Articles Posted in Life Insurance

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.

Continue reading

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.

Continue reading

On July 12, 2008 a ten-year-old girl was driving her parents golf cart with some friends in a nearby cul-de-sac in the Parish of East Baton Rouge in the State of Louisiana. While on her excursion, she encountered a neighbor boy who was six-years-old. Because the boy was so close to the front the car, she believed he was playing a reverse game of chicken and followed him closely. Unfortunately, she hit him with the golf cart and he fell. She believed he was only mildly injured, but she drove the golf cart home immediately to report the accident to her parents.

At first, her parents thought nothing of it, assuming that, other than a few scrapes and bruises, the boy was fine. However, after a few hours, they thought they would walk over to their neighbors’ house to be sure everything was okay and speak to the boy’s parents. When they arrived at the neighbor’s house, they found several neighbors outside and the boy was in his driveway, looking very ill. His parents explained that since the accident, the boy would not stop vomiting, and an ambulance was on the way to pick him up. The boy ended up having problems with his kidneys and subsequently had to have half of one removed.

The boy’s parents filed suit against the girl’s parents for the injuries to their son; they specifically asked for help with payment of the medical bills. The girl’s parents, believing that their insurance company would help with this this claim, entered the insurance company as a third party in the lawsuit. When an insurance company is entered as a third party, it is usually because the person who may be liable is expecting them to help pay for any of the damages should the case turn out to involve payment to the person who was injured.

However, partly because of the uniqueness of the injuries, the insurance company fought to be removed from the case, arguing that the insurance policy did not cover such an injury. The girl’s family had both vehicle insurance and homeowners insurance from this particular company. The court looked through the insurance policy and determined that they were right; this type of accident was not covered under the policy.

The reason that the court came to this conclusion was based on a strict reading of the insurance policy. Insurance policies are contracts and the court can only look outside the contract for meaning if the contract is unclear. If, for example, the contract had a confusing clause, then the court could look to other similar contracts or situations to help determine how to clarify the clause. If it is unclear, then the contract’s meaning is decided in favor of the party that did not write it. However, that is not the case here. The court decided that the contract was so plain and clear that they did not need to look beyond the wording in the contract to determine what it did and did not cover.

In addition to listing what this policy covered, it also listed a variety of exceptions. The court decided that this situation did not fit into any of the exceptions that would have established coverage. As a preliminary measure, the court points out that because a minor who had permission from the owners drove the cart, then it fits into the exceptions clause. The court then walked through all of the exceptions to see if it could find a fit. First, the policy would cover a golf cart that was being driven for the purpose of playing golf. However, the girl was not going to the golf course, she was simply using the cart around her neighborhood, so the policy would not cover that action. Second, the cart would be covered if it was being used to service the residence, such as hauling things to make improvements on the house. Again, that is not what the girl was doing in this situation. Third, it would have been covered if she was transporting people with disabilities, but she was not; she was only transporting her friends who had no real need for the transportation.

Lastly, the insurance would cover injuries that occur at an insured location. Typically, for homeowner’s insurance, the obvious insured location would be the house, but using this clause, it would also cover the yard and some surrounding areas. The court ruled, however, that that cul-de-sac was not an insured area. It argues that if the cul-de-sac, a public location, is an insured area because it is near the girl’s home, then that would extend coverage to a number of locations that likely fall beyond the intentions of the parties, such as public roads to and from insured locations.

The court also considers whether their vehicle insurance would have covered the golf cart. However, it could not cover either because the contract states that it does not cover vehicles that either have fewer than three wheels or are designed for off-road use. The golf cart is not designed to be used on public road, it is designed for use on a golf course, and it has four wheels, so it falls neatly into the exceptions for coverage under the vehicle insurance plan.

The strict view that the court took on this insurance policy led the insurance company to be able to sneak out of the case and leave the families to fight it out amongst themselves. The result is that both parties suffer; one loses money and the other gains money that may take years to obtain (instead of in a lump sum, as the insurance company would have been likely to provide). This case teaches us two lessons: (1) Read your insurance policy carefully and (2) obtain a competent lawyer like those at the Berniard Law Firm to help you with your case.

