worker has discharged his or her burden of proof are factual determinations not to be disturbed on review unless clearly wrong or absent a showing of manifest error. Lewis, supra, 01-2100 at pp. 4-5, 816 So.2d at 909.

Similarly, the Second Circuit in Webert v. Assoc. Indem. Corp., 330 So.2d 331, 334 (La.App. 2 Cir.1976), affirming the trial court’s conclusion of fact and rejection of the plaintiffs demands because she either failed to prove the occurrence of the alleged accidents or failed to prove her injury resulted from the relatively minor incidents, stated:

The conclusion[sic] of the trial judge necessarily were based on a lack of credibility of plaintiffs testimony. There are inconsistencies and contradictions in the testimony of the witnesses tending to discredit plaintiffs account of the alleged accidents.... With evidence in the record tending to discredit plaintiffs testimony about the unwitnessed accidents, we find no manifest error.

The testimony of co-workers and medical experts in the Webert case “cast doubts on plaintiffs credibility,” id., just as evidence in the instant case cast doubt on Mr. Cotton’s credibility. Neither of the two elements of Bruno was met.

This case epitomizes the challenge to the finder of fact when an alleged accident is unwitnessed and numerous divergences appear in the evidence both direct and circumstantial.

In a civil case, the plaintiffs burden to prove his case by a preponderance of the evidence can be met by direct or circumstantial evidence. If ... circumstantial evidence is relied upon, that evidence, taken as a whole, must exclude every other reasonable hypothesis with a fair amount of certainty. This does not mean, however, that it must negate all other possible causes, (citations omitted). Lacey v. Louisiana Coca-Cola Bottling Co., Ltd., 452 So.2d 162, 164 (La.1984).

| fiThe incident itself was questionable. Malcolm Demery, a deckhand, testified that Mr. Cotton never left the vessel on March 21, 22, or 23, 2003, or pushed the garbage off the vessel as Mr. Cotton described. Moreover, Mr. Cotton never told Mr. Demery of any accident or injury to his back while aboard the vessel. Peter Behrens, a fellow employee and watchman on the same shift as Mr. Cotton, testified that he saw Mr. Cotton push garbage containers from the garbage alley to the gangway, but not up the levee or off the vessel. He stated that Mr. Cotton complained three days before the alleged accident that his back hurt, he was homesick, and he did not like his job. Mate John Speed, Mr. Cotton’s supervisor, testified that Mr. Cotton never reported to him the incident involving pushing the garbage cube up the embankment, though he changed Mr. Cotton to lighter duty because of his complaints of back pain. Mr. Behrens, the ship watchman, traded posts with Mr. Cotton after Mr. Cotton complained of pain, and he saw Mr. Cotton moving containers of garbage, but not up the ramp.

Carly Fabian, the human resources manager aboard the vessel, testified that Mr. Cotton complained of a cold and later complained about his rate of pay, but he never described an accident and injury— he wanted to see a doctor because of his cold. Linda Angelica, formerly a claims manager for Delta Queen, testified that when Mr. Cotton was sent to the Marine Medical Unit when the vessel docked in New Orleans, he was to be treated for a cold, on March 28, 2003. The records of that clinic noted complaints of cold for two weeks and back pain for two weeks. The alleged incident was to have occurred on March 22, six days before Mr. Cotton visited the Marine Medical Unit. The court considered all this conflicting and circumstantial evidence and drew inferences.

[7The drug-seeking behavior of Mr. Cotton also influenced the trial judge’s determination that he was not credible.

After review of the record, we find no manifest error and affirm the trial court’s judgment denying maintenance and cure. “[A] Court of Appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of manifest error or unless it is clearly wrong.” Rabalais v. Nash, 06-0999, p. 4 (La.3/09/07), 952 So.2d 653, 657. As the fact finder, the trial court could evaluate the demeanor of the witnesses and form its determination as to credibility of the plaintiff and witnesses. See Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). In this case, the trial court emphatically and unequivocally stated,

This Court finds that Mr. Cotton is unworthy of belief. This Court does not believe that the event he described ever occurred, nor does this Court believe he was injured during his brief employment with Delta Queen.

In Adams v. Rhodia, Inc., 07-2110, p. 10-11 (La.5/21/08), 983 So.2d 798, 806-807, our Supreme Court further explained:

... where the findings are based on determinations regarding the credibility of witnesses, the manifest error standard demands great deference to the findings of fact. Indeed, whether the fact finder’s determination is based on its decision to credit the testimony of one of two witnesses, that finding can virtually never be manifestly erroneous.

The Supreme Court has again recently explained the standard of review of such findings of fact:

Significantly, the issue to be resolved is not whether the [finder of fact] was right or wrong, but whether its conclusion was reasonable. Thus, [an appellate] Court, after a full review of the record, may not reverse reasonable findings, even if we had weighed the evidence differently sitting as the trier of fact.

Fontenot v. Patterson Insurance, 09-669 (La.10/20/09), 23 So.3d 259, 266-67. There is no doubt that a reasonable fact finder could conclude that |sMr. Cotton was not due any maintenance and cure for a nonexistent work-related accident with ensuing injury. Moreover, there is nothing in the record to support that Mr. Cotton did not receive sufficient payment of maintenance and cure for his physical illness (i.e., his cold) which manifested itself while in the vessel’s service. Accordingly, the trial judge’s factual determination and conclusion that no further maintenance and cure beyond what was paid to Mr. Cotton was due him is a reasonable one. The trial judge did not commit any error in dismissing with prejudice Mr. Cotton’s claim for maintenance and cure.

II

Delta Queen appealed the trial court’s failure to rule in its favor on its reconven-tional demand and to award Delta Queen reimbursement or restitution of the sums for maintenance and cure it previously paid to or for the benefit of Mr. Cotton. As noted earlier, the trial court judgment was silent as to any disposition of Delta Queen’s reconventional demand.

Our law holds that the absence of written adjudication of a litigated issue is construed to mean that the claim is rejected. The Louisiana Supreme Court in Sewell v. Argonaut Southwest Ins. Co., 362 So.2d 758, 760 (La.1978) held that:

A demand, may also be implied rejected by the silence of a judgment which fails to grant the demand, provided that the matter has been actually litigated and finally adjudged so that it became an “object of the judgment.” (emphasis added)

In R.G. Claitor’s Realty v. Juban, 391 So.2d 394, 398 (La.1980), the Louisiana Supreme Court reiterated that principle:

Our jurisprudence has rested on a solid foundation the rule that all the issues presented by the pleadings, and on which evidence has been offered, will be considered as disposed of by a final | ¡judgment in the cause, and that demands passed over in silence must be considered as rejected in the absence of a special reservation, [citations omitted], (emphasis added)

See also City of Eunice v. Credeur, 02-188, p. 3 (La.App. 3 Cir. 10/09/02), 828 So.2d 710, 712; Lowe v. Prejean, 540 So.2d 436, 438 n. 2 (La.App. 1 Cir.1989). Because the trial court’s written judgment implicitly dismissed the reconventional demand with prejudice, Delta Queen is entitled to an appeal of that judgment. La. C.C.P. arts. 1911, 2082 and 2083 A.

Delta Queen has, however, cited no authority — and we know of none-for the proposition, necessary to its contention, that it is entitled to restitution from a seaman for maintenance and cure payments which it unnecessarily paid to him or on his behalf. As recently as 2005, the federal Fifth Circuit characterized such a proposition as res nova. Patterson v. Allseas USA, 145 Fed.Appx. 969, 971 (5th Cir.2005).

