author: CARAWAY, J.

text:
    Ashley E. SHUFF, Duly Appointed Tutor of The Minor, Cloe McLarrin, Plaintiff-Appellant, v. BROOKSHIRE GROCERY COMPANY, d/b/a Super One Foods, Defendant-Appellee.
    No. 45,109-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 3, 2010.
    Travis M. Holley, Bastrop, for Appellant.

      Hudson, Potts & Bernstein by Gordon L. James, Donald H. Zeigler III, Monroe, for Appellee.
    Before BROWN, CARAWAY and DREW, JJ.
   CARAWAY, J.

| plaintiff, on behalf of her minor daughter, brought a negligence action under Civil Code Article 2317.1 against a grocery store for injuries sustained by the child when she fell from the child seat of a grocery cart. Plaintiff asserts that a snap on the safety belt for the child’s seat broke because of a defect. Plaintiff insists that the allowance for “the doctrine of res ipsa loquitur ” under Article 2317.1 mandates her recovery and that the trial court’s grant of defendant’s motion for summary judgment to the contrary was in error. For the following reasons, we affirm the trial court’s ruling.

Facts

On October 15, 2006, Ashley Shuff went grocery shopping at the Super One Foods in Bastrop, Louisiana. Shuff was accompanied by her two children and her sister, Tracy Barton. Upon arriving at the store, Shuff placed 20-month-old Cloe into the child seat of one of the store’s shopping carts. The child seat, which was separate from the grocery compartment, consisted of a gray, plastic add-on located at the front of the cart. Shuff ensured that Cloe was secured into the child seat by fastening the seat belt over her shoulders and around her waist. The seatbelt consisted of a nylon strap and two plastic snaps, all of which appeared to Shuff to be free from defect as Cloe was placed into the cart. Warning labels were placed on the shopping cart advising customers not to leave children unattended.

While Shuff and Barton were shopping in the store’s meat department, they were abruptly interrupted by the sound of Cloe crying. As |2Shuff turned around to look at the child, she observed Cloe falling from the cart. She tried to reach for her, but the child nevertheless fell to the store’s concrete floor. A store patron who witnessed the accident, later identified as James Radican, picked the child up from the floor and handed her to her mother. Radican inspected the child seat and noticed that a prong on the seat belt’s snap was broken. Shuff reported the incident to the store’s assistant manager, Mike Tarver, who was on duty at the time of the incident. Cloe was then taken to More-house General Hospital where she was x-rayed and later placed in a cast for a fractured arm.

As a result of the accident, Shuff filed suit on behalf of her minor daughter, Cloe, against Brookshire Grocery Company, d/b/a Super One Foods (“Brookshire”) for the damages related to the October 15, 2006 accident. Brookshire moved for summary judgment, relying on Louisiana Civil Code Articles 2315 and 2317.1, addressing negligence in general and for damages caused by ruin, vice, or defect in things. Shuff responded with her own motion for summary judgment, seeking to resolve the issue of liability which she claimed to be governed by the doctrine of res ipsa loqui-tur. On July 13, 2009, after a hearing on the motions, the trial court simultaneously overruled Shuffs motion for summary judgment and granted Brookshire’s motion, dismissing all demands against Brookshire with prejudice. Shuff now appeals this ruling.

Discussion

We review the grant of a motion for summary judgment de novo. Schroeder v. Board of Sup’rs of Louisiana State University, 591 So.2d 342 (La.1991); Steier v. Heller, 31,733 (La.App.2d Cir.5/5/99), 732 So.2d 787. A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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(B). Affidavits in support of or in opposition to motions for summary judgment must be filed into evidence at the hearing on the motion or filed into the record in order for the affidavits to be part of the record on appeal. La. C.C.P. art. 966; Hutchinson v. Knights of Columbus, Council No. 5747, 03-1533 (La.2/20/04), 866 So.2d 228. If the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. art. 966(C)(2).

The issues raised by the plaintiffs accident are governed by Article 2317.1 of the Louisiana Civil Code (hereinafter “Article 2317.1”). This article provides that:

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could |4have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

The addition of Article 2317.1 to the Civil Code in 1996 did away with the concept of strict liability for defective things by imposing on plaintiffs the added burden of proving the defendant either knew or, with the exercise of reasonable care, should have known of the ruin, vice, or defect. Player v. Baker, 42,451 (La.App.2d Cir.9/19/07), 965 So.2d 984; Johnson v. Entergy Corp., 36,323 (La.App.2d Cir.9/20/02), 827 So.2d 1234; Davis v. Diamond Shamrock Refining and Marketing Co., 34,309 (La.App.2d 12/6/00), 774 So.2d 1076. In addition to proving this knowledge element, the plaintiff must also prove that the defendant had custody of the thing which caused injury, that the thing contained a defect (meaning a condition that created an unreasonable risk of harm), and that the defective condition caused the plaintiffs injury. Davis, supra.

Conceding that Brookshire did not know, nor could it have known of a defect present in the seat belt, Shuff specifically argues the last sentence of Article 2317.1, which allows for the application of res ipsa loquitur in the appropriate ease. In explaining the use of res ipsa, our Supreme Court has said:

The doctrine of res ipsa loquitur involves the simple matter of a plaintiffs using circumstantial evidence to meet the burden of proof by a preponderance of the evidence. The doctrine merely assists the plaintiff in presenting a pri-ma facie case of negligence when direct evidence is not available. The doctrine permits, but does not require, the trier of fact to infer negligence from the circumstances of the event ... [citations omitted]
\,Use of the doctrine of res ipsa loquitur in a negligence case, as in any case involving circumstantial negligence, does not relieve the plaintiff of the ultimate burden of proving by a preponderance of the evidence all of the elements necessary for recovery.

Cangelosi v. Our Lady of the Lake Medical Center, 564 So.2d 654 (La.1989) (emphasis ours).

Res ipsa loquitur only applies where direct evidence of defendant’s negligence is not available to assist the plaintiff to present a prima facie case of negligence. Linnear v. Centerpoint Energy Entex/Reliant Energy, 06-3030 (La.9/5/07), 966 So.2d 36. In order to apply res ipsa loqui-tur, three criteria must first be satisfied: (1) the injury is of the kind which does not ordinarily occur in the absence of negligence on someone’s part; (2) the evidence sufficiently eliminates other more probable causes of the injury, such as the conduct of the plaintiff or of a third person; and (3) the alleged negligence of the defendant must be within the scope of the defendant’s duty to the plaintiff. Id.

Thus, with the enactment of Article 2317.1 in 1996, redefining the custodian’s responsibility in tort for defective things, the inclusion of the last sentence of Article 2317.1 did not add to that substantive definition for the tort but only allowed for the evidentiary doctrine of res ipsa loquitur.

In this case, the necessity of circumstantial evidence for proof of the defendant’s ownership or custody of the shopping cart, the defect in the seat belt snap, and the causal relationship between the broken snap and the child’s injury was not great as there was direct evidence available to assist the plaintiff for proof of those elements of her claims under Article 2317.1. Regarding the condition of the seat belt snap, which should not have been 1 fibroken by the child under normal use in the absence of some defective condition, the conclusion might be reached that such condition presented an unreasonable risk of harm. Cf., Ross v. La Coste de Monterville, 502 So.2d 1026 (La.1987) (where plaintiff proved his case under Louisiana’s former strict liability for the collapse of defendant’s ladder which contained an undetectable structural defect). Such conclusion regarding a defect or vice in the thing, however, is not generally understood as a consequence of the application of the doctrine of res ipsa loquitur regardless of the circumstantial evidence involved in reaching the conclusion.

Nevertheless, regardless of whether res ipsa loquitur might apply to aid the plaintiff in proof of the elements of ownership, defect and causation for her claim under Article 2317.1, it has been shown by Brookshire’s motion that she will be unable to prevail in this action. This is because the final element for recovery concerns the defendant’s knowledge of the defect which is unprovable in this case according to Shuff s own admission. The affidavit of the defendant’s assistant manager revealed that neither he, nor any employee, had direct knowledge of a problem with the seat belt snap before this accident. The fact that the snap properly functioned immediately before the accident when Shuff placed the child in the harness demonstrates a lack of constructive knowledge of the defect by Brookshire.

| ./Accordingly, since Shuff failed to produce factual support sufficient to establish that she would be able to prove that Brookshire knew, or in the exercise of reasonable care, should have known of the alleged defect which caused the damage, we find that her claim under Article 2317.1 for Brookshire’s liability for its ownership of the shopping cart must fail. Since actual or constructive knowledge is an essential element of the plaintiffs cause of action, the trial court’s judgment is affirmed. Costs of appeal are assessed to appellant.