Continue reading

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.

Continue reading

Wrongful death cases get very complicated when they involve insurance companies and employers. In a recent case, an individual was killed in the scope of his employment with Dunham-Price, Inc. He was driving a concrete truck at the time. The individual’s family brought a wrongful death case against the Department of Transportation and Development (DOTD). This case went to trial and awarded the individual’s wife and children $700,000 in damages, based on the finding that 50% of the fault was attributed to the DOTD and 50% of the fault was attributed to the individual driving the concrete truck.

This case seems like a classic wrongful death suit. However, it also involved two insurance companies, so it gets a little more complicated than it would first appear. There are two overreaching concepts in this case. The first is the third-party defendant and the second is appeals for partial judgments.

In most cases, there are two parties-one plaintiff and one defendant. However, the defendant also has the ability to call in parties who may be liable to the defendant should the court rule in the plaintiff’s favor. Insurance companies are usually privy to this type of liability. That is, if the defendant is found to be liable, then they have an insurance company that is supposed to cover them for that type of situation. In this case, DOTD called in two insurance companies: Liberty Mutual Insurance Company and Valley Forge Insurance Company (VFIC).

Third party defendants differ from a second defendant in that where there are two defendants, they could both be separately liable for the accident. For example, if there is a three-car pile-up and two cars hit one car at virtually the same time, then they could be both called into court. In a third-party defendant case, the third party should help compensate the defendant even though they were not liable for, or even remotely involved in, the accident itself.

The other concept that this case illustrates is appeals for partial judgment. In this case, VFIC stated that although they prove insurance for DOTD, the policy did not cover for the type of accident that the concrete driver experienced. Therefore, they sought a summary judgment to dismiss the claim against them. Summary judgment occurs when there are no material disputes of fact and one party is therefore entitled to have the decision run in their favor. This type of motion allows the court to throw out cases where there is a clear winner and bringing the case in full would be a waste of the court’s time. VFIC’s argument was that if the policy did not cover the accident then they cannot owe DOTD anything, as a result, they could not be involved as a third-party defendant.

The Court agreed with VFIC and granted the request for summary judgment. DOTD then proceeded with the rest of the case involving the family of the deceased. At trial, as mentioned, DOTD lost and was ordered to pay damages. Therefore, DOTD appealed the judgment and sought to also appeal the summary judgment that the Court granted for VFIC.

However, there is a time limitation in which a party is allowed to appeal. In Louisiana, parties have sixty days to appeal or seek a new trial after a final judgment. In the course of the other portion of the trial, DOTD’s sixty days had run, and although they were still in trial with other parties, the issue with VFIC was complete. Because VFIC was removed from the case previously, the grant of summary judgment constituted a partial final judgment and the sixty days to appeal started to run when the notice of judgment was served. Therefore, DOTD could appeal the rest of the case, but could not appeal the summary judgment granted to VFIC because its time limit had expired.

There were many procedural intricacies involved in this case. These intricacies require competent legal representation to navigate.

Continue reading

In Louisiana, like many other states, there are certain restrictions on the period in which you may bring a lawsuit. There are several practical reasons for these restrictions. First, it is important to restrict the period so that people are not in constant fear of being sued for actions that happened years ago. For example, if you cause a car accident, it would be unreasonable to have to defend that issue 20 years after it happened. If we did not have some restrictions, you could be sued for any wrongdoing you’ve ever done over the course of your entire lifetime. Second, if the complaining party brings the suit quickly, then the court is more likely to deal with more accurate information. In our simple car accident example, one can assume that it would be easier to remember the details of a car accident that happened six months ago as opposed to one that happened 20 years ago. Lastly, time frame limits help create efficiency for the court and for those who are involved in the suit. Evidence is easier to obtain when the suit is brought quickly and that makes the trial much easier on all the parties involved.

Louisiana has a variety of codes that describe the time frame limitations for bringing suit. They are known as liberative prescription and the time frames vary by the type of injury involved. For example, the liberative prescription for car accidents is generally one year from the date of the accident in Louisiana. However, you can also file for an interruption, suspension, or renunciation of the liberative prescription. In order to comply with the liberative prescription, you only need to take action that will bring the suit forward; the suit does not need to conclude within this time frame.

