Legal Definitions

Waivers in Insurance Policies Require Careful Consideration Due to Risk of Accident

Published on: January 21, 2013 | By Berniard Law Firm

In some instances, employers and individuals can waive uninsured/underinsured motorist bodily injury coverage in order to decrease their insurance rates. According to LSA-R.S. 22:1295(1)(a)(ii), rejection of the coverage must be made on a form approved by the commissioner of insurance. If the form is properly completed and signed by the insured or a legal representative who signs on behalf of the insured (like the president of a company), then it creates a presumption that the insured knowingly rejected the coverage. In other waivers, an employer could argue that they were unaware that they waived the coverage, but in the case of the uninsured/underinsured motorist bodily injury waiver, the employer cannot make this argument because of this presumption. In addition, if the form is valid, then the waiver will last for the entire life of the policy, even if the policy is renewed, reinstated, substituted, or amended.

The notion that the waiver lasts through renewal or amendment is particularly important. As a result, generally, as long as an employer or individual stays with the same company, then the waiver will continue to be valid. A case decided in January of last year provides an excellent example of this concept. An employee was involved in a two-car accident while he was acting within the scope of his employment. The employee filed suit against the other driver, the other driver’s insurance company, and the employer’s insurance company, Progressive Security Insurance Company (“Progressive”).

Progressive challenged the suit because the employer signed an uninsured/underinsured motorist bodily injury waiver six years prior to the accident. The employee argued that the waiver was invalid. However, a legal representative of the company signed the waiver and the owner of the company initialed a document that stated, “I do not want UMBI Coverage. I understand that I will not be compensated through UMBI Coverage for losses arising from an accident caused by uninsured/underinsured motorists.” The employee’s central argument rested on the notion that the name of the company changed each time the coverage was renewed. If the name changed, the employee argued, then the waiver could not apply to the new named company.

The rejection form was validly executed, but the “named insured” changed on the policy. However, the court rejected this notion because although the name changed slightly, the entity that was insured did not. The court explained that LSA-R.S. 22:1295(1)(1)(ii) specifically says, “Any 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.” Therefore, since the limits of the liability were not changed, a new waiver form was not required and the waiver form signed six years prior to the accident was still valid.

Since the waiver was valid, the company will likely have to pay for the injuries out of their own pocket. In addition, the injured employee may also get some money from the other driver involved in the accident.

In another case, Munsch v. Liberty Mutual Insurance Company, a surviving spouse did not validly waiver uninsured/underinsured motorist bodily injury coverage. In that case, the deceased actually waived the coverage and even though the coverage passed to the spouse, it changed who it covered when it passed so the waiver was not valid. Unlike the previous case, the person or entity that the insurance covered changed, so the waiver could not be valid. The surviving spouse did not have the opportunity to waive the coverage, so it could not apply to her directly. If the coverage were going to be waived, a new form signed by the insured and approved by the insurance commissioner would be required.

These situations highlight the importance of reading all of the fine print in your insurance policy. Where some waivers and rules may only last for one term of coverage, uninsured/underinsured motorist bodily injury waivers do not follow this pattern. Experienced lawyers can help walk you through your insurance policy if you have any questions or concerns.

Rental Car Accident Leads to Louisiana Insurance Dispute

Published on: January 11, 2013 | By Berniard Law Firm

In a Wal-Mart parking lot in Minden, Louisiana, two mothers and two children were hit by an oncoming car rented two days previously from a local Enterprise. The families sued based upon their injuries and several insurance companies got involved. One insurance company, Safeway, was for Peaker, the individual driving the car. Safeway’s policy included a clause that stated they would cover accidents in vehicles that he did not own, “provided the non-owned vehicle is being used by the named insured with the permission of its owner.”

Normally, permission to drive someone else’s vehicle is fairly straightforward. In this case, the dispute involving coverage depended on whether the rental car company gave Peaker permission to drive the rental car. Peaker’s girlfriend actually rented the car and Peaker’s name was not on the list of authorized drivers. If Enterprise did not give its permission for Peaker to drive the car, then, Safeway alleged, the insurance company would not cover damages related to the accident.

