Summary Judgment

Insurance Appeal Lost in Pineville Auto Accident

Published on: October 21, 2013 | By Berniard Law Firm

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.

Environmental Damage Appeal Focuses on Mineral Lease, Oil

Published on: October 6, 2013 | By Berniard Law Firm

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.

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

Published on: October 3, 2013 | By Berniard Law Firm

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.

Louisiana and Fifth Circuit Reaffirm the Necessity of Personal Jurisdiction

Published on: August 12, 2013 | By Berniard Law Firm

The “New York Convention” (9 U.S.C. §§ 201 et seq.) gives a U.S. court the ability to enforce a foreign arbitration award if there is personal jurisdiction over the defendant. Personal jurisdiction is when the defendant can expect to appear in a foreign country’s court because the defendant has minimum contacts with the country. First Inv. Corp. v. Fujian Mawei Shipbuilding, Ltd. reaffirms that personal jurisdiction is necessary when a plaintiff is trying to confirm an arbitration award.

In First Inv. Corp., a Marshall Islands corporation and Chinese shipbuilding company entered into a contract that had an arbitration clause. The Marshall Islands is a presidential republic of the United States. The U.S. provides defense, funding, social services, and its currency for use to the republic. The arbitration clause required all disputes to be resolved in neutral territory under the London Maritime Arbitrators Association rules. The English arbitration panel found for the Marshall Islands corporation, but China refused to enforce the award against the defendant because not all the arbitrators on the panel had seen the final draft of the decision. Instead of resolving the matter in either the country of arbitration or the defendant’s country, First Inv. Corp. commenced action in the U.S. District Court for the Eastern District of Louisiana. The case eventually appeared before the Fifth Circuit Court of Appeals.

The Fifth Circuit affirmed the district court’s decision that the U.S. lacks personal jurisdiction over a Chinese shipbuilding company that has no contacts with the U.S. The Chinese company did not distribute products, conduct any transactions, or maintain property on American soil. However, the Marshall Islands plaintiff argued that since the defendant did not have any contacts with the U.S., the defendant should not be afforded the right of due process stemming from personal jurisdiction. The Fourteenth Amendment of the U.S. Constitution forbids states from depriving “any person of life, liberty, or property, without due process.” In the district court trial, the plaintiff argued that as a corporation controlled by the Chinese government, the defendant was not entitled to due process. Ultimately, the trial court rejected the plaintiff’s argument because it would undermine the “minimum contacts” test set by the U.S. Supreme Court because a confirmation of the award would suggest that a court can exercise personal jurisdiction over a defendant with no contacts in the U.S. The Fifth Circuit followed up by citing cases affirming due process protection for foreign corporations.

The plaintiff then argued that a confirmation of the arbitration would not affect the defendant’s “substantive rights” or fundamental protections afforded by the U.S. Constitution. The Fifth Circuit disagreed because a confirmation of the arbitration award would allow the plaintiff to enforce the judgment in Britain.

First Inv. Corp. shows how significant it is for parties to understand U.S. legal procedures when seeking to enforce foreign arbitration awards.