author: HOLDRIDGE, J.

text:
    Travis HIGGINS v. WILLIAMS ENERGY PARTNER, L.P., Williams Olefins, L.L.C., the Williams Company, Inc., XYZ Insurance Company, Chicago Bridge and Iron Company, and X Insurance Company
    Artie Hudson, Jeffery D. Wells v. Williams Olefins Development, L.L.C., Williams Olefins, L.L.C., L.L.C., XYZ Insurance Company, Cajun Paving & Construction of a Cadiana, L.L.C., X Insurance Company, Turner Industries Holdings Company, L.L.C., Y Insurance Company, Brock Services, L.L.C., and X-Y Insurance Company
    Emile Wade and Patricia Wade v. The Williams Companies, Inc., Williams Partners L.P., Williams Olefins, L.L.C., Lummus Technology, Inc., CB & I, Inc. of Texas and/or CB & I, Inc., Turner Industries Group, L.L.C., Turner Industrial Maintenance, L.L.C., Delta Tech Service, Inc., Industrial Specialty Services, LLC, Geo Heat Exchangers, L.L.C., Geo Field Services, L.L.C., Honeywell International, Inc., Union Texas Petrochemicals Corporation, Union Texas Products Corporation, Union Texas Petroleum Corporation, Union Texas Petroleum Holdings, Inc.
    Leroy Mitchell v. Williams Companies, Inc., Williams Olefins, L.L.C., Williams Partners, L.P., Williams Partners HP, L.L.C., Black Marlin Pipeline LLC, Williams Ohio Valley Midstream, LLC, and Turner Industries Group, L.L.C.
    Mark Bateast, Terrence Crosby, Blake Jospeh, Tyrone Lawson, Alvin Long, Jr., Cheri Owens-Griffin, Mary Robinson, Bernard Sears, Aaron Stafford, Donitello Thomas, Calvin Vanner, Donald Wheaton, Asiag Williams, Marcus Wilson and Marcus Yates v. The Williams Companies, Inc., Williams Energy Partners, L.P., Williams Olefins, L.L.C., the Williams Company, Inc., Williams Partners, L.P., Williams Partners GP, LLC, Williams Ohio Valley Midstream, LLC, Discovery Producer Services, LLC, Black Marline Pipeline, L.L.C., Turner Industries Group, L.L.C.
    2017 CA 1662, 2017 CA 1663, 2017 CA 1664 017 CA 1665 2017 CA 1666
    Court of Appeal of Louisiana, First Circuit.
    Judgment rendered: DECEMBER 12, 2018
    Danial C. Vidrine, Baton Rouge, LA, Attorney for Plaintiff/Appellant, Leroy Mitchell
    Katie D. Bell, Lana D. Crump, Glenn M. Farnet, Amanda M. Collura-Day, Baton Rouge, LA Attorneys for Defendant/Appellee, Williams Olefins, L.L.C.
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   HOLDRIDGE, J.

The plaintiff, Leroy Mitchell, appeals a trial court judgment granting summary judgment in favor of Williams Olefins, L.L.C., (defendant) and dismissing his claim with prejudice. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL HISTORY

This litigation arises out of a June 13, 2013 chemical explosion at the Williams Olefins chemical plant near Geismar, Louisiana that is located in both Iberville and Ascension Parishes. The explosion occurred in connection with the production of propylene in the fractionation area of the plant. Specifically, a reboiler had been improperly cut off from a pressure-relief vent, causing it to over-pressurize and rupture. As a result of the explosion, numerous plaintiffs filed suit against various defendants for the injuries they sustained.

In the instant matter, the plaintiff was employed by Chicago Bridge and Iron Company (CB & I) as a pipefitter at the defendant's facility at the time of the chemical explosion. The plaintiff was "on top of a scaffold approximately 10 feet off the ground when the chemical explosion occurred." The plaintiff allegedly "suffered severe and debilitating injuries when an area of [the defendant's] refinery known as the propylene fractionation area exploded." On June 12, 2014, the plaintiff filed a petition for damages against the defendant for the injuries he sustained. The plaintiff alleged in his original petition that that the defendant committed an intentional tort. Specifically, the plaintiff argued that the defendant failed to properly maintain, repair, and improve its pipeline and equipment on its premises, resulting in the explosion. On May 3, 2016, the plaintiff filed an amended petition for damages against the defendant that clarified his intentional tort claim. The amended petition stated, in pertinent part:

1.33. ... [The defendant] owned and operated the subject refinery, and it employed the workers at the refinery. [The defendant] controlled the piping from which the propylene leaked on the date in question. [The defendant had] known for years that [EA-425B] was substantially certain and likely to over pressurize. [The defendant's] management ignored that risk over [sic] and over. As a result, eventually [EA-425B] over pressurized and exploded.

On January 19, 2016, the defendant filed a motion for summary judgment to dismiss the plaintiff's intentional tort claim on the grounds that there remained no genuine issue of material fact and that it was entitled to judgment as a matter of law. The defendant argued that the plaintiff could not satisfy his burden of proving his claim for an intentional tort because "[t]he facts show[ed] that the June 13, 2013 incident was a tragic accident" that was caused by the over-pressurization of an out-of-service reboiler that ruptured. Specifically, the defendant argued that the chemical explosion occurred as a result of three separate and distinct events occurring unexpectedly and simultaneously. The defendant submitted the affidavit of Larry Bayer, the Director of Operations and Technical Services for the defendant's facility, to explain the occurrence of the unexpected events. In his affidavit, Mr. Bayer stated, in pertinent part:

4. The over-pressurization of the out-of-service reboiler was caused by the union of three separate and distinct events occurring simultaneously: (1) the out-of-service reboiler (EA-425B) unexpectedly contained liquid propane/propylene despite having its process valves closed; (2) a valve was improperly opened that allowed heated quench water to flow into the out-of-service reboiler; and (3) the pressure relief path for the out-of-service reboiler [EA-425B] was blocked due to the process inlet and outlet valves being closed. All three of these factors had to occur simultaneously for this accident to occur. If any one of them had not happened, the fire would not have occurred. The simultaneous occurrence of three events like this had never occurred in the history of the Geismar facility.
****
8. In July, 2006, the [defendant] ... began a revalidation of the Process Hazard Analysis ("PHA") Study for various process areas of the plant, one of which included the area where the June 13, 2013 fire eventually occurred. These PHA revalidation studies are part of an on-going process safety management plan that the [defendant's] management team implements at the [defendant's] facility. ... The study ... contain[ed] numerous recommendations ... [and] [t]he specific recommendation at issue here is Recommendation 18, which state[d]: "Consider locking open at least one of the manual valves associated with each of the propylene fractionator reboilers (EA-425 A/B) so that the relief valves on top of the propylene fractionator can provide thermal relief protection for these reboilers."

Thus, the defendant argued that the unusual, simultaneous occurrence of the three factors solely caused the chemical explosion. The defendant stated as to the first factor, the defendant's investigating committee was unable to determine the precise cause of the presence of the liquid hydrocarbons in the out-of-service reboiler. For the second factor, "the quench water flow valve to the out-of-service reboiler was improperly opened just minutes before the reboiler ruptured. It was opened by an operations department employee who was trouble-shooting quench water problems through the in-service reboiler." For the third factor, the defendant argued that Mr. Bayer's affidavit evidences that the pressure relief path was blocked for the out-of-service reboiler because a PHA recommendation by the defendant's management team was inadvertently implemented in a different manner than recommended. However, this error in implementation was not detected until the chemical explosion occurred three years later.

In response, the plaintiff filed a memorandum in opposition to the defendant's motion, arguing that the defendant knew with substantial certainty of the dangerous condition associated with the out-of-service reboiler (EA-425B), but failed to address the problem. In support of his memorandum, the plaintiff attached exhibits, which included the expert affidavits of Gregg S. Perkin, an independent engineer consultant employed by Engineering Partners International, LLC, and Greg McCormack, an engineer consultant. The experts' affidavits provided the history of the reboilers' modifications at the defendant's facility. Mr. Perkin stated in his affidavit that around 2001, block valves were added to the inlet and outlet process flow lines for the reboilers. According to Mr. Perkin, this modification left the reboilers in an unsafe condition because they were isolated from the pressure relief system of the defendant's facility, a hazard that would substantially result in over-pressurization.

Additionally, Mr. Perkin stated in his affidavit that the employees of the defendant knew the substantial risk of over pressurization of the reboilers because the defendant was warned multiple times that pressure relief was needed to the reboilers or they would fail. He stated that in 2006 the defendant underwent a PHA for safety management at its facility. The PHA provided a recommendation to the defendant that it needed to consider locking open at least one of the manual valves associated with each of the reboilers, so that the relief valves on top of the propylene fractionator could provide thermal relief protection for the reboilers. Mr. Perkin further stated in his affidavit that in 2008, CDI Engineering Solutions was hired by the defendant to perform a pressure relief valve study on the facility. The study concluded, in pertinent part:

There [were] block valves at the inlet and outlet to the shell side of the EA-425 A/B. Because those valves [were] not [car-sealed open], SV-421QA/QA w[ould] not provide overpressure protection to the shell side of the reboilers in the event of a fire or in the event of liquid expanding/vaporizing due to heat input from the hot side. Unless these valves [were] car[-] sealed open, additional overpressure protection w[ould] be needed for the shell side of EA-425A/B.

The plaintiffs further argued that the defendant was aware of the hazardous condition because in 2010 the defendant reported that it car-sealed open the process outlet valves for both reboilers. However, in 2012 while updating the facility's piping and instrumentation diagram (P & ID), an employee of the defendant noted that one of the reboilers (EA-425B) was not connected to the pressure relief system. The employee noted on the P & ID revision approval form that only the in-service reboiler (EA-425A) was car-sealed open. This form was approved by the defendant's management, acknowledging that one of the reboilers (EA-425B) was not car-sealed open as recommended. Thus, the plaintiff averred that the defendant knew that the out-of-service reboiler was not car-sealed open despite the numerous warnings it was given that one of the reboilers (EA-425B) was not connected to the pressure relief system. As a result, the plaintiff argued that the defendant was aware of the hazardous condition of the reboilers for years, but never did anything about it, resulting in the chemical explosion.

