Insurance Dispute Lawyer Blog

The Berniard Law Firm would like to wish everyone a Happy Holiday.

Regular posting will resume in 2012! Have a happy, and SAFE, holiday season!

When litigation involves multiple parties, all of which are big national or international organizations, there is a higher likelihood that something is going to end up in the litigation process. The unfortunate nature of insurance coverage is that companies will try to find little nuances to try to argue their case, or will add little nuances to make any future case more difficult for opposing parties. One party to a contractual agreement may cite to these nuances to find a loophole to escape from any potential liability and, subsequently, leave someone who believed they had full coverage with nothing. Despite these loophole efforts, a court can still look at the realities of the circumstances and come to real life conclusions to the exclusion of the argument of either party. This is true in the case of Federal Insurance Company v. New Hampshire Insurance Company, when the court ultimately looked at the reality of a contractual agreement and decided that no matter what the terms of the contract were, the whole contract was in regard to a personal injury case.

Our previous blog post discussed this case but a brief summary is as follows:
The case began when Wayne Robinson was unfortunately hurt by an explosion at a chemical plant. The explosion occurred because there were certain chemicals used by the plant that reacted with each other to cause the explosion. One of the defendants in Mr. Robinson's case was Thomas and Betts Corporation (hereinafter T&B). T&B allegedly manufactured a product that contributed to the explosion that caused Mr. Robinson's injuries. T&B had liability insurance from both New Hampshire Insurance Co., which was the primary insurance provider, and Federal Insurance Co., which was the secondary, or excess insurance provider. Ultimately, Mr. Robinson settled with T&B.

The interest of discussing policy nuances hinges upon the terms of the agreement were between T&B and Mr. Robinson. In that agreement, T&B would give Mr. Robinson $5 million for bodily injuries and an additional $1.2 million for a potential breach of contract claim another plaintiff may have had against Mr. Robinson. In fact, by settling with T&B, Mr. Robinson was breaching his agreement with the plaintiff company. After Mr. Robinson reached his agreement with T&B the other plaintiff sued Mr. Robinson for breach of contract. This breach of contract was supposed to be covered by his settlement agreement with T&B. However, soon after the settlement, Mr. Robinson received a letter from New Hampshire Co., T&B's primary insurer, that it was going to cover his $5 million settlement, but would not cover his $1.2 million settlement because it was for a breach of contract and therefore, outside the scope of its policy covering T&B.

As a separate issue, the court discussed whether the New Hampshire policy covered contractual agreements. However, it came to the conclusion that the use of the phrase "legally obligated to pay" rendered the policy to cover tortious actions. However, the court went on to explain that the entire settlement between T&B and Mr. Robinson did in fact relate to and cover the bodily injury claim. The settlement could only cover the bodily injury claim because the only action for which T&B was liable to Mr. Robinson was the bodily injury. Therefore, the settlement could not be for any breach of contract claim.

The $1.2 million settlement was a by-product of T&B inducing Mr. Robinson to settle his bodily injury claim against T&B. The court held that even though this separate amount is categorized as reimbursement for a breach of contract claim, it is still within the bodily injury claim because the settlement was made in consideration for the bodily injury claim. Therefore, because the bodily injury claim was covered by the New Hampshire policy, New Hampshire was liable for the entire settlement. Mr. Robinson received money from Federal, T&B's secondary insurer, therefore Federal stepped into T&B's shoes in its claim for reimbursement from New Hampshire. Therefore, New Hampshire owed Federal the money it paid to Mr. Robinson.

Even in cases where a contract defines things in a certain manner or when the law defines different terms, the realities of a contract are the ultimate facts that define a contract. Although, the New Hampshire policy only covered tortious actions and even though the settlement between Mr. Robinson and T&B defined two different amounts, one for bodily injury and the other for a breach of contract, the reality was that both amounts were in consideration for the bodily injury claim and therefore the reality was that New Hampshire owed the entire amount as per its policy with T&B.

Continue reading "Nuances of Insurance Policies Crucial When Pursuing Coverage" »

The terms in a contractual agreement between parties can have the effect of changing entire meanings of contracts. This is especially true in more complex litigation and more complex business agreements. If a business agreement requires the participation of multiple partners or parties, an ambiguously defined contract can have the effect of increasing the amount of litigation which will occur every time there is a legal dispute between any or all of the parties. The clear practical effect of writing clear-cut and well defined contracts is that, in the long run, there will be less of a chance that any dispute will require a long, drawn-out litigation process which has the effect of draining the wallets of all the parties involved.

This is most important where one or more of the parties is a single individual with limited resources, and in some situations, is represented by smaller firms that have much less financial resources compared to bigger business entities with more resources and financing at their disposal. As a legal practice, any person that becomes part of a contractual agreement should clearly define any type of ambiguous terminology in an effort to save the agreement from getting the definitional application of common law or practice. Never is this more necessary than when an individual is pushed up against an insurance agency that holds their financial future in their hands. The importance of defining a contract can be clearly seen in the case of Federal Insurance Company v. New Hampshire Insurance Co.

