December 2, 2008 - Opinions - Louisiana Supreme Court

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<table cellpadding="5" cellspacing="0" width="90%"><tbody><tr valign="top"><td valign="top" width="63%">FOR IMMEDIATE NEWS RELEASE</td><td valign="top" width="37%"><div align="right">NEWS RELEASE #076</div></td></tr><tr valign="top"><td valign="top">FROM: CLERK OF SUPREME COURT OF LOUISIANA</td><td valign="top">&nbsp;</td></tr></tbody></table>&nbsp;The Opinions handed down on the&nbsp;2nd day of December, 2008, are as follows:&nbsp;BY CALOGERO, C.J.:<a href="/opinions/2008/07cc0492.opn.pdf">2007-CC-0492 PAMELA WARREN, THERESA RENE WARREN AND SARAH WARREN JIMENEZ v. LOUISIANA MEDICAL MUTUAL INSURANCE COMPANY, JEFFREY A. LAMP, M.D., ROBYN B. GERMANY, M.D., SANDRA MOODY, NP-C, AND FAMILY HEALTH OF LOUISIANA, INC.</a>(Parish of E. Baton Rouge) Accordingly, the decision of the court of appeal is affirmed. AFFIRMED AND REMANDED.KIMBALL, J., additionally concurs and assigns reasons. VICTORY, J., dissents and assigns reasons. TRAYLOR, J., dissents and assigns reasons. KNOLL, J., dissents and assigns reasons. WEIMER, J., additionally concurs and assigns reasons.&nbsp;&nbsp;BY KIMBALL, J.:<a href="/opinions/2008/08C0215.opn.pdf">2008-C -0215 C/W 2008-C -0237 CARL HOOD v. MARK M. COTTER, M.D.</a>&nbsp;(Parish of E. Baton Rouge) For the reasons assigned herein, we find the LAMMICO claims-made policy does not provide coverage for plaintiff's claim. Consequently, its motion for summary judgment should have been granted. The court of appeal's judgment affirming the district court's denial of summary judgment to LAMMICO is reversed. Summary judgment in favor of LAMMICO is hereby granted and LAMMICO is dismissed with prejudice. Similarly, the trial court's grant of summary judgment in favor of the Board was improperly reversed by he court of appeal since defendant is not a qualified health care provider under the MMA. The court of appeal's judgment reversing the district court's grant of summary judgment in favor of the Board is reversed. Summary judgment in favor of the Board is hereby granted and the Board is dismissed with prejudice. REVERSED.&nbsp;<a href="/opinions/2008/08C0453.opn.pdf">2008-C-0453 LOUISIANA BAG COMPANY, INC. AND LAPAC MANUFACTURING, INC v. AUDUBON INDEMNITY COMPANY</a>&nbsp;(Parish of Acadia) For the foregoing reasons, we find that the trial court committed manifest error when it found that Audubon had not acted in a manner that was arbitrary, capricious or without probable cause, and we affirm the court of appeal's decision to this regard. Specifically, we find that Audubon was arbitrary, capricious or without probable cause when it failed to tender the undisputed portions of Louisiana Bag's claim within the statutorily mandated time period. AFFIRMED.&nbsp;<a href="/opinions/2008/08O1820.opn.pdf">2008-O -1820 IN RE: LARRY CHARLES FREEMAN JUSTICE OF THE PEACE</a>&nbsp; For the reasons assigned, it is ordered that Justice of the Peace Larry Freeman be suspended for the remainder of his term without pay for violating the Code of Judicial Conduct and Article V, &sect; 25 (C)of the 1974 Louisiana Constitution. It is further ordered that Justice of the Peace Larry Freeman reimburse the Judicial Commission of Louisiana the sum of $458.50.JOHNSON, J., concurs.&nbsp;&nbsp;BY VICTORY, J.:<a href="/opinions/2008/06c2191.opn.pdf">2006-C -2191 C/W 2006-C -2204 LOUISIANA STATE EMPLOYEES' RETIREMENT SYSTEM (LASERS) v. JANE MCWILLIAMS, JOELLE MCWILLIAMS, AND DIANNE (MCWILLIAMS) SANDERS</a>(Parish of E. Baton Rouge) ON REHEARING For the reasons stated herein, our opinion on original hearing is vacated in its entirety, and the judgment of the court of appeal is reversed. The case is remanded to the trial court for further proceedings consistent with this opinion. REVERSED AND REMANDED.CALOGERO, C.J., dissents and assigns reasons. KIMBALL, J., dissents and assigns reasons. TRAYLOR, J,. dissents and assigns reasons. WEIMER, J., additionally concurs and assigns reasons.&nbsp;<a href="/opinions/2008/08CC1013.OPN.pdf">2008-CC-1013 BROUSSARD PHYSICAL THERAPY v. FAMILY DOLLAR STORES, INC. AND ACE AMERICAN INSURANCE CO.</a>&nbsp;(Office of Workers' Compensation District 2) For the reasons stated herein, the decision of the court of appeal is reversed, the third party demand is dismissed, and he case is remanded to he workers' compensation judge, OWCA District 2, for further proceedings consistent with his opinion. REVERSED AND REMANDED.JOHNSON, J., concurs.