In sum, the plaintiff argued that the defendant was aware of the dangerous condition as early as 2001, and unquestionably aware of the dangerous condition by 2006 after the PHA. Specifically, the plaintiff argued that in 2006, after the defendant underwent the PHA for safety management at its facility, the defendant recognized that the reboilers lacked the required pressure-relief outlet, and recommendations were made to it to correct the problem throughout the years. However, the plaintiff argued that the defendant ignored the recommendations ultimately resulting in the chemical explosion.

In response, the defendant filed a reply memorandum, objecting to portions of the plaintiff's experts' affidavits stating that they contained "inadmissible opinions as to ultimate issues of subjective knowledge and intent" regarding the chemical explosion. The defendant argued that subjective knowledge and intent were beyond the scope of appropriate expert testimony pursuant to La. C.E. art. 702. The defendant further argued that contrary to the plaintiff's assertion, the undisputed facts showed that the chemical explosion was an accident caused by human error. The defendant stated that the record revealed that it intended to implement the PHA recommendation to car-seal open both reboilers, but a field-level mistake was made when implemented.

On May 24, 2016, the trial court held a hearing on the defendant's motion for summary judgment. Before hearing arguments on the merits, the trial court sustained the defendant's objection, striking portions of the plaintiff's experts' affidavits pursuant to La. C.C.P. art. 967 and La. C.E. art. 702. The plaintiff did not contemporaneously object to the trial court's ruling.

The defendant argued that in December of 2008, the defendant's management team implemented the 2006 PHA recommendation and it assigned this task to the operations department to implement. In January of 2010, the operations department reported that the 2006 PHA recommendation had been implemented. The defendant argued that it discovered that a mistake was made during the implementation of the 2006 PHA recommendation. This mistake included failing to car-seal open the out-of-service reboiler (EA-425B). The defendant argued that although it made a mistake, it did not fail to address the hazardous condition of the reboilers, as Mr. Bayer's affidavit affirmed that the defendant was under the impression that it had addressed the reboiler pressure-relief problem by January 2010.

At the conclusion of the hearing, the trial court took the matter under advisement. On July 11, 2016, the trial court signed a motion for summary judgment in favor of the defendant and the plaintiff's claim was dismissed with prejudice. The trial court provided reasons for judgment on July 12, 2016. Thereafter, the plaintiff appealed assigning as error: (1) that the trial court erred by not allowing any of the plaintiffs to conduct adequate discovery in this case; (2) that the trial court erred by granting the defendant's motion for summary judgment; and (3) that the trial court erred by failing to follow the Law of the Case.

As to the plaintiff's first and third assignments of error, we find that they have no merit as they have both been raised before this court for the first time on appeal. The well-settled jurisprudence of this court establishes that as a general matter, appellate courts will not consider issues raised for the first time, which are not pleaded in the court below and which the trial court has not addressed. Council of City of New Orleans v. Washington, 2009-1067 (La. 5/29/09), 9 So.3d 854, 856.

STANDARD OF REVIEW

Summary judgment procedure is favored and "is designed to secure the just, speedy, and inexpensive determination of every action ... and shall be construed to accomplish these ends." La. C.C.P. art. 966(A)(2). In reviewing the trial court's decision on a motion for summary judgment, this court applies a de novo standard of review using the same criteria applied by the trial courts to determine whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La. 7/5/94), 639 So.2d 730, 750.

The initial burden of proof is on the mover. If the mover will not bear the burden of proof at trial, the mover's burden does not require him to negate all essential elements of the adverse party's claim, but only to point out to the court the absence of factual support for one or more of the elements necessary to the adverse party's claim. Thereafter, the burden is on the adverse party to produce factual support that is sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. C.C.P. art. 966(D)(1).

After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3). A fact is material if it potentially ensures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. A genuine issue of material fact is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Larson v. XYZ Insurance Company, 2016-0745 (La. 5/3/17), 226 So.3d 412, 416.

DISCUSSION

Intentional Tort

The plaintiff assigns as error that the trial court granted the defendant's motion for summary judgment because the defendant intentionally desired to bring about his injuries since it knew with substantial certainty that a chemical explosion would occur. The plaintiff argues that the defendant had notice that the out-of-service reboiler (EA-425B) was not car-sealed open and did not have pressure relief, resulting in the reboiler failing and causing serious injuries. We must first examine whether the plaintiff met his burden of proving an intentional tort against the defendant under La. R.S. 23:1032(B). To meet his burden, the plaintiff must prove that the defendant: (1) consciously desired the physical result of its act, whatever the likelihood of that result happening from its conduct, or (2) knew that the result is substantially certain to follow from its conduct, whatever its desire may be as to that result. Miller v. Sattler Supply Co., Inc., 2013-2558 (La. 1/27/14), 132 So.3d 386, 387 ; Bazley v. Tortorich, 397 So.2d 475, 481 (La. 1981).

The plaintiff does not allege that the defendant consciously desired to cause him harm. Rather, he asserts that his injuries were substantially certain to follow from the defendant's conduct. See Batiste v. Bayou Steel Corp., 2010-1561 (La. 10/1/10), 45 So.3d 167, 168. The plaintiff relies on evidence indicating that the out-of-service reboiler (EA-425B) was hazardous for many years. The plaintiff argues that the defendant was aware that the out-of-service reboiler (EA-425B) was a hazard and that substantial injuries were likely to occur as early as 2006 when the defendant was notified after the PHA that the reboilers did not have the proper pressure relief. The plaintiff further argues that the experts' affidavits provide evidence that the defendant was aware for years of the hazardous condition of the reboilers. Specifically, Gregg S. Perkin and Greg McCormack both stated in their affidavits that the out-of-service reboiler (EA-425B) was placed in an unsafe operating mode that was severe and could cause death or injury. The experts stated that as early as 2006, the hazardous condition of not having the reboilers car-sealed open was identified and recommendations were made to the defendant throughout the years to avoid the rupturing of the out-of-service reboiler (EA-425B) since it was not connected to the pressure relief system. The experts found that by 2010, the out-of-service reboiler (EA-425B) was not car-sealed open despite the defendant's management being aware of the hazard and risk associated with a blocked reboiler.

Additionally, the plaintiff relies on the P & ID revision approval form that was presented to the defendant's management to argue that the defendant's management was aware of the substantial risk associated with having the out-of-service reboiler (EA-425B) blocked. The plaintiff argues that the P & ID revision approval form evidences that the defendant's management approved for reboiler (EA-425A) to be car-sealed open, but reboiler (EA-425B) remain closed, which eventually led to the out-of-service reboiler being filled with propylene and introduced to heat, and because there was not a pressure relief system in place, the reboiler failed.

The defendant counters that it never intended to injure the plaintiff and that the chemical explosion was an accident caused by human error. The defendant argues that the Louisiana Supreme Court has made it clear that the intentional tort exception to workers' compensation immunity is reserved only for those cases in which actual intent to cause the specific injury at issue can reasonably be inferred. The defendant admits that it made mistakes, however it did not intentionally desire for the plaintiff to be injured or knew that the chemical explosion was substantially certain to occur.

The defendant further argues that the "substantially certain to follow" requirement mandated by La. R.S. 23:1032(B) requires more than a reasonable probability that an injury will occur and certain has been defined to mean "inevitable" or "incapable of failing." See Sibert v. National Oilwell Varco, L.P., 48,789 (La. App. 2 Cir. 2/26/14), 136 So.3d 283, 288. The defendant's mere knowledge and appreciation of a risk does not constitute intent, nor does reckless or wanton conduct by an employer constitute intentional wrongdoing. Id. In support of its argument, the defendant relies on Danos v. Boh Bros. Const. Co., LLC, 2013-2605 (La. 2/7/14), 132 So.3d 958, 960, wherein an employee was severely injured while using a cutting saw at work after he was directed by his employer to use the saw to cut a pipe flat on the ground. The Supreme Court reversed the lower court's ruling denying summary judgment and stated "[b]elieving that someone may, or even probably will, eventually get hurt if a workplace practice is continued does not rise to the level of an intentional act, but instead falls within the range of negligent acts that are covered by workers' compensation." Danos, 132 So.3d at 959quoting Reeves v. Structural Preservation Systems, 98-1795 (La. 3/12/99), 731 So.2d 208, 213. The Supreme Court emphasized that mere knowledge that a procedure is dangerous and that its use creates a high probability that someone will eventually be injured is not sufficient to meet the substantial certainty requirement. Id.; see also Simoneaux v. Excel Group, LLC, 2006-1050 (La. 9/1/06), 936 So.2d 1246, 1248 (wherein the Supreme Court found that an employer's actions in providing poor working conditions was potentially negligent but was not intentional in causing the plaintiff's injuries.)

After a de novo review of the record, it is clear that the defendant's management was aware that the blocked reboiler was a hazard, but it is not evident that they were substantially certain that the chemical explosion was to occur from that hazard. The record reveals that the reboiler had been in a potentially hazardous condition since 2001 and had never failed or hurt anyone before the explosion in 2013. Mr. Bayer's affidavit reveals that the reboiler being blocked was only one of the three simultaneous factors that led to the explosion. The unexpected presence of the liquid hydrocarbon in the out-of-service reboiler and the improper introduction of the heated water simultaneously caused the chemical explosion. Thus, the evidence does not show that the defendant knew with substantial certainty that the blocked reboiler, which had been filled with nitrogen, would be filed with propylene or that it would be heated, ultimately causing the chemical explosion.

