Articles Posted in Term Definitions

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Summary judgment is a mechanism used when one party clearly deserves to win the case based on either issues of fact or law. That is, the parties agree to facts and those facts point to a clear winner of the case when the correct laws are applied. Summary judgment helps cases move quickly through the judicial process because an actual trial is not necessary. However, where there are issues of factual disputes or the evidence is unclear, summary judgment cannot be used to conclude the case.

Often, both sides will move for summary judgment because any grant of summary judgment will conclude the case and avoid a full trial. A case appealed from Lafayette, Louisiana, explains when summary judgment is appropriate. The court explains that the burden of proof is on the party moving for summary judgment. However, that burden adjusts depending on who would be the party needing to prove the burden at actual trial. As a general notion, the burden is usually on the party who is claiming the error. For example, if you are injured in a car accident, then you must prove that the other party was at fault in order to recover. If the mover would not have had the burden at trial, then the threshold to grant summary judgment is much lower. Instead of proving that there is no way the other side could win, the party without the burden could prove that the other party does not have enough facts, evidence, or there is some other fatal flaw with their argument.

In that case, the plaintiff was in a car accident that caused him serious back injuries. His back injuries resulted in surgery and completely inhibited his ability to work. In fact, the plaintiff was a lawyer who previously had his own law practice, but the law practice closed after his accident because he could not continue due to his injuries. The lawyer had two disability policies that covered him should he become disabled and unable to continue working. These polices both had partial options that would award partial benefits if the individual could continue working, but not at full capacity. Since the lawyer had to quit his law practice, he argued that he should be awarded full disability payments.

Both sides argued for summary judgment. The lawyer argued for summary judgment based on the notion that he should be paid the full amount of disability and his payments should have occurred much sooner than they did. The insurance company, on the other hand, argued that summary judgment for their side was appropriate because the lawyer did not deserve full disability and they could not have given payments any sooner because the lawyer did not furnish them with all of the information they needed to begin making payments.

The disability payments depended a great deal on past income. The payments were adjusted to portions of income depending on whether the individual was awarded full or partial disability. As such, the insurance carriers required the lawyer to submit previous tax returns as proof of income. The insurance company requested the plaintiff’s 1999 tax return, but did not receive it until 2005. Instead, the plaintiff furnished the insurance company with his tax returns from 1997 and 1998. Since the accident occurred in 1998 and the payments were to be based on the previous year’s earnings, the plaintiff assumed that the insurance company would want previous year’s tax returns.

While the insurance company was waiting on the 1999 tax return, the insurance company made two payments to the plaintiff. However, the insurance company alleges that they did not pay in full because they did not have the 1999 tax return. The court noticed this inconsistency. The court explained that the plaintiff was obviously entitled to some benefit since the insurance company paid him, but the question was whether the payments were correct and timely. Since the facts did not line up with the testimony, the court determined that neither side should be awarded summary judgment. Accordingly, the case will go to trial and the court will determine the case on the merits, instead of just as a matter of law.

Summary judgment is a valuable tool when used properly. It avoids the time and money involved in a complete trial and allows the winning party to obtain the same result that they likely would have at trial. It functions as a legal short cut. The Berniard Law firm can help determine if your case is appropriate for summary judgment. In addition, we can also take your case to trial if needed.

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The Federal National Flood Insurance Program (“NFIP”) is a federal program that allows homeowners to protect against flooding because most homeowners insurance does not cover flooding (You can check out their website here). It is offered to homeowners, renters and some business owners. The federal government works with private insurance companies to encourage them to offer insurance. The government sets a standard rate and then the insurance is actually through the private insurance company, but involves the federal government to a great degree. The federal government underwrites, or supports the insurance company, but the private insurance company does all of the related administrative tasks.

Because of the federal government’s involvement, when there are issues with the insurance company, you must follow unique litigation paths in order to recover for any damages in many occasions. For example, the federal government will normally cover any litigation costs for the private insurance company. As such, some procedures that would normally be acceptable at the state level may not be allowed in the federal court.

A case in Mississippi that was appealed to the Fifth Circuit Court of Appeals helps explain these differences. In that case, Grissom, the insured individual, had insurance under the NFIP through Liberty Mutual. He was eligible for a preferred risk insurance policy, but did not know he was eligible. After Hurricane Katrina, he argued that he would have purchased the preferred risk insurance policy if he had known about his eligibility.