We look to the jurisprudential precedents and the philosophical premises underlying maintenance and cure. The United States Supreme Court in Vella v. Ford Motor Co., 421 U.S. 1, 3-4, 95 S.Ct. 1381, 43 L.Ed.2d 682 (1975), described

[t]he shipowner’s ancient duty ... deriving] from the “unique hazards (which) attend the work of seamen,” and foster[ing] the “combined object of encouraging marine commerce and assuring the well-being of seamen.” [citations omitted] [T]he duty arises irrespective of the absence of shipowner negligence and indeed irrespective of whether the illness or injury is suffered in the course of the seaman’s employment [citations omitted.]

| inDelays, uncertainty, “contention” and “litigation” would result were maintenance and cure not an assured benefit to seamen, as the United States Supreme Court noted in Farrell v. United States, 336 U.S. 511, 516, 69 S.Ct. 707, 93 L.Ed. 850 (1949), quoted in Vella, supra, 421 U.S. at 4, 95 S.Ct. 1381:

Denial of maintenance and cure when the seaman’s injury ... is not medically diagnosed as permanent until long after its occurrence would obviously disserve and frustrate the “combined object of encouraging marine commerce and assuring the well-being of seamen.” A shipowner might withhold vitally necessary maintenance and cure on the belief, however well or poorly founded, that the seaman’s injury is permanent and incurable. Or the seaman, if paid maintenance and cure by the shipowner, might be required to reimburse the payments, if it is later determined that the injury was permanent immediately after the accident. Thus uncertainty would displace the essential certainty of protection against the ravages of illness and injury that encourages seamen to undertake their hazardous calling.

We are aware of the federal court decision in McCorpen v. Central Gulf Steamship Corp., 396 F.2d 547, 548-549 (5th Cir.1968), which sets forth the factual circumstances which can give rise to the denial of maintenance and cure:

Maintenance and cure is a contractual form of compensation given by general maritime law to a seaman who falls ill while in the service of his vessel.... [T]here is a general principle that it will be denied where he knowingly or fraudulently conceals his illness from the shipowner, [citations omitted] In cases involving a pre-existing illness or other disability, the courts have made a distinction between nondisclosure and concealment.... [W]here the shipowner requires a seaman to submit to a pre-hiring medical examination or interview and the seaman intentionally misrepresents or conceals material medical facts, the disclosure of which is plainly desired, then he is not entitled to an award of maintenance and cure.... [T]he defense that a seaman knowingly concealed material medical information will not prevail unless there is a causal link between the pre-existing disability that was concealed and the disability incurred during the voyage, [citation omitted].

In fact, in this very case, a partial summary judgment was granted in favor of Delta Queen, denying Mr. Cotton cure for the bills of certain physicians, which |n summary judgment was supported by the McCorpen decision. Similarly, the federal Fifth Circuit has denied maintenance and cure benefits on the grounds of material intentional misrepresentation or concealment of medical facts. See Brown v. Parker Drilling Offshore Corp., 410 F.3d 166 (5th Cir.2005). However, these and other decisions cannot be construed as authority that a cause of action exists for an employer to claim restitution of maintenance and cure payments from a seaman.

“[T]he failure to disclose a cause of action ... may be noticed by either the trial or appellate court on its own motion.” La. C.C.P. art. 927 B. See also Talley v. Hughes, 481 So.2d 172, 175 (La.App. 4 Cir.1985); Bradbury v. Paul, 365 So.2d 845, 848 (La.App. 4 Cir.1978); Duke v. Gregory-Salisbury & Co., 205 So.2d 858, 862 (La.App. 4 Cir.1967) (“The failure to disclose a cause of action may be noticed by an appellate court where the court feels that an exception based on that ground should be maintained.”); Thompson v. Pardue, 401 So.2d 497, 499 (La.App. 2 Cir.1981) (“Acting pursuant to that authority [i.e., to notice the exception sua sponte ], we supply the exception of no cause of action and rule that plaintiffs’ suit should be dismissed on that ground.”). We must presume all factual allegations of the reconventional demand to be true and all reasonable inferences to be made in favor of Delta Queen. See Doe v. Jo Ellen Smith Medical Foundation, 05-0653, p. 1 (La.App. 4 Cir. 7/13/05), 913 So.2d 140, 142.

h;.We now hold that Delta Queen has no cause of action against Mr. Cotton, a seaman, for restitution of maintenance and cure payments already made. Therefore, the trial court’s judgment sub silentio, effectively dismissing Delta Queen’s recon-ventional demand with prejudice, is correct as a matter of law.

Ill

Delta Queen also appeals the trial court’s denial of its motion for costs of litigation subsequent to its offer of judgment made pursuant to La. C.C.P. art. 970. The trial court correctly denied Delta Queen’s motion for judgment on its offer of judgment. La. C.C.P. art. 970 C, which is modeled on Fed.R.Civ.P. 68, provides in pertinent part:

If the final judgment obtained by the plaintiff-offeree is at least twenty-five percent less than the amount of the offer of judgment made by the defendant-offeror or if the final judgment obtained against the defendant-offeree is at least twenty-five percent greater than the amount of the offer of judgment ... the offeree must pay the offeror’s costs .... (emphasis added)

The United States Supreme Court in Delta Air Lines, Inc. v. August, 450 U.S. 346, 352, 101 S.Ct. 1146, 67 L.Ed.2d 287 (1981), narrowly and literally interpreted Fed.R.Civ.P. 68 as not applying to “a case in which judgment is entered against the plaintiff-offeree and in favor of the defendant-offeror.” The words “in favor of the defendant-offeror” clearly apply “only to offers made by the defendant and only to judgments obtained by the plaintiff.” The rule is “simply inapplicable to” a case in which “the defendant ... obtained the judgment.” Id.

118[I]t does not apply to judgments in favor of the defendant or to judgments in favor of the plaintiff for an amount greater than the settlement offer.... Thus unless we assume that the Federal Rules were intended to be biased in favor of defendants, we can conceive of no reason why defendants-and not plaintiffs-should be given an entirely risk-free method of denying trial judges the discretion that Rule 54(d) confers regardless of the outcome of the litigation. Id. at 354-55,101 S.Ct. 1146.

See also La. Power & Light Co. v. Kellstrom, 50 F.3d 319, 333-34 (5th Cir., 1995) (“If a plaintiff takes nothing ... Rule 68 does not apply.... [T]he rule is not applicable when a defendant actually prevails over the plaintiff’). See also Louisiana Power & Light Co. v. Fischbach and Moore, Inc., 1992 WL 329489, p. 2 (E.D.La.1992); Carino v. Walmart La., LLC, 2007 WL 977553, pp. 1-2 (W.D.La.2007) (“Both the United States Supreme Court and the Fifth Circuit Court of Appeal have held that Rule 68 does not apply when the plaintiffs do not obtain a judgment against the offering defendant, but rather a verdict is entered in favor of the defendant.[citations omitted].”)

La. C.C.P. art. 970 “is punitive in nature and therefore must be strictly construed.” Crawford v. United Service Auto. Ass’n., 03-2117, p. 5 (La.App. 1 Cir. 3/24/05), 899 So.2d 668, 671. There is no basis for us to apply the provisions of article 970 C more broadly or leniently than the United States Supreme Court applies rule 68. Accordingly, the trial court’s judgment correctly rejected Delta | uQueen’s demand for its post-offer litigation costs because Delta Queen had actually prevailed over Mr. Cotton.