Both Federal and New Hampshire insurance companies became involved in litigation because they both insured Thomas and Betts Corporation (hereinafter T&B). T&B made a product which contributed to an explosion at an aluminum processing plant in Gramercy, Louisiana, leaving employee Wayne Robinson with injuries. Ultimately, Mr. Robinson sued T&B, which had liability insurance from both Federal and New Hampshire. Thus, when the suit began, Federal and New Hampshire's policies kicked into effect. New Hampshire was the "first insurer" for T&B. Federal, on the other hand, was T&B's second layer excess insurer. On the eve of the trial, Mr. Robinson came to an agreement with T&B which had the effect of potentially extinguishing the law suit. T&B was going to pay Mr. Robinson $5 million dollars in damages for his unfortunate bodily injuries, and an additional $1.2 million in consideration for a potential breach of contract claim by another plaintiff company against Mr. Robinson. Subsequent to this settlement, New Hampshire notified Mr. Robinson that it was going to pay him the $5 million, but that it would not pay him the $1.2 million promised by T&B. When Mr. Robinson then received a letter from the plaintiff company, he sent the notice to Federal to show the demand made of him. Federal ended up giving Mr. Robinson $990,000 for the potential breach of contract claim against Mr. Robinson. The pertinent part of the agreement between T&B and Mr. Robinson is as follows:

"Thomas and Betts and Its Insurers agree to hold harmless, indemnify and defend Wayne Robins, et al, The Fields law Firm and Cleo Fields for any amount owed to AXA, Kaisers Subrogated Property Reinsurers, Caleb Didriksen and the Didriksen Law Firm, not to exceed 1.2 million dollars."

Eventually, Federal sought the $990,000 from New Hampshire arguing that the amount should have been given to Mr. Robinson as part of T&B's policy with New Hampshire. New Hampshire argued that this amount was not within T&B's policy with it. The pertinent part of T&B's policy with New Hampshire was that New Hampshire, "becomes legally obligated to pay by reason of liability imposed by law or assumed by [T&B] under an Insured Contract because of Bodily Injury." This seems simple enough, however there was no definition of "legally obligated to pay." In the world of contracts, the contracting parties have the ability to define things in any manner they see fit. These definitions should, however, be included in the contract itself in the index of terms. When a contract does not define any of the material terms, the terms should be filled in by the court. In this case, the court decided that since the phrase was not defined, it should be filled in with what was commonly used in Louisiana. It Louisiana, it was well settled that the use of the phrase was for damages arising out of tortious actions and not from a contractual obligation. Therefore, on the face of the assertion, Federal would be out of luck because it sought money from New Hampshire for money it gave Mr. Robinson due to a breach of contract. Even though the court sided with Federal for other reasons, Federal would have been dealt a strict blow because it did not read the policy between T&B and New Hampshire clearly enough to see that the term was not defined.

Therefore, before taking any action any party should clearly read any existing agreement between relevant parties and should make sure any contract it signs has clearly defined terms that will not lead to unnecessary litigation which will only serve to drain resources.

Continue reading "The Importance of Defining Terms in a Contract" »

U.S. Court of Appeals affirms that maritime insurance policy covering collision on the Mississippi River included defense costs in coverage limits. In a case of insurance contract interpretation, the U.S. Court of Appeals for the Fifth Circuit determined that defense costs were included in the policy limits set by a maritime insurance policy. The court admitted that this interpretation erodes policy limits.

Gabarick v. Laurin Maritime (America) Inc., Nos. 09-30549, 09-30809 (5th Cir. 8/10/11) arose out of a collision on the Mississippi River. Laurin Maritime and related parties owned the ocean-going tanker M/V Tintomara. In the early hours of July 23, 2008, the ship collided with a barge carrying heavy fuel oil. The impact split the barge in half, and heavy oil spilled into the river. American Commercial Lines, LLC (barge owner) owned the tug, barge, and cargo, but D.R.D. Towing Co., LLC (towing company) provided the crew that ran the tug pushing the barge. It's the towing company's insurance policy that raised issues of policy interpretation.

A protection and indemnity (or P&I) policy issued by Indemnity Insurance Company of North America (insurer) covered the towing company. The policy is a standard maritime policy, except for modifications the parties made to the SP-23 Form. The policy provided a single occurrence limit of liability of $1 million, with a $15,000 deductible. The towing company and the barge owner demanded that the insurer indemnify and defend them. Not knowing which of the numerous parties rightfully should receive the insurance proceeds, the insurer deposited $985,000 into the registry of the U.S. District Court for the Eastern District of Louisiana for the court to make the decision. That court held that the insurer's deposit for the interpleader action was proper and that the funds would reimburse defense costs. The barge owner and Laurin Maritime appealed.

The appellate court explained that Louisiana law forms the basis for the court's independent review of the District Court's interpretation of the insurance policy. Even before it entered into this analysis, the court cautioned that marine insurance commentators agree that defense costs are typically included within such insurance policy limits. The P&I insurer usually has no duty to defend: indemnification is the basis for coverage. Louisiana law agrees. Legal expenses incurred in defending a liability covered by an insurance policy are treated as part of the overall claim. Payment of legal expenses falls within the policy limits. Because the barge owner is a sophisticated commercial entity, it bore the burden that this policy should be interpreted differently.