AFFIRMED.

      . As shown by the three criteria for res ipsa loquitur listed above, the doctrine generally applies in cases involving a negligent act of the defendant, and not for the assessment of his ownership of an allegedly defective thing. As in the classic case of Byrne v. Boadle, 2 H. & C. 722, 159 Eng.Rep. 299 (1863), the runaway barrel of flour which rolled out of the defendant’s business premises causing injury gave rise circumstantially to the conclusion that it must have been caused by the defendant's act of negligence.


source: Caselaw Access Project

license: Public Domain

text:
    James SIBLEY, Jr. and Jessie Sibley, Plaintiffs, v. DEER VALLEY HOMEBUILDERS, INC. and HomesPlus Manufactured Housing, LLC, Defendants.
    No. 45,063-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 3, 2010.

      Hudson, Potts & Bernstein, L.L.P. by Brian P. Bowes, Monroe, for Appellant, HomesPlus Manufactured Housing.
    Lugenbuhl, Wheaton, Peck, Rankin & Hubbard by Ralph S. Hubbard III, Cél-este D. Elliott, Anne E. Briard, New Orleans, for Third Party Appellee, Northfield Insurance Company.
    Richard C. Dalton, for Plaintiffs.
    Before STEWART, CARAWAY and MOORE, JJ.
   CARAWAY, J.

LA mobile home seller filed a third party demand against its general liability insurer urging the insurer’s duty to defend the seller in a suit filed by the mobile home buyers which included claims of redhibition, breach of contract and negligent repairs. The insurer denied coverage, and both the seller and insurer sought summary judgments. The trial court granted summary judgment in favor of the insurer finding that it had no duty to defend based upon lack of coverage for the claims made against the seller by the home buyers. The seller appeals. We affirm.

Facts

On October 6, 2006, James and Jessie Sibley (hereinafter “Plaintiffs”) purchased a manufactured home from HomesPlus Manufactured Housing, LLC (“Homes-Plus”). The dwelling was manufactured by Deer Valley Homebuilders Inc. Homes-Plus was responsible for preparing the site, foundation and driveway and delivered the home to Plaintiffs’ property. HomesPlus also installed an external air compressor to supplement the existing heat and air system. The Plaintiffs immediately began reporting problems with the home to HomesPlus and Deer Valley. Each company sent crews to the site to address the reported problems.

Ultimately on August 24, 2007, Plaintiffs filed suit against Deer Valley and Homes-Plus raising claims of redhibition, breach of contract and warranty and negligent repair. The petition listed 55 specific manufacturing defects as well as “other defects listed in repair orders or discovered through discovery.” The list included various missing and broken items, complained )2of holes and cracks in various places of the home, mold smell throughout the house, buckling of floors and cabinets, lack of tile and requested adjustments, painting and caulking on certain items. The Plaintiffs sought rescission of the sale or a reduction in the purchase price.

On March 3, 2008, HomesPlus filed a third party demand against its general liability insurer, Northfield Insurance Company (“Northfield”), seeking performance of its obligations or indemnification under the issued general liability insuring agreements. The third party demand made no allegation of fact pertaining to the sale and delivery of the manufactured home other than the claims made by Plaintiffs. Northfield denied coverage under the policies and sought a summary judgment on February 18, 2009. Northfield sought dismissal of the third party demand as a matter of law on the grounds that it had no duty to defend redhibition claims that did not constitute “property damage” or an “occurrence” under the insuring agreement and claims that fell within the “your work” and “your product” exclusions.

Northfield attached to its motion a copy of Plaintiffs’ petition and copies of two insuring agreements (hereinafter collectively the “CGL Policy”) which were issued by Northfield to HomesPlus during the time of the subject events. Specifically, Northfield relied upon the following language contained in the policies in support of its position:

|81. Insuring Agreement

a. We will pay those sums that the insured becomes legally obligated to pay as damages because of “bodily injury,” or “property damage” to which this insurance applies ...
b. This insurance applies to “bodily . injury” and “property damage” only if:
(1) the “bodily injury” or “property damage” is caused by an “occurrence” that takes place in the “covered territory.”

The insuring agreement defined an “occurrence” as an accident, including continuous or repeated exposure to substantially the same general harmful conditions. “Property damage” was defined as physical injury to tangible property, including all resulting loss of that property.

Further, Northfield claimed that the following exclusions applied to preclude coverage of Plaintiffs’ claims:

2. Exclusions

This insurance does not apply to:
k. Damage to Your Product
“Property damage” to “your product” arising out of it or any part of it.
l. Damage to Your Work “Property damage” to “your work” arising out of it or any part of it and included in the “products-eompleted operations hazard.”
This exclusion does not apply if the damaged work or the work out of which the damage arises was performed on your behalf by a subcontractor.

The definitions section of the policy defines “your product” as:

a. Means:
(1) Any goods or products, other than real property, manufactured, sold, handled, distributed or disposed of by:
(a)You;
(b) Others trading under your name; or
(c) A person or organization whose business or assets you have acquired; and
|4(2) Containers (other than vehicles), materials, parts or equipment furnished in connection with such goods or products.
b. Includes
(1) Warranties or representations made at any time with respect to the fitness, quality, durability, performance or use of “your product”; and
(2) The providing of or failure to provide warnings or instructions.
c. Does not include vending machines or other property rented to or located for the use of others but not sold.

The policy further defines “your work” as follows:

a. Means:
(1) Work or operations performed by you or on your behalf; and
(2) Materials, parts or equipment furnished in connection with such work or operations.
b. Includes
(1) Warranties or representations made at any time with respect to the fitness, quality, durability, performance or use of “your work”, and
(2) The providing of or failure to provide warnings or instructions.

HomesPlus opposed Northfield’s summary judgment and attached the affidavit of the owner of HomesPlus, Jeff Foote. Foote stated that Northfield did not defend his company at the arbitration proceedings which contained evidence that “was not exclusive to workmanlike defects.” Foote alleged that “HomesPlus was accused of causing multiple items of defect.... Testimony was given regarding potential damage to the home during transport involving the vent pipe and the eaves.... Evidence was not entered regarding the presence of mold in the home.” Foote’s affidavit contained a copy of the inspection report issued by Harold Mouser, investigator for Deer Valley. Mouser addressed 13 complaints generally | -relating to unfinished and disconnected items, loose fixtures and improper sealing. Item 8 related to the air-conditioning system and stated as follows:

The whole-house ventilation system was not properly installed to the interior heating, ventilation, and air-conditioning system (HVAC). This appears to be an on-site installation issue regarding the installation of air-conditioning on-site.
It appears after the installation of the a/c unit the installer failed to re-install the hose to the intake point of the appliance. The connection should be made.

Items 9 and 10 related to the HVAC system as well. Item 9 reported that the HVAC blower:

[D]oes not contain a listing and/or certification that could be identified to see if compatible with the interior air handler and/or the outside a/c unit. This is an on-site installation issue.
The homeowner stated that this blower was exchanged by the dealer after a complaint of the lack of proper airflow within the home, difference in temperatures between some rooms. The blower certification and/or listing should be presented to show compatibility with the entire unit.

HomesPlus’s opposition also contained a copy of the Final Award of Arbitrator which concluded that the majority of complained-of defects were the responsibility of Deer Valley and that the work performed by HomesPlus was not defective “with the sole exception being the blower unit for the heating/cooling unit ... more in the nature of a repair.” HomesPlus also included a copy of Plaintiffs’ responses to interrogatories. Therein, Plaintiffs complained about problems with siding, keys which would not work, leaks under the home, small bath, master bath and kitchen and outrageous utility bills.

| ^Attaching Foote’s affidavit and the Plaintiffs’ responses to interrogatories in support thereof, HomesPlus filed its own Motion for Summary Judgment on April 9, 2009.