There was conflicting testimony as to whether Peaker actually had permission. According to Peaker, he went to Enterprise with his girlfriend to pick up the car. He paid cash for it and rode with her back to their house in the vehicle. However, the Enterprise employee who rented the car to them did not remember seeing Peaker and they had no records as to where the cash payment originated. At the time of rental, the employee specifically asked Peaker’s girlfriend if anyone else would be driving the car and she answered in the negative. In addition, Peaker could not be listed regardless because he did not have a valid driver’s license at the time of rental, nor when the accident took place.

Vehicle Defect Leads to Redhibition Claim in Louisiana

Published on: December 27, 2012 | By Berniard Law Firm

Redhibition is defined as “the nullification of sale because of a defect in the article sold of such nature as to make it totally or virtually unusable or as to have prevented the purchase if known to the buyer.” An automobile redhibition case involves some hidden defect in the car that, if the purchaser would have known about it, would make it likely that the purchaser would not have bought it. For example, the fact that the car does not run at all, would likely be a reason that a purchaser would not want to buy the car. A defect such as this would allow the buyer to get their money back for the sale or, at least, a reduction in the purchase price.

The theories stated above apply to used vehicles as well as new ones. In 2007, a couple bought a car from Ford that, although was used, was certified to be in good condition. However, shortly after the purchase the couple noticed significant water leaks in the vehicle. At first, they thought the moon roof was just left open. Gradually, they realized that that was not the case.

In fact, the leaks got so bad that the couple was forced to put towels on the seat, put a plastic bag over the driver’s legs, and vacuum the water out of the car frequently. Finally, the mildew odor got so bad that they had to get a replacement vehicle. After several attempts at repairs, the couple was informed that the leaks could not be fixed. They hired an attorney and brought the suit for redhibition in the Pineville City Court.

In order to have a claim against Ford, the couple needed to prove that the defect existed at the time of manufacture, and did not develop later. As the car manufacturer, Ford is presumed to have knowledge of the defects of the products that it manufactures. In this case, Ford attempted to argue that the leaking problems were likely caused by poor maintenance and a failure to clean out the drainage tubes in the vehicle. However, the court scoffed at this argument and pointed out that the couple had the entire front end of the car removed, cleaned, repaired, and put back on. Nonetheless, the leaking continued.

The couple pointed out that the Technical Service Bulletin, a publication that describes defects in vehicles and how maintenance personnel can handle them, stated that water leaks in that type of vehicle could occur due to a roof-opening panel. This bulletin explained that there were serious manufacturing flaws in the moon roof drainage system in some of the Ford vehicles, the couple’s vehicle included. Ford argued that this bulletin did not assume that their particular vehicle had problems. However, the court took the bulletin into significant consideration.

Lastly, Ford argued that if there were a manufacturing problem, then the previous owners would have noticed the problem and reported it. The previous owner made no such complaint. However, since Ford had no documentation or direct proof that the previous owners were not having problems, the court disregarded this argument as well.

The court found that the couple met the qualifications for proving that the defect was caused by manufacture and not by any fault of their own. Had they known about the defects, they likely would not have purchased the vehicle. Therefore, the court awarded the purchase price of the vehicle and other fees to the couple.

Manufacturing defects are not always easy to detect. It is important that you make a thorough inspection of your vehicle and report any defects. You should not have to pay for a defective product.

Phrasing in Policy Contracts Can Lead to Federal Review

Published on: December 21, 2012 | By Berniard Law Firm

Even when a case goes to federal court, that body must still try to interpret state law if that is the governing policy in the matter. While this may seem confusing, cases involving local matters can get to federal court for a number of reasons. Of the most common are the notion that the case involves federal law, such as a social security claim, or that the case involves two parties that are not from the same state. The latter is termed “diversity jurisdiction.” In diversity jurisdiction cases, the federal court will often have to look to state law to determine how a case must be decided. For example, state law, not federal law, generally determines cases in personal injury or contract disputes.

