Articles Posted in Wrongful Death

us_navy_040501_n_14People rely on public services daily, from fire departments to police officers. But what happens if a public entity is responsible for an injury? Can they be held liable for negligence? A recent case out of Grand Isle, Louisiana, shows how public entities can be shielded from liability for negligent conduct in some circumstances. It also helps answer the question; Can a state fire marshall be liable for inspector negligence in a wrongful death lawsuit in Louisiana?

In 2012 a fire in the Willow Creek Apartments in Grand Isle, Louisiana, killed two occupants, Belle Christin Brandl, and Timothy Joseph Foret. Brandl’s three children filed a wrongful death lawsuit against the apartment’s owners, Steven Caruso and Willow Creek, L.L.C., their insurers, and the State of Louisiana through the Department of Public Safety and Corrections, Office of the State Fire Marshal (SFM) and its inspector. The plaintiffs argued Marchiafava as an inspector, failed to properly look into reports of fire hazards that caused the fire, failed to notify the building owners of any hazard and resolve the hazard, and falsified reports regarding his inspection of the Willow Creek building. SFM and the inspector denied the allegations arguing the inspector did investigate an unverified public complaint at the building, which revealed no serious life hazards. Further, the residents of the building did not have any further complaints of hazards. 

SFM and the inspector filed an exception of no cause of action on the grounds SFM and the inspector did not owe a legal obligation, otherwise known as a duty, to the plaintiffs. The trial judge granted the exception. Then SFM and the inspector filed a motion to dismiss the complaint, which was granted, and the plaintiffs filed an appeal. 

transportation_vehicle_road_879026-scaledDriving poses undeniable risks. However, travelers may need to consider how unsafe a barrier curb may be in certain situations. When is the state liable for these conditions? A case from the St. John Baptist parish considered how the state department of development and transportation was at fault for construction risks that contributed to an accident. 

One afternoon, James Harris drove along the Airline Highway in Louisiana with his wife and their two grandchildren. As Harris traveled southbound, another northbound driver, Marilyn (MB), began driving erratically. MB’s car eventually drifted into the opposite side of traffic after crossing over a barrier curb on the highway. Harris moved onto the right-hand shoulder of the road to avoid MB. Unfortunately, despite his efforts to prevent a collision, MB’s vehicle crashed into Harris’, and he injured his left leg, foot, and hip. Ultimately, Harris’ left leg was amputated eight inches below the knee, and MB died from the accident. 

Harris sued the Louisiana Department of Transportation and Development (DOTD) for failing to have a jersey curb that would have prevented MB’s car from drifting into the opposite side of traffic. In addition, he sued Progressive Security Insurance Company, MB, MB’s insurance provider. The trial court found the DOTD to be 90% at fault and Ms. MB to be 10% at fault for the accident, and the jury ultimately awarded Harris $5,000,000 in general damages and $1,000,000 for loss of enjoyment of life. On appeal, the DOTD argued that the trial court abused its discretion in finding the DOTD liable and in the number of damages awarded to Harris. 

bauer_elementary_asbestos_2-scaledRisks are involved with many jobs. While employees may take risks at work, knowingly or unknowingly, one does not usually expect to put their family at risk while on the job. Jimmy Williams Sr found himself in this situation when his exposure to asbestos at work impacted his wife’s health through her handling his work clothes. 

Myra Williams died at fifty-nine after being diagnosed with incurable mesothelioma, an aggressive and deadly form of cancer. She endured a difficult and painful battle with the disease until her death. Myra’s husband, Jimmy Williams, worked for the Placid Oil Facility in Natchitoches, Louisiana, and was constantly exposed to asbestos fibers. Unfortunately, he unknowingly brought the dangerous fibers home on his clothing that was handled and washed by Myra. 

Jimmy Williams Sr filed a lawsuit for the death of his wife. This lawsuit was against several defendants, including Placid Oil Company and Ingersoll-Rand Company. The lawsuit alleged that products being used at Placid Oil Company were produced by Ingersoll-Rand and were the cause of the asbestos exposure that impacted Jimmy’s clothing. The courts in this lawsuit used the “substantial factor test” to determine whether Myra’s claims could be related to the exposure caused by the handling of her husband’s clothes. So what is this “substantial factor test” and how does it work?  The following helps answer that question.

