Articles Posted in 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.

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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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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.

In a suit by a commercial tenant and their insurance company against the landlord, Mr. Ducet, the landlord defended by arguing that the terms of the lease prevented the tenant from recovering damages. If the tenant was unable to recover damages the insurance company would also be unable to recover under the legal concept of subrogation.

The lease clause in question was called a mutual waiver. In it the parties agreed not to bring claims against each other for damages as a result of a fire if the damages were or could have been insured against under a typical fire insurance policy. The lease also stated that the landlord and the renter would each get a waiver of subrogation from their respective insurance underwriters. Subrogation is when an insurance company pays their policy holder the cost to repair or replace the damaged property but then sues the person who caused the damage or is otherwise legally responsible for it to get the money back from them. The Court found that the waiver in the lease prevented the tenant’s insurance company from suing the landlord for the amount the company had paid the tenant for damaged personal property and equipment. The Court stated that the insurance company, as subrogee, had no greater rights than the tenant. Under the mutual waiver provision in the lease agreement the tenant had no right to sue the landlord for the cost of personal property or equipment lost in a fire, therefore the insurance company could have no right to sue either.

Another issue in the case was how the mutual waiver affected other responsibilities under the contract. The tenant arranged to have the roof repaired after the fire even though under the terms of the lease the landlord was responsible for repairing any damage done to the building itself as a result of a fire. The Court found that the landlord had a duty under the contract to keep the building itself in good repair and that it was his responsibility to repair the roof after the fire. The fact that the tenant hired someone to fix the roof before the landlord had done it did not relieve the landlord of his obligation. The mutual waiver clause in the lease did not prevent the repair company from suing the landlord for the cost of the repairs which were the landlord’s responsibility.

This case shows how previous contracts, such as a lease, can affect later contracts, like fire insurance policies, even when they are made with third parties. It is important for every property owner and renter to understand how their contracts affect their rights and obligations in regard to their property. This is equally important for business owners as for people dealing with their own homes.

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The Louisiana Supreme Court has recently undertaken a case deciding whether arbitration clauses in attorney-client retainer agreements are appropriate. In the past, Louisiana has favored the enforcement of arbitration clauses in written contracts. Arbitration avoids taking a case to trial and is a thrifty and efficient way to conduct the resolution of disputes outside of the courts. During arbitration, each party refers its dispute to an arbitrator, who then imposes a decision that is legally binding for both sides. However, Louisiana law also imposes a fiduciary duty requiring attorneys to act with the utmost fidelity and forthrightness in their dealings with clients and any contractual clause, which may limit the client’s rights against the attorney is subject to the upmost scrutiny.

According to the Louisiana Supreme Court in Hodges v. Reasonover, there is no per se rule against such binding arbitration clauses, provided that they are fair and reasonable to the client. In Hodges v. Reasonover, Jacqueline Hodges, the founder, sole shareholder, and CEO of Med-Data Management, Inc., hired Kirk Reasonover of the law firm of Reasonover & Olinde to sue a company known as MedAssets, Inc. in federal court in Atlanta, Georgia. In the retainer agreement between Hodges and Reasonover there was an arbitration clause, which essentially provided that any dispute shall be submitted to arbitration in New Orleans, Louisiana and that such arbitration shall be submitted to the American Arbitration Association (AAA).

Hodges was ultimately unsuccessful on her suit against MedAssets, Inc., which led her to file suit for legal malpractice against Reasonover. According to the Louisiana Supreme Court, Courts must closely scrutinize attorney-client agreements for signs of unfairness or overreaching by the attorney. Further, Louisiana Rule of Professional Conduct 1.8(h)(1) prohibits a lawyer from “prospectively limiting the lawyer’s liability to a client for malpractice unless the client is independently represented in making the agreement.”

Licensed attorneys in New Orleans were asked which attorney they would recommend to residents in the New Orleans area. Attorney Jeffrey Berniard, of the New Orleans-based Berniard Law Firm, LLC, was named one of the best mass litigation and class action attorneys in New Orleans in the November 2012 issue of the magazine. Propelled into success by holding insurance companies accountable in the wake of Hurricane Katrina, Berniard has built the Berniard Law Firm into one of the premiere personal injury law practices in not only New Orleans, but the entire state of Louisiana. Since Hurricane Katrina, Berniard Law Firm has focused on insurance disputes and class action litigation.