IV

In conclusion, the trial court did not commit manifest error in its factual findings, which are reasonable and which result in a dismissal of Mr. Cotton’s outstanding claims for further maintenance and cure. Moreover, Delta Queen’s reeon-ventional demand failed to state a cause of action against Mr. Cotton and, therefore, is properly denied with prejudice. Finally, the trial court was correct in denying relief on Delta Queen’s demand arising from its offer of judgment pursuant to La. C.C.P. art. 970.

The judgments of the court below are, therefore, affirmed in all respects.

AFFIRMED.

      . 46 U.S.C. § 30104.

      . Mr. Cotton did not seek appellate review of his seaman claims for general damages under the Jones Act and the general maritime law by assignment of error. See Rule 1-3, Uniform Rules of the Courts of Appeal.

      . Lewis' claim was for workers compensation benefits, for which the burden of proof is a preponderance of the evidence. Lewis, supra at p. 4, 816 So.2d at 909; Millon v. Clarion Hotel, 98-0002, p. 3 (La.App. 4 Cir. 9/16/98), 719 So.2d 568, 570.

      . La. C.C.P. art. 1061 B provides in pertinent part: “The defendant in the principal action ... shall assert in a reconventional demand all causes of action that he may have against the plaintiff that arise out of the transaction or occurrence that is the subject matter of the principal action.”

      . Delta Queen also filed a motion for new trial on this issue which was denied.

      . These cases are based in the application of civilian res judicata principles codified at La. R.S. 13:4231.

      . See Kirk v. Allegheny Towing, Inc., 620 F.Supp. 458, 462-463 (W.D.Pa.1985) ("Many courts have permitted set off where a seaman received equivalent coverage from another source, but we have discovered no cases where actual restitution of maintenance and cure was required of the seaman.... Requiring reimbursement of the maintenance and cure by third party tortfeasor is quite different from requiring the seaman personally to repay money received as maintenance and cure. Reimbursement by a third party causes no hardship to the seaman who has probably already spent the money dispensed by his employer to pay off medical bills.”)

      . This is an unpublished decision. The federal appeals court declined on the state of the record to reverse the district court’s dismissal of the vessel owner's counterclaim seeking restitution.

      . The trial court dismissed with prejudice Mr. Cotton's claims for cure as they pertained to Dr. Giambelluca, Dr. Celestine, and Global Pain Management, LLC. The trial court did not designate this partial summary judgment as final. See La. C.C.P. art. 1915 B(l). Mr. Cotton has not assigned any error to this partial summary judgment and we cannot review that judgment. Rule 1-3, Uniform Rules of the Courts of Appeal.

      . For example, Johnson v. Cenac Towing, Inc., 544 F.3d 296, 301 (5th Cir.2008) in which the court elaborated on the effects of a McCorpen defense, distinguishing them depending upon whether the seaman's claim is for maintenance and cure or for Jones Act damages.

      .Fed.R.Civ.P. 68 at the time of the August case stated: "At any time more than 10 days before the trial begins, a party defending against a claim may serve on the adverse party an offer to allow judgment to be taken against him for the money or property or to the effect specified in his offer, with costs then accrued.... If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer.... When the liability of one party to another has been determined by verdict or order or judgment, but the amount or extent of the liability remains to be determined by further proceedings, the party adjudged liable may make an offer of judgment, which shall have the same effect as an offer made before trial....” Marek v. Chesny, 473 U.S. 1, 14, 105 S.Ct. 3012, 87 L.Ed.2d 1 (1985) (Brennan, J., dissenting).

      . Fed.RXiv.P. 68(d) now reads: "If the judgment that the offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made.”

      . In footnote 27 of August, the Supreme Court described the rarity of cases wherein defendants have sought to obtain their costs under Fed.R.Civ.P. 68:
      It was not until 1974 that any federal court even suggested that Rule 68 could be interpreted to apply to a case in which the defendant prevails. See Mr. Hanger, Inc. v. Cut Rate Plastic Hangers, Inc., 63 F.R.D. 607 (E.D.N.Y.1974).
      Apart from the case at bar and Mr. Hanger, Inc., there are only two other reported cases in which a defendant attempted to recover his own costs under Rule 68 after obtaining a judgment in his favor. In Dual v. Cleland, 79 F.R.D. 696 (D.D.C.1978), the court followed Mr. Hanger and reluctantly granted defendant an award of costs under Rule 68, after stating that it would not have allowed costs to defendant as the prevailing party under Rule 54(d). In Gay v. Waiters' and Dairy Lunchmen’s Union, Local No. 30, 86 F.R.D. 500, 503-504 (N.D.Cal.1980), the court assumed that Rule 68 applied to prevailing defendants but refused to apply the Rule to impose costs on the named plaintiffs in a Title VII class action. The court noted that if Rule 68 applied in class actions, the disproportionate risk imposed on the class representatives would discouraged the filing of Title VII suits.

      . Since the grounds for the objection cannot be removed by amendment, the reconventional demand is properly dismissed. La. C.C.P. art. 934.


author: GUIDRY, J. GUIDRY, J.,

text:
    Robert Thomas McGREGOR, Son of Donald H. McGregor, and Ruth McGregor, individually and on behalf of her deceased husband, Donald H. McGregor v. HOSPICE CARE OF LOUISIANA IN BATON ROUGE, L.L.C. d/b/a Hospice of Baton Rouge; Hospice Care of Louisiana, Inc.; The Hospice Foundation of Greater Baton Rouge d/b/a Hospice of Baton Rouge; Kathryn Grigsby; Cynthia Logan; Melanie Hyatt; and Katherine Braud Robert Thomas McGregor, individually, and Ruth McGregor, individually and on behalf of the succession of Donald H. McGregor v. Dr. Gerald Miletello and Dr. Georgia A. Reine.
    Nos. 2009 CA 1357, 2009 CA 1358.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 12, 2010.
    Opinion Granting Rehearing for Purpose of Clarification March 11, 2010.
    Writ Denied May 28, 2010.

      See also, 2009 WL 838621, and 36 So.3d 281, 2010 WL 528436.

      Roy A. Raspanti Metairie, LA, and John Massicot, New Orleans, LA, for Plaintiffs/Appellants, Robert T. McGregor and Ruth McGregor, individually and on behalf and of her deceased husband, Donald H. McGregor.
    Myron A. Walker, Baton Rouge, LA, for Defendants/Appellees, Hospice Foundation of Greater Baton Rouge, Inc. d/b/a Hospice of Baton Rouge, Melanie Hyatt, Katherine E. Braud, and Kathryn Grigsby.
    Deborah J. Juneau, Linda C. Rodrigue, Vance A. Gibbs, Baton Rouge, LA, for Defendants/Appellees, Dr. Gerald Miletel-lo, Dr. Georgia Reine, and LAMMICO.
    Before CARTER, C.J., GUIDRY, and PETTIGREW, JJ.
   GUIDRY, J.

|aIn this medical malpractice action, plaintiffs, Robert McGregor and Ruth McGregor, appeal from a judgment of the trial court granting summary judgment in favor of Hospice Foundation of Greater Baton Rouge, Inc. d/b/a Hospice of Baton Rouge (Hospice), Kathryn Grigsby, Katherine Braud, and Melanie Hyatt. For the reasons that follow, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

Donald McGregor, father and husband of the plaintiffs, had terminal metastatic prostate cancer. He was treated for this disease by Dr. Miletello, an oncologist, from 1997 through his death on July 21, 2002. On April 30, 2002, Donald enrolled as a patient of Hospice because he could no longer visit Dr. Miletello in his office. Thereafter, Hospice nurses visited Donald in his home several times a week and reported their findings to Dr. Miletello. In turn, Dr. Miletello would make determinations based on those findings, which included prescribing pain medication.

