
    Lillian W. RUSSO, et al. v. Dr. Hiram VASQUEZ, et al.
    No. 94-CC-0054.
    Supreme Court of Louisiana.
    Jan. 11, 1994.
   PER CURIAM.

Granted: Remanded to trial court for evi-dentiary hearing to determine amount of discount allowed and to determine if settlement equated to $100,000. If so, the motion to strike was properly granted; if not then the trial court must deny the motion. See Kos-lowski v. Sanchez, 576 So.2d 470 (La.1991). Thereafter, the matter shall proceed according to law.

CALOGERO, C.J.,

dissents, agreeing with the reasons assigned by LEMMON, J. If Koslowski is not distinguishable from this ease (and it may very well be) then Koslow-ski should be overruled.

LEMMON, J., dissents and assigns reasons.

MARCUS, J., dissents for reasons assigned by LEMMON, J.

HALL, J., not on panel.

LEMMON, Justice,

dissenting.

Under La.Rev.Stat. 40:1299.440(5), “the court shall consider the liability of the health care provider as admitted and established where the insurer has paid its policy limits of one hundred thousand dollars.... ” Here, the insurer did not pay its policy limits of $100,000, but rather compromised for ninety-five percent of its policy limits. Accordingly, liability is not admitted.  