Articles Posted in Fire

Published on: | By

fire_orange_emergency_burning-scaledIn a world where news headlines often feature calamitous industrial disasters, it’s hardly surprising to find legal battles trailing in their wake. The following case involves multiple individuals who filed lawsuits against the owner of a facility in Iberia Parish, Louisiana, that had a large fire. 

A fire at a facility owned by Multi-Chem Group caused multiple explosions, which released chemicals. Following the fire and explosions, multiple people filed lawsuits against Multi-Chem and others, alleging they had been exposed to hazardous materials. The multiple lawsuits were consolidated into three groups based on the distance the injured party was located from the fire source. At trial, the parties presented expert testimony about whether the plaintiffs were exposed to hazardous materials from the Multi-Chem fire and if they suffered damages due to the exposure. The trial court held that the plaintiffs had established exposure and awarded damages to the three groups. The damages included medical expenses, general damages, and mental anguish related to the fear of developing cancer. Multi-Chem filed an appeal. 

On appeal, Multi-Chem argued the trial court erred in admitting and excluding certain expert testimony. Article 702 of the Louisiana Code of Evidence governs expert testimony. At trial, the trial court evaluated the expert witnesses’ relevant credentials when deciding whether and to what extent to credit the expert witnesses’ testimony. The court also analyzed the underlying data the experts used as the basis for their opinions. Therefore, the appellate court found Multi-Chem’s argument that the trial court erred in which expert testimony it admitted and excluded lacked merit. 

Continue reading

Published on: | By

fire_house_burns_cemetery-scaledMistakes are inevitable in human experiences, but some mistakes can have significant legal consequences. Just like regular folks, courts are infallible and make mistakes as well. What happens when a court fails to include all required information in a judgment? Such a failure creates confusion and can impede the appeals process and delay justice for the parties involved, as seen in the following case.

Unfortunately, a house fire occurred at the home where Thomas Bayer and Laura Kelley resided. The fire resulted from a gas explosion that occurred while employees of Cimarron Underground were working on a gas meter on the property. They cut a gas line, resulting in a fire. As a result of the fire, Bayer and Kelly had to vacate their property for several weeks while the house underwent repairs. 

Bayer and Kelly filed a lawsuit against Cimarron Underground, their insurance company Starr Indemnity & Liability, and others, claiming the defendant’s negligence caused the fire and resulting injuries and inconvenience. Cimarron Underground filed a summary judgment motion. The trial court held a hearing, where it orally granted Cimarron Underground’s summary judgment motion. 

Continue reading

Published on: | By

meat_barbecue_grill-scaledWhen preparing for a fundraiser, you understandably have lots on your mind. You have to coordinate food, RSVPs, and plan the event. However, if you are using something potentially dangerous, such as a propane barbecue, you also need to ensure you take reasonable steps to inspect it for any potential defects. Otherwise, you could be liable for injuries you or others suffer.

John Palir III was a pastor at Topsy United Pentecostal Church. A week before the church’s barbecue fundraiser, he and a deacon at the church were trying to light the barbecue pit on a barbecue trailer the church owned. When the deacon pressed the pilot button, Palir lit it with a lighter wand. That resulted in a ball of fire that blew Palir out of the trailer, where he hit the deacon’s grandson, who was standing nearby at the time of the explosion. Palir filed a lawsuit against the church and its insurer, GuideOne Insurance Company. 

At trial, Palir moved to exclude any instruction to the jury about him being liable for the explosion. The trial court allowed the church to present evidence of Palir’s negligence but not about whether Palir knew or should have known the barbecue trailer was defective or hazardous under La. C.C. art. 2317.1. At trial, the jury held Palir was 50% at fault, and the church was also 50% at fault. The jury also found the barbecue trailer was in the Church’s custody, it presented an unreasonable risk of harm to Palir, and the church knew or should have known about its defect. Palir appealed, arguing the jury erred in assigning him 50% of the fault. 

Continue reading

Published on: | By

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. 

Continue reading

Published on: | By

camillo_fire_2015_06_25-scaled
The phrase, “where there’s smoke, there’s fire,” is often used to describe situations where one thing almost certainly indicates the presence of another. However, establishing a contributing factor to a car accident and liability for negligence does not always follow so direct a relationship.