One such liberative prescription case was addressed by the Fifth Circuit Court of Appeal for the State of Louisiana in Dec of 2011. In this case, the complaining party was injured as a result of a car accident on March 19, 2003. Shortly after the accident (October 30, 2003), the injured party filed suit. At this point, the injured party was well within the yearlong liberative prescription for the type of suit he was bringing.

However, the next step in the suit would be to notify the other party that they are being sued and call them into court so that the litigation process can commence. There are very stringent methods involved in this notification process that the courts have detailed extensively. Time and manner restrictions are particularly important. The law has set up these safe guards so that when people are sued they are afforded every right of due process as required by not only state laws, but also by the Constitution of the United States. Unfortunately, the injured party in this case either failed to follow those rules or did not make any effort of informing the other party that they were being sued. Therefore, after giving them over six years to comply, the court dismissed the original complaint on November 30, 2009 without prejudice.

The concept of prejudice was important for this case as well. When a court dismisses a case without prejudice, that means that the complaining party is welcome to try the suit again in the future. Dismissal without prejudice is common when there are simple procedural errors that can be easily corrected. However, if the court dismisses with prejudice, then the complaining party cannot bring a suit for the same incident against the same party in the future. Because this complaint was dismissed without prejudice, the complaining party might be able to sue again.

However, the major issue in this case was that even after the suit was dismissed without prejudice, the defendant argued that the plaintiff could not sue again because the liberative prescription period of one year had already run. The plaintiff, in opposition, argued that the liberative prescription was interrupted because they already filed suit once within the liberative prescription period.

Following the general notion that the complaining party need only start the lawsuit within the liberative prescription period, then the complaining party may have been able to file again. However, when a complaint is dismissed, the party is starting an entirely new lawsuit, so it is possible that the court would have denied the commencement of this new lawsuit because it falls well outside the liberative prescription period.

Unfortunately, in this case, the court was unable to weigh in on the issue because the complaining party presented no evidence in support of their argument. When the court does not have evidence to consider, then it cannot rule in favor of the party whose burden it is to convince them of the facts – the plaintiff in this case. In fact, the plaintiff’s counsel did not even show up for the hearing regarding the liberartive prescription issues in this case.

Liberative prescription issues vary from case to case and can be somewhat complicated. Contact the Berniard Law Firm if you have any legal needs as soon as possible after a potential legal situation arises so that you can avoid these complications.

Continue reading

The legal system is not perfect; courts will make the occasional error. However, in our system, we have many different levels in order to help ensure that if there are errors, the next court in the process will work to correct it. One of the ways that a court can correct an error is to grant a new trial. A motion must be made to the court by one of the parties to signify that they would like to have a new trial. In many cases, the same judge will hear the motion and decide whether to grant a new trial. Sometimes the Court of Appeals will review the motion and send the case back down to the lower court for a “re-do.”

A new trial can only be granted for serious legal errors. These errors can be based on the judge or jury, depending on the type of trial. An obviously incorrect result based on the evidence presented would be a strong candidate as a case for a new trial. Often, new trials will be granted when the jury makes a determination that is completely contrary to the facts that were presented.1
The Court of Appeals for the Fifth Circuit considered a motion for a new trial in February this year. The case involved a group of three victims who were in a car accident with a company car, where the company car hit the victim’s vehicle. The three individuals were treated for injuries relating to the accident. The defendant’s liability was proven at a separate hearing, but the damages to be awarded was left up to the jury.

The jury awarded damages significantly lower than expected. Both sides presented experts to testify regarding the severity of the injuries and the treatments that the victims had to endure. The victim’s personal physicians testified and the defendant’s expert countered their testimony. The defendant’s expert pointed out that the procedures given to the victims were actually not credible treatments in the state of Louisiana and therefore unnecessary.

The Court of Appeals for the Fifth Circuit determined that the reason that the jury awarded damages that were so low was because the jury found the defendant’s expert to be more credible and awarded damages accordingly. The court decided that although the damages were very low if the jury would have believed the plaintiff’s experts, they did match the statements of the defendant’s expert.