Trial of the cross motions for summary judgment occurred on June 6, 2009. Hom-esPlus argued that Northfield had a duty to provide a defense because several allegations in Plaintiffs’ petition went beyond redhibition. Further, HomesPlus urged that the petition’s allegations were nonexclusive, leaving itself open to further allegations through discovery, expert reports and the arbitration proceedings.

After hearing the arguments of counsel, the trial court took the matter under advisement and ultimately rendered judgment in favor of Northfield finding no duty to defend. This appeal ensued with Hom-esPlus’s principal assignment of error presented as follows:

Did the trial court commit error in concluding that the “your work” and “your product” exclusions precluded coverage of Plaintiffs’ claims against appellant insured where the claims included damages allegedly caused by other parties and indirect property damage beyond the definitions of “your work” and “your product” as set forth by the Louisiana Supreme Court and this Court in Supreme Services & Speciality Co. v. Greer, 2006-1827 (La.5/22/07), 958 So.2d 634 and Broadmoor Anderson v. National Union Fire Ins. Co. Of Louisiana, 40,096 (La.App. 2 Cir. 9/28/05), 912 So.2d 400?

Discussion

The insurer’s duty to defend suits brought against its insured is determined by the allegations of the plaintiffs petition, with the insurer being obligated to furnish a defense unless the petition unambiguously excludes coverage. Elliott v. Continental Cas. Co., 06-1505 (La.2/22/07), 949 So.2d 1247; Meloy v. Conoco, Inc., 504 So.2d 833, 838 (La.1987); American Harm Assur. Co. v. Czarniecki, 255 La. 251, 230 So.2d 253 (1969). Accordingly, the insurer’s obligation to defend suits against its insured is generally broader than its obligation to provide coverage for damage claims. Elliott, supra. Thus, if, assuming all of the allegations of the petition to be true, there would be both coverage under the policy and liability of the insured to the plaintiff, the insurer must defend the insured regardless of the outcome of the suit. Id. This review of the petition and the policy has been referenced as the “four corners” rule for the determination of the existence of the duty to defend. Adams v. Frost, 43,503 (La.App.2d Cir.8/20/08), 990 So.2d 751, writs denied, 08-2438, 08-2465 (La.1/30/09), 999 So.2d 755. An insurer’s duty to defend arises whenever the pleadings against the insured disclose even a possibility of liability under the policy. Meloy, supra.

A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits submitted, if any, show there is no genuine issue of material fact such that the mover is entitled to judgment as a matter of law. The burden is on the mover to establish that no material fact issues exist. Only when reasonable minds must inevitably conclude that the mover is entitled to judgment as a matter of law on the facts before the court is a summary judgment warranted. Elliott, supra, citing Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180.

Summary judgment declaring a lack of coverage under an insurance policy may not be rendered unless there is no reasonable interpretation of |sthe policy, when applied to the undisputed material facts shown by the evidence supporting the motion, under which coverage could be afforded. Elliott, supra. Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. An insurance policy is a contract between the parties and should be construed employing the general rules of interpretation of contracts set forth in the Louisiana Civil Code. The parties’ intent, as reflected by the words of the policy, determines the extent of coverage. Words and phrases used in a policy are to be construed using their plain, ordinary and generally prevailing meaning, unless the words have acquired a technical meaning. An insurance policy should not be interpreted in an unreasonable or a strained manner so as to enlarge or to restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion. Where the language in the policy is clear, unambiguous, and expressive of the intent of the parties, the agreement must be enforced as written. However, if after applying the other rules of construction an ambiguity remains, the ambiguous provision is to be construed against the drafter and in favor of the insured. Id.

The purpose of liability insurance is to afford the insured protection from damage claims. Policies therefore should be construed to effect, and not to deny, coverage. Thus, a provision which seeks to narrow the insurer’s obligation is strictly construed against the insurer, and, if the language of the exclusion is subject to two or more reasonable interpretations, the interpretation which favors coverage must be applied. |aIt is equally well settled, however, that subject to the above rules of interpretation, insurance companies have the right to limit coverage in any manner they desire, so long as the limitations do not conflict with statutory provisions or public policy. Elliott, supra.

The rule of strict construction does not authorize a perversion of language, or the exercise of inventive powers for the purpose of creating an ambiguity where none exists, nor does it authorize the court to make a new contract for the parties or disregard the evidence as expressed, or to refine away terms of a contract expressed with sufficient clearness to convey the plain meaning of the parties. Elliott, supra, citing Commercial Union Insurance Co. v. Advance Coating Co., 351 So.2d 1183, 1185 (La.1977).

Thus, for summary judgment to be warranted there must be no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence supporting the motion, under which coverage could be afforded. Elliott, supra.

The above-noted and subject exclusions are often collectively called the “work-product” exclusions which reflect the intent of the insurance industry to avoid the possibility that coverage under a CGL Policy will be used to repair and replace the insured’s defective products and faulty workmanship. The CGL Policy is not intended as a guarantee of the quality of the insured’s products or work. William S. McKenzie & H. Alston Johnson III, 15 Louisiana Civil Law Treatise (3d Ed.2006) § 195, at 554-555. Louisiana courts have consistently held that the “work product” exclusion eliminates coverage for the cost of repairing or replacing the | Tninsured’s own defective work or defective product. The specific “your work” exclusion applies only to property within the “produets-completed operations hazard,” meaning that it is generally applicable after the work is complete. This exclusion does not apply to work performed on behalf of the insured by subcontractors. Id. at 562.

In this case, the so-called “four corners” rule, when applied at the time that Northfield was brought into this action, requires us to examine the four corners of the Plaintiffs’ petition, Homes-Plus’s third party demand, and the CGL Policy to determine if coverage might apply for the alleged claims against Homes-Plus. In particular, HomesPlus asserts that the coverage issue concerns the misapplication by the trial court of “your product” and “your work” exclusions in the CGL Policy as such exclusions pertain to HomesPlus’s sale, delivery and repair of the manufactured home. Our review of the “four corners” of the Plaintiffs’ petition, however, confirms to us that the claims presented were directed entirely at the quality of HomesPlus’s product and its work operations performed in the site preparation and delivery of the manufactured home. This would place the Plaintiffs’ claims in the exclusions from coverage.

Moreover, the petition of HomesPlus for its third party demand for the duty to defend did not expand upon the fact allegations of the Plaintiffs’ petition so as to show that those claims raised allegations of liability falling under the coverage of the CGL Policy. In particular, Homes-Plus’s present | ¶ [argument that other parties or subcontractors performed some of the allegedly deficient work or repairs is not revealed within the four corners of the pleadings. Even in the additional discovery documents and reports of the arbitration proceedings which HomesPlus only filed after Northfield’s motion for summary judgment, there is no clear indication of a subcontractor hired by HomesPlus whose work may have been challenged. In the Plaintiffs’ action, HomesPlus is the named defendant whose work or repairs are challenged, not the work of its unidentified subcontractors. Thus, the subcontractor exception to the “your work” exclusion was not shown to have warranted coverage or the duty to defend. More specifically, from the “four corners” of the pleadings, Northfield was not advised of the potential for any such subcontractor claim.

Accordingly, based upon the analysis required by the jurisprudence for an assessment of the insurer’s duty to defend, we find no error in the trial court’s judgment and affirm that judgment. Costs of appeal are assessed to appellant.

AFFIRMED.

      . Plaintiffs demanded arbitration in November of 2007. The arbitration hearing was held on March 6, 2009, and the final arbitration award was handed down on March 30, 2009. Northfield Insurance Company, appel-lee, did not participate in the proceedings which cast HomesPlus with $475.00 (and 10% of costs) "as a reduction in the purchase price based upon the relative cost to repair the redhibitory defects" relating to Homes-Plus's repair of the heating/cooling unit.

      . The products hazard definition allows generally for coverage to property damage arising out of the insured product. A work product exclusion precludes recovery for damage to the product itself. Coverage remains for things like personal injury and other property damage. Supreme Services and Specialty Co. v. Sonny Greer, Inc., supra.


author: STEWART, J.

text:
    Carolyn JOHNSON, Plaintiff-Appellant, v. BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AND AGRICULTURAL & MECHANICAL COLLEGE, Defendant-Appellee.
    No. 45,105-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 3, 2010.