The collision triggered coverage under the policy's collision and towers liability and protection and indemnity coverage. Although the policy was mostly standard, a "manuscript provision" (modification) added a collision and towers liability clause. The standard language for the relevant coverage stated, "Liability hereunder in respect to any one accident or occurrence is limited to the amount hereby insured." The court found no ambiguity.

The barge owner argued that the policy was ambiguous. It pointed to the modification language that the insurer "will also pay the costs which the Insured shall thereby incur or be compelled to pay." The barge owner argued that Exxon Corporation v. St. Paul Fire & Marine Insurance Co., 129 F.3d 781 (5th Cir. 1997) had interpreted the clause to exclude defense costs from the policy cap. This argument did not work for three reasons. The cited case involved personal injury, not collision, placing the "also pay" language in the P&I policy, unlike the towing company's policy. Second, the claims mentioned by the barge owner are excluded from the collision coverage. "[A]ny recovery must come under the standard P&I section of the policy," the court explained. Finally, any ambiguity from the clause, were it applicable, would not extend to the relevant coverage sections of the standard policy language because the modification was a separate contract entered into by sophisticated parties.

The court summarized that "the policy is clear that defense costs were intended to be included within the policy limits. This P&I policy is unambiguously written against the backdrop of traditional principles of maritime law that defense costs erode P&I limits of liability."

The barge owner also appealed the District Court's denial of insurance proceeds. The appellate court explained, "The district court did not permanently deny funds to the barge owner but rather stated, 'payment to [the barge owner] at this time would not be equitable.'" (Alterations in original.) Therefore, the District Court's decision was not a final judgment and could not be appealed.

Coverage limits and defense from an insurer are crucial issues in evaluating a claim when you have been harmed. Insurance policies differ between consumer and business and by industry. This case demonstrates the specificity of insurance coverage. A lawyer independent of your insurance company can help you understand your policy, its coverage limits, and the extent of an insurer's duty to defend.

Continue reading "Insurance Coverage and its Limits - How Protected Are You?" »

Class actions are a common and popular legal tool for cases involving a large group of people who share the same grievance against a defendant. Specifically, the plaintiffs have to have a real and actual interest in order to join a class action. An issue may arise however, if a plaintiff's interest is called into question. In particular, whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted against a defendant. Essentially, the plaintiff's have to share the same type of complaint and injury in order to form a proper class action. Many times, defendants will allege that the class action was improperly certified (allowed) in order to invalidate any complaints against them.

In a recent Second Circuit Court of Appeal Case in Louisiana, the court explored the certification of a class action in order to determine whether or not it was proper. The facts of the case include the plaintiff, representing a class of individuals, who all share a grievance against a funeral home, owners of the funeral home, and numerous banks. The gist of their complaint is that the funeral home sold prepaid funeral expenses to the plaintiffs and other putative class members. The owner of the funeral home then deposited their payments into certificates of deposit (COD) with one or more of the banks named as defendants. The bulk of COD's were under names which included the Funeral Home, followed by either "payable on death," or "for the benefit of" followed by the name of the individual whose prepaid funeral funds were being held on deposit. The issue became that without presentation of a death certificate as required by Louisiana statute, the law governing prepaid funeral services, and in breach of the banks' contracts, namely, the certificates of deposit, the funeral home was allowed by the banks to withdraw the funds which they converted and appropriated for their own use. The plaintiffs argue that by accepting the deposits, the defendant banks became commonly liable with the funeral home. Yet, the appellate court is charged with the responsibility to determine whether the class action should be certified, despite the fact the trial court denied the class's certification.

A class action must have certain definite characteristics. First, the class must be so large as to make individual suits impractical. Second, there must be a legal or factual claim in common between all the plaintiffs involved. Third, the claims or defenses must be typical of the plaintiffs or defendants. Fourth, the representative parties must adequately protect the interest of the class. Further, in many cases, the party seeking certification of a class must also show that common issues between the class and the defendants will predominate the proceedings, as opposed to individual fact-specific conflicts between class members and the defendants and that the class action, instead of individual litigation, is a superior vehicle for resolution of the disputes at hand. Here, the class certification, the plaintiffs sought to certify a class defined as "all individuals from whom the funeral home appropriated and converted funds collected by them for prepayment of funeral expenses." Additionally, the motion asserted common questions of law and fact including:

1. whether the funeral home appropriated and converted funds of the class members in violation of La. R.S. 37:861; 2. whether the defendant banks released the class members' funds in violation of La. R.S. 37:861 and the banks' contracts; and 3. whether the defendant banks released funds belonging to the class members without obtaining death certificates.

The trial court denied the plaintiff's motion for certification of a class action as a result of a weighing and balancing determination. The trial court found that the plaintiff's did not satisfy the class action requirements, stating that the evidence was insufficient to show that the class was so numerous and geographically dispersed that joinder would be impracticable, that the class representatives would adequately represent the putative class members, or that their claims are typical of those of the putative class members. Essentially, the trial court felt that each claim was too individual, and that it would be difficult to consolidate the claims and form one basic legal grievance against the defendant funeral home. The appellate court analyzed each of the trial court findings in order to determine whether or not the plaintiffs actually had a class action, concluding that they indeed did not have a proper class action.