In June and early July 2002, Dr. Mile-tello prescribed Duragesic patches for Donald’s long term pain control and morphine suppositories for his breakthrough pain. On July 19, 2002, a Hospice nurse visited Donald, and based on her assessment, Dr. Miletello wrote a prescription for 40 morphine suppositories to be administered 1-2 per hour as needed for pain. The prescription also noted that it may be partially filled; however, Dr. Miletello had instructed Hospice that 20 should be released on July 19, and the remaining 20 were not to be released until Monday, July 22.

Robert McGregor called Hospice several times between July 19 and July 21, concerned that the 20 morphine suppositories was not enough medication to last until Monday and stating that his father was in pain and needed the additional 20 suppositories. After his last call on Sunday, July 21, Hospice’s on call nurse, |,¡Melanie Hyatt, informed Hospice’s Director of Nurses, Katherine Braud, and Dr. Reine, a member of Dr. Miletello’s oncology group who was on call for Dr. Miletello that weekend, that Robert refused to allow her to go and assess Donald, and that Robert was exhibiting threatening behavior toward her. Thereafter, nurse Hyatt called Robert and informed him that Hospice was discharging Donald from their care.

After receiving the call from nurse Hyatt, Robert called Dr. Reine directly, asking if she was aware that Hospice had discharged his father, and she stated that she concurred in Hospice’s decision. Later that day, Donald’s family called an ambulance and took Donald to the hospital where he died that evening.

Thereafter, the plaintiffs filed a complaint against Drs. Miletello and Reine, and Hospice, Kathryn Grigsby, Melanie Hyatt, and Katherine Braud (collectively referred to as “Hospice defendants”) with the Commissioner of Administration requesting formation of a medical review panel. The plaintiffs were subsequently advised that the Hospice defendants were not qualified with the patient’s compensation fund. As such, on October 14, 2003, the plaintiffs filed a petition for damages against the Hospice defendants under docket number 512,840, asserting their negligence in failing to release the remaining 20 morphine suppositories between July 19 and 21 and in abandoning Donald by discharging him from their care on Sunday, July 21.

A medical review panel was convened to address the claims raised against Drs. Mi-letello and Reine. On June 15, 2004, the panel issued an opinion finding that the evidence did not support the conclusion that the defendants failed to meet the applicable standard of care. Thereafter, the plaintiffs filed a petition for damages against Dr. Miletello and Dr. Reine, as well as their insurer, LAMMICO, under docket number 524,336 and asserted their negligence in failing to authorize the release of the additional 20 morphine suppositories and for abandoning Donald |fion July 21. This matter was subsequently consolidated with the matter against the Hospice defendants.

On April 28, 2008, the Hospice defendants filed a motion for summary judgment asserting that res judicata precluded the plaintiffs from asserting their claims against the Hospice defendants, and alternatively, that the plaintiffs lacked expert testimony to establish that there was a deviation from the standard of care by any of the Hospice defendants. Dr. Miletello, Dr. Reine, and LAMMICO also filed motions for summary judgment, asserting that the plaintiffs had provided no testimony from an expert who was qualified to render an opinion as to the standard of care applicable to Drs. Miletello and Reine.

Following a hearing on the above motions, the trial court rendered judgments in favor of all defendants granting them summary judgment and dismissing the plaintiffs’ claims against them with prejudice. Plaintiffs subsequently filed a motion for new trial, which was denied. Plaintiffs now appeal from the judgment rendered in favor of the Hospice defendants.

DISCUSSION

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine factual dispute. The motion should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. McNeil v. Miller, 08-1978, p. 3 (La.App. 1st Cir.3/27/09), 10 So.3d 327, 329.

The burden of proof on a motion for summary judgment is on the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion, the movant’s burden on the motion does not |firequire him to negate all essential elements of the adverse party’s claim, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim. Thereafter, if the adverse party fails to provide evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact, and the mover is entitled to summary judgment. La. C.C.P. art. 966(C)(2); Robles v. ExxonMobile, 02-0854, p. 4 (La.App. 1st Cir.3/28/03), 844 So.2d 339, 341.

In ruling on a motion for summary judgment, the trial court’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of material fact. Hines v. Garrett, 04-0806, p. 1 (La.6/25/04), 876 So.2d 764, 765. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is “material” for summary judgment purposes can only be seen in light of the substantive law applicable to the case. Richard v. Hall, 03-1488, p. 5 (La.4/23/04), 874 So.2d 131, 137.

In a medical malpractice action, the plaintiff must establish by a preponderance of the evidence the applicable standard of care, a violation of that standard of care, and a causal connection between the alleged negligence and the plaintiffs injuries. See La. R.S. 9:2794(A); see also Pfiffner v. Correa, 94-0924, p. 8 (La.10/17/94), 643 So.2d 1228, 1233. An expert witness is generally necessary as a matter of law to meet the burden of proof on a medical malpractice claim. Lieux v. Mitchell, 06-0382, p. 11 (La.App. 1st Cir.12/28/06), 951 So.2d 307, 314, writ denied, 07-0905 (La.6/15/07), 958 So.2d 1199. Although the jurisprudence has recognized exceptions in instances of obvious negligence, those exceptions are limited to instances in which the medical and factual issues are such that a lay jury can perceive negligence in the charged physician’s conduct as well as any expert can. Pfiffner, 94-0924 at p. 9, 643 So.2d at 1234.

| ^Expert Testimony

In support of their motion for summary judgment, the Hospice defendants submitted excerpts from Dr. Samuels’ deposition. In these excerpts, Dr. Samuels stated that he was not familiar with the standard of care applicable to Hospice nurses, that he was not in a position to give an opinion as to who had the authority to release or obtain the remainder of the partially filled prescription, and that he was not familiar with partial fill prescriptions. Accordingly, the Hospice defendants asserted that because the plaintiffs’ expert did not render an opinion, or admitted that he was not familiar with issues central to the plaintiffs’ case, that they had not met their burden in establishing that they would be able to satisfy their eviden-tiary burden of proof at trial.

In opposition to the Hospice defendants’ motion for summary judgment, the plaintiffs submitted the deposition testimony of Dr. Samuels, as well as the depositions of Dr. Brooks and Dr. Miletello. As stated above, Dr. Samuels admitted that he was not familiar with the standard of care of hospice nurses and that he had no opinion as to who had the authority to release the remaining 20 morphine suppositories. Additionally, Dr. Brooks and Dr. Miletello indicated in their testimony that Hospice has the ability to release the remainder of partial fill prescriptions when needed. However, Dr. Miletello’s testimony indicated that Hospice needed authorization from either him or Dr. Reine to release the remaining 20 morphine suppositories. Further, Dr. Brooks stated that in this situation, Hospice needed authorization from a doctor to obtain the remaining 20 suppositories, and it was appropriate for Hospice to follow the protocols set out by the prescribing physician.

Despite the apparent lack of expert testimony on these issues, Dr. Samuels did state unequivocally that he was of the opinion that Hospice breached the standard of care by discharging Donald on July 21 without proper notification. | sAccording to Dr. Samuels, no matter what the relationship, whether it is physician/patient or hospice/patient, the standard of care requires that a health care provider provide the patient with written notice by way of certified letter, wherein the provider specifies a particular time period, usually two weeks, that the patient has to obtain alternative health care. In the interim, the provider is obligated to continue to provide care to the patient. According to Dr. Samuels’ testimony, the standard of care for discharging a patient is not limited to a particular specialty, and the Hospice defendants failed to show that the standard of care for discharging Hospice patients differs from that articulated by Dr. Samuels. See Ricker v. Hebert, 94-1743, p. 4 (La.App. 1st Cir.5/5/95), 655 So.2d 493, 495. Accordingly, the trial court erred in finding that the plaintiffs failed to produce expert testimony sufficient to satisfy their evidentiary burden of proof at trial.