Jeffrey Berniard has been involved in several high-profile cases, solidifying his expertise in complex high risk litigation. He worked on the highly publicized Deep Water Horizon oil rig case in the Gulf Coast, representing a very large group of individuals affected by the sinking oil rig. In 2008, Berniard Law Firm secured a $35 million dollar settlement for a class of 70,000 members seeking bad faith penalties for tardy payments by a Louisiana insurance company in the wake of Hurricane Katrina and Hurricane Rita. In 2009, the Berniard Law Firm participated in five class actions against insurance companies and corporations. In the process of these major claims, the firm also helped many residents of the Gulf Coast with their personal injury concerns, insurance claims and business disputes.

– What is Mass Tort Litigation? –

Even when a case goes to federal court, that body must still try to interpret state law if that is the governing policy in the matter. While this may seem confusing, cases involving local matters can get to federal court for a number of reasons. Of the most common are the notion that the case involves federal law, such as a social security claim, or that the case involves two parties that are not from the same state. The latter is termed “diversity jurisdiction.” In diversity jurisdiction cases, the federal court will often have to look to state law to determine how a case must be decided. For example, state law, not federal law, generally determines cases in personal injury or contract disputes.

Louisiana, like many states, holds the notion that insurance policies are contracts. Therefore, contract law covers any disputes regarding insurance policies. As such, if a case goes to federal court because the insurance company is not in the same state as the insured, then the federal court will have to use Louisiana contract law to determine the outcome of the case.

Louisiana contract law provides two overreaching concepts regarding contract interpretation. First, the contract should reflect the intent of the two parties. That intention is portrayed in the wording of the contract; therefore, the court should look only to the contract, not to outside information, to determine the intent of the parties. Second, Louisiana will only apply the first concept if the result is not absurd.

All of these concepts, diversity jurisdiction, insurance policies as contracts, and contract interpretation in Louisiana, were embodied in a recent case. In that case, property damage due to smoke from a fire created an insurance dispute. Once the parties determined that they needed their insurance to cover the damage, they started looking into their insurance policies. The complication in this case was that the parties were both individuals and they ran their own businesses; the insurance policies were unclear as to which entity was covered, the individual or the business. The names of the business also changed frequently. That is, they used a commonly referred to trade name instead of their official name. A common example of this is something like using the name “Disney” instead of “The Walt Disney Company.”

Since the names were an issue, the insurance company was trying to claim that the damaged property was not covered under their current policy. The insurance company claimed that they were covering someone or something else entirely. The lower court actually went along with the insurance company’s reasoning and determined that the property as not covered and dismissed the case in favor of the insurance company.

During the appeal, the party whose property was damaged argued that they intended for the property to be covered, so the court should take that into consideration because contract interpretation involves determining the intent between the parties. The court did so and found that if the insurance company’s reasoning were to prevail, that would mean that they insured companies that just did not exist. The court pointed out that this is an example of an absurd result. They concluded that the parties could not have possibly meant to insure companies or persons that did not exist. Therefore, the court looked beyond just the wording of the contract because of this absurd result. As a result, they remanded the contract back to the parties to reword it so it would reflect their common intentions.

It is important to note that federal law did not play a role in this case because even though it was in federal court, contract law was governed by Louisiana in this case. The federal court noted that they were guessing what the Louisiana Supreme Court would say about this case by mentioning that because of the result, “[i]t is our judgment that the Louisiana Supreme Court would not enforce the literal text of the 2004-2005 Policy.”

This case shows us the importance of the insurance policy contract. If the wording does not accurately reflect the intentions between the two parties then there can be a negative result. The Berniard Law firm can help you with insurance disputes if you need help.

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Settlements are an important part of the legal process. They save time, money, allow the parties to negotiate their own terms, and, above all, they keep the parties from having to go to court to litigate their claims. In the case of settling with insurance companies, the companies like to avoid court because it not only costs them time and money, but also may negatively affect their reputation in the community. As such, it is common practice for an injured person to sign a release form after they receive settlement money. This release form bars the person injured from any future claims against the insurance company. Both parties usually end up happy in this situation because the person who was injured gets some compensation and the insurance company avoids the negative effects of going to court.

What happens if an injured person settles and signs a release form before they realize how badly they are injured? For example, perhaps an individual thinks they only bruised their ribs, but actually suffered from more long term effects such as kidney injuries. In that case, the injuries are likely to be much more expensive than both parties originally anticipated. Then, the injured individual does not have enough money to cover medical expenses and the insurance company gets out of paying for the extra expenses.