The appellate court concluded after exploring all of the factors that the plaintiffs failed to fulfill all of the requirements to have a proper class action. Specifically, the plaintiffs never alleged a relationship with the banks involved with the funeral home. Absent any connection of dealings with the banks, the plaintiffs do not have a real and actual interest in a suit against the banks. Only those persons whose prepaid funeral funds had been deposited by the funeral home with a specific bank would have a real and actual interest in a suit against such bank. Further, the appellate court denies class certification based on the plaintiffs argument that a plaintiff may have standing to sue a defendant with whom he has had no business contact or dealing, if the defendant's conduct is part of a conspiracy. Yet, no conspiracy was alleged among the defendants named in the action. In conclusion, the appellate court, as did the trial court, found that the plaintiffs did not belong to the class of persons to whom the law grants the cause of action asserted against the banks in the suit. Thus, the class action was denied. Class actions are a great tool for many cases, however, they must be properly formed and fulfill all of the legal requirements in order to move forward.

With little details available, the residents of New Iberia sit and wait to find out more about an explosion that took place at the Multi-Chem plant. Conflicting reports exist regarding harm caused by the incident, though the most recent release states all plant employees are accounted for and there were no reported injuries.

A 1-5 mile evacuation has taken place with residents encouraged to leave or, at worst, remain inside.

More information will be available on our Personal Injury blog as it becomes available.

In Oakdale, Louisiana, on March 8th, 2000, a pressurized tank owned by Arizona Chemical Co., Inc., containing a heat transfer fluid over-heated. The tank had a safety shut off valve which failed, resulting in the short-term release of chemical vapor into the air. The vapor, containing biphenyl and phenyl oxide, drifted toward the home of a nearby resident, Ms. Edna Miller. The release was short lived and was contained within 30 minutes but caused very real damages. Edna and Bruce Miller sued Arizona Chemical Co, Inc., for personal injuries following the chemical release. As a result, Edna Miler was awarded $12,5000 in damages. However, Bruce Miller's claim was denied as a verdict in favor of Arizona Chemical was issued.

Both parties appealed the decisions in the Third Circuit Court of Appeals. The Court of Appeals affirmed Edna Miller's award for $12,500 and refused to award her additional damages. Bruce Miller's claim on appeal was also denied, and he was awarded no damages. Edna Miller was awarded damages while her son Bruce was not because he could not meet his burden of proof to show that the chemical release caused him any harm.

At the time of the exposure Edna was inside her home. Her son Bruce was at work, as a groundskeeper at a nearby high school. Mr. Miller left work to check on his mother when he heard about the chemical release. He found Edna outside on the lawn, nauseous, and about to leave the area. He helped her into her car and she drove away. Bruce Miler stayed on the property for several minutes, went in the house, had a glass of water and washed his face. He said his eyes and throat were burning and he felt shortness of breath.

Later that day Mrs. Miller visited the emergency room with heart palpitations, shortness of breath and nausea. She was released when she no longer had symptoms from the chemical release. Arizona Chemical company paid her medical bill and the bills of four other people that day who complained of symptoms related to the chemical release. Mr. Miller did not seek medical attention that day. He stated that five hours after the exposure he developed a rash on his hands. This rash was later found to be caused by his taking Celebrex and by his long time smoking habit, not from the chemical release. He has suffered skin rashes many times before in his life.

In order to recover damages for personal injury the injured party must prove that the other party was the primary, if not only, cause of the injury. Mr. Miller's treating family practitioner testified that his breathing problems, rashes, and other symptoms were related to the chemical exposure. However, the physician did not know until the day of trial what chemical the Millers were exposed to, nor the type of ailments that particular substance could cause. The doctor said that the timing of the chemical release and Mr. Miller's symptoms were what led him to that conclusion. The Defendant presented opinions of expert toxicologists who testified that Mr. Miller’s continuing symptoms could not have been caused by the brief transient exposure to the chemical vapor on March 8, 2000. Because Mr. Miller could not show that the cause of his symptoms was due to the chemical release, the Court of Appeals affirmed that he was not entitled to damages from Arizona Chemical Co., Inc.

Showing that an action by one party caused injury to someone can be complicated. The inured party must prove that their injury was caused by the other party and that the injury caused them some harm. In this case Mrs. Miller suffered some harm, but not harm requiring compensation more than the $12,500 the court said. Mr. Miller was not able to meet his burden of proof showing that the chemical release was the cause of his injuries and thus failed at his claim.

If you have suffered an injury due to chemical release or some other action of another party, you may be entitled to damages if you can meet the proper burden of proof. Whether or not a party has met their burden of proof is a question for the judge or jury and is essential to receiving compensation for personal injury. If you or someone you know has suffered an injury due to another party, an experienced attorney can help you determine if you may be able to meet the burden of proof to be awarded damages by the court.

Continue reading "Chemical Release Ruling a Helpful Guide for Recent Spills/Leaks" »

If you are a Gulf Coast resident looking for more information on how to make an oil spill claim against BP, please visit our blog dedicated to this topic.

http://www.bpoilspilllawyersblog.com

This blog contains a wealth of information on how to make a damages claim, whether you own a business or have simply been financially harmed by this ecological disaster.

