Drunk Driving/DUI

Uninsured Drivers Can Affect Payouts in Car Accidents

Published on: April 20, 2011 | By Berniard Law Firm

If hit by an uninsured or underinsured motorist while at work, an employer’s insurance may not cover the damage. While everyone in Louisiana who has a liability policy is required to have uninsured motorists coverage, they can receive an exception by signing a waiver. This can leave accident victims in the dust with tons of heavy medical bills and debt for making a decision they may not have fully understood. Ecolab, Inc. employee Lyndon Doyle found himself in this situation not this lucky.

On January of 2008, Doyle was injured in a car accident while driving a vehicle owned by Ecolab. His injuries resulted in medical bills totaling over $25,000. The woman who hit him, Aniece Smith, did not have enough insurance to cover all of Doyle’s injuries. Because Doyle’s employer Ecolab had a liability insurance policy issued by National Union, Doyle sought the full policy limit from National Union under the uninsured/underinsured motorist (UM) liability provision.

While National Union admitted that a policy covering Doyle existed, they denied that UM coverage was available because Ecolab signed waivers of that coverage on February 4, 2003, and December 18, 2003. Because of the company’s prior decision, Doyle had to argue that both waivers were invalid or not executed in accordance with the law. While originally arguing that the February 4th waiver was invalid because it did not contain a policy number nor the company name in the designated place, the plaintiff chose to concede that the waiver was valid, placing all emphasis on the second argument.

In order to win, Doyle had to argue that the second, December 18 waiver was invalid and that it superseded the properly executed February 4th waiver. To argue that it superseded the first, Doyle had to show that it was signed during the original policy term and not in conjunction with a renewal nor change in coverage. National Union admitted that the December 18 waiver was invalid but asserted that it was signed pursuant to a renewal, and thus did not supersede the first, valid waiver. The court finally decided that the second waiver was simply a renewal, and did not supersede the first because the signed waiver forms were identical and the Ecolab representative who signed both, assumed he had signed the second pursuant to a renewal.

Because the second improper waiver was simply a renewal, it did not supersede the first, properly executed waiver. Thus the UM waiver was in effect at the time of Doyle’s accident, and National Union did not have to pay him anything to help with his medical debt resulting from the accident.

This case illustrates an unfortunate reality: the decisions of your employer can gravely affect your ability to recover from an accident. By hiring the best available attorney, you can make sure that no possible avenue of recovery is missed. This may be the only way to get help with the massive amount of medical debt that may result from an accident while working.

Court of Appeals Affirms Policyholder’s Rejection of UMBI Coverage

Published on: March 23, 2011 | By Berniard Law Firm

The Second Circuit Court of Appeal recently affirmed the rejection of Uninsured Motorist coverage from his mother’s automobile insurance, effectively denying him that kind of coverage for an accident where he was hit by another driver.
21-year-old Michael Tillman was driving his 1995 Dodge Ram pickup truck when he was struck from behind by Tommy Pritchard in 2008. Prichtard’s insurance company paid its policy limits to Tillman, who then sought more recovery from his mother’s insurance company, USAgencies. Paris carter, Tillman’s mother, had a policy in effect at the time of the accident and added the Dodge Ram to the policy shortly before Tillman’s accident.

However, before Carter added the Dodge Ram to her policy, she had rejected Uninsured Motorist Bodily Injury (“UMBI”) coverage when she completed an application for the policy. The policy to which she sought to add her son’s pickup truck did not include UMBI coverage and the truck would also not include that coverage. Tillman, however, argued that the insurance agent should have issued a new policy covering his truck because the agent was given the pickup’s title, which listed Tillman as the owner, and that she knew he did not live with his mother; he also argued that Carter could not effectively reject UMBI coverage for him without his written consent.

The Court of Appeals affirmed the lower court’s decision to dismiss the case summarily because there was no factual issue as to whether Carter rejected UMBI coverage for the Dodge Ram in her policy with USAgencies. The policy document, which Carter signed to reject UMBI coverage, explained that her choice to do so applied both to vehicles described in the policy at that time and to “. . .all reinstatement or substitute policies until [she] make[s] a written request for a change in [her] Bodily Injury Liability Coverage or UMBI Coverage.”