      Street & Street by C. Daniel Street, Monroe, for Appellant.
    James D. “Buddy” Caldwell, Attorney General, Michael L. Dubos, K. Lamar Walters, III, Special Assistant Attorneys General, for Appellee.
    Before STEWART, GASKINS and DREW, JJ.
   STEWART, J.

|, Carolyn Johnson filed a retaliatory discharge claim against her former employer, the Board of Supervisors of Louisiana State University and Agricultural and Mechanical College, which operates LSU Health Sciences Center-Monroe, a/k/a E.A. Conway Medical Center (defendant referred to herein as “E. A. Conway”). Johnson’s claim was dismissed by a judgment granting the defendant’s exception of lack of subject matter jurisdiction. Motions for summary judgment filed by both parties were denied. Johnson now appeals the dismissal of her claim and the denial of her motion for summary judgment. We affirm.

FACTS

Johnson was employed as a Central Service Worker II, a classified civil service position, at E.A. Conway from November 24, 2003, until her termination on June 21, 2006. Her job duties included sterilizing medical instruments and cleaning after surgeries.

In 2006, due to carpal tunnel pain in her wrists and hands, Johnson began wearing splints at work. E.A. Conway required Johnson to obtain medical certification verifying her need to wear splints while performing her job duties. From April 26, 2006, to May 2, 2006, Johnson took leave from work to obtain the medical certification. She returned to work with the form completed by Lowery Thompson, M.D. In answer to a question on the medical certification form asking whether Johnson had to wear a splint and how often, Dr. Thomson wrote, “Yes, always.” No other restriction was placed on Johnson’s ability to perform her job duties.

|2On May 5, 2006, an issue arose as to whether Johnson’s condition required her to be placed on light duty. There is a dispute in the record as to whether Johnson insisted that her physician restricted her to light duty or whether her supervisor assumed she had to be on light duty. Nevertheless, Johnson’s supervisor, Russell Vallotton, told her that her position did not have light duty and sent her to see Jim Hardegree, the Assistant Director of Human Resource Management. Hardegree placed Johnson on provisional leave under the Family Medical Leave Act (“FMLA”), until it could be determined whether her condition met the FMLA’s serious medical condition criteria. He gave her FMLA forms to complete and another medical certification form to be filled out by her physician. Johnson acknowledged receipt of these documents by signing a letter prepared by Hardegree. She then left work.

By letter dated May 30, 2006, Aryon McGuire, administrator of E.A. Conway, informed Johnson that he was considering terminating her employment due to job abandonment. McGuire’s letter stated that Johnson had not returned the FMLA forms and medical certification within 15 days as required by law and that she had not contacted her supervisor, department manager, or the human resources department since she left work on May 5, 2006. McGuire asked Johnson to respond within five working days of receipt of the letter to explain her side of the situation.

|sJohnson did not respond. McGuire wrote to Johnson again on June 13, 2006, notifying her of termination of her employment for job abandonment, effective June 21, 2006.

On July 16, 2006, Johnson filed two Form 1008 Disputed Claims for Compensation with the Office of Worker’s Compensation. One claim was for the carpal tunnel injury and had April 26, 2006, as the date of injury. The second claim was for an injury which allegedly occurred on February 4, 2005, when an adhesive remover splashed into Johnson’s eyes. Though a letter dated June 16, 2006, was sent to the state’s Office of Risk Management stating that worker’s compensation claims had been filed and that Johnson should not be fired, Johnson did not contact McGuire or anyone at E.A. Conway to inform them that she had filed claims for worker’s compensation.

Johnson mailed a letter to the Civil Service Commission (“CSC”) on June 17, 2006, complaining of harassment and mistreatment at E.A. Conway. On July 17, 2006, Johnson wrote again to the CSC to appeal her termination from E.A. Conway. She denied abandoning her job and claimed that her supervisor ordered her to go home because there was no light duty work for her. Johnson’s appeal was heard by a CSC referee on December 5, 2006, and a ruling was issued on January 24, 2007, upholding her termination for job abandonment. Johnson was notified that she had 15 calendar days in which to file for review of the ruling.

|4The CSC received a letter from Johnson postmarked February 9, 2007, one day beyond the 15 calendar day appeal period. The CSC determined that Johnson’s request for review was untimely. Johnson took no further action to appeal her termination.

Instead, Johnson filed this suit alleging retaliatory discharge in violation of La. R.S. 23:1361. She claimed that she did not abandon her job but was unable to work due to work-related injuries for which she was paid worker’s compensation benefits. E.A. Conway responded with an exception of lack of subject matter jurisdiction and a motion for summary judgment. The exception was based on the exclusive jurisdiction granted to the CSC over all removal and disciplinary cases involving civil service workers. The motion for summary judgment was grounded on the fact that the decision to terminate Johnson’s employment was made before she filed claims for worker’s compensation. Johnson also filed a motion for summary judgment.

On July 28, 2009, the trial court rendered a judgment granting E.A. Conway’s exception of lack of subject matter jurisdiction. Both parties’ motions for summary judgment were denied. Johnson now appeals.

DISCUSSION

Challenging the trial court’s grant of the exception of lack of subject matter jurisdiction, Johnson argues that the claim for retaliatory discharge is a tort action over which the district court has jurisdiction and that the CSC has no authority to award tort damages. She also argues that by filing an exception of lack of subject matter jurisdiction, E.A. Conway is trying to [^resurrect the dilatory exception of prematurity for failure to exhaust administrative remedies. Johnson asserts that E.A. Conway waived the dilatory exception when it filed its answer.

E.A. Conway responds that while Johnson’s claim is styled as a tort, at issue is the basis for the termination of her employment. Such determinations fall within the exclusive jurisdiction of the CSC as provided by La. Const. Art. 10, § 12. The fact that Johnson did not take full advantage of the administrative remedies available to her does not vest the trial court with jurisdiction to hear a claim based on her removal. E.A. Conway asserts that the exception of lack of subject matter jurisdiction is an appropriate basis for dismissal of Johnson’s retaliatory discharge claim.

La. Const. Art. 10, § 12 states, in relevant part:

Section 12. (A) State. The State Civil Service Commission shall have the exclusive power and authority to hear and decide all removal and disciplinary cases, with subpoena power and power to administer oaths.

Section 12(A) further provides that the decision by the referee appointed to hear a disciplinary or removal case may be reviewed by the CSC if an application for review is filed within 15 calendar days after the decision is rendered. If an application for review is not timely filed, the referee’s decision becomes the final decision of the CSC as of the date it was rendered. Additionally, the final decision may be reviewed by the court of appeal, if an application for review is filed with the CSC within 30 calendar days after the decision becomes final. La. Const. Art. 10, § 12(A).

Jurisprudence has interpreted La. Const. Art. 10 as “evidencing an intention to grant exclusive jurisdiction to the Civil Service Commission in | fithose areas where the commission has exercised its ‘broad and general rule-making’ power.” Akins v. Housing Authority of New Orleans, 2003-1086, p. 2 (La.App. 4th Cir.9/10/03), 856 So.2d 1220, 1222, unit denied, 2003-2781 (La.12/19/03), 861 So.2d 574; Crockett v. State Through Dept. of Public Safety and Corrections (Louisiana State Penitentiary, Angola), 1997-2528, p. 4 (La.App. 1st Cir.11/6/98), 721 So.2d 1081, 1083; Hawkins v. State, Through Dept. of Health and Hospitals, Office of Public Hospitals, 613 So.2d 229, 233 (La.App. 1st Cir.1992); Strickland v. State, through Office of the Governor, 525 So.2d 740, 743 (La.App. 1st Cir.1988), writ granted, 526 So.2d 1122 (La.1988), appeal dismissed, 534 So.2d 956 (La.1988). This means that the CSC exercises exclusive jurisdiction over employment-related disputes between classified civil service employers and employees. Akins v. Housing Authority of New Orleans, supra.

The thrust of the grant of exclusive jurisdiction over employment-related disputes between employers and employees in civil service is to preclude the district court from having concurrent jurisdiction with the CSC over such disputes. Crockett, supra; Foreman v. Falgout, 503 So.2d 517 (La.App. 1st Cir.1986). However, the constitutional provisions which delegate judicial authority to the CSC are exceptions to the general rule that district courts’ have jurisdiction over all civil matters; therefore, the provisions delegating jurisdiction to the CSC over removal and disciplinary actions are to be narrowly construed. Crockett, supra; Hawkins v. State Through Dept, of Health and Hospitals, supra. For instance, the CSC has |7no subject matter jurisdiction over tort cases and cannot award general monetary damages. Crockett, supra. But the CSC’s exclusive jurisdiction to hear and decide removal and disciplinary cases cannot be circumvented or defeated by styling a removal or disciplinary matter as a tort suit. Crockett, supra; Foreman v. Falgout, supra.

