Articles Posted in Property Rights

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oil_oil_production_oil-scaledSafeguarding your property rights is of utmost importance, as the consequences of inadequate protection can be far-reaching. While oil and gas rights disputes may not directly affect the average citizen, other property-related conflicts can significantly impact individuals and their assets. In such complex situations, navigating the intricacies of property laws requires the expertise of an experienced attorney who can empower you with a clear understanding of your rights, ensure the legal protections you are entitled to, and advocate on your behalf. The following lawsuit shows the importance of expert counsel in understanding your property rights. 

In 2011, a dispute arose over a large drilling unit’s oil and gas rights. Chesapeake Operating (“Chesapeake”) was the unit’s appointed operator and a lessee of mineral interests for a portion of the unit. TDX Energy (“TDX”) was also a lessee for a part of the unit. The unit’s drilling began in February 2011 and ended in July 2011. TDX’s leases to its oil and gas interests had not been recorded until after the drilling had been completed in September 2011. 

Later in 2011, TDX made Chesapeake aware of its leases and requested accounting reports, as required under Louisiana’s Title 30, section 103.1. After six weeks, having yet to receive a response, TDX again notified Chesapeake of how it had failed to comply with the law. Chesapeake eventually responded with a letter to TDX, requesting TDX decide whether it would participate in the unit well’s risk under section 10(A) of the statute. TDX responded by disagreeing, stating it was not required by law to opt-in or out and that Chesapeake did not provide the accounting reports; it forfeited its rights to contribution to drilling costs.

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police_cop_police_uniforms-scaledExperiencing termination from your job is a difficult situation, especially when it feels unjust. Scott Poiencot faced this unfortunate circumstance when he was terminated from his position as a police officer in the Lafayette Police Department, where he had served for several years. As a civil service employee, Louisiana law provided a specific procedure for appealing his termination. This case sheds light on employees’ challenges in challenging an unfair termination. In addition, it emphasizes the importance of seeking legal guidance to understand their rights and navigate the appeals process.

Before his termination, Scott Poiencot had been involved in three different Internal Affairs investigations. The first investigation (AD2012-007) involved a confidential document being removed from a police file and eventually released to the media. It was discovered that a Lieutenant in the police department had removed the document initially and whited out some information before providing it to Poeincot.  The second investigation (AD2012-010) involved Poiencot secretly recording a phone conversation involving a Major in the police department. Poiencot eventually admitted to downloading the conversation, which was released to the media. The third investigation (AD2012-012) involved Poiencot’s refusal to submit to a polygraph as part of the first investigation related to releasing a confidential document. His termination letter referenced all three prior investigations with which he was involved. 

After his termination, Poiencot appealed to the Lafayette Municipal Fire & Police Civil Service Board (the “Board”). The Board voted 5-0 to uphold his termination, finding it was made for cause and in good faith. The Board then issued a final judgment. 

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email_letter_postal_codes-scaledParties in conflict often prefer out-of-court dispute resolution. Although these agreements made outside the courtroom are appealing, they come with their slew of issues and may require a courtroom to enforce an out-of-court solution. When a deal outside the courtroom requires a court to intervene, how does that court decide whether to enforce the settlement agreement? And in the era of virtual communication and remote dispute resolution, how can a court decide when virtually made agreements are enforceable and binding on the parties?

The present case emerged out of a lumber dispute. In short, the defendants wrongfully cut down trees on the plaintiffs’ land. The plaintiffs filed a lawsuit against the numerous defendants for this wrongful timber cutting and the resulting property damage, penalties, interest, costs, and attorney fees. Some defendants also brought crossclaims against each other following the plaintiffs’ complaints. 

The trial court conducted a conference where the parties discussed a potential settlement. Ultimately, the parties drafted an agreement in which one defendant, J.R. Logging, would pay the plaintiffs $20,000. In turn, the plaintiff’s claims against J.R. Logging and the other defendant, Fair Hills Farms, would be dismissed along with the crossclaims between defendants. 

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louisiana_park_stream_pondIf an individual is unable to care for themself or manage their financial or business affairs, legal intervention in the form of interdiction may be appropriate. If a court finds interdiction to be warranted, it may assign another person to make decisions for the disabled. The following case demonstrates when a court may deny an interdiction assertion. 