Res Judicata

In seeking summary judgment, the Hospice defendants also asserted that the plaintiffs’ claims are precluded by res judi-cata based on a judgment rendered in a previous contract suit involving the same parties and based on the same transaction and occurrence.

On July 21, 2003, the same plaintiffs filed a petition for violation of contract and for damages against the Hospice defendants under docket number 509,929, asserting that the defendants had violated their contract with plaintiffs to provide the care necessary to give Donald “death with dignity” by failing to ensure that Donald had adequate pain medication during the weekend of July 19 through Sunday, July 21, which caused him to needlessly suffer excruciating pain and anguish.

| thereafter, the plaintiffs filed a petition for damages against the same Hospice defendants under docket number 512,840 based on their alleged medical malpractice. The Hospice defendants subsequently filed a motion to consolidate the two actions under La. C.C.P. art. 1561. Following a hearing, the trial court granted the Hospice defendants’ motion to consolidate, and the plaintiffs filed a writ application with this court requesting review of the trial court’s decision. On October 4, 2004, this court granted the plaintiffs’ writ application and reversed the trial court’s judgment granting the motion to consolidate, finding that the possibility of jury confusion exists as to the distinct differences in the standards applied to the burden of proof. This court further ordered that the matter be remanded to the trial court to maintain the two suits under their separate docket numbers. See McGregor v. Hospice Care of Louisiana, Inc., 04-1399 (La.App. 1st Cir.10/5/04) (unpublished).

The contract action proceeded to trial. Following the plaintiffs’ presentation of their case, the Hospice defendants filed a motion for involuntary dismissal, which was granted. The plaintiffs appealed from that judgment, and on March 27, 2009, a separate panel of this court affirmed the trial court’s judgment. See McGregor v. Hospice Care of Louisiana in Baton Rouge, L.L.C., 08-2029 (La.App. 1st Cir.3/27/09), 2009 WL 838621 (unpublished opinion), writ denied, 09-1232 (La.9/18/09), 17 So.3d 980.

11flLouisiana Revised Statute 13:4231 provides, in pertinent part, the following regarding res judicata:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
* * *
(2) If a judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction and occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.

Accordingly, in order for res judi-cata to preclude a second action, the following elements must be satisfied: (1) the first judgment is valid, (2) the first judgment is final, (3) the parties are the same, (4) the cause or causes of action asserted in the second suit existed at the time of final judgment in the first litigation, and (5)the cause or causes of action asserted in the second suit arose out of the transaction or occurrence that was the subject matter of the first litigation. North American Treatment Systems, Inc. v. Scottsdale Insurance Co., 05-0081, p. 13 (La.App. 1 Cir. 8/23/06), 943 So.2d 429, 439, writs denied, 06-2918, 06-2803 (La.2/16/07), 949 So.2d 423 and 424.

In the instant case, the plaintiffs filed two separate actions, one based in contract and one based on medical malpractice, against the same defendants and arising out of the same transaction or occurrence, namely, the failure to provide adequate pain medication to Donald between July 19 and 21 and discharging Donald from Hospice care on July 21. A valid, final judgment was rendered in the contract suit. Clearly, the medical malpractice claim existed at the time that judgment was rendered in the contract suit, as the medical malpractice claim had already been filed as a separate suit under a different docket number. Accordingly, because the plaintiffs failed to file the contract action and the medical malpractice action in the same suit as required by La. C.C.P. art. 425, res judicata applies to preclude them from now asserting their medical malpractice claim. See Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1238 (La.1993).

Plaintiffs, however, assert that Article 425 does not apply until a plaintiff files one suit, litigates it to judgment, and then files another suit. However, this same argument has been rejected by this court in Kevin Associates, L.L.C. v. Crawford, 04-2227, p. 7 (La.App. 1st Cir.11/4/05), 917 So.2d 544, 549, writ denied, 06-0220 (La.5/5/06), 927 So.2d 311, wherein, upon applying La. R.S. 13:4231 and Article 425, we found no basis for making the distinction between causes of action that are pleaded prior to final judgment that are not addressed and causes of action raised after judgment becomes final, where the claim at issue arose out of the same transaction or occurrence giving rise to the judgment.

Alternatively, plaintiffs assert that the “exceptional circumstances” exception to the general rule of res judicata found in La. R.S. 13:4232(A)(1), which provides that a judgment does not bar another action by the plaintiff when “exceptional circumstances justify relief from the res judicata effect of the judgment” applies in the instant case. The plaintiffs assert that exceptional circumstances exist in the instant case because this court previously determined upon review of the trial court’s order consolidating the two matters that such consolidation was improper because it would lead to jury confusion and ordered that the two cases be maintained as separate suits.

The discretion given to courts to grant relief from a judgment on the basis of exceptional circumstances allows the courts to balance the principle of res judi-cata with the interests of justice. However, this discretion must be exercised on a case by case basis, and such relief should be granted only in truly exceptional cases, otherwise the purpose of res judicata would be defeated. La. R.S. 13:4231, Comment-1990. The “exceptional circumstances” exception generally applies to complex procedural situations in which litigants are deprived of the opportunity to | ^present their claims due to unanticipated quirks in the system, to factual situations that could not be anticipated by the parties, or to decisions that are totally beyond the control of the parties. Kevin Associates, L.L.C., 04-2227 at p. 8, 917 So.2d at 549.

In the instant case, the Hospice defendants sought consolidation of the contract and the medical malpractice actions. The trial court granted the motion to consolidate, but the plaintiffs sought supervisory review of that decision, asserting that consolidation would lead to jury confusion. This court ultimately decided in plaintiffs’ favor, ordering that the cases be maintained as separate suits. Plaintiffs argue that they relied on this court’s previous ruling and maintained the suits separately; therefore, it would be unjust to now find that despite this court’s ruling, the instant action is barred by res judicata.

We note that our prior decision on the supervisory writ addressed consolidation of the two actions for trial under La. C.C.P. art. 1561. However, because this court specifically ordered that the actions be remanded to the trial court to be maintained as separate suits, we agree with plaintiffs that it would be unjust to now find the medical malpractice claim is barred by res judicata. Accordingly, we find that based on the unique facts of this case, and in the interest of justice, exceptional circumstances exist justifying relief from the res judicata effect of the prior judgment in the contract suit.

| ^CONCLUSION

For the foregoing reasons, we reverse the judgment of the trial court, granting summary judgment in favor of defendants, Hospice Foundation of Greater Baton Rouge, Inc. d/b/a Hospice of Baton Rouge, Kathryn Grigsby, Katherine Braud, and Melanie Hyatt, and dismissing plaintiffs’ claims against them with prejudice, and this matter is remanded to the trial court for proceedings consistent with this opinion. All costs of this appeal are assessed to the defendants, Hospice Foundation of Greater Baton Rouge, Inc. d/b/a Hospice of Baton Rouge, Kathryn Grigsby, Katherine Braud, and Melanie Hyatt.

REVERSED AND REMANDED.

PETTIGREW, J., concurs.

