November 9, 2013

Uninsured Motorist Coverage: What Are Your Rights?

When you signed up for automobile insurance, you might have noticed that many states now require automobile insurance agencies to include some sort of uninsured motorist ("UM") clause in your insurance agreement. Oftentimes, the only way to get out of including this in your coverage, and therefore having to pay a higher premium, is by explicitly rejecting this additional coverage. How exactly do you reject this additional coverage, though? While this might seem like an easy question, most states, including the state of Louisiana, require very specific requirements to be met in order for rejection of UM coverage to be proper.

In the State of Louisiana, that is exactly the case: In order to get out of paying a higher premium for this uninsured motorist coverage, the insured has to explicitly reject that coverage. And the state of Louisiana has many rules with regard to how to properly complete this task.

In order for an uninsured motorist rejection to be considered proper, Louisiana courts have found six tasks that must be completed by the insured. In Duncan v. U.S.A.A Ins. Co., 06-0363 (La. 11/29/06), 950 So. 2d 544, the court outlines these six tasks as follows:

1) initialing the selection or rejection of coverage chosen; 2) if limits lower than the policy limits are chosen (available in options 2 and 4), then filling in the amount of coverage selected for each person and each accident; 3) printing the name of the named insured or legal representative; 4) signing the name of the named insured or legal representative; 5) filling in the policy number; and 6) filling in the date.

While the Court in Duncan did not explicitly deal with the timing of these tasks, a couple years later, the Court in Gray v. American National Propery & Cas. Co., 07-1670 (La. 2/26/08), 977 So. 2d 839, discussed the requisite timing in which the above tasks need to be completed. According to the Court in Gray, all six of these tasks have to be completed before the UM selection form is signed by the insured. The Court also went on to say that the completion of these tasks has to be done in a manner showing that the insured's signature signifies that he or she agrees with all of the information that is contained in the insurance form. While the Court said that the tasks have to be completed before the UM selection form is signed by the insured, that was not the most important part of the Court's findings. Rather, the most important part of the Court's holding was that the insured's signature needs to signify agreement with all that is contained in the form.

In the recent case decided by the Louisiana Supreme Court, Edward Morrison v. U.S.A.A Casualty Ins. Co., No. 2012-CC-2334, the Court really focused on the fact that the most important part of the timing of the UM selection form is that the insured's signature is affirming agreement to all the clauses contained therein. This case primarily deals with task #1 listed above which requires that an individual properly initial the selection or rejection of coverage chosen in order for UM rejection to be considered proper.

In this case, the insured's representative clearly meant to reject UM coverage but accidentally did not initial the line that stated such in the agreement form. When the insurer received the form, he or she noticed that the form was incomplete and sent it back to the insured's representative. At that time, the representative initialed the proper line rejecting UM coverage and returned the form to the insurer. This clearly showed that the insured agreed with all of the clauses and various information contained in the form. Furthermore, all of this was completed before the relevant accident, so the court held the UM rejection valid.

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November 6, 2013

Uninsured/Underinsured Motorist (UM) Coverage Limitations in the State of Louisiana

In a previous blog post, we discussed how exactly uninsured/underinsured motorist (UM) benefits can be rejected in Louisiana. While that post went through some of the legal technicalities involved in rejecting UM coverage, it did not discuss in depth some of the scenarios in which coverage might be rejected and how the court might actually rule despite those legal technicalities.

This blog post will focus on specific cases and scenarios in which, despite not following every legally prescribed requirement under Louisiana law, the court has decided that coverage was actually properly rejected or limited. Some of these examples involve just a word or two out of place, others involve completely leaving off pertinent information. But all of the below examples make it clear that the parties' intents are more important that perfectly following the letter of the law.

The first example deals with a case involving an automobile accident. In that case, the individual driving the car involved in the accident was driving one of his employer's vehicles. So the question was whether or not the employer's insurance company, General Insurance Company of America (GICA), had properly produced a valid and enforceable uninsured/underinsured motorist rejection form, as required by the commissioner of insurance. Whether or not this UM rejection form had been properly completed would mean the difference between $100,000.00 and $1,000,000.00 available under the policy. GICA contended that it had filled the form out properly and that coverage should be $100,000.00, and the individual driving the car claimed the opposite and that coverage should be in the amount of $1,000,000.00.

In that case, the plaintiff argued that the form did not fulfill all requirements as specified by Louisiana statute for proper uninsured/underinsured motorist rejection. Specifically, the form that was signed had an improper title. Despite the fact that the form did not have the exact proper title, the court decided that the form was still valid and enforceable, and therefore, UM rejection was properly executed. The governing factor in the case was whether or not GICA's intent was clear from the UM rejection form. Because the intent was clear, despite the improper title, rejection was still proper.

Another example from the Louisiana court system involved a UM rejection form that not only had the title wrong, but also had several other deviations. Despite these errors, the uninsured/underinsured motorist rejection was still deemed proper because the form was clear about the limitation of the coverage. From the form, it was obvious that the party meant to limit UM motorist coverage.

Yet another case dealt with a form that was missing the insurance company name and policy number. Both of those pieces of information are technically required by law in order for the UM rejection to be valid. However, the court in that case ruled that such omissions will not invalidate an otherwise valid form when it is clear that the intent was to reject UM coverage. The technical errors had little weight on the court's decision because the overall intent of the parties was clearly stated in the signed document.

In a Louisiana Supreme Court case, a form did not properly contain the printed name of the legal representative of the corporate insured. However, once again, despite this technical error, the Court determined that the uninsured/underinsured motorist rejection form would not be considered invalid because of that small error because the overall intent of the parties was clear from the form.

From these examples, it is clear that the courts will not always strictly apply the stated law and that sometimes the overall intent of the parties is more important and carries more weight in determining the validity of a UM rejection form.

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November 3, 2013

Accident Reviews Nature of Employer-Employee Relationship

If you have ever been injured on the job or if you have ever known an employee who broke the law while on the job, you might know something about an employee-employer relationship and the legal obligations that come with such a relationship. Typically, if you are working for an employer and one of the two above-mentioned scenarios happens (in addition to several other possible scenarios), the employer can be held vicariously liable for the actions of the employee. Furthermore, the employer's insurer might also be held liable if the accident or unlawful behavior happened while on the job.

A recent case that took place in the Parish of Lafayette helps illustrate some of the issues of the employee-employer relationship and when exactly an employer might be held liable for the actions of someone else. In this Lafayette case, a lady had been riding on the back of a motorcycle when the driver of her motorcycle suddenly collided with another motorcycle. At the time of the accident, the driver was pulling into the parking lot of a truck stop. As a result of the collision, the female rider suffered severe brain injuries and was permanently disabled.

In response to the serious injuries suffered by their daughter, the woman's parents each sued several parties and insurers seeking recovery for the damages suffered by both their daughter and themselves individually. One of the parties was a business owner of the truck stop who the parents argued was the employer of one or both of the motorcycle operators involved in the collision. According to the parents' lawsuits, under the employee-employer relationship, the truck stop owner was vicariously liable because the motorcycle operators were working for the owner of the truck stop at the time of the accident. Despite these allegations, the parents' suits against the employer were dismissed when the employer filed a motion for summary judgment, which was granted.

On appeal, the parents argued that the motion for summary judgment should not have been granted for several different reasons, one of them being that there was an issue of fact as to whether or not the two motorcycle operators were employees of the truck stop owner. In response to their appeal, the court shed light on some of the important considerations that must be made when analyzing an employee-employer relationship.