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Even in 2012, issues regarding Hurricane Katrina, which occurred in 2005, are still prevalent. Insurance companies are particularly affected by Katrina, and they are still attempting to sort out many claims. Some of the contract claims that are still moving through the courts are somewhat unique. For example, contracts occasionally have provisions where both parties can appoint an appraiser if the two parties cannot decide how much damage actually occurred. The insurance policies will only insure up to a certain amount, of course, but determining the amount of damage is a vital part of reimbursement of the claim.

An apartment building in Metairie, Louisiana carried insurance that had such an appraisal policy. The contract explained that both parties were to appoint their own appraiser, who is supposed to be fair and impartial. Then, a third individual, the umpire, would be appointed. The umpire takes both of the appraisers’ estimates, examines them, and then comes up with a third number that will be the final number for total damage. The two parties are supposed to appoint the umpire as well, but if the two parties cannot decide on an umpire, then the court can appoint one for them.

In this case, the court did appoint an umpire. However, the court not only appointed an umpire, but also imposed certain rules and restrictions to the appraisal process. In particular, the court restricted the documents that the umpire could receive and required that if the umpire needed to communicate with either party then the opposing party would also be included in the conversation. The communication issues required the umpire to copy both parties on e-mails, letters, and make conference calls. Communication with just one party was strictly not allowed. In addition, neither party was to give the umpire documentation of a legal nature that would attempt to convince the umpire that the award should be a certain amount. Instead, the documentation was limited to receipts, inspections, and other impartial information.

The apartment’s appraiser valued the damage at approximately $200,000, but the insurance company’s appraiser valued the damage at zero. The apartment owner argued that the insurance company’s appraiser was not being impartial because they did not award any damages. However, the insurance company noticed that the apartment owners had already fixed most of the damage using funds from other insurance companies, so the insurance company’s appraiser determined that the apartment owners were not entitled to any more damage payments.

The umpire agreed with the insurance company’s appraiser and recommended that the damage award be zero. Naturally, the apartment owner was upset by this result, so he appealed the decision to the Fifth Circuit Court of Appeals for the State of Louisiana. The apartment owner argued that the court interfered too much with the process–the apartment owner should have been able to give the umpire whatever documentation they wanted and communicated however they wanted.

The Court disagreed. It began its analysis by underscoring that although the two parties had an appraisal clause in their contract, the clause does not take away the court’s right to hear a case. In addition, insurance policies are contracts, and should be interpreted under the regular principles of contracts. Therefore, the court will interpret the contract using its regular meaning unless some of the phrases have gained technical definitions in that particular line of business.

The Court explained that the two parties deliberately involved the court when they stated in the contract that the court was to assign an umpire if the two parties could not agree to one. The appraisal portion of the contract did not set specific guidelines in the process, so the court stepped in to create them. The lower court explained that they were afraid the umpire was getting far too much irrelevant information, so they intervened. The Court deemed this a completely acceptable practice under the circumstances. The Court also decided that the insurance company’s appraiser was sufficiently impartial. Lastly, the Court concluded that since the lower court acted appropriately, the award of zero damages should still stand.

This case illustrates a unique clause that could potentially be helpful for the insured, but since the clause was not detailed enough to limit the court’s actions, it turned out to be detrimental.

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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? –

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In the first year of law school, nearly every student takes a course in Contracts. Contract law is one of the bases of our legal system and is at the core of almost all legal agreements. Everytime you get car insurance, sign a lease, agree to pay your plumber or electrician for work, or sign up for new cellphone service, you are dealing with a contract.

In contracts, every single word and punctuation mark is important. Clear, concise and unambiguous language is vital to writing a good contract. Sometimes even big companies enter into contracts that contain ambiguous language. These ambiguities can cause legal problems down the road. The case of WH Holdings, L.L.C. et al. v. ACE American Insurance Company illustrates how ambiguous contract language can lead to legal problems for the parties involved.