Moreover, the Louisiana legislature has passed statutes which announce that “[a]ny changes to an existing policy, regardless of whether these changes create new coverage, except changes in the limits of liability, do not create a new policy and do not require the completion of new uninsured motorist selection forms.” The Court rejected Tillman’s argument that Carter’s rejection of UMBI coverage might be invalid, citing the rebuttable presumption that Carter’s signed completion of the insurance form means that she knowingly rejected it. The Court reasons that the law is clear: one who signs a document is presumed to have done so with knowledge of its contents, regardless of whether they actually read it.

Further, the Court holds that the insurance agent had no onus to write a separate policy for the Dodge Ram when Carter did not request or direct the agent to obtain. The Court cites the principle that it is the client’s duty to determine the coverage needed, advise the agent of those needs, and to review the policy to determine whether it meets their needs. Lastly, the Court rejects Tillman’s argument that his mother, Paris Carter, could not reject UMBI coverage for him without his written consent. In addressing the authority he cites, the Court clarifies that the rejection requires only the written consent of the policyholder when such a rejection is executed on his behalf.

Though it’s a tough rule, it is important to read the documents you sign, especially when it comes to insurance coverage. Like many people, Ms. Carter might have signed rejection of the UMBI coverage in order to lower her insurance premium. In doing so, she allowed USAgencies to disclaim coverage for injuries sustained by uninsured motorists. However, if you’ve been injured in an automobile accident, you should seek out legal representation to fish out your best interest from these often complicated insurance provisions.

LA Supreme Court Disregards Exclusion for Automobile Business in Liability Policy

Published on: March 21, 2011 | By Berniard Law Firm

The Louisiana Supreme Court decided a case recently which undercuts a major exclusion of many automobile insurance policies because it conflicts with what the State Legislature announced was in the best interest of the public. Many such policies contain various exclusions from coverage, including the one litigated over here: automobile business.

Sensebe v. Canal involved an auto accident where Sensebe was injured when her vehicle was rear ended by a pickup truck on the I-10 twin span bridge in St. Tammany Parish. Deborah Boudreaux was driving the pickup to her employer, an auto shop named Top Hatch, to have the seat covers replaced with leather. Gregory Hyneman was the owner the truck and had it insured with Mississippi Farm Bureau Casualty Insurance Company.

Hyneman’s policy with Farm Bureau contained an “automobile business” exclusion, which Farm Bureau argued applied here and excluded coverage on the pickup during the accident. They reasoned that Ms. Boudreaux was driving the pickup while employed by Top Hatch and as such, the pickup was not covered at the time of the accident.

The District Court agreed with Farm Bureau and dismissed them from the case, but the Court of Appeals reversed that decision by interpreting the insurance policy so as to not exclude the installation of upholstery as automobile business, but rather an after-market upgrade and not an automobile repair or service.
The Louisiana Supreme Court, however, considered the “automobile exclusion” as violating Louisiana Public Policy, which the State Legislature announced requires coverage for permissive drivers – those drivers who operate the covered vehicle with the permission of the policyholder. Because this is Louisiana’s highest court, it sets an important precedent for providing coverage for those injured by vehicles driven by permissive drivers. The Court reasoned that such exclusions, including their broader category of “business exclusion”, violate the legislature’s goal to create a comprehensive scheme to protect injured victims of careless drivers. The Court cautioned that the enforcement of such exclusions would result in motorists being allowed to drive in and out of coverage, depending on the purpose of a particular excursion.
The legislature also included some exceptions to “omnibus coverage”, the required coverage for all vehicles. The owner, they write, may exclude a person if the owner obtains and maintains another policy which provides coverage for the excluded person. Also allowed for exclusion are spouse and other household residents of the policyholder. The LA Supreme Court read these as being the only allowed exclusions from omnibus coverage because the legislature would have included others if it had wanted to allow others. The automobile business exclusion, therefore, was not allowed by the legislature and the fact that it conflicts with the omnibus public policy means it cannot be enforced. The Court sent the matter back down for litigation to continue, denying Farm Bureau’s request to be summarily dismissed from the case on the basis of that exclusion.

The legislature passed the Louisiana Compulsory Motor Vehicle Liability Security Law to pronounce its goals and requirements for automobile insurance, implicitly noting the high cost of automobile-related injuries. Thankfully, the scheme they have passed requires coverage for all drivers except for those noted allowable-exclusions (those otherwise covered by the owner and members of the same household). The idea is to require liability coverage for every vehicle that, by the very nature of driving, might injure someone else. In this case, the Louisiana Supreme Court has signed on to this goal and is enforcing this idea. Those injured in automobile accidents can now worry less about falling through a loophole in the insurance policy of the person who injured them.