John Dupuis filed a petition for interdiction in Acadia Parish, asserting that his mother, Linda Dupuis, was incapable of being employed, driving, balancing her checkbook, or paying her bills. In his petition, John also noted that his father, Kenneth Dupuis, had recently passed away, that Kenneth had always taken care of Linda, and that John should be appointed curator of Linda. Although Linda filed a motion denying John’s allegations, she also sought the appointment of her daughter, June Dupuis, as curator if the court found interdiction appropriate. John then responded with additional grounds for interdiction: that Linda had mental illness and epilepsy.

The 15th Judicial District Court for the Parish of Acadia then appointed Dr. Eddie Johnson as an examiner to provide his opinion on whether Linda suffered from the infirmities alleged by John, the appropriateness of the interdiction, and if a less restrictive means of intervention was available. Dr. Johnson indicated in his report that Linda showed no signs of cognitive impairment, could make competent major life decisions and that interdiction would not be necessary. 

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foggy_sidewalk_morning_fog-scaledPremises liability is an active area of personal injury law, and accidents occurring on public property are no exception. The question often arises, who is liable for a slip and fall on a public sidewalk? In this case, the Louisiana Third Circuit Court of Appeal was asked to determine the premises liability of the town of Lake Arthur for a fall occurring on a public sidewalk built and maintained by this public entity.

On July 11, 2014, Robin Rogers Richard fell while walking along a sidewalk in Lake Arthur. The portion of the sidewalk where her fall occurred was a driveway that allowed maintenance vehicles to access a public park, with a sloping transition on either side running perpendicular to the street. This portion of the sidewalk was completed in September 2013 by John Anderson Concrete Finishes, Inc. (Anderson), under the direction of Robert Bertrand, the major of Lake Arthur. 

Ms. Richard filed a motion for summary judgment on the liability issue, arguing the slope of the transition area did not meet certain state and national requirements and was, therefore, defective per se. However, at her deposition, she indicated that her last step before her fall was on a flat portion of the new sidewalk, not the sloped portion. In response, Lake Arthur, Anderson, and its insurer, Seneca Specialty Insurance Co, filed motions for summary judgment alleging statutory immunity from liability and they were not liable because the condition of the sidewalk was open and obvious.

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stamp_rubber_stamp_stamped-scaledLosing a loved one is an obviously devastating experience. Possessions left to the surviving family members cannot take the grief away but can prohibit an entire upheaval for the survivors. It is critical that an excellent attorney drafts the will and handles the probate process for the sake of those survivors.      

An Alexandria, Louisiana, widow was out of luck after family members filed a lawsuit claiming that her late husband’s will was null and defective. In 1996, Elmoses Ivey executed his last will and testament, which left all his property to his wife, Lois Ivey. After Mr. Ivey died in 2016, Mrs. Ivey probated the will and obtained a judgment of possession. However, Mr. Ivey’s children from a prior marriage filed a lawsuit to contest the validity of their father’s will.   The children argued that the attestation clause at the end of the will did meet the necessary legal requirements and was, therefore, invalid. An attestation clause is a section at the end of the will stating that all the legal requirements in executing the will have been met. The Ninth Judicial District Court for the Parish of Rapides agreed and declared the will invalid. Mrs. Ivey appealed to the Louisiana Third Circuit Court of Appeal. 

Louisiana law requires a notarial testament’s attestation clause to be in writing and dated.   The testator (person making the will) must sign the will at the end and on each separate page. The testator must declare in the notary’s presence and two witnesses that the instrument is his will. Finally, the notary and witnesses must include a written declaration that both the first two requirements have been met. See La. C.C. art 1577. While there is a presumption in favor of validity generally, will execution formalities must be strictly followed, or the will is invalid. See Successions of Toney, 226 So.3d 397 (La. 2017). The Louisiana Supreme Court further opined that any earlier cases which treated deviations from testamentary form requirements with leniency would no longer apply.    