Shortly before Tropical Storm Lee reached the marshlands of Oak Island just outside of New Orleans in September 2011, an employee of the LPC (“Little Pine”), the entity that owns Oak Island, saw traces of smoke and reported it to the Fire Department (NOFD). NOFD investigated the scene and found a fire, but the area from which the smoke was coming was not accessible to fire crews. The onset of Tropical Storm Lee made it even more difficult for NOFD, which had called in the Louisiana Army National Guard — to reach the source of the smoke. Helicopter water drops were used to treat the fire, but access by boat or other means remained impossible. The fire continued to burn for months under the daily monitoring of NOFD.

On the morning of December 29, 2011, drivers traveling on Interstate 10 past the Oak Island marshlands suddenly encountered thick, dense fog and smoke clouds, resulting in nearly zero visibility. Scott Lowe, a passenger in one of the vehicles traveling on I-10, was involved in a multi-car accident caused by poor visibility conditions. Lowe filed a lawsuit against Little Pine, arguing that it acted negligently by allowing the marsh fire to burn for months after it began, allowing smoke to obstruct visibility along a major roadway, and failing to exercise due care regarding the safety of others. Little Pine filed a motion for summary judgment, arguing that there was no genuine issue of material fact about whether Little Pine was liable for an “unavoidable Act of God/force majeure.” In addition, Little Pine asserted it owed no duty to Lowe to extinguish the marsh fire. The trial court granted Little Pine’s motion for summary judgment, and Lowe appealed.

Continue reading

Published on: | By

 

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

Published on: | By

The case of American Zurich Insurance v. Caterpillar arose from a truck fire that took place in Natchitoches Parish on April 7, 2010. American Zurich insured the truck and Caterpillar manufactured the truck’s engine. American Zurich opened up a loss file on the truck the day of the fire. American Zurich paid out almost $77,000 dollars to the insured.

On April 26, 2010, Zurich was informed of a possible defect in the engine by an inspection agency they hired to look into the claim. A year later, on April 26, 2011, American Zurich filed suit against Caterpillar in West Baton Rouge Parish seeking reimbursement for the costs they incurred, but the case was subsequently moved to Natchitoches Parish in June 2011. On November 10, 2011, the trial court granted Caterpillar’s peremptory exception of prescription and their motion for summary judgment and dismissed American Zurich’s claims. American Zurich appealed the trial court’s decision and the case made its way to the Third Circuit Court of Appeal. While you read the rest of this case summary, keep the dates mentioned above in mind.

So why does keeping these dates straight in our minds matter, and what is a peremptory exception of prescription? Actions brought under the Louisiana Products Liability Act, or LPLA, must be filed within one year “from the day injury or damage is sustained.” This one year time period is known as a prescriptive period. A peremptory exception of prescription is a defense motion arguing that the plaintiff has no case because they failed to file their case in the required prescriptive period of time. So one of the major issues in this case became on what date did that prescriptive period begin? Caterpillar claimed it started on April 7, 2010, the day of the fire. American Zurich claimed it began on April 26, 2010, which was the day their investigators told them about the engine defect.

The court noted that “prescription begins to run when the defect manifests itself, not on the date the underlying cause of the defect is found.” In other words, the court said that the one year prescriptive period began on the day of the fire, April 7, 2010. The court points out that American Zurich knew about the fire the day it occurred, and therefore, American Zurich had no basis for arguing that the prescriptive date should have started on April 26, 2010. Thus the court holds that American Zurich did not file their case within the one year prescriptive period required under the LPLA which ran out on April 7, 2011.

The court also quickly dispatched a breach of contract claim by American Zurich. American Zurich claimed that by building a defective engine, Caterpillar had failed to perform under their service contract. In Louisiana, the LPLA is the sole remedy against a manufacturer of a defective product. There is one exception to this rule, and that applies when the damage, or part of the damage, is caused exclusively by a breach of contract, and not the defective product itself. So it was important for American Zurich to argue this exception applied in this case because a breach of contract claim has a prescriptive period of ten years in Louisiana.