In Louisiana, a general release will not necessarily bar recovery for aspects of the claim that the release was not intended to cover. However, most releases are very broad in that they cover any existing injuries and injuries that may occur because of the accident in the future. Louisiana law only allows settlements to be set aside if there was an error when the settlement was signed. Two major mistakes could set aside a settlement: 1) the injured party was mistaken as to what he or she was signing even if there was no fraud involved, or 2) the injured party did not fully understand the nature of the rights being released or that they did not intend to release certain rights. A settlement can also be set aside if there is fraud or misrepresentation involved.

Louisiana Civil Code Article 1953 defines fraud as “. . . misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss of inconvenience to the other. Fraud may also result from silence or inaction.” In order to determine if there is fraud involving a release, which is also a contract, the court will only look to the document itself to determine if fraud is evident. Evidence of fraud in this situation could include any intentionally incorrect statement of material fact, such as stating items that are not covered by the insurance company when those items are actually covered.

A recent case gives an excellent example of a settlement with an insurance company. In that case, an individual fell off a tractor and injured himself. Two insurance companies provided compensation for injuries relating to his fall. Once each insurance company provided compensation, they each had the injured party sign a release form to keep him from filing claims against them in the future should the injuries be worse than originally anticipated.

The injured individual did have complications with his injuries and tried to get the settlements set aside so that he could get more money based on the coverage, but because he signed the release forms and there was no evidence of fraud, the court would not set aside the settlement agreements. The court stated that the injured individual knew exactly what he was releasing and there was no mistake in the settlement. The insurance companies both provided clear statements of what they did and did not cover and provided compensation for the things they did cover. The release statements specifically said that the injured party could not sue again for the same fall even if the injuries got worse, so he could not file claims again.

One lesson to take away from this example is that it might be helpful to find out the extent of your injuries before you enter into any settlements or sign any release forms.

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Recently, in the State of Louisiana Court of Appeal for the Third Circuit, a case was decided that effectively laid out the requirements of a settlement agreement. These requirements are especially important because many cases are settled before they get to court. In fact, settlement is often preferable because it saves a significant amount of time, money, and it allows the parties to reach a compromise that they not only come up with themselves, but that is also acceptable to both parties. That way, the parties share the benefits instead of there being a clear-cut loser and clear-cut winner as is usually the situation should a case go to trial.

In this case, an individual was seeking to enforce a settlement agreement with an insurance company regarding a life insurance policy. The life insurance policy involved three beneficiaries; however, it was unclear as to when the money should go to each beneficiary. There may have been a contingent beneficiary. That is, the policy was set up so that if one of the beneficiaries had passed away prior to the money dispersion, then it would go to a different beneficiary. However, the insurance company was unsure of this stipulation, so they did not give out any money at all.

As a result of all of this confusion, one of the beneficiaries entered into negotiations with the insurance company in order to get at least some money out of the life insurance policy. Louisiana Civil Code, Article 3071, defines compromise as “a contract whereby the parties, through concession made by one or more of them, settle a dispute or an uncertainty concerning an obligation or other legal relationship.” Therefore, the parties in this case sought to compromise regarding the payment of the insurance policy.

In addition to defining compromise, the Court also points out that the settlement agreement must be in writing and signed by both parties as required by Louisiana Civil Code Article 3072. In this case, there was an oral agreement, but when the parties attempted to put the terms in writing, there was still dispute regarding the agreeability of quite a few of the terms of the settlement. They created drafts and sent them back and forth, but nothing was ever finalized by way of a signature from either party. The Court recognizes that there are no other cases where a settlement was validated even though neither party signed the final settlement agreement.

The Court also goes on to explain that contracts, which are the basis of a compromise, require that there be a “meeting of the minds.” That is, both parties should completely understand and agree to the terms in the contract. The contract embodies the intention of both parties and if the intention of both sides is not fully included in the settlement, then that settlement cannot be valid. In this case, both sides described other terms that were either not included in the agreement or that appeared, but they did not approve of their inclusion in the settlement. The Court notes that there was no “acceptance and acquiescent from both parties” in this case.

Although the settlement agreement can be included in more than one document, it is apparent that there was no such agreement. It based this conclusion on the testimony of both parties, lack of signature on the settlement agreement, and other communications between the parties at the negotiation stages in this case (such as letters between the attorneys that expressed displeasure with terms in the agreement). Therefore, the Court concluded that a settlement agreement did not actually exist and that it could not enforce a settlement agreement that does not actually exist.

Obtaining settlement agreements can be somewhat complicated because they involve getting both sides to agree to many different terms. However, they are very valuable because they allow the parties to avoid trial and get their conflicts resolved quickly. The Berniard Law Firm is always interested in solving our clients’ problems quickly and effectively.

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