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Like many states, Louisiana has an unfair trade practices act. In Louisiana, it is known as the Louisiana Unfair Trade Practices and Consumer Protection Law. Just as the name implies, this law is meant to protect consumers from the unfair, misleading, or fraudulent acts of those provide services, goods, and financing. Any contract or agreement entered into in violation of this law is void. However, the Louisiana Unfair Trade Practices and Consumer Protection Law (“Law”) has a serious limitation; it does not apply to a financial institution that is federally insured, including most banks and lending institutions.

The Law’s limitation means that an average mortgage arrangement from a large or national financial institution will not be affected by the protection that the Law affords. The United States Court of Appeals for the Fifth Circuit provides an example of this exception in a recent decision. In that case, a woman arranged for a home mortgage through Bank of America. Bank of America then assigned the mortgage to Wells Fargo. Both of these companies are large financial institutions that are federally insured.

When the woman defaulted on her mortgage, Wells Fargo sought to foreclose on her home. She applied for assistance from a federal government program called Home Affordable Modification Program (“HAMP”) during the foreclosure process. HAMP is designed to help modify mortgages for those who are in foreclosure proceedings so that they can keep their homes and pay a more affordable monthly payment. While the woman’s HAMP application was pending, the foreclosure proceeding was supposed to be put on hold. However, despite this application, her home was sold at a foreclosure sale before she received word back from HAMP to determine whether he application had been approved. She also claimed that she did not receive notice of the sale. Essentially, she argued that her home was sold out from under her without her knowledge.

She attempted to sue both Bank of America and Wells Fargo. She argued that Bank of America should not have allowed Wells Fargo to purchase the mortgage. She also argued that the foreclosure proceedings violated the Louisiana Unfair Trade Practices and Consumer Protection Law. However, the state court determined that even if they did violate the Law, the Law did not apply to them because of the financial institutions exception.

After a loss in state court, the woman appealed the case to the federal district court. However, the district court pointed out that it cannot sit as a court of appeals for state-exclusive actions. That means that the federal district court cannot hear a case where the only arguments are based on state law. Instead, a district court can only hear a case where there is some sort of federal jurisdiction based on either federal law or involves parties from different states, unless Congress has authorized the district court to act otherwise. Nonetheless, where a case questions the procedures of the state court, instead of applying substantive state law, then the federal court could hear the case. For example, if the woman argued that he procedure violated her constitutional rights, then the district court would likely be able to hear the case. This concept is known as the Rooker-Feldman doctrine. As the court explains, “Reduced to its essence, the Rooker-Feldman doctrine holds that inferior federal courts do not have the power to modify or reverse state court judgments except where authorized by Congress.”

In this case, the woman complained that the proceedings in the state court were incorrect; therefore, she was not just asking the district court to review the state court decision. As a result, the district court had the authority to review the case. Despite that fact, the woman failed to state a claim because both Bank of America and Wells Fargo are federally insured financial institutions that are not subject to the Louisiana Unfair Trade Practices and Consumer Protection Law. That meant that the Court of Appeals had to affirm the lower court, and the woman failed in her efforts to appeal.

It may have been possible to assert other arguments based on federal law, but the woman failed to do so. In fact, there were several arguments that the woman waived because she failed to timely assert them. In an appeal, if you do not assert every argument that you have in your opening brief, then you effectively lose the ability to use that argument at any point in the rest of the appeal. In this case, this may have been crucial to the woman’s case because she failed on the arguments that she presented originally (the state law claims). That point highlights the importance of competent attorneys who can argue effectively for you.  Continue reading

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It is extremely important to review your home insurance policy to determine what types of damages the policy will actually cover, especially in areas prone to suffer from hurricane damages. Under Louisiana law, the insured individual is required to first prove that the insurance policy covers the cause of the claim. For example, if the policy only covers certain types of causes of damage, such as wind and hail, then the insured must prove that the damage was in fact caused by either wind or hail. Once the insured has done this, then the insurance company can argue that the incident is not covered by the policy. Therefore, it is extremely important that the insured take the time to determine the cause of the damage in order to prove that the policy covers their claim.