The Associated Press is now reporting President Obama and British Petroleum have come to an agreement regarding the establishment of a fund to help pay off claims. This fund is expected to be over $20 billion and will be tied to the claims process that has already begun in the Gulf Coast area. Meeting for some four hours, BP officials set aside an additional $100 million for the families of the 11 sailors who died in the explosion.

The news comes as welcome to an area that has been besought by financial difficulties as a result of the various closures caused by the BP oil spill. The Press reports

The claims system sets up a formal process to be run by a specialist with a proven record. Instead of vague promises by BP, there will be a White House-blessed structure with substantial money and the pledge that more will be provided if needed. The news was applauded in the Gulf -- a rare positive development in a terrible two-month period since the April 20 explosion that killed 11 workers and unleashed a flood of oil that has yet to be stemmed.

While the fact money has been set aside will be welcome news to many, some may fear that a lack of review may lead to problematic denials by BP. The White House, however, reports that the claims process will also include a three-member panel to review and handle claims that are refused. Further, the $20B fund will be paid into over four years by BP and the amount is not a cap.

Even though these remarks demonstrate an effort on the part of the oil giant and the government, people have raised issue with a remark made by the BP chairman that he had heard "comments sometimes that large oil companies are greedy companies or don't care, but that is not the case with BP. We care about the small people."

Justin Taffinder of New Orleans was not amused. "We're not small people. We're human beings. They're no greater than us. We don't bow down to them. We don't pray to them," Taffinder said.

While this poor choice of words is can obvious gaffe, the news of a block of money now conclusively tied to the claims process is a great step towards making the people of the Gulf Coast harmed by this disaster whole. The encouraging nature of $20B not being a "capped amount" furthers the positive sentiment due to the fact it shows a true determination that BP will be held fully responsible for any hardship caused.

More information regarding this BP oil spill claims breaking news will be provided when it becomes available.

Dozens of class action lawsuits have already been filed in the Gulf Coast region (including Louisiana, Florida and Texas) against the companies who may hold some responsibility for the oil spill disaster-BP first, followed by Transocean, Cameron, and Halliburton, among others.

BP and Transocean are dealing with wrongful death lawsuits from families of the 11 victims who died in the explosion as well as lawsuits from those injured. Survivors of individuals who have died due to the negligence of someone else can recover a multitude of damages in a wrongful death suit, such as medical expenses, burial expenses, compensation for pain and suffering and loss of consortium, and even punitive damages in some cases.

Those who have lost revenue in the aftermath of the blast such as fisherman, restaurants, charter boat companies, even homeowners could also bring class action suits. Even municipalities may sue for lost tax revenue. In addition, shipping companies could sue if traffic along the Mississippi river gets disrupted. The trail of liability these companies will most likely face is long and complex because the effects of the disaster are far reaching and anyone adversely affected may be entitled to compensation from those deemed responsible.

Cleanup itself creates new liability issues because the chemicals used to try to disperse the oil are dangerous to the fisherman who are trying to help. If these volunteers are injured the companies may face additional personal injury lawsuits in the future.

It is not unusual for an oil spill like this one to create a huge legal mess. Following the Exxon Valdez spill in 1989, there were 17 categories of lawsuits filed against Exxon, with each representing thousands of aggrieved parties who ended up collecting $507 million in compensation plus the same amount in punitive damages. This oil spill could have even greater legal implications since the population of the Gulf Coast is 10 to 20 times greater than the population of the Alaskan coast with a maritime economy that is much bigger.

Some questions exist as to how much BP, as the major player involved, will be forced to pay for the economic repurcussions of the spill. The Oil Pollution Act (OPA) caps some of BP's liabilities at $75 million. This number is so low that some Democrats in Congress have proposed retroactively raising the cap to $10 billion. According to analysts, the actual liability will lie somewhere in between, possibly around $3 billion, a fraction of the estimated cleanup cost of up to $20 billion. Following the Exxon Valdez spill, cases trying to collect higher punitive damages were argued for years, going as high as the Supreme Court only to be unsuccessful. In the end, maritime law proved to be fairly stingy in providing for costs beyond hard financial damages. With this legal precedent set, it will be an uphill battle for plaintiffs to collect more in an effort to be made whole this time around. However, given the far reaching economic implications of the spill and increased number of people affected, anything is possible.

In any event, BP will probably not even pay all of the damages awarded. While BP has pledged to pay for the cost of cleanup and legitimate damage claims they will most likely try to offset their cost by going after the other companies involved in the construction and operation of the Deepwater Horizon rig. This can be accomplished through contribution lawsuits, which are claims brought by a defendant (like BP) to a lawsuit for money damages owed to a plaintiff. Typically one defendant will sue other defendants or third parties and claim that they are required to "contribute" to help pay the cost of damages owed to the plaintiff.

To navigate these complexities, a qualified attorney is necessary. With so many different defendants and a wide variety of legal recourses available for both side to utilize, legal representation will be key to the financial awards people receive. Further, the wide variety of plaintiff classes and issues will make it important each individual looking to make a claim is represented properly. With damages that some people might not even be aware they can claim, hiring a lawyer capable of making the best case for you is an important choice to be very careful with. Doing so not only ensures no claims are missed but also that adequate provisions like venue, class and statute of limitations are followed.