Louisiana, like many states, holds the notion that insurance policies are contracts. Therefore, contract law covers any disputes regarding insurance policies. As such, if a case goes to federal court because the insurance company is not in the same state as the insured, then the federal court will have to use Louisiana contract law to determine the outcome of the case.

Louisiana contract law provides two overreaching concepts regarding contract interpretation. First, the contract should reflect the intent of the two parties. That intention is portrayed in the wording of the contract; therefore, the court should look only to the contract, not to outside information, to determine the intent of the parties. Second, Louisiana will only apply the first concept if the result is not absurd.

All of these concepts, diversity jurisdiction, insurance policies as contracts, and contract interpretation in Louisiana, were embodied in a recent case. In that case, property damage due to smoke from a fire created an insurance dispute. Once the parties determined that they needed their insurance to cover the damage, they started looking into their insurance policies. The complication in this case was that the parties were both individuals and they ran their own businesses; the insurance policies were unclear as to which entity was covered, the individual or the business. The names of the business also changed frequently. That is, they used a commonly referred to trade name instead of their official name. A common example of this is something like using the name “Disney” instead of “The Walt Disney Company.”

Since the names were an issue, the insurance company was trying to claim that the damaged property was not covered under their current policy. The insurance company claimed that they were covering someone or something else entirely. The lower court actually went along with the insurance company’s reasoning and determined that the property as not covered and dismissed the case in favor of the insurance company.

During the appeal, the party whose property was damaged argued that they intended for the property to be covered, so the court should take that into consideration because contract interpretation involves determining the intent between the parties. The court did so and found that if the insurance company’s reasoning were to prevail, that would mean that they insured companies that just did not exist. The court pointed out that this is an example of an absurd result. They concluded that the parties could not have possibly meant to insure companies or persons that did not exist. Therefore, the court looked beyond just the wording of the contract because of this absurd result. As a result, they remanded the contract back to the parties to reword it so it would reflect their common intentions.

It is important to note that federal law did not play a role in this case because even though it was in federal court, contract law was governed by Louisiana in this case. The federal court noted that they were guessing what the Louisiana Supreme Court would say about this case by mentioning that because of the result, “[i]t is our judgment that the Louisiana Supreme Court would not enforce the literal text of the 2004-2005 Policy.”

This case shows us the importance of the insurance policy contract. If the wording does not accurately reflect the intentions between the two parties then there can be a negative result. The Berniard Law firm can help you with insurance disputes if you need help.

Difficulty in Setting Aside Insurance Release Forms and Settlements

Published on: November 19, 2012 | By Berniard Law Firm

Settlements are an important part of the legal process. They save time, money, allow the parties to negotiate their own terms, and, above all, they keep the parties from having to go to court to litigate their claims. In the case of settling with insurance companies, the companies like to avoid court because it not only costs them time and money, but also may negatively affect their reputation in the community. As such, it is common practice for an injured person to sign a release form after they receive settlement money. This release form bars the person injured from any future claims against the insurance company. Both parties usually end up happy in this situation because the person who was injured gets some compensation and the insurance company avoids the negative effects of going to court.

What happens if an injured person settles and signs a release form before they realize how badly they are injured? For example, perhaps an individual thinks they only bruised their ribs, but actually suffered from more long term effects such as kidney injuries. In that case, the injuries are likely to be much more expensive than both parties originally anticipated. Then, the injured individual does not have enough money to cover medical expenses and the insurance company gets out of paying for the extra expenses.