Johnson cites Sampson v. Wendy’s Management, Inc., 593 So.2d 336 (La. 1992), which held that a retaliatory discharge action under La. R.S. 23:1361 is a tort action within the district court’s jurisdiction. (See also Hebert v. Louisiana Dept. of Transportation and Development, 630 So.2d 318 (La.App. 5th Cir.1993), an appeal from a hearing officer ruling on a claim for worker’s compensation benefits in which the court determined that a retaliatory discharge claim under R.S. 23:1361 must be brought in district court and not as part of a worker’s compensation proceeding.)

The fact that Johnson styled her suit as one for retaliatory discharge does not end the inquiry into whether the district court has subject matter jurisdiction over her claim. La. Const. Art. 5, § 16 gives the district court original jurisdiction over all civil and criminal matters, “[e]x-cept as authorized by this constitution.” On such exception is provided by La. Const. Art. 10, § 12, which as discussed, vests the CSC with jurisdiction over removal and disciplinary cases that are employment-related matters between civil service employers and employees. Though styled as a retaliatory discharge suit, Johnson’s claim concerns the legality of her removal from E.A. Conway for job abandonment. This is an employmentjre-lated8 issue over which the CSC exercises exclusive jurisdiction as provided in the state constitution.

Hillard v. Housing Authority of New Orleans, 436 So.2d 685 (La.App. 4th Cir. 1983), is similar to this matter. Hillard, a classified civil service employee with the Housing Authority of New Orleans (“HANO”), was terminated from employment after being injured on his job. He filed suit in district court alleging retaliatory discharge in violation of La. R.S. 23:1361. HANO filed an exception of lack of subject matter jurisdiction, which was sustained by the trial court and affirmed on appeal based on the exclusive power and authority vested in the CSC to hear and decide removal and disciplinary disputes between civil service employers and employees. The appellate court rejected Hillard’s argument that the authority of the CSC would not be impinged if he were allowed to pursue his suit for damages in district court. Instead, the court held that Hillard had to first exhaust his remedies by successfully appealing his dismissal to the CSC before bringing an action for damages in district court.

The Hillard court cited Peete v. Scheib, 156 So.2d 280 (La.App. 4th Cir.1963), writ refused, 245 La. 90, 157 So.2d 233 (1963), in which the plaintiffs mandamus action to compel payment of lost wages due to a suspension from his civil service job was dismissed on exceptions of no cause of action and no right of action. Even though the CSC did not have power to render a money judgment, the court held that the plaintiff had to first obtain a CSC ruling that the suspension was illegal before he could bring an action in district court. The court reasoned that because the district court did not 19have concurrent jurisdiction with the CSC, it could not review the legality of the suspension.

Hillard, supra, and Peete, supra, indicate that a civil service employee must first successfully challenge his termination with the CSC before he can pursue damages or a money judgment in district court. Otherwise, the district court would have concurrent jurisdiction over matters that are specifically assigned to the exclusive jurisdiction of the CSC.

Also analogous to the matter at hand is Reimer v. Medical Center of Louisiana at New Orleans, 1995-2799 (La.App. 4th Cir.1/29/97), 688 So.2d 165. After being injured at work, Reimer was terminated for failure to meet the attendance requirements of his employer. Instead of appealing his termination before the CSC, he filed suit in district court alleging retaliatory discharge and disability discrimination. The employer excepted for lack of subject matter jurisdiction. The trial court overruled the exception, the appellate court reversed on a writ grant, and the supreme court granted writs and remanded for briefing and argument before the appellate court.

In its opinion after remand, the Fourth Circuit held that the district court lacked subject matter jurisdiction over Reimer’s claim based on the exclusive jurisdiction granted the CSC to review the removal of a civil service employee. Reimer argued that the CSC’s jurisdiction did not extend to his discrimination claim, that the district court had concurrent jurisdiction over his claims, and that his claim for a money judgment was beyond the authority of the CSC. Rejecting Reimer’s arguments, the court stated:

1 ipMr. Reimer claims that he is a civil servant whose removal was wrongful and not for the reason stated. That his petition makes reference to other statutes does not change the nature of his claim. The authority to review the basis for a termination of a civil servant’s employment and decide whether it was in accordance with the law is expressly and unambiguously assigned to the CSC, subject to the tight of judicial review, in Section 12(A) of Article X.

(Emphasis added.) Id., 95-2799 p. 4, 688 So.2d at 168.

The court also noted that Reimer’s removal was at the heart of his suit. So, in order for him to be entitled to damages, it had to first be determined that he was unlawfully discharged from employment. The court noted that though the CSC could not “award general tort damages, such as for injury to reputation or an invasion of privacy,” it could award costs, attorney fees, and back pay, and it could restore all benefits and emoluments of office. Id., 95-2799 p. 6-7, 688 So.2d at 169. If Reimer was not then fully compensated, he could assert his claim in district court.

Johnson refers to Hillard, supra, and Reimer, supra, as cases that “stand alone” and urges this court to follow McCain v. City of Lafayette, 98-1902 (La.App. 3d Cir.5/5/99), 741 So.2d 720, writ denied, 1999-1578 (La.9/17/99), 747 So.2d 563, cert. denied, 538 U.S. 1118, 120 S.Ct. 939, 145 L.Ed.2d 817 (2000), which Johnson describes as holding that civil service workers do not have to pursue their tort claims arising from an alleged wrongful termination before the CSC, which has no power to award damages. In fact, McCain, supra, appears to stand alone in its interpretation of the judicial authority granted the CSC.

|nIn McCain, supra, McCain’s employment was terminated due to poor work evaluations. After he unsuccessfully appealed before the Lafayette Municipal Government Employees Civil Service Board, he filed suit alleging age discrimination. The city filed a motion for summary judgment in which it argued, in part, that the district court lacked jurisdiction to hear the age discrimination claim, which McCain had failed to raise before the civil service board. McCain argued that the district court had jurisdiction because the age discrimination statute provided for damages which the civil service board had no power to award. Ruling in favor of the city, the trial court determined that McCain could not for the first time raise his age discrimination claim in district court when the city civil service board had exclusive original subject matter jurisdiction over all removal and disciplinary cases.

|12On McCain’s appeal, the Third Circuit recognized that his removal was at the heart of his age discrimination suit and that while the civil service board should be able to determine whether age discrimination was the cause of a wrongful removal, it was powerless to award tort damages. The court expressed concern that a claim for damages might prescribe if a claimant was first required to appeal his removal to the civil service board and then seek further review of an adverse decision before filing a tort suit. The court concluded that the civil service board does not have exclusive jurisdiction over cases wherein it has no power to grant the remedy sought, such as tort damages. While the court reversed summary judgment as to McCain’s claim for general tort damages, it affirmed summary judgment in favor of the city as to that part of McCain’s age discrimination claim seeking compensation for loss of leave time and other benefits that could have been awarded by the civil service board.

Essentially, the McCain decision gives short shrift to the concept of “exclusive jurisdiction” by rewriting the law to provide concurrent jurisdiction between the civil service board and the district court over civil service removal actions depending on what damages are claimed. However, La. Const. Art. 10, § 12 does not base the CSC’s “exclusive power and authority to hear and decide all removal and disciplinary cases” on what damages are alleged by the aggrieved party. As expressed in Reimer, supra, |isthe state constitution expressly and unambiguously assigns to the CSC the authority to review the removal of a civil service employee and decide whether the removal accorded with the law.

Johnson also cites Moore v. Board of Supervisors of LSUMC, 559 So.2d 548 (La. App. 2d Cir.1990), as a case which she describes as reversing a judgment sustaining an exception of lack of subject matter jurisdiction and recognizing that the CSC does not have jurisdiction over tort actions. Johnson’s reliance on Moore, supra, is misplaced.