Interpreting Insurance Policies: What does a Term really Mean?

Published on: March 19, 2011 | By Berniard Law Firm

Insurance policy terms may appear to be easily understandable and concise. However, the interpretation a lay person may give to an insurance policy agreement’s meaning versus a court’s interpretation of the same policy, may substantially differ. It is true that under Louisiana law, words in a contract are presumed to have the plain and ordinary meaning they are generally given. However, an insurer may bear the burden of proof and demonstrate that a certain provision in an insurance policy exempts coverage for such an event in question.

A recent decision by Louisiana’s Second Circuit Court of Appeal, explored the meaning of an insurance policy in order to determine whether or not the insurer was responsible for the plaintiff’s additional damages. The court looked at the totality of the circumstances to aid their decision. The facts are as follows:

In DeSoto Parish, a series of connected collisions occurred which permanently injured one man, and killed another. The chain of events started with Mr. Mike Miles McCauley, who was employed by the defendant, Steve Kent Trucking Inc., he traveling in his 18-wheeler on Highway 5 through DeSoto Parish. Mr. McCauley dropped his cell phone on the floorboard of the truck and decided to retrieve it, at this point he crossed the center line of the highway, then overcorrected and lost control of the vehicle. The 18-wheeler turned over on its side and onto a vehicle, driven by the plaintiff, Henry Washington, who was traveling in the opposite direction on Highway 5. As a result of the size and ass of the 18-wheeler, Mr. Washington’s vehicle was pushed into a small body of water, the 18-wheeler was still sliding at this point and collided with a car driven by Allan C. Richard, who was killed instantly. Mr. Washington suffered numerous serious injuries which left him permanently incapacitated.

Mr. Washington at trial, sought to recover for numerous damages as a result of the serious injuries he incurred from the accident. Mr. Washington sought past and future mental and physical pain and suffering; past and future physical disability and physical impairment; past and present and future loss of enjoyment of life; past and present and future medical expenses; and the loss of economic opportunity. The trial court entered a judgment allowing Mr. Washington’s curator to settle claim arising from the accident for $4.5 million. The defendant insurer, Greenwich paid $4 million and Steve Kent Trucking, Inc., paid $500,000. The only claim left at this point, was the plaintiff’s claim against defendant insurer Greenwich for an additional $1 million in coverage remained. Greenwich filed a motion for summary judgment and subsequently won, as a result of the interpretation of a term in the policy agreement. The defendant insurer, Greenwich was released from liability to the plaintiff on the basis of the court’s interpretation of one single phrase within the policy, “one accident.”

The defendant insurer relied on the company’s interpretation of the policy agreement in order to evade additional liability to the plaintiff. The defendant argued that the policy specified a $5 million “per accident” limit and that an accident is defined as “the continuous or related exposure to the same exposure to the same conditions resulting in bodily injury.” Greenwich also contended that the limit was a combined single limit.” Essentially, this means that according to the policy agreement, if there are multiple parties that are involved within event, their ability to collect for any resulting damages will be combined and they may all collect no more than $5 million collectively. The court reasoned that there was one accident in this matter, although there were two collisions. Greenwich’s liability was limited to no more than $5 million per accident, thus, the company had paid the policy limits by settling with Mr. Washington for $4 million and the second fatally injured driver’s survivors for $1 million. Therefore, according to the court’s interpretation, the defendant insurer had fulfilled their contractual obligation under the policy and were dismissed. Obviously, the plaintiff was not satisfied with this result in consequence to the numerous future medical procedures needed as a result of the accident, so he appealed the decision.

The appeal consists of essentially a battle of interpretations. On the one hand, the plaintiff assert that under the language of the policy, “accident” and “loss” are different and alternative bases of coverage. Further, they urged that Mr. Washington and Mr. Richard, the deceased second driver involved, sustained separate losses and the policy limit is $5 million per loss. The focal concern of the court, is whether or not the $5 million policy limit is to be applied to each person who suffers bodily injury or death, not all such persons. On the other hand, the defendants assert that the plain, ordinary meaning that Louisiana asserts shall be given to contract terms, is that “per accident” a maximum of $5 million shall be allocated. Here, even though there were two victims, they were involved within one incident that caused such injury, thus, they fulfilled the policy limit by allocating between the two victims, a total of $5 million.