First, the court looked to another Louisiana case, Savoie v. Fireman's Fund Ins. Co., 347 So.2d 188 (La. 1977), in order to determine if an employee-employer relationship exists. In determining the existence of such a relationship, one of the main issues that has to be analyzed is whether or not the employer exercises sufficient right of control and supervision over the employee.

Some of the factors that might result in a court determining that right of control does exist are selection and engagement of a a worker, whether or not the individual receives wages, the power of control the employer exercises over the worker, and whether or not the employer has the power to dismiss the individual.

Ultimately, the court found that neither motorcycle operator was an employee of the truck stop owner and that the motion for summary judgment was proper. Neither driver received wages from the truck stop owner, and even if one of the motorcycle operators had been delivering a part to the owner, as was alleged, that alone was not enough to make him an employee, especially in light of the fact that the owner and the operator had been friends for years.

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October 30, 2013

Business Problems Arise Out Of Ambiguous Contract Terms

One area where lawyers must continue to improve is drafting contracts. It is imperative that lawyers learn the intricacies of legal writing and the different meanings words have in the legal community and their ordinary meaning. If a word or phrase in a company's contract is ambiguous, it is susceptible to multiple interpretations and might result in litigation at some point. A common example of litigation like this involves insurance policies. Therefore, it's important to draft clear and concise contracts in order to save the time, money, and effort associated with litigation.

Ambiguous contractual provisions are to be strictly construed against the insurer and in favor of coverage for the insured. Insurance coverage is meant to protect the insured, so the public policy reflects this favoring. However, this strict construction rule applies only if the ambiguous policy provision is susceptible to two or more reasonable interpretations. The key is that it must be reasonable, not just another interpretation. If the word or phrase is clear, then no further interpretation is necessary. The words and phrases used in insurance policies are to be construed using their plain, ordinary, and generally prevailing meaning unless the words have acquired a technical meaning.

This seems to be a clear explanation of how contract terms are to be interpreted, but even so, many cases arise with an insured claiming that a certain phrase is ambiguous and they should not be denied relief under their policy. For example, Herbert Farms, who conducts a rice farming operation in St. Landry Parish, Louisiana, claimed the phrase "rice drying house" in their policy was ambiguous and other reasonable interpretations of the phrase was possible. Herbert Farms filed a claim for losses under its policy when its rice was damaged while in storage, seeking coverage under a section that listed "grain tanks" as covered property. However, there is a clear and unambiguous exclusionary clause that states that property covered in certain sections, including the section listing grain tanks, is not covered. The two pertinent pieces of property not covered in Herbert Farms' policy were the contents of a rice warehouse and rice drying houses.

Herbert Farms argued that since the grain tanks were specifically listed in the coverage section, they policy should not be allowed to later exclude these tanks from coverage. They also argued that the storage bins were cylindrical in shape, and therefore do not comport with what a normal person would consider a "house."

Even though "rice drying house" is not specifically defined in the policy, it does not make that term ambiguous. The court looked at the ordinary, plain, and generally prevailing meaning of the phrase. The court held that "contents of a rice warehouse" normally includes the rice bins and any other rice storage devices. Furthermore, the grain tanks even meet the ordinary definition of house," which means structure in the context of rice storage. So when grain tanks are used to store rice that is being dried, they are "rice drying houses" and the contents of the tanks is not covered. Therefore, the court denied Herbert Farms' claim and affirmed the Western District of Louisiana's ruling against Herbert Farms.

Herbert Farms' rice was ruined because three fans stopped operating. Unable to dry the rice until they were repaired, the rice was stained, making it far less valuable. As a result, Herbert Farms had to sell the rice at a lower price, costing them almost a quarter of a million dollars. Trying to recoup some of these losses, Herbert Farms was likely hoping for a settlement from the insurance company. Unfortunately, when a contract is drafted clearly and concisely, it is imperative for courts not to create ambiguity and stick to the black letter law.

October 27, 2013

Hurricane Lawsuits Demonstrate Value of Proper Representation

In the aftermath of Hurricanes Katrina and Rita, the Louisiana legislature set deadlines for the filing of claims for damages resulting from the hurricanes. These dates were September 1, 2007 for claims of damage resulting from Hurricane Katrina and October 1, 2007 for claims of damage resulting from Hurricane Rita. Any claims filed beyond these dates would be subject to the exception of prescription, meaning that any legal remedies stemming from such damages would be extinguished. Under certain circumstances, however, Louisiana law allows for the suspension of prescription. For members of an ongoing class action in Louisiana state court, the deadline to file individual claims based on the same damages is suspended.

The countdown for the valid filing of individual claims begins to run again when a class member elects to be excluded from the class action or is notified that he or she has been excluded from the action, or is notified that the action has been dismissed. Once the countdown starts to run again, it resumes with how much time was left before the commencement of the class action. For instance, if there were two months remaining to file an individual claim of damages at the time a class action was started, the countdown for a class member's individual claim would resume with two months remaining upon the member's exclusion or the dismissal of the class action. This would hold true no matter how much time had elapsed since the class action's commencement. However, it is crucial to note that such suspension of prescription is only allowed for class actions in Louisiana state court.

In a recent Louisiana Supreme Court case, a couple in Harvey, LA filed an individual claim for property damages resulting from Hurricanes Katrina and Rita more than two years after the deadline set by the legislature. Because the couple were members of a recently dismissed class action in federal court seeking the same damages, they argued that the countdown for the filing of their individual claim had been suspended. The Louisiana Supreme Court ruled, however, that only class actions filed in Louisiana state court (rather than federal class actions, or class actions in another state's court system) could suspend the deadline for filing claims under Louisiana law. This meant that the couple's individual claim had long expired unless they could prove membership in a class action in Louisiana state court for the same damages during that period.

This case underscores the importance of having an attorney capable of managing individual and class action lawsuits. If handled improperly, plaintiffs may exhaust both the option for class action and individual relief, and be left with no way to recover for damages.

October 23, 2013

Summary Judgment Risk When Failing to Follow Policy Language

Regardless of your level of legal training, we’re all guilty of ignoring the fine print but insurance coverage is often determined by the placement of an unnoticed word or punctuation mark in the language of the policy. Under Louisiana law, the insured bears the burden of proving that an incident falls within the terms of the policy. In contrast, an insurer seeking to avoid coverage through a motion for summary judgment bears the burden of proving that a provision or exclusion precludes coverage. Courts treat insurance policies like other contracts and therefore strive to interpret each term according to its true meaning. As straightforward as it sounds, a contract’s true meaning is always disputed even if on its face the language appears clear. This requires courts to hear creative arguments on the meaning of particular terms buried in the policy.

On June 8, 2010, in an unfortunate incident at the Library Lounge in Monroe, McKenzie A. Hudson (Mr. Hudson) was approached by an intoxicated patron and struck in the head. In December 2010, Mr. Hudson died from severe brain injuries allegedly suffered during the attack. Mr. Hudson’s mother filed a wrongful death/survival suit against several defendants including the entity that owned the bar as well as its principals. Several weeks later Ms. Hudson added First Financial Insurance Company (FFIC), insurer of the bar.

Recognizing the language of the bar’s insurance policy, Ms. Hudson admitted that her son’s assailant did not intend or expect her son’s death but instead it resulted when he lost consciousness, fell to the pavement, and fractured his skull. The particular provision at issue in the policy read that it did not provide coverage for assault, battery, or other physical altercation. The policy defined assault in part as “a willful attempt or threat to inflict injury upon another” and battery as “wrongful physical contact with a person without his or her consent that entails some injury or offensive touching.”