Having taught Continuing Legal Education (CLE) seminars on a variety of topics including Chinese drywall and, soon, oil leak litigation, lead attorney Jeffrey Berniard has been a relied upon expert on matters relating to claims and the wide variety of problems and delays claimants, and their attorneys, often face in such processes. Interviewed for his expertise relating to the recent Deepwater Horizon oil leak, Berniard highlighted a little considered problem that commercial workman like fisherman and others who make a living in the Gulf might face. Given that the nature of their job involves extensive self-reporting and tax analysis, the flexibilities or evasions of tax income that those who work off the coast might have carried out might significantly limit their ability to collect damages. If that is the case, careful legal analysis and work by an experienced attorney may be the difference between thousands of dollars in compensation.

While talking to New Orleans City Business (articles available to subscribers only), Berniard was asked about the difficulties some might face in collecting damages caused by the oil spill

“It’s the same issues we dealt with after Katrina in terms of (Small Business Administration) loans,” he said.

In the event of Katrina, insurance companies and loan groups often asked for proof of earnings that small business owners struggled to provide. In those instances, the owners were forced to either accept little to no assistance or hire an attorney that would be able to get them the money they needed. Using a variety of processes including getting records from employers, customers, average yields of similar fisherman, etc., hiring the right attorney can mean a world of difference.

Because bigger businesses can often afford to have a professional tackle their taxes year in and out, this problem will likely be dealt with by small business owners who work in a cash-heavy industry. Berniard also noted that "eligibility for damages claims typically requires paperwork from the Internal Revenue Service to prove yearly earnings." This is another area where larger businesses with complex filing systems will come out of the claims process easier than those businesses who might not be able to afford the proper storage or formatting required to keep complex and lengthy paper trails for the sake of proving earnings. Without proper representation, this may lead to small businesses closing shop merely because they had kept their buying and selling on a cash basis.

Oil Spill Pollution Act claims will be a prominent issue as Gulf Coast workers struggle to make ends meet during restrictions in fishing because of the miles upon miles of floating crude oil. While these problems with income proof will likely not be an issue for most of the small businesses in the area, years of delays from storm damage have shown that the claims process will likely be a difficult one. Local individuals wishing to pursue a claim for lost wages or damage to their property are advised to keep close records of business before and after the spill as well as to begin collecting as much financial data as possible from previous years. While an attorney like Mr. Berniard could be able to achieve results without such records, the more assistance you can provide to an attorney helping manage your claim the more likely the claims process will move forward successfully. By being prepared with extensive records in the event of any sort of audit or claims investigation that can come from their claim, local victims may successfully prove their claim.

Our firm will be releasing more information on how to file an oil loss claim. Feel free to bookmark our site and check in often for more news and helpful directions as they become available. If you feel you have a claim to make, contact our offices and an attorney will help advise you on your rights in this matter.

Terrebonne Parish has announced that BP has opened an additional claims office within the parish. Located at 5703 Highway 56 in Chauvin, the office is slated to take claims between 7 a.m. and 7 p.m. any days of the week.

There is an availability of funds under the Oil Pollution Act (OPA) and the Oil Spill Liability Trust Fund (OSLTF) for Louisiana residents who have suffered property damage because of the crude oil washing ashore. Oil damage to boats is treated differently from other forms of personal property damage under the guidelines of the OPA. As required by the Oil Pollution Act of 1990, certain information must be provided to the responsible party to submit an oil spill loss claim. Just one example includes a provision that boat captains from Plaquemines, Jefferson, St. Bernard and Terrebonne Parish will need to present the following information to BP and other responsible parties will filing their oil spill claims.

The U.S. Coast Guard's National Pollution Funds Center website details that a boat's owner can submit claims relating to the removal of oil stains from the vessel (interior furnishings upholstery and carpeting included) so that the vessel may be restored to its condition before the oil damage. Claims may also be filed for the damage done to a boat's motor, rudder, anchor winch and other mechanical parts of the vessel harmed by oil.

In general, all claimants, regardless of what losses they are claiming, are required to provide the following;

1. Photo Identification 2. Tax Returns from 2007- 2009- However claims representatives have indicated they will take fewer years. 3. Any appropriate licenses (captain licenses, etc.) that someone in that line of work would normally have.

Louisiana boat captains will also need to provide the following for an oil loss

1. Log Books with cancellation information 2. Contact information for clients who cancelled trips 3. A list of continuing expenses

Boat captains will undoubtedly be affected for years to come by the negligent parties associated with this oil spill. Once a claim determination is made, a claimant must either accept or reject the offer within 60 days. If the offer is accepted, a release must be signed. If no action is taken within 60 days, the offer to pay the oil spill claim will be voided and the claim is closed. If the boat captain decides to reject the offer this can start an entirely new review process. Another claim determination will be made as a result of the reconsideration and the final determination on the matter becomes final. The claims adjusters do not consider the reconsideration process to be a negotiation.