Opinion Granting Rehearing for Limited Purpose

GUIDRY, J.,

on rehearing.

hWe grant a rehearing for the limited purpose of clarifying our original opinion with regard to the motion for summary judgment as it relates to Kathryn Grigsby. As stated in our original opinion, Hospice Foundation of Greater Baton Rouge, Inc. d/b/a Hospice of Baton Rouge (“Hospice”), Melanie Hyatt, Katherine Braud, and Kathryn Grigsby filed a motion for summary judgment seeking dismissal of plaintiffs’ claims against them based on a lack of expert testimony. In addition, Kathryn Grigsby asserted that she was entitled to summary judgment because she is not and never has been a health care provider. Therefore, according to Grigsby, because she is not a health care provider and never engaged in any medical or health care relationship with Donald McGregor, there is no basis for a medical malpractice suit against her.

Reading the plaintiffs’ petition as a whole, the plaintiffs not only asserted claims in medical malpractice, but they also asserted claims for damages generally under La. C.C. art. 2315. Additionally, although Grigsby states in her affidavit that she did not play any part in the discharge of Donald McGregor, she was the Administrator of Hospice during the time at issue in the instant case and stated in her deposition testimony that almost all decisions we make, including discharging a patient, are done using an interdisciplinary team approach, unless the physician discharges the patient. Several Hospice employees indicated in their depositions that it was Dr. Georgia Reine, the on call physician for Donald McGregor, who discharged Donald from Hospice. However, Dr. Reine stated in her deposition that is was Hospice who made the decision to discharge Donald, and that she merely concurred in that decision.

Therefore, from our reading of the record, we find that plaintiffs have asserted claims against Grigsby not only in medical malpractice, but also for | ¡.negligence under La. C.C. art. 2315. Additionally, we find a genuine issue of material fact exists as to whether Grigsby had a role in discharging Donald McGregor from Hospice’s care. Accordingly, having concluded that Grigsby is not entitled to summary judgment, we adhere to the result reached in our original opinion.

REHEARING GRANTED WITHOUT ORAL ARGUMENT FOR THE LIMITED PURPOSE OF CLARIFICATION OF THE ORIGINAL OPINION.

      . Plaintiffs separately appealed from the judgment rendered in favor of Dr. Miletello, Dr. Reine, and LAMMICO, which is addressed in McGregor v. Hospice Care of Louisiana in Baton Rouge, L.L.C., 09-1355, 09-1356 (La.App. 1st Cir.2/12/10), 36 So.3d 281.

      . A plea of res judicata may be raised by motion for summary judgment when there is no genuine issue as to any material fact. R.G. Claitor’s Realty v. Juban, 391 So.2d 394, 403 (La.1980) (on rehearing); see also Horrell v. Horrell, 99-1093, p. 4 (La.App. 1st Cir. 10/6/00), 808 So.2d 363, 373 (on rehearing), writ denied, 01-2546 (La.12/7/01), 803 So.2d 971.

      . Louisiana Code of Civil Procedure article 1561 provides:
      A. When two or more separate actions are pending in the same court, the section or division of the court in which the first filed action is pending may order consolidation of the actions for trial after a contradictory hearing, and upon a finding that common issues of fact and law predominate. If a trial date has been set in any of the subsequently filed actions that have not yet been consolidated, then the written consent of each section or division of the court shall be required.
      B. Consolidation shall not be ordered if it would do any of the following:
      (1) Cause jury confusion.
      (2) Prevent a fair and impartial trial.
      (3) Give one party an undue advantage.
      (4) Prejudice the rights of any party.

      . Likewise, we reject the Hospice defendants’ argument regarding lis pendens. The exception of lis pendens is applicable before judgment on the merits is rendered in any of the pending suits. However, the exception of res judicata is applicable after judgment. See Fincher v. Insurance Corporation of America, 521 So.2d 488, 489 (La.App. 4th Cir.), writ denied, 522 So.2d 570 (La.1988).


author: GUIDRY, J.

text:
    Robert Thomas McGREGOR, Son of Donald H. McGregor, and Ruth McGregor, Individually and on Behalf of Her Deceased Husband, Donald H. McGregor v. HOSPICE CARE OF LOUISIANA IN BATON ROUGE, L.L.C. d/b/a Hospice of Baton Rouge; Hospice Care of Louisiana, Inc.; the Hospice Foundation of Greater Baton Rouge d/b/a Hospice of Baton Rouge; Kathryn Grigsby; Cynthia Logan; Melanie Hyatt; and Katherine Braud. Robert Thomas McGregor, Individually and Ruth McGregor, Individually and on Behalf of the Succession of Donald H. McGregor v. Dr. Gerald Miletello and Dr. Georgia A. Reine.
    Nos. 2009 CA 1355, 2009 CA 1356.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 12, 2010.
    Rehearing Denied March 11, 2010.
    Writ Denied May 28, 2010.

      Roy A. Raspanti, Metairie, and John Massicot, New Orleans, for Plaintiffs/Appellants Robert T. McGregor, and Ruth McGregor individually and on behalf and of her deceased husband, Donald H. McGregor.
    Myron A. Walker, Baton Rouge, for Defendants/Appellees Hospice Foundation of Greater Baton Rouge d/b/a Hospice of Baton Rouge, Melanie Hyatt, Katherine E. Braud, and Kathryn Grigsby.
    Deborah J. Juneau, Linda G. Rodrigue, Vance A. Gibbs, Baton Rouge, for Defendants/Appellees Dr. Gerald Miletello, Dr. Georgia Reine, and LAMMICO.
    Before CARTER, C.J., GUIDRY, and PETTIGREW, JJ.
   GUIDRY, J.

| sIn this medical malpractice action, plaintiffs, Robert McGregor and Ruth McGregor, appeal from two trial court judgments granting summary judgment in favor of Dr. Gerald Miletello, Dr. Georgia Reine, and Louisiana Medical Mutual Insurance Company (LAMMICO). For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Donald McGregor, father and husband of the plaintiffs, had terminal metastatic prostate cancer. He was treated for this disease by Dr. Miletello, an oncologist, from 1997 through his death on July 21, 2002. On April 30, 2002, Donald enrolled as a patient of Hospice of Baton Rouge (Hospice), because he could no longer visit Dr. Miletello in his office. Thereafter, Hospice nurses visited Donald in his home several times a week and reported their findings to Dr. Miletello. In turn, Dr. Miletello would make medical determinations based on those findings, which included prescribing pain medication.

In June and early July 2002, Dr. Miletel-lo prescribed Duragesic patches for Don-aid’s long term pain control and morphine suppositories for his breakthrough pain. On July 19, 2002, a Hospice nurse visited Donald, and based on her assessment, Dr. Miletello wrote a prescription for 40 morphine suppositories to be administered 1-2 per hour as needed for pain. The prescription also noted that it may be partially filled; however, Dr. Miletello had instructed Hospice that 20 suppositories should be released on July 19, and the remaining 20 were not to be released until Monday, July 22.

Robert McGregor called Hospice several times between July 19 and July 21, concerned that the 20 morphine suppositories was not enough medication to last Donald until Monday and stating that his father was in pain and needed the additional 20 suppositories. After his last call on Sunday, July 21, Hospice’s on call nurse, Melanie Hyatt, informed Hospice’s Director of Nurses, Katherine |4Braud, and Dr. Reine, a member of Dr. Miletello’s oncology group who was on call for Dr. Miletello that weekend, that Robert refused to allow her to go and assess Donald and that Robert was exhibiting threatening behavior toward her. Thereafter, nurse Hyatt called Robert and informed him that Hospice was discharging Donald from their care.

After receiving the call from nurse Hyatt, Robert called Dr. Reine directly, asking if she was aware that Hospice had discharged his father, and she stated that she concurred in Hospice’s decision. Later that day, Donald’s family called an ambulance and took Donald to the hospital where he died that evening.