Ms. Hudson differentiated between the FFIC’s old policy language which was ambiguous as to “extraordinary” injuries and its current policy which included amendments intended to broaden and clarify exclusions. Ms. Hudson specifically pointed to the removal of an “or” between the assault and battery provisions which had the effect of causing the provisions to be read together. This eliminated coverage for all “intended” or “expected” injuries. Since her son was not intentionally killed or expected to die she argued coverage should be provided. In response, FFIC submitted numerous cases where similar assault and battery exclusions were upheld.

Like the trial court, the court of appeals granted summary judgment in favor of FFIC for several reasons. First, the court reviewed the cases submitted by the FFIC and concluded that the “overwhelming” majority of insurers were dismissed from suits arising from injury or death after an assault or battery. Furthermore, the court pointed to a similar case where it was determined that the presence of an “and” or “or” did not necessarily indicate that the provisions should or should not be read together. The court concluded that the provisions were clear in their language and that there was no question Mr. Hudson was the victim of battery. Therefore, the policy excluded insurance coverage for his death.

Although the courts demonstrate a reluctance to rule against the insurance companies in policy exclusion cases this does not mean a particular result is guaranteed. The terms of each insurance policy varies and requires careful review of its language before any legal action is taken.

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October 21, 2013

Insurance Appeal Lost in Pineville Auto Accident

Defendant Robert Turnage was in an accident with Plaintiffs Heather and Nicholas Tate on Memorial Day 2011 on Louisiana Highway 28 East, in Pineville. Tate attempted to pull out of a McDonald’s parking lot when she was struck my Turnage’s vehicle. Tate filed a petition for damages and the trial court found Tate to be 10% liable and Turnage to be 90% liable, awarding general, special and property damages to Heather Tate, along with general and special damages to her son Nicholas. Turnage appealed this judgment.

Turnage brought up 4 issues in his appeal: 1. The Plaintiff was essentially free from fault and met the heightened burden of proof imposed upon left-turning motorists from private driveway; 2. The Plaintiff preempted the Defendant’s right-of-way, although the accident did not occur at an intersection; That Defendant was 90% at fault, although the Court found credible his testimony that he did not motion to the Plaintiff that the way was clear for her to cross the highway; 4. The Plaintiff was 10% at fault in causing the Accident.

The standard of review for the appellate court is based on precedent, or previous case law, that sets for the amount of deference that the appellate court has in ruling the trial court’s initial decision. The appellate court is bound by the precedent that states:

“a court of appeal may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong…the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.”

The appellate court in this case has a higher standard of review in that they cannot reverse the decision based on small differences they perceived in the facts that the trial court ruled on, but can only rule differently if the original fact finder ruled in error or the ruling is completely wrong.

Turnage testified that he left a “gap” while sitting at a red light outside of the McDonald’s that Tate was pulling out of. Tate claimed that Turnage waved her forward to make the left turn she was waiting to make out of the private parking lot, but Turnage denies this, which the trial court found to be irrelevant. Louisiana Revised Statute 32:104(A) requires that a turning vehicle must not enter the roadway “unless and until such movement can be made with reasonable safety” and that La.R.S. 32:124 requires that a motorist entering a highway from a private road or driveway “yield the right of way to all approaching vehicles so close as to constitute an immediate hazard.” Although Tate is held to this standard, as soon as Turnage left the gap for Tate to pull out he no longer was in favor and he needed to exercise with caution by looking both way, which he states he failed to do. The appellate court found no error in the trial court ruling and that the fact that Tate almost completed the left hand turn before being hit only makes it more evident that Turnage proceeded unlawfully.

The appellate court disagreed with Turnage’s arguments that Tate failed to meet the burden of extreme care, that the trial court relied on Tate’s testimony that Turnage signaled her to pull through, and that the trial court abused its discretion in saying that Turnage was 90% at fault. The appellate court affirmed the trial court’s ruling and all costs of appeal were assessed to Robert Turnage and Southern Casualty Insurance Co.

If you ever experience a similar situation or are involved in a car accident contact the Berniard Law Firm.

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October 15, 2013

An Examination of Interlocutory Appeals and Collateral Order Doctrine

In April 2010, an offshore drilling rig, the Deepwater Horizon, exploded and sank into the Gulf of Mexico. Eleven workers died and crude oil from the well spilled into the Gulf for months after the accident. The result was a mass of litigation involving multiple defendants. In order to deal with the extensive facts and individuals involved in this case, like many other cases, the parties can appeal just one issue of the case if the lower court denies or grants a judgment on that particular issue.

Normally, a decision must be a final one in order to be appealed. That generally means that the case has concluded and the lower court has rendered a judgment. That way, the appeals court considers all of the facts involved, but can still allow the lower court to do most of the fact analysis. However, there are some occasions where an appeal on just one issue is allowed. This is known as an interlocutory appeal, and it falls under the collateral order doctrine. The collateral order doctrine assumes that some decisions are “final in effect although they do not dispose of the litigation.”

In order to use the collateral order doctrine, the lower court must have 1) conclusively determined the disputed question, 2) resolved an important issue that is completely separate from the final decision in the case, and 3) the issue must also be effectively unreviewable on appeal in a final judgment. “Effectively unreviewable” means that the court of appeals will have no way to review the decision of the lower court once the lower court makes a decision on this particular issue. Generally, if the decision could be appealed in some other way than the interlocutory appeal, then the court will not use the interlocutory appeal.

In the oil spill case, parties assumed that one worker in particular held a great deal of information because he was the BP Well Site Leader on duty aboard the rig at the time of the accident. However, the Site Leader had an undisclosed medical condition that prohibited him from testifying or answering written questions. The Site Leader explained his medical condition to the judge on two separate occasions, but did not disclose the information to the parties.

Since the parties believed that he was such a valuable witness, they really wanted to obtain information from him. As such, another judge ordered an independent doctor to examine him and ordered the Site Leader to produce his medical records to the independent doctor. The Site Leader protested because he was concerned about sharing his personal information. This order is a discovery decision, and discovery decisions are appealable after the final decision of the court based on the use of inadmissible evidence.

One of the Site Leader's major arguments, however, was that releasing his personal medical information would cause a great deal of harm to him personally, and there is no method on appeal to reverse that type of harm. Nonetheless, the court determined that district courts can “burden litigants in ways that are only imperfectly reparable by appellate reversal of the final district court judgment.” Therefore, even though there may be harm that cannot be reversed for the Site Leader, the court will still allow the medical information to come in because the final verdict could change on appeal if the information is removed later. To use another example, the court explains that even if the information is privileged, that does not make it appropriate for an interlocutory appeal.

The court only briefly considered the rights of the Site Leader and his concern about protecting his personal information. In that discussion, they explain that they weighed the costs of sharing his information with the benefits of having his testimony at trial and determined that the benefits outweighed the costs.

As result, the court determined that it could not use the collateral order doctrine and that the interlocutory appeal was inappropriate. Therefore, the court dismissed the appeal and allowed the bulk of the case to continue in the lower court.

Civil procedure issues can be a delicate balance between protecting the case and protecting the individuals involved in the case.

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October 11, 2013

Louisiana's Act 312 and its Impact on the Environment and Oil Exploration

La. R.S. 30:29 (“Act 312”) was in enacted in 2006 and became effective in June of that year. Act 312 provides a procedure for the remediation of oil field sites as well as oil exploration and production sites. Generally, remediation is “the action of remedying something, in particular of reversing or stopping environmental change.” Before the Louisiana legislature enacted Act 312, most remediation requirements were through private party contracts; therefore, Act 312 did not change the normal trial procedures established by the Louisiana Code of Civil Procedure.