The court found American Zurich’s argument unpersuasive since the damage was solely attributable to the defective engine, and their claims were not related to the service contract itself. The exception mentioned above was not applicable, and therefore the LPLA was controlled this case. As mentioned above, the prescriptive period had run out before American Zurich filed their case against Caterpillar, and the court affirmed the trial court’s dismissal of American Zurich’s claims.
This case shows the vital importance of taking timely action when engaged in legal matters.

Continue reading

Published on: | By

In a recent case, the Fifth Circuit Court of Appeals reviewed the lower court’s application of the “law-of-the-case” and “waiver” doctrines. Both of these doctrines are important rules that express the ultimate power of an appellate court in reviewing issues of law. Generally, an issue of law is a question regarding the application of law to a case. Therefore, in pursuing any civil suit, it is imperative to understand the implications and ramifications of an appellate court’s power to change the ruling in your case.

In Bayou Steel Corp. v. National Union Fire Insurance Company of Pittsburgh, Pennsylvania, the Fifth Circuit Court reviewed an insurance dispute that concerned the apportionment of liability for a severe leg injury that was suffered by a worker who was unloading steel bundles. In a complicated fact scenario, Ryan Campbell was injured, in 2002, while unloading steel bundles owned by Bayou Steel Corp. on a barge that was owned by Memco Barge Lines, Inc. Shortly before this incident occurred, Bayou Steel Corp. had contracted with Memco to transport the steel from LaPlace, Louisiana, to Chicago, Illinois. At the time of his injury, Ryan Campbell was working for Kindra Marine Terminal, a stevedoring company that was assigned to unload the steel bundles in Chicago. After the suit involving Ryan Campbell was settled, Bayou Steel Corp. brought suit seeking a declaration of coverage and reimbursement from National Union Fire Insurance.

After a series of appeals, the district court used the law-of-the-case doctrine to determine that Kindra was not a sub-contractor of Bayou Steel. Therefore, Campbell’s injuries fell within the language of the insurance policy that Bayou Steel held. Thus, the lower court entered summary judgment for National Union Fire Insurance Company of Pittsburgh, Pennsylvania.

According to the law-of-the-case doctrine, “when a court decides upon a rule of law, that decision should continue to govern the same issue in subsequent stages in the same case.” Thus, an issue of law “decided on appeal may not be reexamined by the district court on remand or by the appellate court on a subsequent appeal.” Accordingly, the Fifth Circuit agreed with the district court that that fact that Campbell did not fall within the exclusion in the policy held by Bayou Steel was part of the law of the case and subsequently held that this issue had been resolved on an earlier appeal.

The waiver doctrine “holds that an issue that could have been raised on appeal but is forfeited and may not be revisited by the district court on remand.” Id. Like the law-of-the-case doctrine, the waiver doctrine “serves judicial economy by forcing parties to raise issues whose resolution might spare the court and parties later rounds of remands and appeals.” However, the waiver doctrine “arises as a consequence of a party’s inaction, [and] not as a consequence of a decision on [the part of the Court of Appeals].” Thus, the Court of Appeals agreed that Bayou had waived their argument about the language of the policy by failing to raise it on remand after the first appeal or during the second appeal … “[b]ecause they failed to raise it during that period, the issue could not [have been] revisited by the district court on remand.”

In its decision, the Fifth Circuit ruled that the lower court had properly applied the law-of-the-case and waiver doctrines and that summary judgment in favor of National Union Fire Insurance Company of Pittsburgh, Pennsylvania, was appropriate.

All of these matters are inherently complicated and show that knowledge of the exact law is necessary to reach a successful outcome. While questions and issues of law must be decided by the court, your legal representative should be aware of the foregoing doctrines and should be able to adequately present your case.