Considering all of the evidence, which was not objected to in the plaintiff's opposition to the motion for summary judgment, it does not appear that the chemical explosion rises to the level of an intentional tort by the defendant. Jurisprudence shows that despite the fact that the defendant's management was aware of the hazardous condition, that alone does not equate to substantial certainty under La. R.S. 23:1032(B) and instead falls within the range of negligent acts that are covered by the Louisiana Workers' Compensation Act, La. R.S. 23:1020.1, et seq. (LWCA). See Miller v. Sattler Supply Co., Inc., 2013-2558 (La. 1/27/14), 132 So.3d 386, 388 ; Sibert, 136 So.3d at 288 ; Robinson v. North American Salt Co., 2002-1869 (La. App. 1 Cir. 6/27/03), 865 So.2d 98, 105, writ denied, 2003-2581 (La. 11/26/03), 860 So.2d 1139. As the Louisiana Supreme Court has stated, the mere knowledge that a procedure is dangerous or that a machine's use creates a high probability that someone will eventually be injured is not sufficient to meet the substantial certainty requirement mandated by La. R.S. 23:1032(B). See Batiste, 45 So.3d at 168-69. Thus, believing that someone may, or even probably will eventually get hurt if a workplace practice is continued does not rise to the level of an intentional act, but instead falls within the range of negligent acts that are covered by workers' compensation. Gardner v. Craft, 48,861 (La. App. 2 Cir. 3/5/14), 137 So.3d 69, 75, writ denied, 2014-0711 (La. 5/16/14), 139 So.3d 1029.

While we recognize that the out-of-service reboiler (EA-425B) was in a hazardous condition on the day of the chemical explosion, resulting in the plaintiff sustaining injuries, jurisprudence is clear that it cannot reasonably be said that the defendant was substantially certain that the plaintiff would be injured. Our courts have narrowly construed the intentional act exception according to its legislative intent and have almost universally held that employers are not liable under the intentional act exception for violations of safety standards or for failing to provide safety equipment. Reeves, 731 So.2d at 211. Thus, the defendant's conduct does not rise to the level of an intentional act so as to provide the plaintiff with a remedy over that provided by the LWCA. See Id. Accordingly, we conclude that the plaintiff failed to show that the defendant knew with substantial certainty that the chemical explosion was to occur, causing harm to the plaintiff pursuant to La. R.S. 23:1032(B). Therefore, the trial court's judgment is affirmed and this assignment of error has no merit.

CONCLUSION

Based on the foregoing, the judgment appealed from is affirmed. Costs of this appeal are assessed to the plaintiff, Leroy Mitchell.

AFFIRMED.

      A reboiler is a pressure vessel that operates as a heat exchanger to heat a process fluid to separate the gases from the heavier components.

      The trial court consolidated the various suits for discovery purposes to division "D" of the trial court to be joined with the suit captioned "Travis Higgins v. Williams Energy Partners, L.P., et al., Suit No. 109,244 ."2 The consolidated cases consisted of Artie Hudson and Jeffery Wells, et al v. Williams Olefins Development, L.L.C., et al, Suit No. 109,301 and Leroy Mitchell v. Williams Companies, Inc., et al, Suit No. 110,285. We note that while La. C.C.P. art. 1561 provides that two or more actions may be consolidated for trial, there is no provision that allows cases to be consolidated for discovery purposes. See Boh v. James Indus. Contractors, L.L.C., 2003-1211 (La. App. 4 Cir. 2/11/04), 868 So.2d 180, 186, writ denied sub nom. Boh v. JamesIndus. Contractors, 2004-0456 (La. 3/5/04), 869 So.2d 801.

      The plaintiff named several other defendants in his petition for damages who were dismissed from the suit or their claims are not being contested in the instant matter.

      An intentional tort does not have to be plead with any specificity. See Mayer v. Valentine Sugars, Inc., 444 So.2d 618, 620 (La. 1984).

      We note that the Louisiana Code of Civil Procedure was amended by 2015 La. Acts, No. 422, § 1, effective January 1, 2016. Section 2 of the 2015 La. Acts, No. 422, provides that: "[t]he provisions of this Act shall not apply to any motion for summary judgment pending adjudication or appeal on the effective date of this Act." Here, the filing of the motion for summary judgment was filed after the effective date of 2015 La. Acts, No. 422. Thus, the new version of La. C.C.P. art. 966 applies to the instant matter.

      The PHA was attached as an exhibit in the plaintiff's memorandum in opposition to the defendant's motion.

      A car seal is a device that is placed on a valve in the designated position as an administrative control to keep the valve in the designated position.

      The piping and instrumentation diagram is a drawing that shows what is installed in the field, all of the piping and equipment, and any instrumentation and electrical components.

      The defendant's management who approved the P & ID included: Larry Bayer (plant manager), Parker Tucker (operational manager), Erick Comeaux (technical manager), Jake Beret (safety manager).

      Upon our de novo review, we find no error in the trial court's ruling to strike portions of the plaintiff's expert's affidavits and note that the parties did not raise this issue on appeal.

      We note that the defendant produced undisputed testimony establishing that it did not intend to injure the plaintiff or itself.


source: Caselaw Access Project

author: CHUTZ, J.

license: Public Domain

text:
    Ricky BOSSE and Danielle Bosse v. ACCESS HOME INSURANCE COMPANY and Maison Insurance Company
    2018 CA 0482
    Court of Appeal of Louisiana, First Circuit.
    DATE OF JUDGMENT: DECEMBER 17, 2018
    Donald F. de Boisblanc, Donald F. de Boisblanc, Jr., New Orleans, Louisiana and John Alden Meade, New Orleans, Louisiana, Counsel for Plaintiffs-Appellants Ricky Bosse and Danielle Bosse
    John Michael Parker, Ann M. Halphen, John M. Parker, Jr., Ashley C. Meredith, Baton Rouge, Louisiana, Counsel for Defendant-Appellee Access Home Insurance Company
    Stephen R. Barry, Daphne McNutt Barry, Kathleen Crowe Marksbury, New Orleans, Louisiana, Counsel for Defendant-Appellee Maison Insurance Company
    BEFORE: PETTIGREW, WELCH, AND CHUTZ, JJ.
   CHUTZ, J.

Plaintiffs-appellants, Ricky and Danielle Bosse, appeal the trial court's judgment, granting motions for summary judgment in favor of defendants-appellees, Access Home Insurance Company (Access) and Maison Insurance Company (Maison), and dismissing the Bosses' claims for (1) declaratory relief, seeking a declaration that the insurers' respective property insurance policies afforded the Bosses the right to full replacement cost value (RCV) of property damaged by hail in a thunderstorm; (2) damages against the insurers for breach of the insurance contracts; and (3) penalties under the Louisiana Insurance Code. The trial court's judgment also denied a cross-motion for summary judgment filed by the Bosses, claiming entitlement to declaratory relief, damages, and penalties. We affirm.

PROCEDURAL AND FACTUAL BACKGROUND

The following is undisputed. On April 25, 2015, hail from a thunderstorm caused roof damage to two homes in Mandeville that the Bosses owned. On January 11, 2017, the Bosses reported a claim to Access for the roof damage to the home located at 1307 Girod Street. Access sent an adjuster to inspect the damage. After concluding the roof and other portions of the home had been damaged due to the April 25, 2015 storm, the adjuster determined that the RCV for the damage was $5,677.03. The adjuster valued the depreciation of the damaged areas at $2,277.28 and, subtracting the amount of depreciation from the RCV, determined the actual cash value (ACV) for the Girod Street home was $3,399.75. After subtraction of the policy's $1,000.00 deductible, Access sent a check to the Bosses in the amount of $2,399.75 as payment for the claim.

As with the Girod Street home, on January 11, 2017, the Bosses reported a claim to Maison for roof damage sustained as a result of hail from the April 25, 2015 thunderstorm to the home located at 1200 Albert Street. Maison sent an adjuster to the Albert Street home who, after concluding the roof of the home had been damaged due to the April 25, 2015 storm, estimated that the RCV for the damage was $11,899.26. The adjuster valued the depreciation of the damaged area at $3,270.51 and, subtracting the amount of depreciation from the RCV, determined the ACV for the Albert Street home was $8,628.75. After subtraction of the policy's $1,000.00 deductible, Maison sent a check to the Bosses in the amount of $7,628.75 as payment for the claim.

The Bosses subsequently requested the full amount of the RCV from both Access and Maison. After each insurer denied the request, the Bosses filed this lawsuit, on April 21, 2017, seeking declaratory relief as well as damages and penalties against the insurers. The Bosses reasoned that under the terms of each insurer's policy, they were entitled to the full amount of the RCV; by failing to tender the full amount of the RCV and paying only the ACV, the insurers breached their respective insurance contracts; and, thus, that each insurer owed penalties under the Louisiana Insurance Code.

After answering the petition, each insurer filed a motion for summary judgment, seeking dismissal of the Bosses' claims. Access and Maison both asserted that under the unambiguous terms of their respective policies, the payment of the ACV satisfied their obligations. The Bosses filed a cross-motion for summary judgment, seeking judgment in their favor.

A hearing was held, after which the trial court granted the motions for summary judgment filed by Access and Maison. A judgment in conformity with the trial court's ruling and dismissing the Bosses' claims was signed on January 23, 2018. The Bosses have devolutively appealed.

DISCUSSION

Appellate courts review the granting or denial of a motion for summary judgment de novo under the same criteria governing the district court's determination of whether summary judgment is appropriate. Schultz v. Guoth , 2010-0343 (La. 1/19/11), 57 So.3d 1002, 1005-06. A motion for summary judgment shall be granted only if the pleadings, depositions, answers to interrogatories, written stipulations, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3) & (4).

Summary judgment is appropriate for determining issues relating to insurance coverage. In determining whether a policy affords coverage for an incident, the insured bears the burden of proving the incident falls within the policy's terms. Miller v. Superior Shipyard and Fabrication, Inc. , 2001-2683 (La. App. 1st Cir. 11/8/02), 836 So.2d 200, 203.

An insurance policy is a contract between the parties and should be construed by using the general rules of interpretation of contracts set forth in the Civil Code. The judicial responsibility in interpreting insurance contracts is to determine the parties' common intent. See La. C.C. art. 2045. The parties' intent as reflected by the words in the policy determines the extent of coverage. Samuels v. State Farm Mut. Auto. Ins. Co. , 2006-0034 (La. 10/17/06), 939 So.2d 1235, 1240. In ascertaining the common intent, words and phrases in an insurance policy are to be construed using their plain, ordinary, and generally prevailing meaning, unless the words have acquired a technical meaning, in which case the words must be ascribed their technical meaning. See La. C.C. art. 2047 ; Sims v. Mulhearn Funeral Home, Inc. , 2007-0054 (La. 5/22/07), 956 So.2d 583, 589. If the wording of the policy clearly and unambiguously expresses the parties' intent, the insurance contract must be enforced as written. See La. C.C. art. 2046 ; Edwards v. Daugherty , 2003-2103 (La. 10/1/04), 883 So.2d 932, 941.