In Moore, supra, the plaintiff appealed her termination to the CSC seeking reinstatement and back pay. While the CSC appeal was pending, she filed a defamation action seeking damages in district court. The trial court dismissed the defamation action for lack of subject matter jurisdiction. Moore appealed the dismissal. In the meantime, the CSC reversed her removal. Though this court reversed the dismissal of Moore’s defamation claim, it did so while recognizing that Moore, a civil service employee, could not pursue her tort claim without first pursuing and not abandoning the civil service remedies. In reaching this decision, the court cited Hil-lard, supra. On the record before it, which apparently included information that the CSC had ruled in favor of Moore, the court determined that it could not affirm the lower court’s ruling and dismissal of Moore’s action with prejudice. The matter was remanded to allow Moore to amend her petition to allege the outcome of the CSC proceedings and to more particularly allege the factual basis of her defamation claim. Notably, the defamation | ^allegations involved statements allegedly made by coworkers as part of a conspiracy to get Moore fired.

Contrary to Johnson’s argument, the Moore decision clearly supports the trial court’s judgment. A claim for damages based on the alleged wrongful removal of a civil service employee cannot be asserted in district court without first successfully appealing the removal before the CSC. Johnson’s appeal before the CSC was not successful, and she abandoned the civil service remedies available to her by failing to timely appeal the referee’s ruling. As a result, the CSC’s ruling is a final judgment on the legality of her removal by E.A. Conway for job abandonment. Johnson cannot now avoid the CSC’s adverse ruling and circumvent the exclusive jurisdiction of the CSC to review and decide her removal case by alleging in district court a different ground for her removal, namely retaliatory discharge for filing a worker’s compensation claim. Notably and inexplicably, Johnson failed to raise this defense before the CSC even though she was represented by counsel. While we are sympathetic to Ms. Johnson’s situation, she had the opportunity to appeal her removal before the CSC as provided by La. Const. Art. 10, § 12. Unfortunately for her, the appeal was not successful. It having been determined by the CSC that her | ^removal was proper, the district court lacks jurisdiction to review her removal so as to award damages under La. R.S. 23:1361.

We find no merit to Johnson’s argument that the issue is really one of prematurity and that E.A. Conway waived the dilatory exception by answering the petition. As explained above, the CSC has exclusive jurisdiction over removal cases involving civil service employees. The reason for Johnson’s removal by E.A. Conway is precisely the issue presented in this retaliatory discharge action, and this determination is reserved to the exclusive jurisdiction of the CSC.

Because we find that the exception of lack of subject matter jurisdiction was properly granted, we need not address the remaining assignment of error concerning the trial court’s denial of Johnson’s motion for summary judgment.

CONCLUSION

For the reasons explained, the judgment of the trial court is affirmed. Costs of appeal are assessed to the appellant.

AFFIRMED.

      . In her brief, Johnson contends that E.A. Conway acted inappropriately in placing her on FMLA leave for a work-related injury. However, federal regulations suggest that an illness that entitles one to worker’s compensation benefits may also qualify as a serious health condition under the FMLA and that worker's compensation absence, when available, and FMLA leave may run concurrently. See 29 C.F.R. § 825.702(d)(2). For further information on the relationship between worker’s compensation absences and FMLA leave see 29 C.F.R. § 825.207(e) and other regulations cited therein.

      . The record indicates that Johnson received a Notice of Payment of worker’s compensation benefits on September 26, 2006. The Notice of Payment indicated that she would begin receiving weekly payments for the carpal tunnel injury effective as of April 26, 2006.

      . In the recent case of Williams v. Orleans Levee District et al., 2009-0003 (La.App. 4th Cir. 11/4/09), 24 So.3d 307, the plaintiff appealed his termination to the CSC. While that proceeding was pending, he filed suit in district court alleging the torts of defamation, false imprisonment, and intentional infliction of emotional distress as well as claims of racial discrimination, discriminatory employment practices, and violations of his civil rights and whistleblower protections. After a final decision in the CSC proceeding finding that Williams's termination for insubordination was lawful, his former employer, the levee board, filed an exception of res judicata in the district court suit. The trial court denied the exception as to the tort claims but granted the exception as to the claims alleging racial discrimination, discriminatory employment practices, whistleblower violations, and civil rights violations. The fourth circuit affirmed. The basis of Williams's termination was the central issue in these four claims. The claims had been reviewed and rejected by the CSC. The opinion makes clear that the authority to review the reasons for a civil service employee's termination and determine whether it was lawful is unambiguously assigned to the CSC pursuant to its exclusive jurisdiction over removal matters.
      Here, too, the basis for her termination is the central issue in Johnson's retaliatory discharge suit. This issue concerning the reason for Johnson’s removal by E.A. Conway is one over which the CSC has been granted exclusive power and authority to hear and decide.

      . La. Const. Art. 10, § 12(B) grants city civil service commissions the exclusive power and authority to hear and decide all removal and disciplinary cases involving city civil service employees.

      . Even though the appellate court reversed part of the summary judgment dismissing McCain’s suit for lack of subject matter jurisdiction, it ultimately affirmed the dismissal of McCain’s suit on summary judgment for other grounds. McCain did not prove the existence of a genuine issue of material fact on the merits of his age discrimination claim.

      . Contrast with Crockett, supra, wherein the plaintiff filed suit for mental anguish damages after being subjected to a body cavity search by coworkers. The trial court granted the state's exceptions of prematurity and lack of subject matter jurisdiction. The appellate court reversed. Narrowly construing the constitutional grant of jurisdiction to the CSC, the court determined that Crockett was not challenging either a removal or a disciplinary action. The CSC had no jurisdiction over his claim for damages due to intentionally tor-tious conduct. He did not have to pursue his claim with CSC before filing the tort suit in district court.
      Here, Johnson’s claim for retaliatory discharge does directly address the reason for her removal by E.A. Conway.

      . Under La. R.S. 23:1361 (C), an employee who proves that he was discharged because he asserted a claim for worker's compensation benefits is entitled to recover as a penalty up to one year's earnings, with reasonable attorney’s fees and court costs.
      If the CSC determines that a civil service employee’s removal was unlawful, the wronged civil service employee may be reinstated to employment with full pay for his lost time, restored to benefits and emoluments of office, and awarded costs and attorney fees. See Civil Service Rules 13.26, 13.28, and 13.35; Christoffer v. Department of Fire, 1998-2408 (La.5/18/99), 734 So.2d 629; and Rainier, supra.


author: GASKINS, J. WILLIAMS, J.,

text:
    In re Marian Prud’homme KEMP.
    No. 45,028-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 3, 2010.

      Snellings, Breard, Sartor, Inabnett & Trascher, L.L.P. by Wendy E. W. Giovin-go, Monroe, for Appellant, Vacques Prud’homme.
    Crawford & Joyce by Brian E. Crawford, Monroe, for Appellee, John R. Joyce.
    Sir Clyde Lain, II, Monroe, for Appel-lee, Eugene Kemp.
    Before WILLIAMS, GASKINS and DREW, JJ.
   GASKINS, J.

11Vacques Prud’homme, the undercurator for the person of his interdicted sister, Marian Prud’homme Kemp, appeals from a trial court judgment denying his motion to unseal the annual accounting of the interdict’s property. For the following reasons, we affirm the trial court judgment.

FACTS

Marian Prud’homme Kemp was the mother of four children. Melanie Prud’homme was born April 13, 1991; her father is Cager Pruitt. LaShara James was born July 13, 1994; her father is John James. Marian then married Calvin Kemp. The couple had two more daughters, Kitty Kemp, born in June 1996, and Lillian Kemp, born in March 1998.

On August 1, 2001, Marian and all four children were in a car that collided with a Kansas City Southern (KCS) train in Arcadia, Louisiana. Kitty Kemp was killed and the three remaining children suffered various injuries. Marian suffered brain damage and was rendered permanently incapacitated. A lawsuit was eventually instituted in Missouri against KCS.

A family battle ensued for control of Marian, the children, and their potential recovery against KCS. Several days after the accident, Lydia Prud’homme, Marian’s stepmother, obtained letters from the court in Bienville Parish naming her as provisional tutor of Marian and the children. Shortly thereafter, pursuant to pleadings filed by Calvin, the letters of tutorship were terminated.

[2In March 2002, Calvin instituted interdiction proceedings in Lincoln Parish and was named Marian’s curator. Eugene Kemp, Calvin’s father, was named under-curator. Eugene is domiciled in East Baton Rouge Parish.