Prior to Hurricane Katrina, WH Holdings, the owner of the Ritz Carlton Hotel Complex in New Orleans, hired Gootee Construction Company to renovate the existing structure of the complex. Gootee was in the process of performing the renovations when Hurricane Katrina made landfall and caused damage to the exterior of the building. WH Holdings filed suit against Gootee’s insurer, ACE American Insurance Company, for almost $3.3 million for damage to the exterior of the hotel.
The parties agreed that the contract was governed by a form document known as the General Conditions of the Contract for Construction (General Conditions). The General Conditions is a document that contains amendments that the parties negotiated themselves – the Court acknowledges that these amendments are clearly marked in the document.

Both parties also agreed that WH Holdings was only covered under the policy which ACE issued to Gootee if, and only if, WH Holdings qualified as an insured party under the policy. Thus the entire case rested on whether or not Gootee was “contractually obligated… to insure WH Holdings such that it became an insured on the ACE policy.”

To reach its decision, the District Court looked at two clauses of the contract, Subsections 11.4.1 and 11.1.5(g). The parties distinctly amended a portion of Subsection 11.4.1. to seemingly place the responsibility of purchasing property insurance on Gootee. The District Court even acknowledged that if 11.4.1 stood alone, ACE would have no basis to contest WH Holdings claim. However, the District Court held that a separate subsection, 11.1.5(g), located in a different portion of the contract, changed the meaning of 11.4.1 by “unambiguously… obligating WH Holdings to carry the insurance ‘when the construction is an addition or a renovation.'”
The district court granted ACE’s motion for summary judgment and concluded that WH Holdings was not an insured party under the contract and Gootee had no responsibility to insure WH Holdings.

The 5th Circuit disagreed with the District Court’s analysis stating that while the district court “relied entirely on subsection 11.1.5(g) in finding the contract unambiguous… subsection 11.1.5(g) is not as ‘crystal clear’ as the district court thought it to be.” The Court goes on to point out that 11.1.5(g) appeared in an entirely different portion of the contract than 11.4.1. Subsection 11.1.5(g) appeared in a section of the contract covering “Contractor’s Liability Insurance” while 11.4.1 appeared in a section entitled “Property Insurance.” The Court found that 11.1.5(g) is limited in scope by a preceding clause and therefore does not modify 11.4.1, and to read it any other way would be ignoring this express limit. The 5th Circuit finally stated that it simply cannot agree with Gootee’s assertion and the District Court’s conclusion that the contract language unambiguously obligated WH Holdings to purchase property insurance.

The 5th Circuit also disagreed with WH Holdings argument that it was in fact Gootee who was “unambiguously required… to purchase the property insurance” since WH Holdings was unable to persuasively argue their interpretation. Stating that there were “difficulties with each party’s contention that the contract unambiguously supports its position,” the 5th Circuit vacated the District Court’s judgment and remanded the case back to the District Court. Finally, due to the ambiguous nature of the contract, the 5th Circuit also ordered the District Court to examine outside evidence brought by both parties regarding the meaning of the contract and to examine how both parties had performed the contract prior to the lawsuit being brought.

Contracts can be extremely important and very complicated particularly when dealing with insurance issues. Hiring the proper attorney is very important to ensure that all documents relevant are maintained, and provided, from start to finish, as well as to navigate any complicated appeals that may arise.

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In Jane Doe v. Southern Gyms, LLC arising out of Baton Rouge, Louisiana, a class action suit was filed involving a local branch of the national gym, Anytime Fitness, was accused of taking pictures of 250-300 women changing in a locker room. The plaintiffs filed on behalf of all women who’d used the gym during the time period and the class was certified to proceed to trial.

To understand what “the class was certified” means, it is important to understand what a class action suit is the reasons why we allow class actions in the first place. Class action suits are a useful tool in litigation in that it can bring together large numbers of substantially similar or identical claims into a single proceeding. This contributes to judicial efficiency as often times the type of cases litigated as class actions can have as many as thousands of plaintiffs. Assuming each of these cases was large enough to be worth bringing to court individually, there would be substantial amounts of duplicated effort by each party. However, the real value of class actions is in allowing cases that normally would be too small to litigate individually to have their day in court. If a case involves a real injustice to thousands of people, but the actual per person damages is relatively small it would be too costly to vindicate their claims.

In this case, the class proposed was:

all females who physically entered the women’s restroom/locker room/ changing room at Anytime Fitness, 200 Government Street, Baton Rouge, LA 70802 from November 1, 2009, through and including April 5 2010.