An insurance contract is construed as a whole, and each provision in the contract must be interpreted in light of the other provisions. One provision of the contract should not be construed separately at the expense of disregarding other provisions. See La. C.C. art. 2050 ; Sims , 956 So.2d at 589. Absent a conflict with statutory provisions or public policy, insurers are entitled to limit their liability and to impose reasonable conditions on the obligations they contractually assume. Marcus v. Hanover Ins. Co., Inc. , 98-2040 (La. 6/4/99), 740 So.2d 603, 606.

Replacement cost insurance, such as that which the Bosses secured to insure their two Mandeville homes, allows recovery for the actual value of property at the time of loss, without deduction for deterioration, obsolescence, and similar depreciation of the property's value. Thus, replacement cost insurance is designed to cover the difference between what property is actually worth and what it would cost to rebuild or repair that property. 12A Couch on Ins. § 176:56.

The most important limitation on replacement cost coverage is that the insurer has limited its liability to instances where the insured completes repairs or replacement. Without actual repair or replacement, the insurer intended no liability beyond the ACV of the loss. Thus, when actual repair or replacement is required, the insurer has no liability beyond the ACV loss until repair or replacement is accomplished. See Jordan, What Price Rebuilding? , A look at replacement cost policies, 19 Fall Brief 17, 21 (Fall 1990). The typical replacement provisions contain no language as to when an insured must complete repair or replacement of the damaged property. The standard provision does, however, require the insured to make a claim within a certain number of days, usually 180, in order to recover for replacement cost coverage. Id. , at 38.

With these precepts in mind, we turn to the provisions of each insurer's policy. According to the pertinent terms of the Access policy:

5. Loss Settlement . Covered property losses are settled as follows:
....
b. Buildings under Coverage A [Dwelling] or B [Other Structures] at replacement cost without deduction for depreciation, subject to the following:
(1) If at the time of loss, the amount of insurance in this policy on the damaged building is 80% or more of the full replacement cost of the building immediately before the loss, we will pay the cost to repair or replace, after application of the deductible and without deduction for depreciation, but not more than the least of the following amounts:
(a) the limit of liability under this policy that applies to the building;
(b) the replacement cost of that part of the building damaged for like construction and use on the same premises; or
(c) the necessary amount actually spent to repair or replace the damaged building.
....
(4) We will pay no more than the [ACV] of the damage unless:
(a) actual repair or replacement is complete ....
(5) You may disregard the replacement cost loss settlement provisions and make claim under this policy for loss or damage to buildings on an [ACV] basis. You may then make claim within 180 days after loss for any additional liability on a replacement cost basis.

The relevant Maison policy provisions state the following:

E. Loss Settlement
... Covered property losses are settled as follows:
2. Buildings and Coverage A [Dwelling] or B [Other Structures] at replacement cost without deduction for depreciation, subject to the following:
a. If, at the time of loss, the amount of insurance in this policy on the damaged building is 80% or more of the full replacement cost of the building immediately before the loss, we will pay the cost to repair or replace, after application of any deductible and without deduction for depreciation, but not more than the least of the following amounts:
(1) The limit of liability under this policy that applies to the building;
(2) The replacement cost of that part of the building damaged with material of like kind and quality and for like use; or
(3) The necessary amount actually spent to repair or replace the damaged building.
....
d. We will pay no more than the [ACV] of the damage until actual repair or replacement is complete. Once actual repair or replacement is complete, we will settle the loss as noted in 2.a ... above....
e. You may disregard the replacement cost loss settlement provisions and make claim under this policy for loss to buildings on an [ACV] basis. You may then make claim for any additional liability according to the provisions of this Condition E. Loss Settlement, provided you notify us of your intent to do so within 180 days after the date of loss.

Acknowledging that they did not repair or replace the damage to the roofs of their homes within 180 days before they made their claims, the Bosses urge that under the plain language of the policies, see Access policy, Condition 5.b(1) and Maison policy, Condition E.2.a, they are entitled to receive a single payment of up to full RCV contingent upon completing the repairs or replacement without regard to any time limitation. We disagree.

Under the Access policy, Condition 5.b.(5), and the Maison policy, Condition E.2.e, an insured may make a claim and receive the ACV of the damaged property immediately after the damage occurs. See Young v. Imperial Fire & Cas. Ins. Co. , 2014 WL 3662587, *8, quoting Stevens v. Allstate Ins. Co. , 19 F.Supp.3d 690, 695-96 (E.D. La. 2014). The plain language of these provisions clearly allows the insured to make the ACV election without any input or approval from the insurer. Young , 2014 WL 3662587, at *9.

If the insured does not intend to repair or replace the damaged property, the insurer's liability will have been entirely resolved. If the insured does intend to repair or replace the damaged property, unlike the decision to make the ACV election, the plain language of Access policy, Condition 5.b.(4) and Maison policy, Condition E.2.d requires that the insured notify the insurer of his or her intent to repair or replace the property within 180 days after the damage occurs. Thereafter, the insured may make another claim for the difference between the ACV and the repair or replacement cost as set forth in Condition 5.b.(1) of the Access policy and Condition E.2.a of the Maison policy. Young , 2014 WL 3662587, at *8.

It is undisputed that the Bosses failed to notify either Access or Maison within 180 days of the loss of their intent to repair or replace the damaged property and make another claim for any additional liability arising out of any RCV. Thus, under the terms of the Access policy, having failed to timely notify the insurer of their intent to repair or replace the damaged property (see Condition 5.b.(5) ), the RCV coverage set forth in Condition 5.b.(1) was no longer available to them. Likewise, under the terms of the Maison policy (see Condition E.2.e), because the Bosses failed to notify the insurer of their intent to repair or replace within 180 days of the April 25, 2015 loss, the RCV coverage under Condition E.2.a was no longer available to them.

Accordingly, under the plain language of the policies, the RCV was no longer available to the Bosses by the date that they filed their claims. As such, there is no basis to support the Bosses' demand for a declaration that the insurers' respective property insurance policies afforded them the right to claim the full amount of the RCV. Likewise, under the unambiguous terms of the policy, the Bosses failed to establish that the insurers breached the insurance contract and, therefore, cannot show that they are entitled to penalties under the Louisiana Insurance Code. Therefore, the trial court correctly dismissed their claims on summary judgment.

DECREE

For these reasons, the trial court's judgment is affirmed. Appeal costs are assessed against plaintiffs-appellants, Ricky and Danielle Bosse.

AFFIRMED.

Welch J. concurs in result

      See La. R.S. 22:1 (specifying that the provisions of Title 22 may be cited as the Louisiana Insurance Code). See also La. R.S. 22:1892 (providing for an award of penalties for an insurer's failure to timely pay a claim) and La. R.S. 22:1973 (allowing for an award of penalties against an insurer for breach of its duty to its insured of good faith and fair dealing).

      The Bosses instituted this litigation as a class action petition for damages, averring that numerous others, similarly situated, were also owed damages from Access and Maison. The trial court signed an order directing a minute entry setting forth that the parties consented to dispose of the cross-motions for summary judgment prior to addressing whether the plaintiffs were entitled to class certification. On appeal, the parties have raised no issues relative to either class certification or the disposition of the cross-motions for summary judgment before a class certification determination has been made.

      Because it is undisputed that the amount of insurance on each home at the time of the loss was greater than 80% of the full replacement cost of the home, we cite only those provisions of each insurer's policy that are relevant to our discussion.

      Because the Bosses failed to timely assert a claim for any RCV they may have had, the transmittal letters sent by Access and Maison, denying the Bosses' requests for payment of full RCV, accurately represented the facts and the policy provisions. Thus, the Bosses' claim of an anticipatory breach of contract by the insurers is without foundation.


author: JUDGE SANDRA CABRINA JENKINS

text:
    Kevin POZZO v. DEPARTMENT OF POLICE
    NO. 2018-CA-0832
    Court of Appeal of Louisiana, Fourth Circuit.
    APRIL 3, 2019
    Eric J. Hessler, ATTORNEY AT LAW, 2802 Tulane Ave., Suite 102, New Orleans, LA 70119, COUNSEL FOR PLAINTIFF/APPELLANT
    Sunni J. LeBeouf, City Attorney, Donesia D. Turner, Senior Chief Deputy City Attorney, Elizabeth S. Robins, Deputy City Attorney, Erica Therio, Assistant City Attorney, Megan A. Haynes, Assistant City Attorney, 1300 Perdido Street, Room 5E03, New Orleans, LA 70112, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Chief Judge James F. McKay, III, Judge Daniel L. Dysart, and Judge Sandra Cabrina Jenkins )
   JUDGE SANDRA CABRINA JENKINS

This is a civil service commission case. Police Officer Kevin Pozzo seeks review of the decision of the Civil Service Commission of the City of New Orleans ("CSC") denying his appeal of the termination of his employment by the New Orleans Police Department (the "NOPD" or the "Appointing Authority"). We find that NOPD'S administrative investigation exceeded the maximum time limitation standards set forth in the Police Officers' Bill of Rights, codified at La. R.S. 40:2531. Accordingly, we conclude that NOPD'S decision to terminate Mr. Pozzo is an absolute nullity under La. R.S. 40:2531(C), and we vacate the decision of the CSC. We further order restoration of all back pay and emoluments to Mr. Pozzo.

FACTUAL AND PROCEDURAL BACKGROUND

Mr. Pozzo, a SWAT Team member, was a 12-year veteran of the NOPD. On June 29, 2017, the NOPD terminated his employment for an alleged violation of the following NOPD rule:

Rule 2: Moral Conduct; Paragraph 1, Adherence to Law to wit: Violation of La. R.S. 14:35.3, Relative to Domestic Abuse.