The Louisiana Supreme Court recently discussed Act 312 at length, explaining what it did change, in a case involving the Vermilion Parish School Board. The Court explained that Act 312 was enacted because of serious concerns with the state of the land and ground water after an area was used for oil exploration and production. Parties would use the land and ground water under a mineral lease for several years, and leave the property in terrible shape by the time that they were done. Mineral leases allow the parties to contract for only the minerals or the potential oil that is located on that property. The party with the mineral lease, then, does not rent the entire property, but just the ability to find minerals or oil within or upon that property.

Before Act 312, parties could still sue if one party left the land in terrible shape. Occasionally, however, it does not make sense economically to force a party to fix the land they damaged. Instead, the renting party would have to give the “landlord” the difference between the value of the land when they received it and the value of the land when it was returned after the lease, under a tort law theory. However, the person who owned the land, the “landlord,” was not required to use the funds to fix damage done to the land. As a result, property that had serious environmental problems often went without remediation because the landlord was not required to fix it. This creates health and safety concerns for the general public.

When parties file under Act 312, a notice is sent to the Louisiana Department of Natural Resources, Commissioner of Conservation (“DNR”) and the attorney general. The court cannot issue a judgment unless this notice is filed. After the notice is filed, the DNR and the attorney general can intervene in the case if they so choose; they also retain the ability to bring an independent action through civil or administrative means. Then, the matter proceeds to trial as any normal case would.

At the trial, the fact finder will determine if there actually is any environmental damage and whether the defendant or defendants were responsible for that damage. If the fact finder finds that there is environmental damage and the defendant is responsible, then the defendant is required to form a “remediation plan.” The remediation plan is submitted to the court for approval; the plaintiff is allowed to submit a suggested remediation plan to the court as well.

Then, the DNR will hold a public hearing on the submitted remediation plans. The DNR will then determine the most feasible plan to accomplish the remediation of the environmental damage, keeping the health, safety, and welfare of the public at large in mind. After they approve the plan, the plan is sent to the court for further review. Within a certain time frame, parties can submit alternations, comments, or new plans to the court during this time as well. Unless the parties prove that another plan is more feasible, the court will allow the plan approved by the DNR to move forward. In addition, the court will determine how much of the damages amount will be required to be used exclusively for remediation. Then, the legally responsible parties will deposit funds into the court's registry for remediation purposes.

One of the many issues in the case involving the Vermilion Parish School Board was whether private parties could seek additional damages apart from the required remediation funds. The Court determined that Act 312 specifically provided that private parties would not be limited by the remediation plan. That is, if they wanted to seek damages beyond what would be required to correct the environmental damages, such as punitive damages (damages that are meant to punish the offending party), then Act 312 did not limit them from doing that.

The Berniard Law Firm specializes in oil claims, including their effects on the environment. If you have questions about Act 312 or think your mineral lease has been violated, contact The Berniard Law Firm today.

October 6, 2013

Environmental Damage Appeal Focuses on Mineral Lease, Oil

In January, the Louisiana Supreme Court considered an appeal from the Vermilion Parish School Board. The appeal centered on environmental damage to land that was subject to a mineral lease. The mineral lease allowed those leasing the land to look for and remove any mineral, including oil, that they found on the land. However, once they did this, they left the land in a state that was environmentally hazardous.

Louisiana has special procedures for dealing with restoring land so that we do not harm the environment, specifically when removing oil. The remediation of the land, this restoring process, was one of the major issues in the Vermilion Parish case. The defendants included Union Oil Company of California, Union Exploration Partners, Carrollton Resources, LLC, Chevron USA, Inc., and Chevron Midcontinent, L.P.

The Court faced two major issues in this case. The first was whether the parties could receive damages in excess of the amount it would take to restore the property, thereby correcting the environmental damage. The Court determined that the language of the legislation (La. R.S. 30:29) was clear and that the parties could receive a larger amount.

Under Louisiana law, when a case arises where a party is required to correct an environmental wrong, the funds are deposited into the court's registry. The court will then disperse the funds to repair the land. This is a relatively new development because this act was put into effect in 2006. The legislature was concerned that parties who received funds to help correct the damage done to their land would not use it for that purpose if they were not so required. Leaving property that is damaged could create serious issues for the health, safety, and welfare of the surrounding population.

The legislation focuses on the role of the fact finder in determining whether there was environmental damage, and how much that environmental damage will cost to fix. As such, the court determined that the case should continue so that the fact finder could make those determinations.

The second issue was whether Chevron should be dismissed from the case. According to the facts, Union Oil had the mineral lease first, but Chevron subsequently acquired Union Oil and all of their assets, including the lease. As such, Chevron became responsible for any environmental damage that Union Oil may have caused. Chevron admitted responsibility initially, but then denied that they should be legally responsible later.

Chevron explained that while Chevron Corp. owns both Chevron USA and Union Oil Company of California, the two sections do not overlap. That is, Union Oil had $18 billion in assets, and should they be found liable for environmental damage, the amount that they will pay will come from their assets and not Chevron's. Chevron explained that those assets were never transferred out of Union Oil, so Union Oil remained somewhat independent even after Chevron acquired them.

Therefore, Chevron argued that Chevron USA should be removed from the case so that those assets are not adversely affected. Nonetheless, Frank Soler, the senior liaison in the subsidiary governance unit of the corporate governance department for Chevron Corp. admitted that Union Oil does not have any employees and there may be service agreements between the two sections for day-to-day activities.

The Plaintiffs in the case were only allowed to discover a very limited amount of information from Chevron regarding this case. The court restricted the information until they determined whether or not Chevron should remain in the case a defendant. As such, many facts remained unknown regarding the relationship between Chevron and Union Oil. Therefore, the court determined that Plaintiffs should be allowed to gather more information and the case should continue.

Both of these issues failed the summary judgment test. The test is whether there is an absence of material facts in the case. If there is such an absence, then the court will only determine the questions of law and one side will receive a summary judgment. In this case, however, the court determined that there may be facts in dispute because they did not have enough information; therefore, the case continued.

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October 3, 2013

Customer's Tire Shop Injury Results in Duty of Care Analysis

In Louisiana, a merchant’s duty to keep the premises safe for its customers is narrowly defined by the law. La. R.S. 9:2800.6 specifically deals with merchants and requires the injured party to prove:

(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable. (2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence. (3) The merchant failed to exercise reasonable care.

Mayes v. Wausau Underwriters Ins. Co. illustrates what can happen when the injured party is unfamiliar with the requirements to prove negligence by the merchant.
In Mayes, the claimant brought his truck to a Broussard tire shop for service. While waiting, he sat down on a chair that had a limit of 300 pounds. The claimant weighed over 300 pounds. The chair collapsed, and he sustained some injuries. The claimant sued the tire shop and its insurance company. He alleged that the tire shop had a duty to inspect underneath the chairs and that had the merchant exercised reasonable care, it would have discovered a defect in the chair.

The trial court disagreed with the claimant, and the appellate court affirmed. The trial court did not find that a merchant has to inspect the bottom of its chairs unless a chair is creaking or showing signs of instability. Here, the courts did not view the chair in question showed signs of instability before the claimant sat on it. Both parties’ experts agreed that any defect in the chair was hidden to the naked eye, so that the tire shop could not have had constructive notice.

“Constructive notice” means that the defect existed for a period of time that was long enough for the merchant to uncover the defect and fix it. By failing to prove the second element, the claimant was also unable to show that his injury was reasonably foreseeable or that the tire shop failed to exercise reasonable care.

Sometimes claimants without direct evidence of negligence by a merchant will rely on circumstantial evidence under the doctrine of res ipsa loquitur. Res ipsa loquitur allows the judge or jury to infer that the accident could not have occurred without some negligent act by the defendant. The injured party must show:

(1) He was injured in an accident that would not ordinarily happen without negligence. (2) The negligence is more likely than not attributable to the merchant.