 

A case arising from Lake Charles, Louisiana illustrates this point. In this case, a homeowner suffered roof damage that they believed was caused by Hurricane Ike around September 13, 2008. Four shingles were missing and the insured claimed that this resulted in leakage in several rooms of the home. However, State Farm, the homeowner’s insurance company, determined that the leakage was not caused by Hurricane Ike and reclassified the claim as a “non-hurricane” claim.

 

State Farm, using several experts, determined that the leakage resulted from normal wear and tear on the roof, and therefore the homeowner’s insurance policy did not cover the leakage damage. Instead, State Farm concluded that only the four missing shingles were the result of wind and that they were the only damages that State Farm should reimburse to the insured; State Farm did not reimburse the insured for the damages caused by the leakage, but just the replacement value of the four damaged or missing shingles. The total damages that State Farm paid were under $500.00.

 

The insured had damages that were estimated at $9,385.00 by one expert and $204,717.78 by another expert. However, while these experts estimated what the cost of the leakage damage and repairing the roof would be, neither expert determined the actual cause of the damages. One of the insured’s experts thought that the wind had lifted the house’s flat roofing, which allowed water to enter the home. However, the expert could not explain why the nails on the flat roofing were still in place if the wind had lifted it. The State Farm expert, on the other hand, determined that the wind damage only included those four damaged or missing shingles and the leakage was actually caused by normal wear and tear. The State Farm expert concluded that there was “no evidence of roof damage that would be caused by severe weather . . . . The roofs, both asbestos shingle and built up roofs and all associated flashings are past their life cycle and are in need of replacement.”

 

The insured’s policy did not cover “poor workmanship; wear, tear, deterioration, or latent defect; settling, cracking, or expansion of walls, roofs, or ceilings; or leakage of water from air conditioning systems, household appliances, or plumbing.” Since the State Farm expert determined that the cause of the damage was from normal wear and tear, there was no way that the insured could satisfy the requirement to prove that the policy covered his claim. As such, the court granted State Farm summary judgment.

 

The court will grant summary judgment where one party cannot meet their required burden as a matter of law at trial. Summary judgment allows the court to avoid costly trials where there is one clear winner before the trial even begins. In this case, where the insured had no evidence that all of the damage he was claiming was caused by an occurrence included in the insurance policy, the court determined that summary judgment was appropriate. If the insured had employed experts that specifically testified as to the cause of the leakage damage, then the court may have allowed the case to proceed to trial. Further, the insured could have made a more diligent effort to report leakage as it occurred, which would help prevent the damage from spreading in the long run.

 

This case illustrates several very important points for the average homeowner. First, you should carefully read your policy so that you know what type of damage is covered. Second, if necessary, you may need to acquire experts that can explain what caused the damage to your home. Lastly, report damages immediately so that you can avoid costly repairs later on.  Continue reading

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When you signed up for automobile insurance, you might have noticed that many states now require automobile insurance agencies to include some sort of uninsured motorist (“UM”) clause in your insurance agreement. Oftentimes, the only way to get out of including this in your coverage, and therefore having to pay a higher premium, is by explicitly rejecting this additional coverage. How exactly do you reject this additional coverage, though? While this might seem like an easy question, most states, including the state of Louisiana, require very specific requirements to be met in order for rejection of UM coverage to be proper.

In the State of Louisiana, that is exactly the case: In order to get out of paying a higher premium for this uninsured motorist coverage, the insured has to explicitly reject that coverage. And the state of Louisiana has many rules with regard to how to properly complete this task.

In order for an uninsured motorist rejection to be considered proper, Louisiana courts have found six tasks that must be completed by the insured. In Duncan v. U.S.A.A Ins. Co., 06-0363 (La. 11/29/06), 950 So. 2d 544, the court outlines these six tasks as follows:

1) initialing the selection or rejection of coverage chosen;
2) if limits lower than the policy limits are chosen (available in options 2 and 4), then filling in the amount of coverage selected for each person and each accident;
3) printing the name of the named insured or legal representative;
4) signing the name of the named insured or legal representative;
5) filling in the policy number; and
6) filling in the date.