Interpretation of an insurance policy is usually resolved by a summary judgment motion, which is what the defendant insurer claimed. When determining whether a policy affords coverage for an incident, the insured bears the burden of proving that the incident falls within the policy’s terms. The court determined that a lack of coverage under the insurance policy was appropriate because there was no reasonable interpretation of the policy, and when applied to the undisputed material facts shown by the evidence supporting the motion, coverage was not additionally afforded to the plaintiff.

The court in this case, made their determination based on the totality of the circumstances. The accident or occurrence was explored in order to determine the extent of the harm, the seriousness of the injuries, and the insurance coverage in light of the facts presented by the various factors involved. The 18-wheeler fatally killed one man as a result of sliding into the man’s vehicle, and caused the other driver to become permanently incapacitated. These injuries occurred from one event, by one negligent act of the driver, and therefore, was not going continue or persist in injuries to the plaintiff. rather, the plaintiff was suffering as a result of the one act by the driver, thus, according the court’s interpretation of the insurance policy, the plaintiff and the deceased driver’s survivors together, obtained $5 million from the injuries they sustained from the tragic accident. Thus, the insurer fulfilled their contractual obligations and were not responsible for any additional amounts urged by the plaintiff.

Interpretation is a powerful tool, as this case illustrates, contractual terms may be difficult and hard to understand.

Court Hears Appeal Regarding Alleged Insurance Company Delays

Published on: March 17, 2011 | By Berniard Law Firm

In a variety of states, including Louisiana, penalties are imposed on insurers who arbitrarily or capriciously fail to pay a claim. If an insurer behaves in a manner that could be construed as being in “bad faith,” they will face a host of possible penalties. Specifically, the insurer has duties to fulfill, such as paying the amount of any claim due any insured within thirty days respectively. However, determining whether or not the insurer is in bad faith is a two way street, the insured/claimant also has to satisfy certain burden(s) of proof. The court will take into consideration the totality of the circumstances, explore each parties behavior and provided proof, and will thus make their decision.

In a recent Louisiana appellate decision, the court denied finding an insurer in bad faith for denying the plaintiff additional damages. The damages sustained stemmed from an incident that occurred in Winn Parish, Louisiana. Specifically, a five year old boy was crossing Highway 167 to board a school bus when he was struck and injured by a vehicle driven by a minor. Apparently, the minor driving failed to heed the stop sign on the bus which was activated, nor slow down. The force of the impact caused the young boy to be thrown an estaimted distance of 65 feet. His injuries were quite serious, including a broken left femur, damage to the spleen, and severe lacerations to the face and neck. The injured boy had to remain in a full body cast for a number of weeks and incurred substantial bullying from classmates as a result of his visibly scarred facial appearance. The jury awarded damages to the plaintiff for the following: past special damages, future special damages, past general damages, future general damages, and loss of earning capacity.

The plaintiffs in this matter filed a motion for judgment notwithstanding the verdict (JNOV), and in the alternative, sought a new trial. After a hearing, the trial court granted the plaintiff’s JNOV and nullified the jury’s verdict. The court awarded $100,000 initially to the plaintiff; however, after the hearing, the damages were increased to a total of $600,000. This was a $500,000 increase in the amount of total damages to the plaintiff. However, the trial court, without explanation also ruled that the insurer was not in bad faith under Louisiana law in its handling of the plaintiff’s claim. Additionally, the judgment gave the insurer credit for all sums paid to date and further taxed all costs to the insurer. The defendant insurer appealed on the basis that the trial court erred in granting the plaintiff’s motion for JNOV, which increased the jury’s award by $500,000. On the other hand, the plaintiff asserted that the trial court correctly granted the motion for JNOV, but abused its discretion in awarding insufficient damages, specifically in the categories of general damages and loss of earning capacity.