The rules that govern class actions require that several hurdles be met before a class can be certified (allowed) to proceed: there must be enough members that litigating separately is impractical; the questions of law and facts in the case common to the parties; the class representative’s claims must be typical of the claims of the class; they are able to protect the interests of the entire class, and finally the class must be able to be adequately defined so the court can be satisfied that the suit will end the dispute.

This case is noteworthy because the actual size of the class is fairly small. The gym operator admitted to videotaping on only 10-15 occasions. While any number of women may have been victims during these periods, the class itself was certified for any woman using the gym during a nearly 6 month period. There is no rule that states the minimum number of plaintiffs required for a class action, but the appeals court did not give a rousing endorsement for the “numerosity” (size) of the class in this case, they merely deferred to the trial court judgment on the matter. What was particularly noteworthy was the court weighed concerns beyond just the actual numbers of women involved. An additional factor was evidence that the gym allowed members from around the country to use it and thus the plaintiffs might not all have been locals which would have substantially increased the burden to litigate separately. Had all the women been locals, it is possible the court would have required “joinder” or just combining separate cases rather than allowing a representative in a class action suit.

Most people have been involved in a class action suit and may not have even been aware of it. Generally, each member of the class is required to be notified to give them the opportunity to opt-out of (or into) the class. This will typically be done via a postcard by mail. Thousands of these cards are thrown away without being read yearly but they can entitle plaintiffs to small to moderate cash settlements without ever setting foot in a courtroom, as you are being represented by the person bringing the suit!

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When an accident occurs, there is usually a fight over whose insurance company will pay for the damages. The issue becomes even messier when the driver responsible for the wreck appears to be working under different employers. This was the issue in a recently decided case by the Louisiana Court of Appeal for the Third Circuit, which involved a wreck in Maurice.

In that case, Broussard v. Progressive Security Ins. Co., et. al., a dump truck hauling material to a construction site struck another vehicle in an intersection. The passengers of that vehicle filed a lawsuit against the driver, the subcontractor for which the driver worked, the general contractor who had hired the subcontractor and the insurance companies for both the subcontractor and the general contractor. The issue before the court was which insurance company would be held liable for damages: the subcontractor’s or the general contractor’s.

The court focused primarily on the language of the policy held by the general contractor. Under that policy, a “non-owned auto” could be covered under certain conditions. A “non-owned auto” was described as a vehicle not actually owned by the company, but were vehicles leased, hired or rented to be used in connection with the business. Thus, the question became whether the dump truck driver had been hired by the general contractor and whether or not the truck he was driving was hired or rented by the general contractor.

After analyzing the facts, the court found that, although the employee was hired by the general contractor, there was no evidence that the truck itself was hired or rented. Therefore, the subcontractor’s insurance still covered the truck and would be liable for the plaintiff’s damages.

Insurance issues like this are complex, especially in the business context. Depending on the policy, certain vehicles may be covered and others may not depending on certain circumstances. The determination of which insurance applies could mean hundreds of thousands of dollars for that insurance company, and hundreds or thousands of dollars in increased premiums for the policy holder. For this reason, it is important that companies and individuals know and understand their insurance policies.

Additionally, companies must be aware of who they hire. As was touched on in the above case, employees who cause an accident while operating within the scope of their employment can place their employer in the liability hot seat. Insurance in this context will play a critical role. For example, if an employee is drunk while driving his delivery route and causes an accident, the employer and the employer’s insurance will likely be responsible for damages.

For businesses, this means hiring a questionable driver can put the company at risk of increased expenses from lawsuits and the danger of being dropped from its insurance. For individuals injured by these negligent drivers, this structure allows them to obtain the compensation they need to cover medical expenses, pain and suffering, and lost wages. Then, hopefully, the individual can achieve a full recovery.

When an accident occurs, the last thing people want to deal with is interpreting convoluted insurance policies. Yet, these documents are of vital importance when determining who will pay for accident damages. A competent attorney can walk you through the documents and help create a legal strategy that protects your best interests.

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When personal items are lost to fire, the anguish one experiences can be devastating. One must sift through the remains to determine what was lost, not only as a personal inventory but also for insurance purposes. Such was the experience of Ronald and Delores Semar of Lafayette, Louisiana. Their building was destroyed after an adjacent motor home caught fire due to a defective refrigeration unit. The building housed their collection of antique vehicles, a collection that had taken the Semars 20 years to assemble. The Semars described the collection as a documentary of their lives together. It was reduced to ashes because of the fire.