Thereafter, the plaintiffs filed a complaint against Drs. Miletello and Reine, and Hospice Foundation of Greater Baton Rouge, Inc. d/b/a Hospice of Baton Rouge, Kathryn Grigsby, Melanie Hyatt, and Katherine Braud (collectively referred to as “Hospice defendants”) with the Commissioner of Administration requesting formation of a medical review panel. The plaintiffs were subsequently advised that the Hospice defendants were not qualified with the patient’s compensation fund. As such, on October 14, 2003, the plaintiffs filed a petition for damages against the Hospice defendants under docket number 512,840, asserting their negligence in failing to release the remaining 20 morphine suppositories between July 19 and 21 and in abandoning Donald by discharging him from their care on Sunday, July 21.

A medical review panel was convened to address the claims raised against Drs. Mi-letello and Reine. On June 15, 2004, the panel issued an opinion finding that the evidence did not support the conclusion that the defendants failed to meet the applicable standard of care. Thereafter, the plaintiffs filed a petition for damages against Dr. Miletello and Dr. Reine, as well as their insurer, LAMMICO, under docket number 524,336 and asserted then-negligence in failing to authorize the release of the additional 20 morphine suppositories and for abandoning Donald |5on July 21. This matter was subsequently consolidated with the matter against the Hospice defendants.

On April 28, 2008, the Hospice defendants filed a motion for summary judgment asserting that res judicata precluded the plaintiffs from asserting their claims against the Hospice defendants, and alternatively, that the plaintiffs lacked expert testimony to establish that there was a deviation from the standard of care by any of the Hospice defendants. Dr. Miletello, Dr. Reine, and LAMMICO also filed motions for summary judgment, asserting that the plaintiffs had provided no testimony from an expert who was qualified to render an opinion as to the standard of care applicable to Drs. Miletello and Reine.

Following a hearing on the above motions, the trial court rendered judgments in favor of all defendants granting them summary judgment and dismissing the plaintiffs’ claims against them with prejudice. Plaintiffs subsequently filed a motion for new trial, which was denied. Plaintiffs now appeal from the judgments rendered in favor of Dr. Miletello, Dr. Reine, and LAMMICO.

DISCUSSION

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine factual dispute. The motion should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. McNeil v. Miller, 08-1973, p. 3 (La.App. 1st Cir.3/27/09), 10 So.3d 327, 329.

The burden of proof on a motion for summary judgment is on the movant. However, if the movant will not bear the burden of proof at trial on the matter that |fiis before the court on the motion, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim. Thereafter, if the adverse party fails to provide evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact, and the mover is entitled to summary judgment. La. C.C.P. art. 966(C)(2); Robles v. ExxonMobile, 02-0854, p. 4 (La.App. 1st Cir.3/28/03), 844 So.2d 339, 341.

In ruling on a motion for summary judgment, the trial court’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of material fact. Hines v. Garrett, 04-0806, p. 1 (La.6/25/04), 876 So.2d 764, 765. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is “material” for summary judgment purposes can only be seen in light of the substantive law applicable to the case. Richard v. Hall, 03-1488, p. 5 (La.4/23/04), 874 So.2d 131, 137.

In a medical malpractice action against a physician, the plaintiff must establish by a preponderance of the evidence the applicable standard of care, a violation of that standard of care, and a causal connection between the alleged negligence and the plaintiffs injuries. See La. R.S. 9:2794(A); see also Pfiffner v. Correa, 94-0924, p. 8 (La.10/17/94), 643 So.2d 1228, 1233. An expert witness is generally necessary as a matter of law to meet the burden of proof on a medical malpractice claim. Lieux v. Mitchell, 06-0382, p. 11 (La.App. 1st Cir.12/28/06), 951 So.2d 307, 314, writ denied, 07-0905 (La.6/15/07), 958 So.2d 1199. Although the jurisprudence has recognized exceptions in instances of obvious negligence, those exceptions are limited to instances in which the medical and factual issues are such that a lay jury can perceive negligence in the charged |7physician’s conduct as well as any expert can. Pfiffner, 94-0924 at p. 9, 643 So.2d at 1234. Moreover, this requirement of producing expert testimony is especially apt when the defendant has filed a motion for summary judgment and supported such motion with expert opinion evidence that the treatment met the applicable standard of care. Lieux, 06-0382 at p. 11, 951 So.2d at 315.

Dr. Miletello

In support of his motion for summary judgment, Dr. Miletello submitted copies of the medical review panel opinion, the affidavit of Dr. Bryan Bienvenu, an oncologist who served on the review panel, the deposition of Dr. Jay Brooks, also an oncologist who served on the review panel, and the deposition of Dr. Bruce Samuels, plaintiffs expert witness, all of which stated that Dr. Miletello had complied with the standard of care in prescribing pain medication to Donald McGregor on July 19, 2002. Particularly, Dr. Samuels stated that he did not have “any adverse opinions to [Dr. Miletello], other than I couldn’t quite understand why he would have prescribed a smaller amount of pain medicine for a man that he knew was using a lot more. And, that’s really probably a judgment call on his part ... and I don’t think ... you can say ... with certainty that that’s a definite deviation of the standard of care.” Ultimately, Dr. Samuels responded “No” when specifically asked if Dr. Miletello breached the standard of care in prescribing pain medication to Donald. Additionally, Dr. Samuels stated that he had no other opinions regarding Dr. Miletello and a breach of the standard of care.

Plaintiffs responded to the motion for summary judgment by submitting deposition testimony from their expert, Dr. Sam-uels, and Dr. Brooks. Plaintiffs asserted that Dr. Samuels and Dr. Brooks stated that the philosophy of hospice and the standard of care in caring for a patient under these circumstances is for the health care provider to supply the highest degree of pain control that keeps the patient comfortable to the patient’s wishes. However, both doctors stated that ^ultimately, the decision on the amount of pain medication to prescribe is a judgment call by the physician. Further, Dr. Samuels specifically stated on several occasions during the course of his deposition, even after being questioned by plaintiffs’ counsel, that he did not have any opinion that Dr. Miletello breached the standard of care. Accordingly, from our review of the record, we find that the plaintiffs failed to establish that they would be able to satisfy their evidentiary burden of proof at trial. Therefore, we find no error in the trial court’s judgment, granting summary judgment in favor of Dr. Miletello and LAM-MICO and dismissing plaintiffs’ claims against them with prejudice.

Dr. Reine

In support of her motion for summary judgment, Dr. Reine submitted copies of the medical review panel opinion, the affidavit of Dr. Bienvenu, the deposition of Dr. Brooks, Dr. Reine’s deposition and affidavit, and Dr. Miletello’s deposition. Dr. Reine asserted that the above evidence demonstrated that she complied with the applicable standard of care. Additionally, Dr. Reine submitted the deposition testimony of Dr. Samuels and asserted that based on the information contained therein, the plaintiffs had failed to identify an expert who practiced in Dr. Reine’s specialty of medical oncology, and alternatively, that if Dr. Samuels is considered an expert qualified to render an opinion in this matter, his opinion was based on an erroneous assumption of facts which are not supported by the record.

In opposing Dr. Reine’s motion for summary judgment, the plaintiffs primarily relied on Dr. Samuel’s testimony. Plaintiffs assert that Dr. Samuels, who specializes in internal medicine, is qualified to render an opinion as to Dr. Reine’s breach of the standard of care in failing to authorize the release of the remaining pain medication and in discharging and/or abandoning Donald on Sunday, July 21.