The first issue the court explored was whether or not the JNOV ruling was correct. There is one main question that must be asked to determine whether granting the motion for JNOV was appropriate: do the facts and inferences point so strongly and overwhelmingly in favor of the moving party that reasonable men could not arrive at a contrary verdict? if the answer to that question in the affirmative, then the trial judge was correct in granting the motion. However, if a reasonable person in exercising impartial judgment might reach a different conclusion, then it was error to grant the motion and the jury should be reinstated. Here, the jury’s verdict awarded only special damages and no general damages. The court had to determine whether or not a jury could award one and not the other. The decision held that the jury’s verdict which failed to award general damages was “illogical and inconsistent, representing an abuse of discretion.” Addressing only the future medical expenses and ignoring the past special medical damages illustrated a large problem with the damages awarded the plaintiff. In fact, the court reasoned that the jury was confused in filling out the verdict form without consideration of the previously tendered insurance payments as instructed by the form. Thus, the trial court was correct in granting the JNOV and overruling the jury’s verdict.

Lastly, the plaintiff claimed that the insurer acted arbitrarily, capriciously, and without probable cause in failing to unconditionally tender more than $190,000 in payment of the damages. The plaintiffs alleged that they made numerous demands supported with medical proof, however, the insurer failed to comply. Under Louisiana law, La. R.S. 22:1892, an insurer owes a duty of good faith and fair dealing to its insured. As such, an insurer has an affirmative duty to adjust claims fairly and promptly to make reasonable efforts to settle claims with the insured. The statute provides that if an insurer is found to have acted in bad faith, several penalties are available to the claimant. First, the plaintiff must clearly show that the insurer was in fact arbitrary, capricious, and without probable cause in refusing to pay. Bad faith hinges on whether or not the insurer is aware of specific facts in making their decision not to satisfy a claimant’s damages. The basis of the plaintiff’s argument for additional damages from the insurer, was the fact that the little boy would suffer extensive mental difficulties in the future. The dilemma in such an argument, was the fact that the alleged future mental injury was Attention Deficit Disorder (ADD), which the defendant insurer argued was not a result of the injuries sustained when he was hit by the motor vehicle. The court reasoned that ADD could not be directly attributable to the incident in question and as a result, the insurer was not found to have acted arbitrarily, capriciously, or have acted without probable cause in denying such additional future damages.

Thus, insurers do have an affirmative statutory duty to act in good faith towards claimants. Insurers are prohibited from refusing to pay claims without a reasnable basis. The bad faith statute is designed to protect individuals who have been injured from having their claims declined without any reasonable basis.

New Drunk Driving Law Further Penalizes Repeat Offenders

Published on: August 16, 2010 | By Berniard Law Firm

Drinking and driving is a problematic issue, one which has been aggressively confronted in order to prohibit repeat offenders from getting back on the road. On August 15, 2010, House Bill by Republican representative from LaPlace, Nickie Monica, went into effect and will cause substantial changes for second time DWI offenders in the state of Louisiana. This bill is specifically directed at repeat offenders for drinking and driving or vehicular negligent injury.

Previously, a second time offender would still drive legally if they obtain permission from the Department of Motor Vehicles, who would grant an offender upon being petitioned, a restricted license (also known as a hardship license). This type of license allows the offender to drive a vehicle only to certain destinations, such as work, school, a medical emergency, or church. The Louisiana Department of Motor Vehicles declares such a license as a “means to earn a livelihood or to maintain the necessities of life.” However, the restricted license requires the individual to have an ignition Interlock device installed into the vehicle they will be driving. The ignition interlock device is connected to the vehicle’s ignition, and once the person blows into a tube which screens for the presence of alcohol, the car may or may not turn on depending on the result. This device has been criticized because the offender may have another person who has not been drinking breathe into the tube, thus, allowing the vehicle to start, despite the fact that the offender may have been drinking. Thus, drinking and driving has continued to plague the state of Louisiana.

Furthermore, Louisiana in 2008 had the 11th highest drunken driving fatalities in the nation, with over 912 people killed due to drinking and driving. It was this type of statistic that motivated Representative Monica to propose the repeat offender bill in order to initiate change. Specifically, the new bill will not allow the repeat offender to obtain a restricted license for at least 45 days. This time period will be known as a “hard suspension” that cannot be waived or shortened for any repeat DWI offender. But that is not the only significant change with House Bill 1274, if an offender has three or more convictions there will be a three year suspension upon the persons license. Moreover, unlike a second time offender who has to wait 45 days to petition for a restricted license, a three or more time offender has to wait 12 months before they can petition for such license and have the ignition interlock device installed. The new bill will institute stronger oversight and rigid time requirements in order to crack down on repeat offenders ability to get back on the road so soon after multiple convictions.