The problem with this process is that, once a release is signed, boat captains potentially will not be able to make claims for losses incurred over the next few years for their oil spill claim losses. If a boat captain decides to sign a release in the next few months and the oil spill causes his business to fall next year surely the responsible parties will deny his claim by asserting the release caused all claims to be settled at the time it was signed. For this reason alone it is important that individuals have a legal expert inspect the claim and make sure that their rights are protected for years to come.

The Berniard Law Firm is currently handling oil spill claims for boat captains and is advising against signing any and all releases that will cap damages at only this years losses. If you want to speak with a lawyer today about your oil spill claim as a boat captain call 1-866-574-8005 for a free consultation.

Deckhands are just one of the many affected employment groups that are facing hardship as a result of the BP oil leak. The Oil Pollution Act of 1990 (OPA) (33 U.S.C. 2701 et. seq.) is the law that established the Oil Spill Liability Trust Fund and covers incidences such as the current Gulf of Mexico Oil Spill. Deckhands from Lafourche, Jefferson, St. Bernard, and Plaquemines Parish and all of the effected areas should take note of the following information which will be required when presented an oil spill claim to the responsible parties.

First, every claimant, no matter their employment category, needs to provide the following to the claims center:

1. Photo Identification 2. Tax Returns from 2007- 2009- However claims representatives have indicated they will take fewer years. 3. Any appropriate licenses (captain licenses, etc.) that someone in that line of work would normally have.

In addition to the above referenced items that are required for all claims a deckhand will also need to have

1. The vessel name on which they were employed. 2. The vessel registration 3. Captain's name and phone number- to verify they are employed on the vessel.

After an individual has submitted this information, the claims department will process the documentation in the order that it was received. The oil spill loss claim will be reviewed by a claims adjuster to see that all the information is included. If additional information for verification of the oil spill claim loss is required the adjuster will request that such information be forwarded to them. If the adjuster does not receive the requested information 90 days, the adjuster will complete his decision on the claim with the information in hand. It is possible that the adjuster could deny the claim on the basis of lack of information.

By being thorough and providing as much information as possible, claimants may be able to better their chances to receive a solid response. It is important, however, that any possible financial settlement or compensation in response to a claim that a deckhand receives be reviewed by an attorney in order to preserve future rights to damages. It's quite possible that all settlements offered by BP will come with a requirement that all future claims be limited or prevented outright. As no one knows how long this oil spill will be an issue, to sign away rights to future claims is dangerous and ill advised.

If you need assistance with your oil spill claim the Berniard Law Firm's attorneys are happy to represent you in these matters. Our firm is actively and aggressively pursuing claims against the responsible parties for deckhands as well as all other claimants who need assistance. Call the Berniard Law Firm today at 1-866-574-8005 to discuss your legal rights in pursuing your oil spill claims against BP or any of the responsible parties.

Before filing a claim, individuals looking for relief due to oil leak damages (both to their property and for lost wages) must call 1-800-440-0858. After reporting their claim to that number and following the directions therein, individuals may then go to a Oil-Spill Claim Center for assistance in receiving compensation. For those looking to make an oil spill claim against BP for the April 20th explosion of the Deepwater Horizon, here is the contact and filing locales in Jefferson Parish:

Grand Isle Community Center, 3811 Louisiana 1, Grand Isle

Jean Lafitte Town Hall, 2607 Jean Lafitte Blvd., Jean Lafitte

2766 Belle Chasse Highway, south of Gretna between Terry Parkway and Behrman Highway.

For those in St. Bernard Parish, the Deepwater Claims Center is located at 1345 Bayou Road, St Bernard at the Rosa Ducros Tennant Museum. Open 8 am - 8 pm.

Those affected in Plaquemines Parish (Venice, etc.) may go to the Claims Center located at 41093 Highway 23, Boothville, LA 70038. Open 9 am – 5 pm daily.

The St. Tammany Parish/Slidell claims office opened to the public at 7 a.m. Monday for helping in the filing of claims relating to the Deepwater Horizon explosion and the resulting oil spill. The center is located at 2040 Gause Blvd. Suite 10, of I-10.

For those with Small Businesses wishing to speak with representatives of the Small Business Administration regarding their options under the SBA's Economic Injury Disaster Loan program can visit the following locales' Business Recovery Center

Jefferson Parish

LSBDC Greater New Orleans Region UNO Jefferson Center 3330 N. Causeway, Suite 422 Metairie, LA 70002 Monday to Friday, 8:30 am-5 pm

Grand Isle Community Center Rotary Room 3811 Highway 1 Grand Isle, LA 70358 Monday to Friday, 8 am - 5 pm

Lafourche Parish
South Lafourche Public Library 16241 East Main Street Cut Off, LA 70345 Mondays through Fridays, 9 am - 6 pm

Orleans Parish
Vietnamese Initiatives in Economic Training 4655 Michoud Boulevard, #D6, 1st Floor New Orleans, LA 70129 Monday to Friday, 8 am-5 pm

Plaquemines Parish
St. Patrick's Church Family Life Center 28698 Highway 23 Port Sulphur, LA 70083 Monday to Friday, 9 am - 5 pm