In Mayes, the appellate court found that the claimant failed to prove the second element because the accident could be attributed to a cause other than the merchant.

October 1, 2013

Uninsured / Underinsured Accident Case Explores UM Coverage Concepts

Angela Terrell was driving her employer’s van when she was injured in a vehicle collision on U.S. Highway 190 in Pointe Coupee Parish on Mach 5th of 2010. Ms. Terrell filed a lawsuit against the other driver and his insurance provider for damages and later amended her lawsuit to also include her employer’s van’s insurance provider, ACE, to force ACE to cover any of her damages that were in excess of the other driver’s insurance policy. In Terrell v. Fontenot the Louisiana Court of Appeals ruled that ACE did not need to cover any excess damages because the van’s policy holder properly rejected the uninsured/underinsured provision of the insurance agreement.

Insurance providers typically offer their customers uninsured or underinsured insurance coverage, also called UM coverage. If an insurance provider provides UM coverage to its client the insurance provider may need to pay for any damages the customer sustained in a vehicle accident if the other driver was both at fault and uninsured or underinsured. UM coverage in an individual’s insurance policy can work as a safeguard against the individual having to pay for his own damages out-of-pocket if an uninsured or underinsured driver causes an accident with the individual.

Louisiana does not require a driver to have UM coverage, but a handful of states do. Because Louisiana does have a strong public policy favoring UM coverage, UM coverage is implied in automobile insurance policies, even if UM coverage is not explicitly listed in the insurance contract. The only time in Louisiana that UM coverage will not be read into an automobile insurance policy is when the customer has clearly and unambiguously rejected the coverage. The insurance provider has the burden of proof to prove that the rejection was sufficiently clear.

The court in Duncan v. U.S.A.A. Ins. Co. established the criteria for properly rejecting UM coverage: (1) initialing the rejection of UM coverage; (2) filling in the amount of coverage selected for each person and accident if the a limit lower than the policy limit is chosen; (3) printing the name of the insured or legal representative; (4) signing the corresponding signature; (5) filling in the policy number; and (6) filling in the date.

Ms. Terrell later amended her suit to also include the van’s insurance provider, ACE, so that if the other driver was later found to be at fault and did not have sufficient cash or insurance to pay all of her damages then ACE, through its UM coverage, would become liable for any remaining damages. The crux of the case, therefore, is whether the van’s ACE insurance policy includes UM coverage.

The court sided with ACE insurance in holding that the van’s insurance policy did not include UM coverage because the owner of the van properly rejected ACE’s UM coverage option. The owner of the van that Ms. Terrell was driving was a corporation— Professional Transportation, Inc. (PTI), a company that leased the vehicle from another owner.

The owner of the van, PTI, is a corporation and is unable to act on its own behalf. Instead PTI acts on its own behalf as all corporations do: by authorizing individuals to act on behalf of the corporation. That’s exactly what happened here. The owner of PTI verbally authorized one of its employees to obtain insurance and sign insurance forms. The court agreed with ACE that because that employee clearly and unambiguously rejected the van’s UM coverage ACE is not responsible for any UM insurance.

Ms. Terrell argued that although PTI’s employee rejected the UM coverage according to the above criteria for proper rejection, the rejection was invalid because PTI never properly authorized the employee to obtain insurance on its behalf. The court sided against Ms. Terrell because Louisiana’s Revised Statute 22:1295 makes clear that the insured or his legal representative can reject UM coverage. Here PTI’s employee was PTI’s legal representative, and Ms. Terrell was unable to convince the court that PTI had to do more than verbally authorize its employee to act on its behalf.

Because the owner of the van properly rejected the UM coverage, Ms. Terrell faces an uphill challenge if the Defendant is uninsured or underinsured and unable to pay all of her damages.

Continue reading "Uninsured / Underinsured Accident Case Explores UM Coverage Concepts" »

September 21, 2013

Court Finds Waiver of Uninsured/Underinsured Motorist Coverage

Although the law requires that all motorists obtain liability coverage, when pressed with financial difficulty and confronted with rising insurance premiums, some individuals voluntarily accept the risk of large fines and choose to forego liability insurance. Despite all attempts at exercising reasonable care, a fraction of these drivers inevitably end up causing accidents. And when they do, the lack of resources that led them to risk driving without insurance becomes the problem of the other driver who cannot recover for personal injury or property damage resulting from the accident.

This scenario led many states, Louisiana among them, to enact laws designed to encourage motorists to obtain Uninsured/Underinsured Motorist Coverage. The State of Louisiana is among the most aggressive in encouraging uninsured motorist coverage. Louisiana law requires that all policies contain underinsured/uninsured motorist coverage sufficient to pay damages for bodily injuries resulting from an accident. This is known as Uninsured/Underinsured Motorist Bodily Injury Coverage (“UMBI”). In addition to the required UMBI coverage, insurers offer Uninsured/Underinsured Motorist Property Damage Coverage (“UMPD”).

Under Louisiana law, therefore, all policies implicitly contain UMBI coverage unless the insured specifically “rejects” such coverage pursuant to a state-prescribed form. Even in states permitting the insurer to draft the UMBI waiver form, courts have developed a policy of construing these documents strictly against the drafter, in order to promote the public policy of obtaining such coverage.

A recent case, Pena v. USAgencies Casualty Insurance Company, illustrates why states are so hesitant to allow drivers to reject such coverage. After an accident, Ms. Pena, a Louisiana resident, sought UMBI coverage from her insurer but the insurer denied her claim. Although Ms. Pena had signed a UMBI coverage form rejecting coverage, she brought suit against the insurer claiming that the waiver was not effective. Her attorney argued that, although she was listed as a covered person under the policy, she was not the policyholder or a legal representative of the policyholder and thus had no authority to waive UMBI coverage. In reality, English was not Ms. Pena’s first language and most likely did not fully understand what she had signed.

Under Louisiana law however “any insured named in the policy” may waive coverage. Because the policy was purchased with a view to covering Ms. Pena as a driver, Ms. Pena qualified as a “covered person” under the policy even though she herself had not personally purchased the policy. As a “covered person,” therefore, she had the legal authority to waive UMBI coverage and enforced the waiver. The court thus held that her claim was properly denied.

As this case indicates, one should exercise caution in entering into an insurance contract. Uninsured/Underinsured Motorist Coverage is essential especially in hard economic times in which cash strapped individuals are most likely to make the risky decision to forego liability insurance. While insurers are required by law to provide UMBI coverage and courts often construe those waivers against the insurance company, insurance documents often appear complicated, containing technical legalese and lawyerly jargon which might trap an unwary customer.

If you believe you have been wrongfully denied uninsured/underinsured motorist coverage or if you believe your insurer encouraged you to waive uninsured motorist coverage, call the Berniard Law Firm.

September 15, 2013

Third Circuit Affirms Dismissal of Product Liability and Contract Breach from Truck Fire

The case of American Zurich Insurance v. Caterpillar arose from a truck fire that took place in Natchitoches Parish on April 7, 2010. American Zurich insured the truck and Caterpillar manufactured the truck's engine. American Zurich opened up a loss file on the truck the day of the fire. American Zurich paid out almost $77,000 dollars to the insured.

On April 26, 2010, Zurich was informed of a possible defect in the engine by an inspection agency they hired to look into the claim. A year later, on April 26, 2011, American Zurich filed suit against Caterpillar in West Baton Rouge Parish seeking reimbursement for the costs they incurred, but the case was subsequently moved to Natchitoches Parish in June 2011. On November 10, 2011, the trial court granted Caterpillar's peremptory exception of prescription and their motion for summary judgment and dismissed American Zurich's claims. American Zurich appealed the trial court's decision and the case made its way to the Third Circuit Court of Appeal. While you read the rest of this case summary, keep the dates mentioned above in mind.