On December 11, 2015, Mr. Pozzo and his then-fiancé, Melanie Wilson, who shared a residence, were drinking alcoholic beverages at home, and continued to drink afterward at an acquaintance's open house party. Mr. Pozzo became upset when he observed Ms. Wilson talking with other men at the party. After Mr. Pozzo confronted one of the men, Mr. Pozzo and Ms. Wilson were asked to leave the party. At about 7:00 p.m., they returned to their home. Mr. Pozzo admittedly threw a glass beer bottle against an interior wall, causing it to shatter. What happened next is disputed by the parties.

NOPD investigators alleged that Mr. Pozzo committed a domestic abuse battery upon Ms. Wilson when he "pushed the chair she was seated in causing her to fall to the floor." Investigators also alleged that Mr. Pozzo "aggressively forced the front door against [Ms. Wilson] preventing her from leaving the home."

Mr. Pozzo testified that he "kind of shook" the chair Ms. Wilson was sitting in, but that she did not fall off the chair. He also testified that Ms. Wilson tried to leave through the front door, but he stopped her because he thought she was heavily intoxicated, and he did not want her to drive.

Ms. Wilson, however, initially told NOPD investigators that Mr. Pozzo pushed over the chair in which she was sitting, causing her to fall. She also told investigators that she grabbed her car keys and was leaving to "defuse" the situation. At the CSC hearing, however, Ms. Wilson testified that she recalled Mr. Pozzo putting his hand on the chair in which she was sitting, but did not recall what happened afterward.

Video footage captured by a security camera located inside the residence shows an apparently frightened Ms. Wilson rushing toward the front door, opening it and getting partially outside. The video then shows Mr. Pozzo entering the video frame and attempting to force the door closed while Ms. Wilson was half inside and half outside. Eventually, Ms. Wilson squeezed through the door and went outside.

Although not captured on camera, it is undisputed that once Ms. Wilson got outside of the house, she asked a passing mail carrier to call the police. Mr. Pozzo admitted that when Ms. Wilson was on the phone with the 911 dispatcher, she was crying. A recording of the call reflects that Ms. Wilson was extremely upset, and told the 911 operator, "he hurt me, but I don't need an ambulance."

The following is a chronological timeline of the post-incident events:

• On December 11, 2015, Sergeant Kimberly Hunt ("Sgt. Hunt") of the NOPD's Public Integrity Bureau ("PIB") began an investigation of Mr. Pozzo, examining possible violations of rules pertaining to his professional conduct, performance of duty, and criminal activity.
• On December 11, 2015, Sgt. Hunt and Lt. Darryl Watson of the PIB took a transcribed statement from Ms. Wilson about the incident.
• On December 12, 2015, an arrest warrant was issued for Mr. Pozzo. Mr. Pozzo's commission was revoked and he was suspended from duty.
• On December 13, 2015, Mr. Pozzo was charged with domestic abuse battery.
• On December 14, 2015, Sgt. Hunt issued a form DI-1: "Initiation of Formal Disciplinary Investigation," which placed Mr. Pozzo on notice that his actions gave rise to a possible violation of "Rule 2: Moral Conduct: Paragraph 1: Adherence to Law," relative to the commission of domestic abuse battery against Melanie Wilson.
• On December 29, 2015, Sgt. Hunt submitted an Incident Report to the Assistant District Attorney's Office asking if the office would be pursuing criminal charges "relative to Simple Battery Domestic Violence."
• On June 15, 2016, Mr. Pozzo's criminal trial was held.
• On June 24, 2016, the judge returned a verdict of not guilty.
• On June 24, 2016, Sgt. Hunt resumed the administrative investigation of the complaint against Mr. Pozzo.
• On August 8, 2016, Mr. Pozzo gave an audiotaped and transcribed interview to Sgt. Hunt.
• On August 12, 2016, Mr. Pozzo was given a "Notice of Accused Law Enforcement Officer Under Investigation of a Pre-Disciplinary Hearing or a Determination of an Unfounded or Unjustified Complaint."
• On August 12, 2016, Sgt. Hunt signed and submitted her written Investigative Report.
• On November 22, 2016, Sgt. Hunt received the transcribed testimony of Ms. Wilson from Mr. Pozzo's criminal trial, and added it to her Investigative Report.
• On December 2, 2016, Lt. Darryl Watson signed Sgt. Hunt's Investigative Report.
• On May 3, 2017, Cmdr. Gwendolyn M. Nolan signed Sgt. Hunt's Investigative Report.
• On May 9, 2017, Dep. Chief Arlinda P. Westbrook signed Sgt. Hunt's Investigative Report.
• On May 9, 2017, Police Supt. Michael S. Harrison signed Sgt. Hunt's Investigative Report.
• On June 28, 2017 a disciplinary hearing was held. In a "Disciplinary Hearing Disposition," the Hearing Officer, the Bureau Commander, and the Superintendent of Police recommended that Mr. Pozzo be dismissed.
• On June 28, 2017, the Superintendent of Police advised Mr. Pozzo in writing that he was found to be in violation of La. R.S. 14:35.3, Domestic Abuse Battery, and that he was being dismissed effective on June 29, 2017.
• On February 22, 2018, a hearing examiner appointed by the CSC presided over an appeal hearing.
• In a written report dated June 26, 2018, the CSC denied Mr. Pozzo's appeal.

Mr. Pozzo timely appealed to this Court.

DISCUSSION

Standard of Review

This Court applies the following standard of review in civil service cases:

First, the review by appellate courts of the factual findings in a civil service case is governed by the manifest error or clearly erroneous standard. Second, when the CSC's decision involves jurisdiction, procedure, and interpretation of laws or regulations, judicial review is not limited to the arbitrary, capricious, or abuse of discretion standard. Instead, on legal issues, appellate courts give no special weight to the findings of the trial court, but exercise their constitutional duty to review questions of law and render judgment on the record. A legal error occurs when a trial court applies the incorrect principles of law and such errors are prejudicial. Finally, a mixed question of fact and law should be accorded great deference by appellate courts under the manifest error standard of review.

Wilcox v. Dept. of Police , 15-1156, p. 6 (La. App. 4 Cir. 8/10/16), 198 So.3d 250, 254.

"The issue of whether the CSC erred in its construction and application of the sixty-day rule presents an interpretation of law and is thus subject to a de novo standard of review." Id.

In this appeal, Mr. Pozzo raises four assignments of error, three of which relate to the merits of his termination. We find his first assignment of error dispositive - his contention that the administrative investigation in this case violated the sixty-day rule set forth in the Police Officers' Bill of Rights, La. R.S. 40:2531(B)(7), making the imposed discipline an absolute nullity under La. R.S. 40:2531(C).

Police Officers' Bill of Rights

The Police Officers' Bill of Rights specifies that certain "minimum standards shall apply" to an internal departmental investigation of an officer such as Mr. Pozzo, who is the subject of such investigation. La. R.S. 40:2531(B). The particular minimum standard at issue in this appeal is that the investigation of the officer must be completed "within sixty days" of its initiation. La. R.S. 40:2531(B)(7). "The investigation shall be considered complete upon notice to the [police officer] under investigation of a pre-disciplinary hearing or a determination of an unfounded or unsustained complaint." La. R.S. 40:2531(B)(7).

"There shall be no discipline, demotion, or adverse action of any sort taken against [a police officer] unless the investigation is conducted in accordance with the minimum standards provided for in Sec. 2531." La. R.S. 40:2531(C). And most importantly for the purpose of Mr. Pozzo's appeal, "[a]ny discipline, demotion, or adverse action of any sort whatsoever taken against [a police officer] without complete compliance with the foregoing minimum standards is an absolute nullity ." Id. (emphasis added).

There are, however, three exceptions to the sixty-day time limitation under La. R.S. 40:2531(B)(7). The first is that the appointing authority may petition the CSC for an extension of up to an additional sixty days, and the CSC may grant such a continuance if the appointing authority "has shown good cause" for additional time to complete its investigation. La. R.S. 40:2531(B)(7). The second exception is that the police officer under investigation and the appointing authority may enter "into a written agreement extending the investigation for up to an additional sixty days." Id. The third exception is that the sixty-day limitation "does not apply" when the investigation is one of alleged criminal activity. McMasters v. Dept. of Police , 13-2634, p. 2 (La. 2/28/14), 134 So.3d 1163, 1164 ; La. R.S. 40:2531(B)(7).

Here, only the third exception applies: "[N]othing in this Paragraph shall limit any investigation of alleged criminal activity." In O'Hern v. Dept. of Police , 13-1416, p. 4 (La. 11/8/13), 131 So.3d 29, 31, the Louisiana Supreme Court interpreted this phrase to mean "nothing must interfere with a criminal investigation." Thus, where there is a criminal investigation that precedes the administrative investigation, the criminal investigation tolls the time limit for the administrative investigation. Id. , 13-1416, p. 5, 131 So.3d at 31. The sixty-day period, therefore, does not begin to toll until the criminal proceedings are complete. Bell v. Dept. of Police , 13-1529, p. 9 (La. App. 4 Cir. 5/21/14), 141 So.3d 871, 876-77.

At trial, Sgt. Hunt testified that after the verdict of not guilty was rendered on June 24, 2016, her administrative investigation began. She agreed that the investigation had to be completed within sixty days, or by August 23, 2016. According to Sgt. Hunt, she "could not add anything after the 60 days." Sgt. Hunt also testified as follows:

Q. Okay. And you cannot, when you turn in that report within 60 days, you have to have all the exhibits attached to it. Would you agree with that by operational policy?"
A. Yeah, I would agree with that.