&nbsp;&nbsp;BY TRAYLOR, J.:<a href="/opinions/2008/08CA0922.OPN.pdf">2008-CA-0922 c/w 2008-CA-1253 GEORGE PHILLIPS, JR. v. LAFAYETTE CITY-PARISH CONSOLIDATED GOVERNMENT</a>&nbsp;(Parish of Lafayette) For the reasons set forth above, the judgment of the trial court declaring the various sections of the Lafayette Code of Ordinances, collectively known as the "junked vehicle ordinance" to be unconstitutional is reversed and set aside. This matter is remanded to the trial court for further proceedings consistent with the views expressed in this opinion. REVERSED AND REMANDED.&nbsp;&nbsp;BY KNOLL, J.:<a href="/opinions/2008/06ka2988.opn.pdf">2006-KA-2988 STATE OF LOUISIANA v. BRANDY AILEEN HOLMES</a>&nbsp;(Parish of Caddo) For the reasons assigned herein, the defendant&rsquo;s conviction and death sentence are affirmed. This judgment becomes final on direct review when either:(1) the defendant fails to petition timely the United States Supreme Court for certiorari; or (2) that Court denies his petition for certiorari; and either (a) the defendant, having filed for and been denied certiorari, fails to petition the United States Supreme Court timely, under its prevailing rules, for rehearing of denial of certiorari; or (b) that Court denies his petition for rehearing, the trial court shall, upon receiving notice from this Court under La. Code Crim. Proc. Art. 923 of finality of direct appeal, and before signing the warrant of execution, as provided by La. Rev. Stat. &sect; 15:567(B), immediately notify the Louisiana Indigent Defense Assistance Board and provide the Board with reasonable time in which: (1) to enroll counsel to represent the defendant in any State post-conviction proceedings, if appropriate, pursuant to its authority under La. Rev. Stat. &sect; 15:149.1; and (2) to litigate expeditiously the claims raised in that application, if filed in the state courts. AFFIRMED.CALOGERO, C.J., dissents and assigns reasons. JOHNSON, J., dissents and assigns reasons.&nbsp;&nbsp;BY WEIMER, J.:<a href="/opinions/2008/07K1573.OPN.pdf">2007-K -1573 STATE OF LOUISIANA v. JOHN J. KESTLE</a>&nbsp;(Parish of Jefferson)Retired Judge Lemmie O. Hightower, sitting ad hoc for Calogero, C.J., recused.For the foregoing reasons, we find sufficient evidence was introduced to enable the trial court to conclude that defendant was driving while intoxicated. Thus, we reverse the court of appeal decision and reinstate the trial court conviction and sentence. REVERSED.&nbsp;<a href="/opinions/2008/08ca1270.opn.pdf">2008-CA-1270 ELAINE FRUGE v. BOARD OF TRUSTEES OF THE LOUISIANA STATE EMPLOYEES' RETIREMENT SYSTEM</a>&nbsp;(Parish of E. Baton Rouge) For the reasons set forth above, we reverse the judgment of the district court granting Ms. Fruge's motion for summary judgment, declaring Act No. 165 of the 2002 First Extraordinary Session unconstitutional, null, void, and unenforceable, and declaring Ms. Fruge immediately eligible for the retire/rehire benefits provided under LSA-R.S. 11:416 as it existed prior to its amendment and reenactment under Act 165 of the 2002 First Extraordinary Session. Finding that there are no disputed issues of material fact, and that LASERS is entitled to judgment as a matter of law, we hereby grant summary judgment in favor of LASERS. REVERSED AND RENDERED.JOHNSON, J., dissents. TRAYLOR, J., dissents and assigns reasons. KNOLL, J., dissents and assigns reasons.&nbsp;&nbsp;PER CURIAM:<a href="/opinions/2008/08kk0418.pc.pdf">2008-KK-0418 STATE OF LOUISIANA v. JAMES KENNEDY</a>&nbsp;(Parish of Jefferson) For the foregoing reasons, we dismiss our writ of certiorari. WRIT OF CERTIORARI DISMISSED. CASE REMANDED.VICTORY, J., dissents for the reasons assigned by Justice Weimer. WEIMER, J., dissents and assigns reasons.&nbsp;<a href="/opinions/2008/08CC0528.OPN.pdf">2008-CC-0528 KEITH JAMES DAUZAT AND MONICA DAUZAT v. CURNEST GUILLOT LOGGING, INC., ET AL.</a>&nbsp;(Parish of Avoyelles)Retired Judge Moon Landrieu sitting ad hoc for Knoll, J., recused.For the reasons assigned, the judgment of the district court is reversed. The motion for summary judgment filed by Lake Pearl Company, Inc. is granted, and plaintiff's suit against it is dismissed with prejudice . All costs in this court are assessed against plaintiff.