So why does keeping these dates straight in our minds matter, and what is a peremptory exception of prescription? Actions brought under the Louisiana Products Liability Act, or LPLA, must be filed within one year “from the day injury or damage is sustained.” This one year time period is known as a prescriptive period. A peremptory exception of prescription is a defense motion arguing that the plaintiff has no case because they failed to file their case in the required prescriptive period of time. So one of the major issues in this case became on what date did that prescriptive period begin? Caterpillar claimed it started on April 7, 2010, the day of the fire. American Zurich claimed it began on April 26, 2010, which was the day their investigators told them about the engine defect.

The court noted that “prescription begins to run when the defect manifests itself, not on the date the underlying cause of the defect is found.” In other words, the court said that the one year prescriptive period began on the day of the fire, April 7, 2010. The court points out that American Zurich knew about the fire the day it occurred, and therefore, American Zurich had no basis for arguing that the prescriptive date should have started on April 26, 2010. Thus the court holds that American Zurich did not file their case within the one year prescriptive period required under the LPLA which ran out on April 7, 2011.

The court also quickly dispatched a breach of contract claim by American Zurich. American Zurich claimed that by building a defective engine, Caterpillar had failed to perform under their service contract. In Louisiana, the LPLA is the sole remedy against a manufacturer of a defective product. There is one exception to this rule, and that applies when the damage, or part of the damage, is caused exclusively by a breach of contract, and not the defective product itself. So it was important for American Zurich to argue this exception applied in this case because a breach of contract claim has a prescriptive period of ten years in Louisiana.

The court found American Zurich's argument unpersuasive since the damage was solely attributable to the defective engine, and their claims were not related to the service contract itself. The exception mentioned above was not applicable, and therefore the LPLA was controlled this case. As mentioned above, the prescriptive period had run out before American Zurich filed their case against Caterpillar, and the court affirmed the trial court's dismissal of American Zurich's claims.

This case shows the vital importance of taking timely action when engaged in legal matters.

Continue reading "Third Circuit Affirms Dismissal of Product Liability and Contract Breach from Truck Fire" »

September 12, 2013

Insurance Dispute With Steel Company Exposes Liability Apportionment, Terms

In a recent case, the Fifth Circuit Court of Appeals reviewed the lower court’s application of the “law-of-the-case” and “waiver” doctrines. Both of these doctrines are important rules that express the ultimate power of an appellate court in reviewing issues of law. Generally, an issue of law is a question regarding the application of law to a case. Therefore, in pursuing any civil suit, it is imperative to understand the implications and ramifications of an appellate court’s power to change the ruling in your case.

In Bayou Steel Corp. v. National Union Fire Insurance Company of Pittsburgh, Pennsylvania, the Fifth Circuit Court reviewed an insurance dispute that concerned the apportionment of liability for a severe leg injury that was suffered by a worker who was unloading steel bundles. In a complicated fact scenario, Ryan Campbell was injured, in 2002, while unloading steel bundles owned by Bayou Steel Corp. on a barge that was owned by Memco Barge Lines, Inc. Shortly before this incident occurred, Bayou Steel Corp. had contracted with Memco to transport the steel from LaPlace, Louisiana, to Chicago, Illinois. At the time of his injury, Ryan Campbell was working for Kindra Marine Terminal, a stevedoring company that was assigned to unload the steel bundles in Chicago. After the suit involving Ryan Campbell was settled, Bayou Steel Corp. brought suit seeking a declaration of coverage and reimbursement from National Union Fire Insurance.

After a series of appeals, the district court used the law-of-the-case doctrine to determine that Kindra was not a sub-contractor of Bayou Steel. Therefore, Campbell’s injuries fell within the language of the insurance policy that Bayou Steel held. Thus, the lower court entered summary judgment for National Union Fire Insurance Company of Pittsburgh, Pennsylvania.

According to the law-of-the-case doctrine, “when a court decides upon a rule of law, that decision should continue to govern the same issue in subsequent stages in the same case.” Thus, an issue of law “decided on appeal may not be reexamined by the district court on remand or by the appellate court on a subsequent appeal.” Accordingly, the Fifth Circuit agreed with the district court that that fact that Campbell did not fall within the exclusion in the policy held by Bayou Steel was part of the law of the case and subsequently held that this issue had been resolved on an earlier appeal.

The waiver doctrine “holds that an issue that could have been raised on appeal but is forfeited and may not be revisited by the district court on remand.” Id. Like the law-of-the-case doctrine, the waiver doctrine “serves judicial economy by forcing parties to raise issues whose resolution might spare the court and parties later rounds of remands and appeals.” However, the waiver doctrine “arises as a consequence of a party’s inaction, [and] not as a consequence of a decision on [the part of the Court of Appeals].” Thus, the Court of Appeals agreed that Bayou had waived their argument about the language of the policy by failing to raise it on remand after the first appeal or during the second appeal … “[b]ecause they failed to raise it during that period, the issue could not [have been] revisited by the district court on remand.”

In its decision, the Fifth Circuit ruled that the lower court had properly applied the law-of-the-case and waiver doctrines and that summary judgment in favor of National Union Fire Insurance Company of Pittsburgh, Pennsylvania, was appropriate.

All of these matters are inherently complicated and show that knowledge of the exact law is necessary to reach a successful outcome. While questions and issues of law must be decided by the court, your legal representative should be aware of the foregoing doctrines and should be able to adequately present your case.

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September 10, 2013

Fall Accident Leads to Failing Res Ipsa Loquitor Suit in Ouchaita

An insurance company found itself on the defending side of a civil claim but not for the reason one might expect. Larry Modicue, a Louisiana man weighing 404 pounds, filed a claim against State Farm Casualty & Fire Insurance and its representative Rose Kennedy when the chair Ms. Kennedy offered him collapsed under his weight. The Fourth Judicial District Court granted the defendants' motions for summary judgment and the Court of Appeal for the Second Circuit affirmed.

Mr. Modicue alleged that the incident in which his chair collapsed was an example of res ipsa loquitor. This common law phenomenon is found when a court deems that a particular incident or accident is the type that does not occur without negligence on behalf of some actor. Res ipsa loquitor means "the thing speaks for itself" in Latin and is a way for a plaintiff to prove the duty and breach prongs of a negligence case. As a review, a prima facie negligence case requires four essential elements: duty, breach, causation and harm. A plaintiff must prove each of these elements in order for a case to proceed to the trier of fact, whether judge or jury.

The appellate court reviewed the granting of a summary judgment de novo meaning that the appellate court could consider all things that the trial court could have considered in rendering its decision. The appellate court reviewed Louisiana C.C. art. 2317.1 in determining the outcome of this case. This statute places liability on the owner or custodian of a thing when that person knew or should have known through the exercise of reasonable care that a particular condition existed when it is determined that the condition caused damage to a plaintiff and the custodian or owner could have remedied the condition with reasonable care. Liability attaches if that care was not exercised. This statute is a reflection of traditional negligence principles. If a party has exclusive control over an object it is responsible for conditions in that object that cause harm to others. It is interesting to note that this statute goes on to specifically note that nothing in it should be construed to prevent a court from applying res ipsa loquitor. The appellate court found that Ms. Kennedy had no reason to know that this particular chair would give out under Mr. Modicue's weight since it had held him without incident on a previous occasion.