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

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

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

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

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

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

Continue reading

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

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

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

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

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

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

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

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

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

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

Continue reading

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

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

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

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

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

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

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

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

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

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

Continue reading

What is vicarious liability? Vicarious liability, simply put, is the common law principle that an employer may be liable for its employee’s negligence if that employee’s negligence occurred within the course or scope of his or her employment.

In the Beech v. Hercules Drilling Company, L.L.C., case coming out of the Eastern District of Louisiana, vicarious liability principles came into play. In this case, certain bizarre events led the United States Court of Appeals for the Fifth Circuit to make a ruling as to whether Hercules Drilling Company should be held vicariously liable for the actions of Michael Cosenza, its employee, who accidentally shot and killed his co-worker, Keith Beech, while both were aboard a Hercules owned vessel.

The facts of the case were not in dispute. Beech was a crane operator aboard a jack-up drilling rig that Hercules owned, while Cosenza was a driller aboard the vessel. On December 13, 2009, the fateful events that led to the aforementioned case, took place. Cosenza happened to own a firearm, which he accidentally took aboard the vessel; Hercules policy prohibited any firearms from being aboard their vessels. Not only did Cosenza bring a firearm aboard the vessel, violating the policy, but when he realized that he had inadvertently brought it aboard (he found it among his laundry) he did not inform anyone about it and placed it in his locker, further violating Hercules policy. Cosenza was aware of the policies regarding firearms.

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.”

You have just been involved in a car accident. Someone else was driving, and you bring suit against them and several insurance companies that are involved. But who has the burden of proof to prove how much you should be able to recover from the insurance companies? In Louisiana, that burden is on the plaintiff. The plaintiff, when seeking a declaration of coverage under an insurance policy, has to prove that his or her claims are covered under the policy coverage and also has to establish all essential facts in order to recover.

How would this play out? Well, recently, this exact situation played out in Louisiana. A couple was riding in a car driven by another man. The man driving had rented the car from Houston, Texas, but the case was tried in Louisiana. At some point while driving the couple, the man lost control of the vehicle and ended up flipping the car twice. The couple suffered severe injuries from the accident and then filed suit.

Not only did the plaintiffs (the couple) file suit against the man driving, but they also filed suit against several insurance companies involved. Before actually bringing the case to trial, the couple tried to settle the case with a couple of the insurance companies, and the couple received checks in the full amount of the coverage under those insurance companies. However, it was not clear whether or not this was a full recovery. The plaintiffs also wanted to receive payment from the insurance company from the uninsured/underinsured motorist coverage (UM coverage). During the time the parties were trying to decide if this was a complete settlement or not, the plaintiffs’ attorney went ahead and gave his clients the check. The defendants then filed a motion for summary judgment, stating that UM insurance coverage was not available. After several motions and cross motions, the trial court decided that UM coverage was not available to the plaintiffs and granted the motion of summary judgment in favor of the defendants.

When this case was brought to the appellate court, the court analyzed the case de novo (or as if the trial court had not already tried the case) and decided to affirm the trial court’s ruling. Why did they affirm the trial court’s ruling? This is primarily because the plaintiff has the burden of proving what he or she is owed under the insurance policy, and the plaintiffs in this case could not prove that they should be able to recover under UM coverage.

The reason that the plaintiffs could not prove that they should be able to recover under UM coverage is because of the plain language of the insurance coverage policy. Normally, summary judgment should only be granted if there is no reasonable interpretation of the policy, supported by evidence and the facts of the case, that would support granting coverage. This seems like a pretty lenient standard for the plaintiffs, but it still requires that the plaintiffs prove that there is a reasonable interpretation of the policy that does allow them to recover in the manner that they are seeking. And in this case there was not.

In the language of the policy, several clear definitions were given, and as long as the policy wording is clear, then the agreement has to be enforced as it is written. In this case, the policy language stated that in order to recover under UM coverage, the vehicle cannot be available for regular use. However, in this case, the rented vehicle was clearly available for regular use during the rental period, and the vehicle, therefore, could not be classified as underinsured. So the plaintiffs were not entitled to recover any more than they already had.

If you have been involved in a car accident, you want to make sure that you claim and recover the proper amount that is available to you under the various insurance policies involved in the case.

Continue reading

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? –

Contact Information