Sgt. Hunt testified that she completed her written investigative report on August 12, 2016 and signed it on that date. Sgt. Hunt admitted, however, that she later added to her written report a November 22, 2016 transcript of Ms. Wilson's testimony at Mr. Pozzo's criminal trial. She agreed that one of the PIB rules is that within 60 days of the various levels of supervisory review -- which may necessitate corrections, additions, or clarifications -- the final proof at every level must be attained . Sgt. Hunt also agreed that Lt. Darryl Watson signed the report on December 20, 2016; Cmdr. Gwendolyn Nolan signed the report on May 3, 2017; Dep. Chief Arlinda P. Westbrook signed the report on May 9, 2017; and NOPD Chief Harrison signed the report on May 9, 2017. Sgt. Hunt conceded that the signatures of her four supervisors were not added to the written report until after the sixty-day deadline of August 23, 2016.

The Hearing Examiner's Report acknowledged that Sgt. Hunt's original August 12, 2016 report was amended by a later report with an additional exhibit along with her commentary.

Sgt. Hunt included assessment of Ms. [Wilson's] credibility in her report. Included in this assessment were excerpts from Ms. [Wilson's] testimony at [Mr.] Pozzo's criminal trial. Sgt. Hunt admitted that she did not have the transcript until November but claimed to have based her initial assessment of Ms. [Wilson's] credibility at trial on information she received from the Assistant District Attorney assigned to the case. It became clear during the course of the hearing that the report in evidence was not the report that Sgt. Hunt submitted to her supervisors on August 12, 2016. Sgt. Hunt acknowledged that the criminal trial transcript of Ms. [Wilson's] testimony - Exhibit YY - was not included in her report until November. Thus, at some point after August 12, 2016, Sgt. Hunt amended her report to include the trial excerpts and commentary regarding that testimony. In the prior report, Sgt. Hunt asserts that she made her credibility assessment based on representations by the ADA. Sgt. Hunt asserted that her review of the criminal trial transcript did not change her assessment of Ms. [Wilson's] credibility. (Emphasis added.) (Internal citations omitted.)

The CSC also acknowledged that the criminal trial transcript was added to the Investigative Report after expiration of the sixty-day limitations period. CSC nevertheless concluded that there was no violation of La. R.S. 40:2531(C) as long as the additional testimony was simply disregarded:

In her investigative report, Sgt. Hunt included excerpts from Ms. [Wilson's] testimony at [Mr. Pozzo's] criminal trial. Sgt. Hunt admitted that she did not have the transcript until November but claimed to have based her initial assessment of Ms. [Wilson's] credibility at trial on information she received from the [ADA] assigned to the case. NOPD did not seek to introduce Sgt. Hunt's original report, so it is difficult to assess this claim....
Ultimately, the commission finds that NOPD did complete its investigation into [Mr. Pozzo's] alleged misconduct by August 12, 2016, but later added items to buttress the claims made in the investigative report. Therefore, the Commission finds that any material added after August 12, 2016 is inadmissible with respect to the instant appeal. Had NOPD believed that obtaining the transcript was going to be a problem, it could have requested an extension of the sixty-day deadline. It did not. The commission is concerned that allowing NOPD to add exhibits and details to its investigation following notice to an accused officer would essentially render the sixty-day deadline moot. NOPD own policy requires any and all clarifications or questions regarding investigations be addressed prior to the sixty-day deadline.
The Commission finds that NOPD adhered to the requirements of the Law with the exception of adding elements after August 12, 2016. Therefore, the Commission will disregard any portion of Ms. [Wilson's] trial transcript or Sgt. Hunt's report that references Ms. [Wilson's] testimony during the criminal trial . (Emphasis added).

We share the CSC's concern that allowing NOPD to add exhibits and details to its investigation following notice to an accused officer would essentially render the sixty-day deadline moot. We cannot, however, accept the CSC's contention that the added criminal trial transcript merely "buttressed" the claims made in the Investigative Report, and that any material added after August 12, 2016 was "inadmissible" with respect to Mr. Pozzo's appeal. The Police Officers' Bill of Rights states that "[t]here shall be no discipline, dismissal or adverse action of any sort taken against a police employee or law enforcement unless the investigation is conducted in accordance with the minimum standards provided for in this Section." La. R.S. 40:2531(C) (emphasis added). One of the minimum standards is that each investigation "shall be completed within sixty days. " La. R.S. 40:2531(B)(7) (emphasis added). The Police Officers' Bill of Rights further states that "[a]ny discipline, demotion, dismissal, or adverse action of any sort whatsoever taken against a policy employee or law enforcement officer without complete compliance with the foregoing minimum standards is an absolute nullity." La. R.S. 40:2531(C) (emphasis added). Here, there has been no "strict compliance."

See Abbott v. New Orleans Police Dept. , 14-0993, pp. 18-19 (La. App. 4 Cir. 2/11/15), 165 So.3d 191, 203.

As the Supreme Court has stated: "The rules of statutory construction require the law to be applied as written if the law is clear and unambiguous and its application does not lead to absurd consequences. Under the circumstances, we believe the law [ La. R.S. 40:2531 ] is clear ...." Gaspard v. City of Abbeville , 13-2817, p. 3 (La. 3/14/14), 136 So.3d 790, 791.

In sum, the Police Officers' Bill of Rights positively prohibits a disciplinary or other adverse action against a police officer when there has not been, as here, complete compliance with the standard for the time-limitation for the completion of a civil service administrative investigation. The provision of Subsection C imposes a penalty for the violation of the minimal standard. Moreover, Subsection C establishes dismissal of the disciplinary action as the remedy for the appointing authority's non-compliance with the minimum standard. We find, therefore, that the investigation by the Appointing Authority of Mr. Pozzo was non-compliant with the minimum standards set forth in La. R.S. 40:2531(B) (7), and the discipline imposed against him is rendered an absolute nullity.

CONCLUSION

Accordingly, we vacate the CSC's denial of the appeal of Mr. Pozzo. We declare all discipline imposed, including termination, by the Appointing Authority, an absolute nullity. We also order the reinstatement of Mr. Pozzo to his prior position along with restoration of all back pay and emoluments in accordance with La. R.S. 49:113.

VACATED AND RENDERED

DYSART, J., DISSENTS, WITH REASONS

DYSART, J., DISSENTS, WITH REASONS

I find that the Police Officers' Bill of Rights was not violated in this instance. For the reasons that follow, I respectfully dissent.

Mr. Pozzo argues that the administrative investigation exceeded the 60 day limit as provided for in La. R.S. 40:2531 B(7), and, therefore, his dismissal should be deemed an absolute nullity per La. R.S. 40:2531 C. The record indicates that the administrative investigation began on June 24, 2016, the same day that Mr. Pozzo was found not guilty of the criminal charge of domestic battery in municipal court. The investigation was concluded on August 12, at which time Mr. Pozzo was notified by phone that charges against him had been sustained. On August 17, he signed a form acknowledging receipt of the Notice to Accused Law Enforcement Officer Under Investigation of a Pre-Disciplinary Hearing or a Determination of an Unfounded or Unsustained Complaint. "The completion of the investigation is defined by statute as occurring 'upon notice to the police employee or law enforcement officer under investigation of a pre-disciplinary hearing or a determination of an unfounded or unsustained complaint.' " La. R.S. 40:2531 B(7);

Abbott v. New Orleans Police Dept., 14-0993, p. 18 (La.App. 4 Cir. 2/11/15), 165 So.3d 191, 203. As August 25, 2016, would have been the 60th day since the commencement of the investigation, the investigation was completed within the 60 day time limit.

Mr. Pozzo argues that because the investigating officer supplemented her PIB report in November 2016 with a transcript of the victim's testimony in municipal court, the disposition should be nullified, as the act of supplementing the report indicated the investigation was not completed timely.

I do not find a basis for appellant's argument.

Sergeant Kimberly Hunt of the NOPD's Public Integrity Bureau (PIB) conducted the investigation and testified at the CSC hearing. She testified in part:

D.A.: When did you find out what her [victim] testimony was at trial?"

Hunt: Immediately after I met with the Assistant District Attorney....

* * *

D.A. "Okay. So it would be fair to say that you found out the contents of Melanie Wilson's testimony at the trial prior to June 24th of 2016.

Hunt: Yes.

Mr. Pozzo argues that Sgt. Hunt did not make her credibility assessment of the victim (finding that she was not credible) until after the date she notified him that the report was complete. However, Sgt. Hunt was specifically asked at the CSC hearing about when she made the credibility call. She testified that she used the information she gathered from the ADA on the date of the criminal trial to make her assessment, i.e., prior to August 12, 2016.

The Commission also disregarded the "supplement" Sgt. Hunt attached to her report. On p. 4 of the disposition the Commission states:

Ultimately, the Commission finds that NOPD did complete its investigation into Appellant's misconduct by August 12, 2016, but later added items to buttress its claims made in the investigative report. Therefore, the Commission finds that any material added after August 12, 2016 is inadmissible with respect to the instant appeal. Had NOPD believed that obtaining the transcript was going to be a problem, it could have requested an extension of the 60-day deadline. It did not. The Commission is concerned that allowing NOPD to add exhibits and details to its investigation following notice to an accused officer would essentially render the 60-day deadline moot. NOPD's own policy requires any and all clarifications or questions regarding investigations be addressed prior to the 60-day deadline.
The Commission finds that NOPD adhered to the requirements of the Law with the exception of adding elements after August 12, 2016. Therefore, the Commission will disregard any portion of Ms. M's trial transcript or Sgt. Hunt's report that references Ms. M's testimony during the criminal trial.

The credibility assessment in Sgt. Hunt's report is found on pp. 33-35 of the PIB report. Although Sgt. Hunt indicates that she reviewed the transcript of the victim's sworn court testimony at the CSC hearing, Sgt. Hunt indicated that she had already formed her opinion that the victim had given contradictory testimony at the criminal trial based on what she learned from the ADA on the date of the criminal trial, June 24, 2016. The 60 day period began to run the next day, June 25, 2016.

Mr. Pozzo also argues that the investigation was not complete because the report had not been signed up the chain of command all the way to the commission until well outside the 60 day period.

In Abbott, supra, the appellant officers argued that the notice of the pre-disciplinary hearing did not signal the completion of the investigation. This Court rejected the argument citing that the notice itself states that the investigation is now complete and indicates exactly what charges are sustained. The statement on the form that the superintendent or his appointee is the final approving authority does not change the statutory mandate that: "The investigation shall be considered complete upon notice to the police employee or law enforcement officer under investigation of a pre-disciplinary hearing or a determination of an unfounded or unsustained complaint. Nothing in this Paragraph shall limit any investigation of alleged criminal activity." La. R.S. 40:2531 B(7); Abbott, supra.