Continue reading

Published on: | By

The case of American Zurich Insurance v. Caterpillar arose from a truck fire that took place in Natchitoches Parish on April 7, 2010. American Zurich insured the truck and Caterpillar manufactured the truck’s engine. American Zurich opened up a loss file on the truck the day of the fire. American Zurich paid out almost $77,000 dollars to the insured. On April 26, 2010, Zurich was informed of a possible defect in the engine by an inspection agency they hired to look into the claim. A year later, on April 26, 2011 American Zurich filed suit against Caterpillar in West Baton Rouge Parish seeking reimbursement for the costs they incurred, but the case was subsequently moved to Natchitoches Parish in June 2011. On November 10, 2011, the trial court granted Caterpillar’s peremptory exception of prescription and their motion for summary judgment and dismissed American Zurich’s claims. American Zurich appealed the trial court’s decision and the case made its way to the Third Circuit Court of Appeal. While you read the rest of this case summary keep the dates mentioned above in mind.

So why does keeping these dates straight in our minds matter, and what is a peremptory exception of prescription? Actions brought under the Louisiana Products Liability Act, or LPLA, must be filed within one year “from the day injury or damage is sustained.” This one year time period is known as a prescriptive period. A peremptory exception of prescription is a defense motion arguing that the plaintiff has no case because they failed to file their case in the required prescriptive period of time. So one of the major issues in this case became on what date did that prescriptive period begin? Caterpillar claimed it started on April 7, 2010, the day of the fire. American Zurich claimed it began on April 26, 2010, which was the day their investigators told them about the engine defect.

The court noted that “prescription begins to run when the defect manifests itself, not on the date the underlying cause of the defect is found.” In other words, the court said that the one year prescriptive period began on the day of the fire, April 7, 2010. The court points out that American Zurich knew about the fire the day it occurred, and therefore, American Zurich had no basis for arguing that the prescriptive date should have started on April 26, 2010. Thus the court holds that American Zurich did not file their case within the one year prescriptive period required under the LPLA which ran out on April 7, 2011.

Continue reading

Published on: | By

In a suit by a commercial tenant and their insurance company against the landlord, Mr. Ducet, the landlord defended by arguing that the terms of the lease prevented the tenant from recovering damages. If the tenant was unable to recover damages the insurance company would also be unable to recover under the legal concept of subrogation.

The lease clause in question was called a mutual waiver. In it the parties agreed not to bring claims against each other for damages as a result of a fire if the damages were or could have been insured against under a typical fire insurance policy. The lease also stated that the landlord and the renter would each get a waiver of subrogation from their respective insurance underwriters. Subrogation is when an insurance company pays their policy holder the cost to repair or replace the damaged property but then sues the person who caused the damage or is otherwise legally responsible for it to get the money back from them. The Court found that the waiver in the lease prevented the tenant’s insurance company from suing the landlord for the amount the company had paid the tenant for damaged personal property and equipment. The Court stated that the insurance company, as subrogee, had no greater rights than the tenant. Under the mutual waiver provision in the lease agreement the tenant had no right to sue the landlord for the cost of personal property or equipment lost in a fire, therefore the insurance company could have no right to sue either.

Another issue in the case was how the mutual waiver affected other responsibilities under the contract. The tenant arranged to have the roof repaired after the fire even though under the terms of the lease the landlord was responsible for repairing any damage done to the building itself as a result of a fire. The Court found that the landlord had a duty under the contract to keep the building itself in good repair and that it was his responsibility to repair the roof after the fire. The fact that the tenant hired someone to fix the roof before the landlord had done it did not relieve the landlord of his obligation. The mutual waiver clause in the lease did not prevent the repair company from suing the landlord for the cost of the repairs which were the landlord’s responsibility.

This case shows how previous contracts, such as a lease, can affect later contracts, like fire insurance policies, even when they are made with third parties. It is important for every property owner and renter to understand how their contracts affect their rights and obligations in regard to their property. This is equally important for business owners as for people dealing with their own homes.

Continue reading

Contact Information
1140 St Charles Ave
New Orleans, LA 70130
Phone: (504) 521-6000Fax: (504) 617-6300

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

Please do not include any confidential or sensitive information in a contact form, text message, or voicemail. The contact form sends information by non-encrypted email, which is not secure. Submitting a contact form, sending a text message, making a phone call, or leaving a voicemail does not create an attorney-client relationship.

Copyright © 2024, Berniard Law Firm
JUSTIA Law Firm Blog Design