At some point, Calvin was convicted of a criminal offense and was sentenced to a period of incarceration. In December 2002, a joint petition was filed on behalf of Calvin, Eugene, and Vacques Prud’homme, Marian’s brother. They asserted that Calvin was no longer in a position to serve as curator of Marian. They sought to have Eugene named curator of Marian and tutor of the minor children. Vacques Prud’homme was named undercurator and undertutor. An order to that effect was signed by the trial court in December 2002.

After some attempts by Calvin to have Eugene and Vacques removed from their respective positions, Eugene and Vacques filed a petition for the appointment of a curator of the property of the interdict and a tutor for the property of the minors. On April 21, 2005, a hearing was held. In a judgment signed by the trial court in May 2005, John R. Joyce was appointed as provisional curator of the property of Marian Prud’homme Kemp and provisional tutor of the property of the minors, Melanie Prud’homme and Lillian Kemp. Eugene was instructed to resign as curator and tutor of the property of the interdict and the minors. Vacques was ordered to resign as undercurator and undertutor of the property of the interdict and the children. Eugene remained as the curator and tutor of the ^persons of the interdict and the minors and Vacques remained as the un-dercurator and undertutor of the persons of the interdict and the minors.

Mr. Joyce was ordered to nominate a financial institution to serve as co-curator for the property of the interdict and the minors. In September 2005, pursuant to a joint motion by Eugene, Calvin, Vacques, and Mr. Joyce, Hibernia National Bank was named co-curator and co-tutor of the property of the interdict and the minors.

The lawsuit against KCS Railroad in Missouri proceeded and in December 2006, Mr. Joyce was given permission by the court in Lincoln Parish to negotiate a settlement in the suit. After an eight-week trial, a settlement was reached while the jury deliberated. Marian received $8,266,130.28 in the settlement. In March 2007, the trial court signed an order allowing Mr. Joyce to create a trust for Marian with Capital One Bank as the trustee. Capital One declined to be the co-curator and co-tutor of the property. All the settlement funds received by Marian were placed in trust.

Marian had been living in a nursing home in Monroe, Louisiana. After the settlement, the trust purchased a house for her. In October 2007, Marian was moved into the house along with her children, Melanie and Lillian. Vacques and his wife, Tammy, and their children also moved into the house to care for Marian and the minors. Vacques and Tammy filed suit in Ouachita Parish and were granted sole custody of Melanie and Lillian.

In June 2008, Mr. Joyce filed the first annual accounting as curator of the property of Marian, covering the period from February 28, 2007, |4through March 31, 2008. Mr. Joyce noted that there was no undercurator for the property of the interdict and the accounting had not been provided to any other party. Mr. Joyce requested that the accounting be filed with the court only and sealed from the public record, alleging that this was necessary for Marian’s privacy, and because no other party had a legal right to the information in the accounting. Noting that a homolo-gation was not required, Mr. Joyce requested that the trial court approve the accounting. The trial court in Lincoln Parish signed an order approving the accounting and allowing it to be sealed from the public record. A second accounting was filed covering the period from April 1, 2008, to December 31, 2008. Mr. Joyce again requested that the trial court approve the accounting and seal it from the public record. On February 25, 2009, the trial court approved the accounting and sealed it from the public record “pending further order of this Court.” The trial court also specified that notice was to be served on all counsel of record in this matter.

In October 2008, Vacques and Eugene filed a motion in Lincoln Parish to unseal the annual accounting of Marian’s property, arguing that the information was necessary for child support proceedings and that no legal basis was provided to seal the accounting.

On December 15, 2008, a hearing was held in the trial court on the motion to unseal the accounting. In May 2009, a judgment was filed denying the motion to unseal the annual accounting of Marian’s trust. The trial court noted that only the accounting had been sealed in this matter, not the entire record. The court found that Vacques, as undercurator of the | sperson of the interdict, had no right to her financial records. Citing the “significant and complicated history between the parties involved in these proceedings,” the trial court found that Vacques did not need the accounting to fulfill his duties and responsibilities to the interdict. However, the trial court specified that Eugene, as the curator of Marian’s person, could examine a copy of the accounting at the clerk of court’s office during regular business hours. Apparently as a further safeguard on the operation of the trust, the trial court appointed Teresa Culpepper Carroll to determine whether there had been any possible misuse of the interdict’s funds. On June 5, 2009, Eugene appointed his attorney to examine the accounting.

Vacques appealed from the trial court judgment denying the motion to unseal the accounting.

SEALING THE TRUST ACCOUNTING

In his brief to this court, Vacques argues that the trial court erred in refusing to unseal the trust accounting. He contends that the public’s right to access outweighs the interdict’s expectation of privacy. He also claims that the restrictions on the access to the court record are overly broad.

| (¡Legal Principles

The Louisiana Constitution has an “open courts” provision which mandates that all courts shall be open. La. Const, art. 1, § 22. Additionally, La. Const, art, 12, § 3 provides that no person shall be denied the right to observe the deliberations of public bodies and to examine public documents, except in cases established by law. The right of access to public records is to be liberally construed in favor of unrestricted access. When doubt exists about the right to access certain records, the doubt must be resolved in favor of the public’s right to see. A claim of annoyance, embarrassment, oppression, or undue burden or expense is not enough to overcome the public’s right of access to public records. Copeland v. Copeland, 2007-0177 (La.10/16/07), 966 So.2d 1040; Davis v. Davis, 43,490 (La.App.2d Cir.10/22/08), 997 So.2d 149.

However, the fact that a document is filed in the court record does not necessarily mean that it will be accessible by the public. In commenting on a court’s records, the United State Supreme Court held that the right to inspect and copy judicial records is not absolute. Every court has supervisory power over its own records and files and that access has been denied where court files might have become a vehicle for improper purposes. The Court declined to identify all the factors to be weighed in determining whether such access is appropriate, but recognized that the discretion as to access is one best left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case. Nixon v. Warner Communications, Inc., 435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978), Copeland v. Copeland, supra.

Louisiana has no specific statute providing for sealing court records. Trial courts exercise this power under general provisions on courts’ authority to govern proceedings. La. C.C.P. art. 191 provides that a court possesses inherently all of the power necessary for the exercise of its jurisdiction even though not granted expressly by law. Further, La. C.C.P. art. 1631(A) states that the court has the power to require that the proceedings shall be conducted with dignity and in an orderly and expeditious manner, and to control the proceedings at the trial, so that justice is done. Copeland v. Copeland, supra; Davis v. Davis, supra.

Even without a statute exempting certain court proceedings and documents from public review, the constitutional right of access is not unlimited. La. Const, art. 1, § 5 provides in pertinent part that every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy. This provision protects certain documents and information from disclosure. See Copeland v. Copeland, supra.

In the Copeland case, the court recognized that the right to privacy is defined as the right to be let alone and to be free from unnecessary public scrutiny. However, the court has also defined the limits on the right to privacy, reasoning that the right to privacy is not absolute; it is qualified by the rights of others. The right of privacy is also limited by society’s right to be informed about legitimate subjects of public interest. The court went on |sto note that individuals involved in civil litigation may be compelled to give evidence which tends to embarrass them or to produce documents of a confidential nature. Copeland v. Copeland, supra.

In Copeland v. Copeland, supra, the Louisiana Supreme Court recognized a balancing test to be used in analyzing the competing constitutional rights:

Considering the strong constitutional bias in favor of open access by the public to court proceedings, we find the trial court’s blanket order sealing the entire record in this case to be overbroad. Although there may be some justification for sealing certain sensitive evidence in a proceeding, the parties have the burden of making a specific showing that their privacy interests outweigh the public’s constitutional right of access to the record. The trial court, should it grant such relief, must ensure that its order is narrowly tailored to cause the least interference possible with the right of public access.

The court in Copeland noted that this balancing test properly subjects a request to have the record sealed to the trial court’s discretion, which has supervisory power over its own records and files, placing the burden of proof on the parties seeking closure, and balancing the parties’ privacy interests against the public’s constitutional rights of access to court proceedings and documents.