The Court of Appeal went on to dismiss the plaintiff's allegation that res ipsa loquitor applied to this situation. The court noted that Harper v. Advantage Gaming, 880 So. 2d 948 clarifies the situations in which res ipsa loquitor applies. That case required a court to find unusual circumstances such that, in the absence of other evidence, there was an inference of negligence on the part of the defendant. In conjunction with this the defendant must have had exclusive control over the object that caused the injury. These circumstances must lead to the finding that the only reasonable conclusion is that the defendant breached a duty to the plaintiff and that this was the cause of the plaintiff's injuries.

The court in this case found that due to Mr. Modicue's weight, there was more than one potential explanation for the chair's failure. The court went on to explain that Mr. Modicue had not provided enough evidence to get the issue of the defendants' negligence to the jury. As such, the defendants were entitled to a summary judgment as a matter of law. Mr. Modicue's reliance on res ipsa loquitor caused his negligence claim to fail. Had he offered evidence of all four elements of negligence, it is possible that he would have succeeded, though it is unclear if this evidence existed.

Continue reading "Fall Accident Leads to Failing Res Ipsa Loquitor Suit in Ouchaita" »

September 7, 2013

Boat Injury Case Highlights Watercraft and Coverage Exclusions (Pt 2)

In 2008, three men were passengers on a chartered fishing boat that collided with a utility boat. The fishing boat's insurance company was St. Paul Fire and the utility boat's insurance company was Steadfast. Harvest Oil owned the utility boat. Normally, the insurance companies would fight about who was at fault and may eventually make it to court. However, this case was more complicated because the men in the fishing boat did not own the boat, and the owner of the utility boat filed for bankruptcy shortly after the passengers drug them into the lawsuit as a third party. The issue of waiver of a coverage defense while the insured is in a bankruptcy proceeding is one that has not been considered in Louisiana previously.

Harvest filed for bankruptcy in 2009 and the passengers in the accident filed in its bankruptcy proceeding as a creditor for “an amount to be determined.” Where an insured filed for bankruptcy, it was very smart of the injured party to file as a creditor because that helps protect their interest if the insurance company refuses to pay Harvest's liability coverage.

When an individual or company files for bankruptcy, federal law provides an automatic stay on any other litigation proceedings. That means that all other litigation involving the debtor must be paused until the bankruptcy proceeding is closed. Therefore, Harvest dropped out of the insurance lawsuit, and the passengers had to sue the insurance company alone.

As a result, when Steadfast asserted the watercraft exclusion, that meant that the passengers could no longer sue the insurance company and had to sue the insured himself. Since the insured was in bankruptcy proceedings, there was not only a delay in the litigation because of the stay, but there was also a very real chance that the injured parties may not get any money.

When an individual goes into a bankruptcy proceeding, they have to pay off their creditors in a certain order. First, the secured creditors will receive payment. A secured creditor has something that they use as collateral for the loan or credit that they extended to the debtor. For example, if you have an automotive loan, your car is likely your collateral or security. If you file bankruptcy and cannot pay for your car loan, then, with a few exceptions, they will likely come take your car. When a creditor is unsecured, however, they cannot take anything and must share with all of your other unsecured creditors. That likely means that they will not get paid the entire debt that they are owed, and will usually only receive a small portion of their money back.

A judgment is an unsecured debt, and because the passengers filed so late, they are likely at the back end of the line of creditors in the bankruptcy proceeding. Louisiana law allows those with liability coverage to sue the insurer directly when the insured has been removed for bankruptcy proceedings under the Louisiana Direct Action statute. So, if the insurance company would have covered the accident, then the insurance company would have paid them directly instead of going through the insured. This is because liability coverage in Louisiana is not the property of the insured; it is the property of whoever the injured party was. Other types of insurance coverage, such as collision, for example, would still be the property of the insured and would be included in the bankruptcy proceedings. Where the insurance coverage would be a property of the estate, then the stay that applies to the insured would also apply to the insurer. However, that is not the case here because the liability coverage is not property of the insured.

Once the court decided the reservation of rights and waiver issues, then it questioned how those decisions were affect the bankruptcy proceeding. The court considered claim and issue preclusion. Preclusion in civil cases is a lot like the rule against double jeopardy in criminal cases; the idea is that you cannot keep taking someone back to court for the same offenses over and over again.

Claim preclusion does not allow the same parties or parities that are in privity, or connected in some way, to try the same claim or cause of action after a court of competent jurisdiction has rendered a final verdict. If the claim was litigated to completion, then it cannot be litigated again. It is sometimes difficult to determine if parties are in privity, however. Usually these relationships are based on a connection so strong that liability of one would normally be the liability of another such as in employee and employer relationships. An insurance company sued under the Louisiana Direct Action statute could be an example, but only if the insured's and the insurer's interests are aligned. In this case, because the insurer is asserting a coverage defense, then their interests are not aligned and they are not in privity. Therefore, claim preclusion does not affect the bankruptcy suit.

Issue preclusion is virtually the same as claim preclusion except that it applies to only one issue in the lawsuit instead of the entire case. The issue still needs to be completely decided by a court of competent jurisdiction, however. It also requires that the parties be the same, but there is no privity exception. Since the parties will not be the same in the bankruptcy proceeding, issue preclusion has no effect on the bankruptcy proceeding either.

The law overlaps occasionally and can result in some confusing and interesting results. You need an experienced attorney to help you navigate the legal waters.

Continue reading "Boat Injury Case Highlights Watercraft and Coverage Exclusions (Pt 2)" »

September 5, 2013

Boat Injury Case Highlights Watercraft and Coverage Exclusions (Pt 1)

In 2008, three men were passengers on a chartered fishing boat that collided with a utility boat. The fishing boat's insurance company was St. Paul Fire and the utility boat's insurance company was Steadfast. Harvest Oil owned the utility boat. Normally, the insurance companies would fight about who was at fault and may eventually make it to court. However, this case was more complicated because the men in the fishing boat did not own the boat, and the owner of the utility boat filed for bankruptcy shortly after the passengers drug them into the lawsuit as a third party. The issue of waiver of a coverage defense while the insured is in a bankruptcy proceeding is one that has not been considered in Louisiana previously.

Harvest received a letter from their insurance company shortly the parties filed suit. The letter explained that the insurance company was “reserving their rights,” but it was signed by Zurich American Insurance Company, Harvest's automotive insurance provider. Zurich North America owned both Steadfast and Zurich American Insurance Company, and Harvest had insurance policies with both of these carriers. Despite the fact that Zurich American Insurance Company signed the letter, the Steadfast policy was mentioned by name and policy number in the letter. In fact, the letter quoted a portion of the Steadfast policy that excluded watercrafts such as the one that was involved in the accident in 2008. The letter explained that the insurance company would be investigating the case, but reserved all of its rights in action. Essentially, when an insurance company reserves its rights, it means that wants the option of asserting a defense that may not be in the insured interests.

When the passengers sued the insurance company their initial answer did not mention that Steadfast had a watercraft exclusion. When the passengers asked to review the relevant insurance policies, Steadfast gave them copies of their standard primary and umbrella policies. Three separate insurance claims agents thought that Harvest's claim would be covered because they overlooked the watercraft exclusion. Finally, in 2011, an insurance adjustor finally noticed the exclusion. As a result, Steadfast changed their defenses and asserted that they would not cover Harvest's claim because of the watercraft exclusion. Steadfast also, understandably, changed their attorneys shortly after this discovery.

The passengers argued that Steadfast could not assert this defense so late in the litigation. They argued that Steadfast waived their coverage defense by proceeding with the lawsuit, and even if they did not waive the defense, they did not assert that right to begin with. The court in this case explained that the insurance company needed to have reserved their right to use this defense at the beginning of the litigation, so they analyzed the initial letter that Harvest received at the beginning of the lawsuit.