In Louisiana, the jury is given great deference and their decisions can only be altered if there is an obvious flaw in their outcome. When deciding whether or not to grant a new trial, the court can consider whether the jury gave one expert too much credit. However, because of the need to balance between the deference granted to the jury and the ability to evaluate an expert, the court is only allowed to overrule the jury in extreme cases where the expert was not credible at all.

The court gives an example of such an occasion where they can overrule rule the jury’s decision. In their example, the defense flew in an from another state and he had a reputation for the testimony that he had provided, which was meant to refute the opposing party’s testimony as well. They granted a new trial because of this unwarranted grant of credibility to this individual. In this case, however, the court did not find any of these circumstances and determined that the jury could have reasonably believed the defendant’s expert testimony.

There are many checks built into our court system and new trial is one that can be used in some occasions. Having the right attorney can help preserve this opportunity and move your case forward.

Continue reading

The appellate process is somewhat complicated. One of the major confusions is when a party is allowed to appeal. The simple answer is that a party can appeal a judgment after the lower court has rendered a final decision. But, what makes a decision final? Does the decision include the case as a whole or just a single part of the case? An attorney can address these questions can specifically, but a short overview is helpful as well.

Just like the federal level, a party cannot appeal a decision without that decision being final in Louisiana. A final decision will decide all of the elements of the case. None of the issues will be excluded. The court looks at each issue and renders a decision for either one party or the other on every issue. Therefore, if the court does not address even one issue, then the decision cannot be final.

There is one exception to this rule that is provided in the Louisiana Code of Civil Procedure, which governs all of the court procedures in civil lawsuits for the state. The exception states that a decision can be final even if it does not resolve all the issues as long as the court specifically states that their decision is final and gives valid reasoning for that ruling.

In a recent case, an individual brought suit against their insurance company because he believed that the insurance company failed to replace his roof adequately. He asked for attorney’s fees and penalties. The insurance company argued with this claim and the court granted their motion to dismiss the individual’s suit. The court ruled only on the attorney’s fees and penalties, and not on the adequacy of the roof’s repairs. The lower court stated that this was a final judgment, but did not give reasoning for their declaration as required by Louisiana Code of Civil Procedure. Therefore, the Louisiana Court of Appeals had to determine whether the lower court was justified in their final judgment.

Occasionally, the court will also allow a single issue to be appealed because that issue is extremely important to the rest of the case. The Louisiana Supreme Court has listed several factors to determine whether one of these “partial judgments” can be considered a final judgment for the purpose of appeal. These factors include:

– The relationship between the issues that have been resolved and the issues that have not been addressed. Does one issue need to be determined in order to find out the other? For example, the court may say that the decision cannot be final if the lower court found that car A hit car B because they did not resolve whether car B was making an illegal turn at the time of the collision. Whether car B was making an illegal turn could be a deciding factor in the case and needs to be addressed.

– Whether the issue might resolve itself as the case progresses. In the insurance case mentioned above, if the insurance company was not found to be at fault, then there would be no need to appeal the attorney’s fees and penalties because the insurance company would not be liable. There is no need to appeal when the trial court can make these determinations on its own.

– Whether the appeals court might have to consider the issue again in the future. If the court finds that they will likely have to review the issue again when the entire case is brought on appeal then they will probably not review that particular issue. Reviewing it twice would be a waste of resources for both parties.

– Miscellaneous factors such as delay, shortening the time of trial, frivolity of competing claims, expense, and economic and solvency considerations. For example, if deciding one particular issue will resolve a whole line of issues, then the appellate court may decide that issue and send it back to the lower court to finish the case.

Obviously, the court has quite a bit of discretion to decide whether or not to resolve an issue. Experienced attorneys can sometimes pick out these issues ahead of time, which would give clients an edge on appeals proceedings.

Continue reading

The state of Louisiana, like many other states, has very specific requirements that the judicial branch uses to help interpret contracts when the parties are in dispute. Generally, the court likes to stay out of contracts because the right to contract without interference from the government is something that the American society greatly cherishes. The ability to contract is a basic fundamental right that is guaranteed by the Fourteenth Amendment. The court will usually only interfere if there is a dispute or if the contract was in some way illegal. Therefore, it is very important to have a contract that is well written and that all parties understand completely.