The duties of a curator regarding ac-countings are set forth in La. C.C.P. art. 4569(A) which provides:

A. A curator with responsibility for affairs of the interdict shall file an account annually, upon the termination of his office, and at any other time ordered by the court. A curator with responsibility for the person of an interdict shall file a personal report describing the location and condition of the interdict annually,
upon the termination of his responsibilities, and at any other time ordered by the court. At the time of filing, the curator shall send copies of any required account or personal report by first class United States mail postage prepaid to the undercurator | fland any successor curator. The provisions of Articles 4393 and 4398 shall apply to accounts by curators.

Regarding undercurators, La. C.C. art. 393 provides:

The court shall appoint an undercurator to discharge the duties prescribed for him by law. The duties and powers of an undercurator shall commence upon qualification. In discharging his duties, an undercurator shall exercise reasonable care, diligence, and prudence and shall act in the best interest of the interdict.

The duties of an undercurator are listed in La. C.C.P. art. 4565:

A. (1) The court shall appoint as un-dercurator the qualified person best able to fulfill the duties of his office. The person appointed as undercurator qualifies by taking an oath to discharge faithfully the duties of his office.
(2) At any time prior to qualification, the court may revoke the appointment for good cause and appoint another qualified person.
(3) If a person fails to qualify within ten days from his appointment or within the period specified by the court, the court on its own motion or on motion of any interested person, may revoke the appointment and appoint another qualified person. The delay allowed for qualification may be extended by the court for good cause.
B. The undercurator shall:
(1) Notify the court when the curator has failed to qualify timely for office.
(2) Have free access to the interdict and to all records relating to the interdict relevant to his office.
(3) Review all accounts and personal reports filed by the curator.
(4) Notify the court when he has reason to believe that the curator has failed to perform any duties imposed by law, including the duties to file necessary accounts and personal reports, and to maintain adequate security.
(5) Approve or disapprove any transactions that require his concurrence.
| ¶0(6) Move to appoint a successor for a curator who becomes disqualified or whose office terminates.
C. The undercurator shall have no duties, either express or implied, other than those set forth in this Article and in Civil Code Article 393.

Discussion

Vacques pointed out in the trial court that there was no undercurator of the property and that there was no mechanism for safeguarding the trust because it is sealed from the public record. In this case, where there is no protection of an undercurator of the property and the curator of the property has not furnished a bond, Vacques argued that he should be given access to the accounting to serve as a check on the administration of the trust. Vacques urged that in this case, the expectation of privacy is low. The trustee is a national financial institution and a trust committee reviews the holdings and expenditures. He claimed that the safety and welfare of the interdict were not at issue in this case.

Vacques maintained that the restrictions on access to the court record are too broad. He claimed that, if closure of the record is justified, the relief must be narrowly tailored to protect the privacy interest asserted.

Mr. Joyce urged that the interdict’s interests of privacy and financial protection required that the accounting be sealed. Mr. Joyce maintained that Vacques does not need access to the financial records in order to fulfill his duties and responsibilities to the interdict as undercurator of her person. He also noted that the curator of the person of the interdict has been allowed to examine the accounting.

| n Mr. Joyce argued that Vacques wants control of the trusts for both the interdict and the minors. He asserted that it is imperative from the history of this case that an independent provisional curator be continued to protect the interests of the beneficiaries from the control of persons who would not manage those funds or the affairs of the beneficiaries properly.

Mr. Joyce cited the long history of conflict between the Kemp and Prud’homme families regarding the administration of the affairs of the interdict and the minor children. Mr. Joyce pointed out that there has been no allegation that he, as provisional curator for the property, mismanaged it or that funds have not been wisely and prudently expended for the aid, comfort and needs of the interdict and the children.

Mr. Joyce claimed that Capital One resigned as trustee because of the constant interference by Vacques with the trust activities. According to Mr. Joyce, Vacques made unreasonable demands for his own personal benefit that went beyond the benefit of the persons for whom the trusts were solely created. Mr. Joyce pointed out that Vacques is paid a salary by the trusts.

We find that, based upon the facts presented in this case, the trial court did not abuse its discretion in refusing to unseal the trust accounting. Given the family history at issue here and the maneuvering by various members of the interdict’s family to control both her person and her 112property, the provisional curator for the property made a specific showing that the interdict had a significant interest in being secure from the unreasonable invasion of her privacy as to the trust operations.

The trial court order was narrowly drawn and allowed the curator of the person to view the accounting. As a further safeguard, the trial court appointed Teresa Culpepper Carroll to determine whether there had been any possible misuse of the interdict’s funds. These measures provide a check on the use of the funds in the trust as well as furnishing the proper parties all necessary information for the child support proceedings regarding the interdict’s children.

Vacques has failed to demonstrate that he has a right or need to view the trust accounting which outweighs his sister’s privacy interest. He has made no specific allegations that the needs of his sister have not been met. As set forth above, there are several means by which the functioning of the trust is checked to ensure proper administration. The court examined and approved the accounting. As argued by Vacques, a trust committee from the trustee bank reviews the holdings and expenditures of the trust. The curator of the person of the interdict has been allowed to review the accounting.

La. C.C.P. art. 4565(B)(2) provides that the undercurator shall have free access to the interdict and to all records relating to the interdict relevant to his office. The revision comment (c) to the provision states that an undercurator’s access to records is limited to those “relevant to his office.” For example, an undercurator appointed to monitor a curator of the interdict’s property does not need access to the interdict’s medical and 113personal records. In this case, the accounting is not a record relevant to the office of the undercurator of the person of the interdict.

La. C.C.P. art. 4565(B)(8) provides that the undercurator shall review all accounts and personal reports filed by the curator. However, in this matter it is important to note that Vacques is the undercurator only of the person of the interdict, not her property. Therefore, his duty to review extends only to those matters affecting the person of the interdict.

Based upon the facts before us, the trial court did not abuse its discretion in sealing the accounting from the public record and allowing only the curator of the person of the interdict to view it at the clerk of court’s office. Accordingly, the trial court judgment is affirmed.

CONCLUSION

For the reasons stated above, we affirm the judgment of the trial court denying the request by Vacques Prud’homme, the un-dercurator of the person of his interdicted sister, Marian Prud’homme Kemp, to unseal the account of the interdict’s trust. All costs in this court are assessed to Vacques Prud’homme.

AFFIRMED.

WILLIAMS, J., dissents with written reasons.

WILLIAMS, J.,

dissents.

\1C0peland v. Copeland, 2007-0177 (La.10/16/07), 966 So.2d 1040 is controlling here.

Neither the lower court nor the provisional curator of the property has stated a compelling reason to deny the motion to unseal the annual accounting of the interdict’s property. Thus, the public’s right to access to this public record must prevail.

      . Eventually, LaShara James went to live with her father. She is no longer at issue in this matter.

      . On February 25, 2009, the trustee was changed to JPMorgan Chase.

      . In September 2008, Vacques, as the under-curator of the interdict’s person, also filed a motion to change the venue of the interdiction proceedings to Ouachita Parish. He alleged that he, the interdict, her children, and the provisional curator of the interdict’s property are all domiciled in Ouachita Parish. The trust owns property in Ouachita Parish and child support proceedings for the minors have been filed against the trust in Ouachita Parish. On February 19, 2009, the trial court in Lincoln Parish denied the motion for change of venue. Vacques appealed the denial of the motion for change of venue along with the motion to unseal the accounting and consolidated the issues on appeal. On October 1, 2009, this court gave the parties 15 days to file supplemental briefs on the question of whether the venue judgment was an appealable, final judgment. On November 6, 2009, this court issued an order of partial dismissal, dismissing the appeal as to the interlocutory venue judgment, but maintaining the appeal on the issue of sealing the trust accounting. Therefore, only the issue regarding the sealed accounting is before this court on appeal.

      . On April 3, 2009, Vacques filed a motion for change of curator of the person and the property, seeking to have himself named as curator of both. Vacques asserted that, without access to the interdict’s property, he cannot provide the needed services for her as under-curator. He claimed that he had to employ a CPA to assist in securing funding from the interdict's trust to provide Marian with appropriate care. He asserted that Eugene, the curator of the interdict's person, has not seen her in more than two years. Vacques sought to be named curator of both the person and the property of the interdict, with Tammy Prud’homme as the undercurator of the person of the interdict and Gwendolyn Y. Chisley as the undercurator of the interdict's properly. A rule to show cause was set for May 18, 2009. The record does not show if the hearing was held and a judgment rendered.