&nbsp;<a href="/opinions/2008/08B0742.pc.pdf">2008-B -0742 IN RE: CEDRIC RICHMOND</a> (Disciplinary Proceedings) Upon review of the findings and recommendations of the hearing committee and the disciplinary board, and considering the record, briefs, and oral argument, it is ordered that Cedric Richmond, Louisiana Bar Roll number 25847, be and he hereby is suspended from the practice of law for six months. It is further ordered that all but sixty days of the suspension shall be deferred. Following completion of the active portion of his suspension, respondent shall be placed on unsupervised probation for six months, subject to the condition that any misconduct during this period may be grounds for making the deferred portion of the suspension executory, or imposing additional discipline, as appropriate. The probationary period shall commence from the date respondent and the ODC execute a formal probation plan. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, &sect; 10.1, with legal interest to commence thirty days from the date of finality of this court's judgment until paid.JOHNSON, J., dissents and assigns reasons. VICTORY, J., dissents and assigns reasons.&nbsp;<a href="/opinions/2008/08b1390.pc.pdf">2008-B -1390 IN RE: BRYAN M. WHITE</a>&nbsp; (Disciplinary Proceedings) Upon review of the findings and recommendations of the hearing committee and the disciplinary board, and considering the record, briefs, and oral argument, it is ordered that Bryan M. White, Louisiana Bar Roll number 18501, be and he hereby is disbarred, retroactive to his June 24, 2003 interim suspension. His name shall be stricken from the roll of attorneys and his license to practice law in the State of Louisiana shall be revoked. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, &sect; 10.1, with legal interest to commence thirty days from the date of finality of this court's judgment until paid.CALOGERO, C.J., dissents; would impose as discipline a three year suspension from the practice of law.&nbsp;<a href="/opinions/2008/08B1565.pc.pdf">2008-B -1565 IN RE: HENRY H. HOBGOOD</a>&nbsp; (Disciplinary Proceedings) Upon review of the findings and recommendations of the hearing committee and the disciplinary board, and considering the record, the brief filed by the ODC, and oral argument, it is ordered that the name of Henry Herbert Hobgood, Louisiana Bar Roll number 17613, be stricken from the roll of attorneys and that his license to practice law in the State of Louisiana be revoked. Pursuant to Supreme Court Rule XIX, &sect; 24(A), it is further ordered that respondent be permanently prohibited from being readmitted to the practice of law in this state. Respondent shall make full restitution to all persons subject of the formal charges. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, &sect; 10.1, with legal interest to commence thirty days from the date of finality of this court's judgment until paid.JOHNSON, J., dissents and assigns reasons.&nbsp;<a href="/opinions/2008/08B1618.pc.pdf">2008-B -1618 IN RE: JEROME W. DIXON</a> (Disciplinary Proceedings) Upon review of the findings and recommendations of the hearing committee and the disciplinary board, and considering the record, briefs, and oral argument, it is ordered that Jerome W. Dixon, Louisiana Bar Roll number 18587, be and he hereby is suspended from the practice of law for one year and one day. It is further ordered that all but six months of the suspension shall be deferred. Following completion of the active portion of his suspension, respondent shall be placed on unsupervised probation for one year, subject to the condition that any misconduct during this period may be grounds for making the deferred portion of the suspension executory, or imposing additional discipline, as appropriate. The probationary period shall commence from the date respondent and the ODC execute a formal probation plan. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, &sect; 10.1, with legal interest to commence thirty days from the date of finality of this court's judgment until paid.KIMBALL, J., dissents and assigns reasons. VICTORY, J., dissents for the reasons assigned by Justice Kimball. TRAYLOR, J., dissents for the reasons assigned by Justice Kimball.&nbsp;&nbsp;
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