Articles Posted in Wrongful Death

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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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.

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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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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.

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