If the court has to step in to work with a contract, then it will follow a few select guidelines. The ultimate goal of the court is to determine the common intent of the parties and enforce the contract in that way. In order to determine the intent, the court will look to the contract itself. In contracts that include terms of art or very technical requirements, the court will look to the common use of the word within that trade. For example, some trades include quantity information that is always larger than actually stated; think of a “baker’s dozen.” Even though twelve is technically considered a dozen, a contract between bakers may actually mean thirteen. This notion disregards the fact that in any other contract that is not between bakers, a dozen would equal twelve.

The court will also consider the contract in its entirety, not just a few sections or a single disputed term. It will determine what outcome is practical for both parties and technical terms will be given their technical meaning. In addition, if a word has more than one meaning, then the court will defer to the meaning that will carry out the goal of the contract. Consider a simple example. If a grocery store contracts to receive bananas and they receive plastic bananas instead of real bananas, the court will likely conclude that the other party providing the plastic bananas was at fault because the definition of a banana is commonly a consumable food, especially if it is going to be sold at a grocery store. The contract did not say that the grocery store wanted edible bananas, but the court will assume this information because the outcome becomes ridiculous without this assumption.

The court will generally try to stay within the language of the contract when attempting to resolve disputes. When the contract is clear and doesn’t lead to ridiculous consequences, then external evidence provided by the parties to show an alternative intent cannot be considered. The contract’s wording is therefore very important. However, if the contract is not clear or is ridiculous, then the court can consider some outside evidence in order to determine the common intent of the parties. In our banana example, if the grocery store has always ordered real bananas from this seller and has never requested plastic bananas from this seller, then that information could be considered in the court’s analysis.

The court has a means to determine whether the meaning of the contract is clear or not. Obviously if a term or issue is missing from the contract entirely, then the court will most likely deem the issue to be unclear or ambiguous. In addition, the court will also reason that an issue is ambiguous when “the language used in the contract is uncertain or is fairly susceptible to more than one interpretation.” If this is the case, then the outside evidence can be used to determine what the intent of both parties actually is.

A well written contract will convey the intention of both parties and will define all of its questionable terms so that there is no contention in the future. Sometimes, one party does not think a term in unclear when it actually is, so a conflict will arise. Competent attorneys are needed to create a well written contract and deal with conflict.

Continue reading

A summary judgment is rendered when a trial court decides that there are no genuine issues of material fact that need to be determined. “Manifestly erroneous” is the high standard under which summary judgments are reversed on appeal. Summary judgments are cheaper and less time consuming than full blown trials; they are a means toward the end of judicial expediency, a goal that becomes increasingly important to our judicial system over time. Despite the importance of this procedural device, many cases do not call for summary judgment. Sometimes trial courts grant full or partial summary judgments in error and are reversed. That is what occurred in the case of Jagneux v. Frohn, which you can read here.

The defendants in this case convinced the trial court that no issues of fact existed that required litigating. Their legal journey was not over though due to the plaintiff’s appeal. The court of appeals applied the standard promulgated by the Louisiana Supreme Court. This Louisiana Supreme Court’s standard initially places the burden of proof on the party that is moving for a summary judgment. The moving party must prove that one or more elements of the adverse party’s claim or defense lacks any factual support on the record so far. The opposing party is then granted an opportunity to prove that there have been facts alleged that support that party’s position. At the time of summary judgment the record is sparse so a granting of summary judgment represents a finding by the court that no facts supporting a particular party’s, in this case the plaintiff’s, position.

The appellate court reversed the trial court’s decision in this case because it found that the issue of whether Mrs. Kling, a defendant in this case, was the driver of the white SUV at the time that it, at least partially, caused the accident at issue in this case. Because there was conflicting evidence about where Mrs. Kling was and whether or not she was actually in control of the car at the time of the accident, summary judgment was not the right choice in this case. The trial court is not to weigh the merits of the case when addressing summary judgment. Summary judgment is only appropriate in cases where no potentially meritorious case is presented by one of the parties.

Contact Information