Property damage to the Semars exceeded their insurance coverage, so the Semars sought to recover their uninsured losses and mental anguish damages from the manufacturer of the defective refrigeration unit. The Semars’ insurance company also sought subrogation against the manufacturer. Subrogation is a legal doctrine by which claims of an insured party (here, the Semars) against a negligent third party (the manufacturer) pass to the insurance company.

Insurance policies and laws are designed to ensure speedy payouts when an insured party properly submits evidence of its damages, even if the insured is a third-party claimant. Specifically, Louisiana Revised Statutes 22:1892(A)(4) provides that all insurers must make a written offer to settle any property damage claim, including a third-party claim, within 30 days after receipt of satisfactory proofs of loss of that claim. Failure to do so subjects the insurer to a penalty payable to the insured, if the insurer’s failure to pay is arbitrary or without probable cause.

In the Semars’ case, the manufacturer’s 2 liability insurers failed to make a written settlement offer within 30 days of receipt of satisfactory proof of their claims. A trial court determined that the insurers had satisfactory proof of loss as to the claim to the building as of November 2009. A written settlement offer was not made until August 2010. The trial court held that the failure of the insurers to comply with the 30-day timeframe was not made in good faith or with probable cause. It ruled against the manufacturer and its insurers, awarding damages in favor of the Semars in the amount of $1,628,789 and in favor of the Semars’ insurance company in the amount of $1,591,505.

The manufacturer appealed, primarily contesting that the trial court improperly concluded that its insurers did not make a written settlement offer within a reasonable time after receiving proper proof of loss for reasons that were arbitrary and without probable cause. A Louisiana Court of Appeals affirmed the trial court’s ruling. It held that proof of loss is a flexible requirement that is met as long as the insurer has sufficient information to act on the claim. The manner in which it obtains the information is immaterial. In this case, because the insurers were informed that the manufacturer was at fault and photographs and documentation proved the loss to the Semars, the court concluded that the insurers were sufficiently apprised of the claims as of November 2009. Its failure to make a written settlement offer until the following August was therefore unjustified. Further, it agreed with the Semars’ contention that the trial court erred in not awarding damages for loss of use of the antique vehicles. Evidence showed that family members of the Semars often used the antique cars when their vehicle was broken down. Accordingly, the court awarded the Semars an additional $20,000 as reasonable compensation for the loss of the use of the antique vehicles. Attorney fees for work completed on the appeal for the Semars and their insurance were assessed against the manufacturer and its insurers as well.

If you have an insurance issue, contact the Berniard Law Firm. Providing the best experts in diagnosing the cause of damages, our law firm can handle all of your litigation needs.

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After a recent car accident in Kenner, Louisiana, the plaintiff’s uninsured/underinsured insurance carrier, Progressive, appealed a claim against it, claiming in part that the general damages awarded the plaintiff were excessive. Although Progressive’s claim was dismissed and the award for general damages affirmed, this case brings up the important subject of general damages in personal injury cases.

When filing a claim in a motor vehicle accident, the plaintiff wants to make sure that he or she receives all appropriate damages, and a large component of the damages award typically falls in the category of general damages. So what are general damages and how do you get the appropriate amount of general damages? First, the phrase “general damages” refers to those damages that you can’t easily put a dollar amount on. This is opposed to the other main category of damages, “special damages,” which refers to those damages such as specific medical bills or lost wages that can more easily be determined precisely.

General damages normally encompass areas of loss such as pain and suffering that are inherently subjective. These damages also include compensation for things such as disfigurement and loss of enjoyment of life. One way these damages can be proven is by testifying of things such as limited mobility or the inability to participate in specific activities as a result of the accident. However, while the loss of enjoyment or pain can be testified of, it is often hard to assign a dollar amount to this suffering.

Because the area of general damages is so subjective, many defendants appeal awards of general damages which they deem excessive, just as in the Progressive case referred to above. In the Progressive case, the award of $40,000 in damages was affirmed, however, because the appellate court decided that it was not an excessive award.