Based on our review of Dr. Samuels’ deposition, though he addressed several issues, he specifically stated that he was only rendering an opinion as to Dr. |9Beine’s breach of the standard of care in discharging Donald on July 21, 2002. Further, it appears that the conclusion by Dr. Samuels that Dr. Reine breached the standard of care by discharging Donald without providing the appropriate notice, thereby effectively abandoning Donald, is based on facts which are not supported by the record. Particularly, Dr. Samuels stated that his opinion was based on his impression that Dr. Reine and Dr. Miletel-lo were a part of Hospice and that a discharge by Hospice was also a discharge by Dr. Reine and Dr. Miletello. However, the evidence in the record demonstrates that Dr. Reine and Dr. Miletello were private physicians who had their own oncology practice and referred patients to Hospice for care when the patients could no longer come into their office for treatment. There is no evidence that Dr. Reine had any employment, financial, or contractual relationship with Hospice. Further, when questioned during his deposition, Dr. Sam-uels even admitted that if there was no such relationship between a doctor and Hospice, then a discharge by Hospice would have no effect on the doctor’s relationship with his patient.

Likewise, there is no evidence that Dr. Reine informed the plaintiffs that she was discharging Donald from her and Dr. Mile-tello’s care. Her only contact with the plaintiffs was in a phone conversation on Sunday, July 21, when Robert called her and asked her if she was aware that Hospice had discharged his father, wherein she responded that she “concurred” in that decision.

Therefore, from our review of the record, we find that the plaintiffs failed to produce evidence establishing that they will be able to satisfy their evidentiary burden of proof at trial. Accordingly, we find no error in the trial court’s granting of summary judgment in favor of Dr. Reine and LAMMICO and dismissing plaintiffs’ claims against them with prejudice.

| ^CONCLUSION

For the foregoing reasons, we affirm the judgments of the trial court granting summary judgment in favor of Dr. Gerald Mi-letello, Dr. Georgia Reine, and Louisiana Medical Mutual Insurance Company and dismissing plaintiffs’ claims against them with prejudice. All costs of this appeal are assessed against the plaintiffs, Robert McGregor and Ruth McGregor.

AFFIRMED.

      . Plaintiffs separately appealed from the judgment rendered in favor of the Hospice defendants, which is addressed in McGregor v. Hospice Care of Louisiana in Baton Rouge, L.L.C., 09-1357, 09-1358 (La.App. 1st Cir.2/12/10), 36 So.3d 272, 2010 WL 502954.

      . In their reply brief, plaintiffs raised as error the trial court’s granting of two motions to strike, which were the subject of judgments rendered on June 1, 2007 and January 18, 2008. However, pursuant to Rule 2-12.6 of the Uniform Rules, Courts of Appeal, an appellant may file a reply brief, but it shall be strictly confined to rebuttal of points urged in the appellee's brief. In the instant case, plaintiffs’ reply brief goes beyond mere rebuttal and attempts to raise a new legal argument. Therefore, because these issues are not properly before us, we decline to address them. See Fowler v. Bossano, 01-0357, pp. 14-15 (La.App. 3rd Cir.10/3/01), 797 So.2d 160, 169-170.


author: McDonald, j.

text:
    Morryne A. BOVIA v. Shawn Michael LEDIG.
    No. 2009 CW 0900.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 2010.
    Rykert O. Toledano, Jr., Covington, LA, for Plaintifi/Respondent Morryne A. Bo-via.

      Raymond C. Burkart, III, Covington, LA, for Defendant/Relator Shawn Michael Ledig.
    Before PARRO, KUHN and McDonald, jj.
   McDonald, j.

12At issue in this matter is whether a district court division with subject matter jurisdiction limited to family or juvenile matters as provided by law has subject matter jurisdiction over a property partition involving co-owners who had children together, but were never married.

FACTS

Morryne A. Bovia (“plaintiff’) and Shawn Michael Ledig (“defendant”) were never married, but were involved in an intimate relationship for several years, resulting in the birth of two children. On August 25, 2008, plaintiff filed a “Petition for Custody and Support of Minor Children and for Exclusive Use and Occupancy of the Former Domicile,” which was assigned to Division “H” of the Twenty-Second Judicial District Court (“22nd JDC”). In response, defendant filed an “Answer to Petition for Custody and Re-conventional Demand and Petition to Partition Co-Owned Property.”

On January 1, 2009, the case was transferred from Division “H” to the newly formed Division “L” of the 22nd JDC, which was established as a result of 2008 La. Acts, No. 344, § 2, effective June 23, 2008. Act 344, § 2(A) created two new divisions of the 22nd JDC, Divisions “K” and “L,” with subject matter jurisdiction limited to family or juvenile matters as provided by law.

Plaintiff later filed a “Rule for Contempt,” alleging that defendant had failed to pay the house note for the former domicile, despite an October 29, 2008 judgment wherein he agreed to pay said note. In response to the contempt motion, defendant filed an answer and alleged that Division “L” of the court had no jurisdiction over the partition of the co-owned property, because the partition did not involve community property or pertain to a divorce.

A hearing on the contempt motion and subject matter jurisdiction was held on April 14, 2009, before the trial judge for Division “L” of the 22nd JDC. On|sMay 6, 2009, the trial judge signed a judgment stating that the “declinatory exception of lack of subject matter jurisdiction shall be, and hereby is, overruled and dismissed with prejudice; and this Honorable Court finds it has subject matter jurisdiction over all issues in this case.”

DISCUSSION

Jurisdiction over the subject matter is the legal power and authority of a court to hear and determine a particular class of actions or proceedings, based upon the object of the demand, the amount in dispute, or the value of the right asserted. La. C.C.P. art. 2. The Louisiana Constitution states that except as otherwise authorized by this constitution, a district court shall have original jurisdiction of all civil and criminal matters. La. Const, art. V, § 16(A). Article V, Section 15(A) of the Louisiana Constitution now authorizes the legislature, by law, to establish new judge-ships for district courts and to establish new divisions with limited or specialized jurisdiction within the territorial jurisdiction of the district court and subject matter jurisdiction over family or juvenile matters as provided by law. Moreover, Article V, § 16(A)(3) of the Louisiana Constitution provides, “The legislature may provide by law that a family court has jurisdiction of cases involving title to movable and immovable property when those cases relate to the partition of community property and the settlement of claims arising from matrimonial regimes when such action arises as a result of divorce or annulment of marriage.” (Emphasis added). See also La. Const, art. V, § 18.

Local Rule 28.0 of the 22nd JDC provides, in pertinent part:

There shall be a Family Docket in the Twenty-Second Judicial District and that Docket shall be allotted to Divisions K and L. Matters heard on the Family Docket shall include:
(a) Suits for annulment, divorce and separation with all related incidental matters as defined by La. C.C. art. 105, and the community property partitions associated with the dissolution of said marriages. (Emphasis added).

|4In considering the language of the Louisiana Constitution and the local rules of court of the 22nd MC, we note that the laws regarding family courts’ jurisdiction are clear, and unambiguously establish that family courts only have jurisdiction over property partitions that arise from divorce, annulment, or dissolution of marriage. When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature. La. C.C. art. 9. In the present matter, it is undisputed that the trial court is not dealing with a divorce, annulment, or dissolution of marriage, as neither party contends they were ever married to each other. Accordingly, the judgment of the trial court dated May 6, 2009, overruling the defendant’s exception of lack of subject matter jurisdiction, as it relates to the partition of co-owned property, is reversed. Judgment is rendered sustaining defendant’s declinatory exception of lack of subject matter jurisdiction. This matter is remanded to the 22nd JDC for proceedings in accordance with this opinion.

WRIT GRANTED; JUDGMENT REVERSED, RENDERED, AND REMANDED.