Thus, I find that the CSC sufficiently protected Mr. Pozzo's rights as a police officer when it disregarded the transcript added to the investigative report outside of the 60 day period. I therefore do not find that his rights were violated or that the discipline imposed should be nullified. I would affirm the ruling of the CSC.

      A factual summary of the investigation and trial is offered only to put the pertinent procedural issue in context.

      Under Louisiana law, "domestic abuse battery" is defined as "the intentional use of force or violence committed by one household member or family member upon the person of another household member or family member." La. R.S. 14:35.3(A). For purposes of the statute, "household member" includes "any person presently or formerly living in the same residence with the offender and who is involved or has been involved in a sexual or intimate relationship with the offender." La. R.S. 14:35.3(B)(5).

      Mr. Pozzo was off duty at the time.

      Sgt. Hunt was new to the PIB unit as of December 11, 2015, but had been with the NOPD for 12 years.

      Mr. Pozzo's four assignments of error are: (1) the Appointing Authority violated La. R.S. 40:2531, thus rendering this disciplinary action a complete nullity; (2) The Commission erred in not recognizing the bias of the PIB Investigation and their investigators; (3) The Commission erred in dismissing the sworn Civil Service testimony by [Melanie Wilson] as not being credible; and (4) The Commission erred in finding that under the given facts and circumstances, that [Mr. Pozzo] violated La. R.S. 14:35.3.

      NOPD Operations Manual: Chapter 52.1.1 governs the steps that must be taken to complete an investigation:
      Every investigation must be completed within 60 days of the classification date , unless the extension of 60 days is granted to Civil Service. The Civil Service extension extends the final due date to 120 days from classification date. Within the time frame the investigator's written report accompanied by exhibits to various levels of supervisory review which may necessitate corrections, additions, clarifications, and the final approval at every level, the verbal or written notice of notify law enforcement officers under investigation for pre-disciplinary hearing or determination of sustained or non-sustained complaint must be completed. (Emphasis added).

      The original investigative report prepared by Sgt. Hunt is not in the record.

      La. R.S. 49:113 provides:
      Employees in the state or city civil service, who have been illegally discharged from their employment, as found by the appellate courts, shall be entitled to be paid by the employing agency all salaries and wages withheld during the period of illegal separation, against which amount shall be credited and set-off all wages and salaries earned by the employee in private employment in the period of separation.


author: WHIPPLE, C.J. McDonald, J. Dissenting:

text:
    IN RE: Medical Malpractice Review Panel Proceedings of Tiffany ANDERSON
    2017 CA 1576
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: November 14, 2018 Dissenting Opinion of Judge McDonald, December 13, 2018
    Anselm N. Nwokorie, Brian G. Smith, Monroe, LA, Counsel for Plaintiff/Appellant, Tiffany Anderson
    David A. Woolridge, Jr., Brent J. Bourgeois, Baton Rouge, LA, Counsel for Defendant/Appellee, Louisiana Patient's Compensation Fund, Oversight Board
    F. Williams Sartor, Jr., Monroe, LA, Counsel for Intervenor/Appellee, St. Francis Medical Center, Inc.
    BEFORE: WHIPPLE, C.J., GUIDRY, McDONALD, McCLENDON, and CHUTZ, JJ.
   WHIPPLE, C.J.

Plaintiff, Tiffany Anderson, appeals a judgment of the district court affirming the Louisiana Patient's Compensation Fund Oversight Board's determination and declaration that plaintiff's claim was invalid and without effect due to her failure to timely pay the required filing fee, and denying plaintiff's petition for a writ of mandamus. For the following reasons, we reverse and render judgment in favor of plaintiff.

FACTS AND PROCEDURAL BACKGROUND

On June 6, 2016, Tiffany Anderson filed a request for a medical review panel with the Patient's Compensation Fund Oversight Board (PCF Board), alleging malpractice by emergency room doctors at St. Francis Medical Center during her visits to the emergency room on June 5, 6, and 7, 2015. On June 10, 2016, the PCF Board sent a letter to counsel for Ms. Anderson, acknowledging receipt of her June 6, 2016 request and advising that a filing fee of $400.00 ($100.00 per named qualified provider) must be received by the PCF Board within forty-five days of the postmark of the notice, "in accordance with R.S. 40:1231.8(A)(1)(c)." The letter further provided that "[f]ailure to comply shall render the request invalid and without effect and the request shall not suspend the time within which suit must be instituted." The parties do not dispute that the 45-day deadline for payment of the filing fee to the PCF Board was July 25, 2016.

On July 22, 2016, prior to the expiration of the deadline for payment, counsel for Ms. Anderson mailed the filing fee from his Monroe office to the PCF Board's office via certified mail. However, the filing fee was not received by the PCF Board until August 1, 2016, seven days after the 45-day deadline. By correspondence dated July 28, 2016, the PCF Board notified counsel for Ms. Anderson that the filing fee was not received within the time allowed and, therefore, her claim was considered "invalid and without effect." The letter further provided that by copy of the letter, the PCF Board was notifying all involved parties "of this declaration."

On August 25, 2016, Ms. Anderson filed a petition for judicial review and writ of mandamus, requesting that the district court review the PCF Board's decision and render judgment reversing the PCF Board's decision finding her claim invalid and without effect, and ordering the PCF Board to convene a medical review panel.

After a hearing, the district court rendered judgment on April 25, 2017, affirming the PCF Board's determination that Ms. Anderson's claim with the PCF Board was rendered invalid and without effect for her failure to timely pay the required filing fee, and further denying the mandamus relief requested by Ms. Anderson. Ms. Anderson then filed the instant appeal from the April 25, 2017 judgment.

ANALYSIS

At the time of Ms. Anderson's request for a medical review panel, LSA-R.S. 40:1231.8(A)(1)(c) provided:

A claimant shall have forty-five days from the mailing date of the confirmation of receipt of the request for review... to pay to the board a filing fee in the amount of one hundred dollars per named defendant qualified under this Part.

On appeal, Ms. Anderson argues that the PCF Board has erroneously interpreted this provision to mean that the payment must be received by the PCF Board within the 45-day time period, failing which the claim will be declared "invalid and without effect." Ms. Anderson contends that the mailbox rule should apply, wherein the date of mailing is the determinative date, not the date payment is received by the PCF Board. In support of her argument, Ms. Anderson cites LSA-R.S. 1:60, which provides:

A. Notwithstanding any other provision of law to the contrary, the filing of papers, including but not limited to applications, forms, reports, returns, statements, and filings of any kind with the state, its agencies, boards, and commissions shall be deemed timely in either of the following cases:
(1) The papers are delivered on or before the due date.
(2) The papers are mailed on or before the due date. If the papers are received by mail on the first working day following the due date, there shall be a rebuttable presumption that they were timely filed. In all cases where the presumption does not apply, the timeliness of the mailing shall be shown only by an official United States postmark or by official receipt or certificate from the United States Postal Service made at the time of mailing which indicates the date thereof. For purposes of this Section, "by mail" applies only to the United States Postal Service.

Ms. Anderson contends that the filing of a complaint with the PCF Board and the payment of the fee are inexorably joined, as a complaint is not considered filed until the fee is paid and, thus, the mailbox rule as set forth in LSA-R.S. 1:60(A)(2) should govern. Ms. Anderson further notes that LSA-R.S. 40:1231.8(A)(2)(b) establishes a mailbox rule for the filing of a complaint and, thus, logic dictates that this same rule should apply to the payment of the fee, as both subsections are part of the same statute, citing In re Medical Review Panel of Davis v. Louisiana State University Health Sciences Center-Shreveport, 41,273 (La. App. 2nd Cir. 8/25/06), 939 So.2d 539, 543, writ denied, 2006-2343 (La. 12/8/06), 943 So.2d 1092 (finding that the statute provides a mailbox rule for the filing of the complaint and that accordingly, the same mailbox rule would apply to the 45-day period for paying the fee ).

In response, the PCF Board and intervenor, St. Francis Medical Center, counter that the statute regarding the deadline for payment of the fee is distinct from the provision regarding the deadline for filing a complaint. In support, the PCF Board and St. Francis Medical Center cite In Re Medical Review Proceeding of Benjamin, 14-192 (La. App. 5th Cir. 11/25/14), 165 So.3d 161, writ denied, 2015-0142 (La. 4/10/15), 163 So.3d 814, and contend that the Fifth Circuit correctly interpreted LSA-R.S. 40:1231.8(A)(1)(c) to require that the filing fee must be received by the PCF Board within the 45-day period, not that the filing fee must "simply" be mailed by a claimant within this time period.

However, we note that in its most recent pronouncement on this issue, the Fifth Circuit states that its prior statements in Benjamin concerning this issue were "dicta," and that the mailbox rule should apply when determining the timeliness of filing fees paid to the PCF Board. Specifically, in In re Medical Review Panel Proceedings of Glover, 17-201 (La. App. 5th Cir. 10/25/17) 229 So.3d 655, 662, the Fifth Circuit distinguished its prior opinion in Benjamin, noting the claimants in the case before the court had mailed the filing fees to the PCF Board with valid postage via certified mail within the 45-day period, whereas, in Benjamin, the claimant failed to pay sufficient postage when the fees were originally mailed and when the claimant re-mailed the fees, the payment was returned due to insufficient funds. The Fifth Circuit further stated in Glover that its prior statement in Benjamin, that payment occurs when the filing fees are received by the PCF Board, was dicta. Glover, 229 So.3d at 662. The Fifth Circuit further noted that LSA-R.S. 40:1231.8(A)(1)(c) does not specify whether the term "to pay" requires receipt of the payment or is satisfied by the mailing of the payment within the 45-day time period. The Fifth Circuit concluded that because there are two possible statutory interpretations, the one favoring maintaining the action, as opposed to barring it, must be adopted. Glover, 229 So.3d at 662. Additionally, the court recognized in Glover that because laws on the same subject matter must be interpreted in reference to each other, the mailbox rule should apply for the payment of fees to the PCF Board, just as it applies to the filing of a medical malpractice complaint. Glover, 229 So.3d at 662. See LSA-C.C. art. 13 ; LSA-R.S. 40:1231.8(A)(2)(b).