In instances like this, the fact finder must look at a preponderance of the evidence when making its judgment, and Progressive argued that the trial court did not do this. The plaintiff had only been to the doctor four times, and Progressive argued that in light of that, $40,000 was excessive. However, as stated above, general damages are not directly tied to any medical bills or any specifically proven dollar amount. Rather, general damages are subjective awards of damage. In this case, the plaintiff had back pain and was limited in the activities that he could pursue after the accident.

Furthermore, the plaintiff in this case was able to receive general damages even though he had previous back problems. Even if you have had previous health problems, that does not preclude an award of general damages. In the case with Progressive, the plaintiff had previous back problems and serious surgery just two years prior. Despite both of these facts, because the plaintiff was able to prove that the accident exacerbated his back problems, he was able to receive general damages. He testified that before the accident he had gone fishing and hunting often, but he was no longer able to fish after the accident.

Even though it is hard to put a specific dollar amount on the damage that comes from the plaintiff’s newly limited activities, the fact finders (the trial court) must make that determination. Once the trial court decides on a dollar amount and passes its judgment, it can only be reversed if the appellate court finds that the trial court’s judgment was clearly wrong or manifestly erroneous or that abuse of discretion was used. In this case, appropriate discretion was used, and the judgment was not blatantly wrong or erroneous. And most importantly, the plaintiff’s attorney made sure to claim all of the requisite damages so that his client could receive the damages he deserved.

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Jason and Renee Niemann, a couple from Mandeville, Louisiana, purchased a home in 2007 in the Lakeside Village Subdivision in Mandeville, Louisiana. Unbeknownst to them, a subcontractor, Calmar Construction Company, installed Chinese drywall in the home during construction in 2006, and the Niemanns have been fighting the builder, subcontractor, and subdivision developer in court since discovering the defect in 2010.

Chinese drywall became popular amongt builders during the housing boom in 2004 because it was inexpensive and available in mass quantities. However, the defective drywall is infamous for emitting carbon disulfide, carbonyl sulfide, and hydrogen sulfide. These three sulfurous gases cause both irreparable damage to houses and severe health problems. Copper piping in the home begins to erode, taking on a black and powdery look, and residents begin experiencing respiratory issues and headaches. As a result, the house becomes uninhabitable and loses its value.

When the Niemanns signed the sales contract in 2007, they had no idea that Chinese drywall had been installed in their new home. On May 24, 2010, they filed an action in Louisiana state court, alleging breach of warranties and negligence and seeking damages from the builder, subcontractor, and subdivision developer, as well as the respective commercial general liability (CGL) insurance providers. The Niemanns argued that all three companies had been aware (or should have been) of the defects yet failed to disclose them at time of sale. As a result, they stated they had made a home purchase they would not have otherwise made, resulting in damages, economic loss, and a defective home that was unfit for its intended purpose.

During an appeal of a summary judgment order by the trial court, the appellate court asked the parties to submit briefs on whether the Niemanns had a right of action against both Calmar and Calmar’s CGL insurer, American Empire, for non-apparent damages inflicted on the house prior to sale. According to a recent Louisiana Supreme Court case, Eagle Pipe and Supply, Inc. v. Amerada Hess Corp., a plaintiff only has a right of action (or right to sue) for non-apparent damages inflicted pre-sale when there was an assignment of or subrogation of that right from the previous owner to the plaintiff. In plain English, the appellate court wanted to know if the subdivision developer and seller, Lakeside Village Development, had assigned the Niemanns its rights of remedies against Calmar and Calmar’s insurer. These rights only pass on to the new owner if specifically designated in the sale documents.

Because an appellate court can only review what is already in the record on appeal and not any documents not yet submitted into evidence, the court was unable to consider documents the Niemanns had obtained post-summary judgment that allegedly prove subrogation. As such, the court was unable to find any evidence in the facts that showed evidence of such subrogation and therefore affirmed dismissal of the Niemanns’ claims against American Empire.

With that said, there is light at the end of the tunnel. The Louisiana Code of Civil Procedure affords plaintiffs the right to amend their petitions. As such, the Niemanns will have the ability to amend their complaint and submit the evidence of subrogation they have found.

If you suspect your home was built with Chinese drywall, contact the Berniard Law Firm. Providing the best experts in construction and diagnosing the cause of damages, our law firm is fully capable of meeting your litigation needs.

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