The passengers argued that Steadfast did not reserve its rights through the letter because the letter was very confusing. It was signed by another insurance company and confused the insured. The insured thought that Zurich, their automotive insurance company, was asserting its rights; not that Steadfast was asserting its rights. In addition, the letter only referred to investigation and did not mention anything relating to a defense.

Generally, if the insurance company assumes a defense of the insured without first reserving its rights, that constitutes a waiver. However, the court found that Steadfast did reserve its rights in the letter sent to Harvest. The court points out that the letter specifically referred to the policy with Steadfast and quotes language from it. The fact that the insured did not read the letter carefully, the court concluded, should not inhibit Steadfast from reserving its rights. Since Louisiana does not require technical language to reserve its rights to a defense, the insurance company was not required to describe which rights in particular they were reserving.

However, the insurance company can still waive their rights even where they have reserved their rights. The court pointed out that under Louisiana law, an insurance company can waive any provision of an insurance contract, even if that waiver has the effect of extending coverage. Waiver requires misleading conduct on the part of the insurer and a prejudice to the insured.

Louisiana law requires that the insurance company induce their insured to belief that they were waiving their rights. In this case, although Steadfast mistakenly thought that Harvest was covered, they did not communicate that mistake to Harvest. Steadfast did not act with the intention of misleading their insured; they acted because of a mistake regarding coverage, so Steadfast did not deliberately mislead Harvest.

Waiver also requires that the insured be harmed because of the misleading conduct. Due to the bankruptcy proceedings, Harvest was not harmed by the delay and confusion because they were not actually a party in the case involving the passengers. The court explained that they could not have been harmed in a case where they were not a party.

As a result, the court concluded that Steadfast asserted and reserved their rights properly and did not waive their coverage defense. But, how does that affect the bankruptcy proceeding? Look for part two to find out.

Continue reading "Boat Injury Case Highlights Watercraft and Coverage Exclusions (Pt 1)" »

September 2, 2013

Prescription Important in Suit Tied to Truck Fire

The case of American Zurich Insurance v. Caterpillar arose from a truck fire that took place in Natchitoches Parish on April 7, 2010. American Zurich insured the truck and Caterpillar manufactured the truck's engine. American Zurich opened up a loss file on the truck the day of the fire. American Zurich paid out almost $77,000 dollars to the insured. On April 26, 2010, Zurich was informed of a possible defect in the engine by an inspection agency they hired to look into the claim. A year later, on April 26, 2011 American Zurich filed suit against Caterpillar in West Baton Rouge Parish seeking reimbursement for the costs they incurred, but the case was subsequently moved to Natchitoches Parish in June 2011. On November 10, 2011, the trial court granted Caterpillar's peremptory exception of prescription and their motion for summary judgment and dismissed American Zurich's claims. American Zurich appealed the trial court's decision and the case made its way to the Third Circuit Court of Appeal. While you read the rest of this case summary keep the dates mentioned above in mind.

So why does keeping these dates straight in our minds matter, and what is a peremptory exception of prescription? Actions brought under the Louisiana Products Liability Act, or LPLA, must be filed within one year “from the day injury or damage is sustained.” This one year time period is known as a prescriptive period. A peremptory exception of prescription is a defense motion arguing that the plaintiff has no case because they failed to file their case in the required prescriptive period of time. So one of the major issues in this case became on what date did that prescriptive period begin? Caterpillar claimed it started on April 7, 2010, the day of the fire. American Zurich claimed it began on April 26, 2010, which was the day their investigators told them about the engine defect.

The court noted that “prescription begins to run when the defect manifests itself, not on the date the underlying cause of the defect is found.” In other words, the court said that the one year prescriptive period began on the day of the fire, April 7, 2010. The court points out that American Zurich knew about the fire the day it occurred, and therefore, American Zurich had no basis for arguing that the prescriptive date should have started on April 26, 2010. Thus the court holds that American Zurich did not file their case within the one year prescriptive period required under the LPLA which ran out on April 7, 2011.

The court also quickly dispatched a breach of contract claim by American Zurich. American Zurich claimed that by building a defective engine, Caterpillar had failed to perform under their service contract. In Louisiana, the LPLA is the sole remedy against a manufacturer of a defective product. There is one exception to this rule, and that applies when the damage, or part of the damage, is caused exclusively by a breach of contract, and not the defective product itself. So it was important for American Zurich to argue this exception applied in this case because a breach of contract claim has a prescriptive period of ten years in Louisiana.

The court found American Zurich's argument unpersuasive since the damage was solely attributable to the defective engine, and their claims were not related to the service contract itself. The exception mentioned above was not applicable, and therefore the LPLA was controlled this case. As mentioned above, the prescriptive period had run out before American Zurich filed their case against Caterpillar, and the court affirmed the trial court's dismissal of American Zurich's claims.

This case shows the vital importance of taking timely action when engaged in legal matters. The attorneys at the Berniard Law Firm are experience practitioners who know how to handle your case in a timely and professional manner. If you have any legal questions or believe that you have a legal case, please contact our firm.

August 31, 2013

Man Who Fell Through Chair Loses Case Due to Summary Judgment

Injuries can happen anywhere but do not always lead to successful legal suits. Larry Modicue was directed by Rose Kennedy, an insurance agent for State Farm Fire & Casualty Co. in West Monroe, Louisiana, to have a seat in her office, which resulted in the chair collapsing. Modicue is a 404-pound man who has sat in this same chair with no prior injuries or incidents but suffered a shoulder injury in the fall, requiring medical assistance.

Modicue sought relief for his injuries and brought suit against Kennedy and State Farm. Kennedy and State Farm’s, in turn, filed a motion for summary judgment. Summary judgment is a maneuver used by one party to have the court make a decision on part or the whole dispute without going to trial. For a motion for summary judgment to be granted there must be no disputes on material fact, showing that one party is entitled to judgment. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action and is favored by the courts and construed to accomplish these ends. In this case, Kennedy and State Farm’s motion for summary judgment was granted due to the fact that the court found no genuine issue of material fact.

Modicue appealed this decision arguing that the court erred in granting summary judgment. His reasoning was that 1) a Louisiana business owner has a duty to provide seating which is adequate for the general public, and 2) the facts of the case permit the application of res ipsa loquitor.

The court disagreed with Modicue. According to the Louisiana C.C. art. 2317.1, an owner is only responsible for damage of the object is if 1) he knew about a ruin, vice, or defect which caused the damage, or 2) he should have known of the ruin, vice, or defect, 3) the damage could have been prevented if he exercised reasonable care, and 4) that he failed to exercise reasonable care.

Modicue failed to show that there was prior knowledge on the part of Kennedy and State Farm of the chair being defected. There was also no reasonable belief that the chair was defected and could not support Modicue because he had sat in the same chair before without any injury or incident. The chair also did not contain any warning about the capacity at which it could hold.

Res ipsa loquitor, a rule of circumstantial evidence that applies when the facts suggest that the negligence of the defendant is the most plausible explanation of the injury, did not apply either. According to Harper v. Advantage Gaming, it is applicable when 1) the circumstances of the accident are so unusual that, in the absence of other evidence, there is an inference of negligence by defendant; 2) defendant had exclusive control over the thing causing injury; and, 3) the only reasonable conclusion is that defendant’s breach of duty caused the accident.

The original ruling in favor of Rose Kennedy and State Farm Fire & Casualty Co. was upheld due to Modicue’s failure to produce sufficient evidence showing the negligence of Kennedy and State Farm.

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