Venice Boat Harbor Office Tiger Pass Road Venice, LA 70091 Mondays through Fridays, 9 am - 6 pm

SEEDCO Financial Southeast Louisiana Fisheries Assistance Center 212 Avenue G (near Belle Chasse Ferry) Belle Chasse, LA 70037 Monday to Friday, 9 am - 5 pm

St. Bernard Parish
Gulf Coast Bank & Trust Company 1801 East Judge Perez Drive Chalmette, LA 70043 Monday to Friday, 9 am - 4 pm

7801 Hopedale Highway (near the Breton Sound Dock & Marina) Hopedale, LA 70085 Monday to Friday, 9 am - 6 pm

St. Tammany Parish
1330 Bayou Lane Trailer 102 Corner of Pennsylvania Avenue and Bayou Lane Slidell, LA 70460 Mondays through Fridays, 8 am - 5 pm

Again, individuals interested in making a claim must call 1-800-440-0858 before visiting a claims center. For more information on your legal rights in this matter, feel free to contact our offices today.

In the wake of the BP oil spill that has sent the Gulf Coast into a state of panic, a variety of individuals that derive their livelihood from waterways that may soon be immersed in crude are becoming concerned with how they will continue to stay afloat financially. There is, however, a means in which claims may be made to compensate those who have been affected by the disaster. Oil Spill Losses must be made within three years after the date on which the damage and its connection with the spill was reasonably discoverable with the exercise of due care. This may seem to be an easy process but great care must be taken when submitting the claim in order to prevent a dismissal based solely upon it being improperly filed.

The process for making a claim has a list of requirements that, when completed, will profile the harms faced and damages incurred. Basically, for the owner of Commercial Fishermen operations in Terrebonne, St. Bernard, Jefferson, Lafourche and Plaquemines Parish, once they are aware of their losses they must present their claims to the responsible parties within three years of that time. In this case, fishermen must submit their claim to BP as owners of the Deepwater Horizon oil rig.

Certain information is required for all claimants with oil spill losses. Such basic requirements for all oil spill claims are

1. Photo Identification
2. Tax Returns from 2007-2009- However claims representatives have indicated they will take fewer years.
3. Any appropriate licenses (captain licenses, etc.) that someone in that line of work would normally have.

Also, all commercial fishermen will be required to furnish the following information to present an oil spill claim:

1. The name of the boat
2. The license number of the boat
3. The state of registration
4. The commercial fishing license
5. the commercial gear number, and
6. The Vendor's sale receipts.

There is no required format for oil spill claims. The requirements merely stipulate that the claim has to be made in writing. By being as precise and accurate as possible with your claim, the claimant can make the process easier on themselves as well as standing out for the care they took in providing their proof, etc. Utilizing all possible tools to provide claims processors ease in their efforts will provide claimants the best possible opportunity to receive what they are looking for.

The Berniard Law Firm will be providing sample claims for the various effected parties in future blog posts to help all parties effected by this matter. Please stay tuned to this blog to receive further information regarding the OPA claims handling process.

On Friday afternoon, Jeffrey P. Berniard of the New Orleans-based Berniard Law Firm, LLC, conducted an on-deck inspection of the 263-foot cargo ship, Damon Bankston, which is leased by BP. The ship was used to return some of the rescued crewmembers of the Deepwater Horizon oil rig to BP's Fourchon Dock Facility after the rig exploded and sank into the Gulf. Seventeen rig workers were injured in the explosion, and eleven workers remain missing and are presumed dead. Mr. Berniard participated in the viewing because he represents numerous plaintiffs who have been affected by the incident. The inspection occurred prior to the ship being cleaned and returned to service in support of ongoing efforts to contain the oil spill. The catastrophe has resulted in the release of more than 200,000 gallons of oil into the Gulf each day since April 20.

Mr. Berniard is well known in the Louisiana legal community as an expert in personal injury cases and suits against negligent companies. With knowledge regarding the Oil Pollution Act (OPA), a federal law passed in 1990 in response to the Exxon Valdez oil spill of 1989, his legal representation would help advance anyone affected by the incident. The OPA, though little known to many general-practice attorneys, will play a critically important role in the litigation over the Deepwater Horizon disaster. Assigning liability will be particularly challenging given that numerous companies such as BP, Transocean Ltd., Cameron International Corp., and Halliburton Energy Services were involved in the drilling project. In recognition of his expertise and trial experience, Mr. Berniard has been invited to deliver a Continuing Legal Education seminar on the OPA and legal matters regarding this incident to area attorneys in the coming months.

Additionally, Mr. Berniard is highly regarded for his skills in complex litigation, including class-actions. He is noted for his efforts to help Louisiana families impacted by defective Chinese Drywall, and in 2009 gave a lecture on the topic at a Continuing Legal Education seminar in New Orleans. Also, following Hurricane Katrina, Mr. Berniard recovered over $45 million in uncompensated damages for his clients.

If you suffered any damages related to the Deepwater Horizon incident, or in the coming days incur oil removal expenses, you may be entitled to receive compensation from the Oil Spill Liability Trust Fund or to obtain other monetary relief. Put the disaster litigation experience of the Berniard Law Firm to work for you by calling 504-527-6225 or 1-866-574-8005.