While the Court in Duncan did not explicitly deal with the timing of these tasks, a couple years later, the Court in Gray v. American National Propery & Cas. Co., 07-1670 (La. 2/26/08), 977 So. 2d 839, discussed the requisite timing in which the above tasks need to be completed. According to the Court in Gray, all six of these tasks have to be completed before the UM selection form is signed by the insured. The Court also went on to say that the completion of these tasks has to be done in a manner showing that the insured’s signature signifies that he or she agrees with all of the information that is contained in the insurance form. While the Court said that the tasks have to be completed before the UM selection form is signed by the insured, that was not the most important part of the Court’s findings. Rather, the most important part of the Court’s holding was that the insured’s signature needs to signify agreement with all that is contained in the form.

In the recent case decided by the Louisiana Supreme Court, Edward Morrison v. U.S.A.A Casualty Ins. Co., No. 2012-CC-2334, the Court really focused on the fact that the most important part of the timing of the UM selection form is that the insured’s signature is affirming agreement to all the clauses contained therein. This case primarily deals with task #1 listed above which requires that an individual properly initial the selection or rejection of coverage chosen in order for UM rejection to be considered proper.

In this case, the insured’s representative clearly meant to reject UM coverage but accidentally did not initial the line that stated such in the agreement form. When the insurer received the form, he or she noticed that the form was incomplete and sent it back to the insured’s representative. At that time, the representative initialed the proper line rejecting UM coverage and returned the form to the insurer. This clearly showed that the insured agreed with all of the clauses and various information contained in the form. Furthermore, all of this was completed before the relevant accident, so the court held the UM rejection valid.

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In a previous blog post, we discussed how exactly uninsured/underinsured motorist (UM) benefits can be rejected in Louisiana. While that post went through some of the legal technicalities involved in rejecting UM coverage, it did not discuss in depth some of the scenarios in which coverage might be rejected and how the court might actually rule despite those legal technicalities.

This blog post will focus on specific cases and scenarios in which, despite not following every legally prescribed requirement under Louisiana law, the court has decided that coverage was actually properly rejected or limited. Some of these examples involve just a word or two out of place, others involve completely leaving off pertinent information. But all of the below examples make it clear that the parties’ intents are more important that perfectly following the letter of the law.

The first example deals with a case involving an automobile accident. In that case, the individual driving the car involved in the accident was driving one of his employer’s vehicles. So the question was whether or not the employer’s insurance company, General Insurance Company of America (GICA), had properly produced a valid and enforceable uninsured/underinsured motorist rejection form, as required by the commissioner of insurance. Whether or not this UM rejection form had been properly completed would mean the difference between $100,000.00 and $1,000,000.00 available under the policy. GICA contended that it had filled the form out properly and that coverage should be $100,000.00, and the individual driving the car claimed the opposite and that coverage should be in the amount of $1,000,000.00.

In that case, the plaintiff argued that the form did not fulfill all requirements as specified by Louisiana statute for proper uninsured/underinsured motorist rejection. Specifically, the form that was signed had an improper title. Despite the fact that the form did not have the exact proper title, the court decided that the form was still valid and enforceable, and therefore, UM rejection was properly executed. The governing factor in the case was whether or not GICA’s intent was clear from the UM rejection form. Because the intent was clear, despite the improper title, rejection was still proper.

Another example from the Louisiana court system involved a UM rejection form that not only had the title wrong, but also had several other deviations. Despite these errors, the uninsured/underinsured motorist rejection was still deemed proper because the form was clear about the limitation of the coverage. From the form, it was obvious that the party meant to limit UM motorist coverage.

Yet another case dealt with a form that was missing the insurance company name and policy number. Both of those pieces of information are technically required by law in order for the UM rejection to be valid. However, the court in that case ruled that such omissions will not invalidate an otherwise valid form when it is clear that the intent was to reject UM coverage. The technical errors had little weight on the court’s decision because the overall intent of the parties was clearly stated in the signed document.

In a Louisiana Supreme Court case, a form did not properly contain the printed name of the legal representative of the corporate insured. However, once again, despite this technical error, the Court determined that the uninsured/underinsured motorist rejection form would not be considered invalid because of that small error because the overall intent of the parties was clear from the form.

From these examples, it is clear that the courts will not always strictly apply the stated law and that sometimes the overall intent of the parties is more important and carries more weight in determining the validity of a UM rejection form.

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