The PCF Board argues that this issue has already been litigated in this court, and, if this court deems otherwise, Benjamin and Igwike should be followed in the event this case is deemed to be a matter of first impression for this court.

In the instant case, we find the facts similar and the arguments identical to those presented to the Fifth Circuit in Glover. We further find that the reasoning of the Fifth Circuit in its most recent pronouncement on this issue in Glover is more persuasive than that of the courts in Benjamin and Igwike. Accordingly, we likewise find that the mailbox rule should apply when determining the timeliness of filing fees paid to the PCF Board, pursuant to LSA-R.S. 40:1231.8(A)(1)(c). See also Davis, 939 So.2d at 543. To hold otherwise would mean that, in determining the timeliness of payment, if sent by the claimant via ordinary mail or certified mail to the PCF Board within the 45-day period, as opposed to the claimant appearing and paying in person, could render meaningless and circumvent the 45-day statutory period for payment and render a payment untimely if the Board simply failed to claim or retrieve its mail until after the time period for paying had elapsed. Thus, we find that Ms. Anderson's filing fee was timely paid to the PCF Board, as the record clearly demonstrates that the filing fee was mailed via certified mail, with proper postage affixed, within the required 45-day period. Accordingly, the PCF Board erred in declaring Ms. Anderson's claim invalid and without effect, and the district court erred in upholding this declaration and in denying Ms. Anderson's petition for writ of mandamus.

CONCLUSION

For the above and foregoing reasons, we hereby reverse the April 25, 2017 judgment of the district court, which denied Ms. Anderson mandamus relief and affirmed the PCF Board's declaration that Ms. Anderson's claim was invalid and without effect for failure to timely pay the filing fee. We hereby grant Ms. Anderson's application for writ of mandamus and order the Louisiana Patient's Compensation Fund Oversight Board to convene a medical review panel in furtherance of her claim in this matter, pursuant to LSA-R.S. 40:1231.8. Costs in the amount of $770.00 are assessed against appellees, the Louisiana Patient's Compensation Fund Oversight Board.

REVERSED AND RENDERED.

McDonald, J. dissents and will assign reasons.

McDonald, J. Dissenting:

I respectfully dissent from the majority's opinion that the "mailbox rule" applies in this matter. I believe there is only one reasonable interpretation of the phrase "to pay to the board" and it means the fee must be received by the PCF Board within the 45 days, not just mailed to the PCF Board during that time period. This is the holding in In Re Medical Review Panel Proceeding of Benjamin, 14-192 (La. App. 5 Cir. 11/25/14), 165 So.3d 161, writ denied, 2015-0142 (La. 4/10/15), 163 So.3d 814 and Igwike v. Memorial Medical Center, 2006-0167 (La. App. 4 Cir. 5/23/07), 959 So.2d 562. Both held that the payment (or a forma pauperis affidavit in lieu of payment) had to be received within the 45 days. A subsequent panel of the Fifth Circuit in In Re Medical Review Panel Proceedings of Glover, 17-201 (La. App. 5 Cir. 10/25/17), 229 So.3d 655, however, opined that Benjamin was dicta and found that the payment was timely when mailed. I believe Glover is clearly wrong about the Benjamin decision; the conclusion that "pay to the board" means when received and not when mailed, is certainly not dicta. The Second Circuit weighed in on this issue in In Re Medical Review Panel of Davis v. Louisiana State University Health Sciences Center -Shreveport , 41,273 (La. App. 2 Cir. 8/25/06), 939 So.2d 539, writ denied, 2006-2343 (La. 12/8/06), 943 So.2d 1092. The Second Circuit found that the "mailbox rule" applied.

As noted Davis was decided in 2006, Igwike in 2007, and Benjamin in 2014. Glover was not decided until October, 2017. In the 2016 Regular Session of the Legislature, La. R.S. 40:1231.8(A)(1)(c) was amended so that the 45 days did not begin to run until the date of receipt by the claimant rather than from the date of mailing by the PCF Board. Obviously, the Legislature was sensitive to the issue of receipt versus mailing. Had they believed there was a problem with the interpretation of the phrase "to pay to the board," they had ample opportunity to correct it. I believe the Legislature is moving in the direction of a date of receipt requirement rather than date of mailing. In 2016 the Legislature addressed the facsimile filing statute. Louisiana Revised Statute 13:850(B)(1) was amended to require delivery of the original filing within seven days of the fax filing. Prior to this amendment, the requirement was for the original to be forwarded within the seven days (i.e. the "mailbox rule"). Thus, the Legislature changed the fax filing statute from the date of mailing or forwarding to the date of delivery or receipt by the clerk of court.

For these reasons I believe Benjamin and Igwike are correct interpretations of the requirement that the fee be paid to the PCF Board and the payment must be received within the 45 days, not mailed within the 45 days.

      The record contains a copy of the envelope, which is postmarked July 22, 2016. The record also includes the pertinent USPS tracking results, which show that the correspondence was accepted by the postal service in Shreveport on July 22, 2016, arrived in Baton Rouge on July 23, 2016 at 11:29 a.m., notice was left at the "unit" on July 28, 2016, and delivery was made to a PCF Board "agent" on August 1, 2016.

      The petition was initially filed in the Fourth Judicial District Court for the Parish of Ouachita, but was thereafter transferred to the Nineteenth Judicial District Court for the Parish of East Baton Rouge, pursuant to LSA-R.S. 13:5104(A).

      Although the delays for a claimant to pay the fee previously ran from the date of the Board's mailing of the notice of its receipt, LSA-R.S. 40:1231.8(A)(1)(c) was amended by 2016 La. Acts, No. 275, § 1, effective August 1, 2016, to provide that a claimant shall have 45 days from the date of receipt of the board's confirmation of receipt of the request for review to pay the board a filing fee of one hundred dollars per named defendant.

      At the time of Ms. Anderson's request for a medical review panel, LSA-R.S. 40:1231.8(A)(2)(b) provided:
      The request for review of a medical malpractice claim under this Section shall be deemed filed on the date of the request stamped and certified by the division of administration or on the date of mailing of the request if mailed to the division of administration by certified or registered mail.
      [Emphasis added.]
      This subsection was amended by 2017 La. Acts, No. 294, § 1, effective August 1, 2017, to provide:
      (b)(i) The request for review of a malpractice claim under this Section shall be deemed filed on the date the request is:
      (aa) Sent, if the request is electronically sent by facsimile transmission or other authorized means, as provided by R.S. 9:2615(A), to the division of administration.
      (bb) Mailed, if the request is delivered by certified or registered mail to the division of administration.
      (cc) Received, if the request is delivered to the division of administration by any means other than as provided by Subitem (aa) or (bb) of this Item.

      The PCF Board and St. Francis Medical Center also cite the Fourth Circuit case of Igwike v. Memorial Medical Center, 2006-0167 (La. App. 4th Cir. 5/23/07), 959 So.2d 562. Igwike was decided prior to the 2016 amendments to LSA-R.S.40:1231.8 (as discussed in footnote 3 above), and the issue therein was whether the claimant had to file her in forma pauperis affidavit within forty-five days of the date of the PCF Board's confirmation letter or mailing date of the letter, or within forty-five days of the claimant's receipt of the confirmation letter. Albeit without any discussion of the mailbox rule, the court did state that even if the operative date was December 15, 2003, the date the letter was allegedly received by the claimant, the in forma pauperis affidavit still was not timely, as it "was not received" until February 3, 2004, more than forty-five days from December 15, 2003. Igwike, 959 So.2d at 566, n. 6.

      The PCF Board argues in brief that the untimely payment of fees has been litigated in several courts around this state, including this court. However, we disagree with the PCF Board's contention that the particular question or issue before us has been previously considered and addressed by this court. Unlike the cases discussed above in the body of our opinion, the cases cited by the PCF Board from this court do not specifically address what constitutes a timely payment under LSA-R.S. 40:1231.8(A)(1)(c) when the payment is mailed within the required 45-day period, but not received by the PCF Board within the 45-day period. Rather, the cases cited by the PCF address what actions may be taken by the PCF Board where the filing fees clearly and undisputedly were not timely paid. See Latiolais v. Jackson, 2006-2403 (La. App. 1st Cir. 11/2/07), 979 So.2d 489, 493 (finding the district court erred in granting mandamus relief and reinstating claimant's claim, as the PCF Board did not actually dismiss the claimant's claim, but only notified all parties that the filing fee was not paid and that accordingly, the petition was considered as not filed; thus, the board did not overstep its authority); Morris v. Patient's Compensation Fund Oversight Board, 2007-2468 (La. App. 1st Cir. 5/28/08), 991 So.2d 551, 553-555 (finding mandamus relief was not warranted, where claimant's counsel claimed that he was impacted by Hurricane Katrina and was not aware that the filing fee had not been paid, and the PCF Board did not dismiss the claim, but instead merely complied with its ministerial duty to treat the claim as invalid and without effect); See also In re Medical Review Panel Proceedings of Ouder, 2007-1266 (La. App. 1st Cir. 5/2/08), 991 So.2d 58 (finding the claim was prescribed, where the board acknowledged receipt of the request on March 21 and claimant remitted fee on May 25, i.e., only after receiving the board's notice that the claim was invalid and without effect); Hollins v. Glenwood Regional Medical Center, 2008-2593 (La. App. 1st Cir. 6/12/09), 2009 WL 2486941 (unpublished) (finding in a summary disposition opinion that mandamus relief was not warranted where, even giving claimant "every benefit of the doubt" with regard to the filing fee due on January 4, claimant had failed to pay the fee due even by the latest date, and so concluding therein with no discussion in the opinion regarding when the fee was mailed as compared to when received by the PCF Board as related to the January 4th deadline.)