In Louisiana, a general release will not necessarily bar recovery for aspects of the claim that the release was not intended to cover. However, most releases are very broad in that they cover any existing injuries and injuries that may occur because of the accident in the future. Louisiana law only allows settlements to be set aside if there was an error when the settlement was signed. Two major mistakes could set aside a settlement: 1) the injured party was mistaken as to what he or she was signing even if there was no fraud involved, or 2) the injured party did not fully understand the nature of the rights being released or that they did not intend to release certain rights. A settlement can also be set aside if there is fraud or misrepresentation involved.

Louisiana Civil Code Article 1953 defines fraud as “. . . misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss of inconvenience to the other. Fraud may also result from silence or inaction.” In order to determine if there is fraud involving a release, which is also a contract, the court will only look to the document itself to determine if fraud is evident. Evidence of fraud in this situation could include any intentionally incorrect statement of material fact, such as stating items that are not covered by the insurance company when those items are actually covered.

A recent case gives an excellent example of a settlement with an insurance company. In that case, an individual fell off a tractor and injured himself. Two insurance companies provided compensation for injuries relating to his fall. Once each insurance company provided compensation, they each had the injured party sign a release form to keep him from filing claims against them in the future should the injuries be worse than originally anticipated.

The injured individual did have complications with his injuries and tried to get the settlements set aside so that he could get more money based on the coverage, but because he signed the release forms and there was no evidence of fraud, the court would not set aside the settlement agreements. The court stated that the injured individual knew exactly what he was releasing and there was no mistake in the settlement. The insurance companies both provided clear statements of what they did and did not cover and provided compensation for the things they did cover. The release statements specifically said that the injured party could not sue again for the same fall even if the injuries got worse, so he could not file claims again.

One lesson to take away from this example is that it might be helpful to find out the extent of your injuries before you enter into any settlements or sign any release forms.

Strict Reading Sneaks Insurance Company Out of Child Injury Case

Published on: November 14, 2012 | By Berniard Law Firm

On July 12, 2008 a ten-year-old girl was driving her parents golf cart with some friends in a nearby cul-de-sac in the Parish of East Baton Rouge in the State of Louisiana. While on her excursion, she encountered a neighbor boy who was six-years-old. Because the boy was so close to the front the car, she believed he was playing a reverse game of chicken and followed him closely. Unfortunately, she hit him with the golf cart and he fell. She believed he was only mildly injured, but she drove the golf cart home immediately to report the accident to her parents.

At first, her parents thought nothing of it, assuming that, other than a few scrapes and bruises, the boy was fine. However, after a few hours, they thought they would walk over to their neighbors’ house to be sure everything was okay and speak to the boy’s parents. When they arrived at the neighbor’s house, they found several neighbors outside and the boy was in his driveway, looking very ill. His parents explained that since the accident, the boy would not stop vomiting, and an ambulance was on the way to pick him up. The boy ended up having problems with his kidneys and subsequently had to have half of one removed.

The boy’s parents filed suit against the girl’s parents for the injuries to their son; they specifically asked for help with payment of the medical bills. The girl’s parents, believing that their insurance company would help with this this claim, entered the insurance company as a third party in the lawsuit. When an insurance company is entered as a third party, it is usually because the person who may be liable is expecting them to help pay for any of the damages should the case turn out to involve payment to the person who was injured.

However, partly because of the uniqueness of the injuries, the insurance company fought to be removed from the case, arguing that the insurance policy did not cover such an injury. The girl’s family had both vehicle insurance and homeowners insurance from this particular company. The court looked through the insurance policy and determined that they were right; this type of accident was not covered under the policy.

The reason that the court came to this conclusion was based on a strict reading of the insurance policy. Insurance policies are contracts and the court can only look outside the contract for meaning if the contract is unclear. If, for example, the contract had a confusing clause, then the court could look to other similar contracts or situations to help determine how to clarify the clause. If it is unclear, then the contract’s meaning is decided in favor of the party that did not write it. However, that is not the case here. The court decided that the contract was so plain and clear that they did not need to look beyond the wording in the contract to determine what it did and did not cover.

In addition to listing what this policy covered, it also listed a variety of exceptions. The court decided that this situation did not fit into any of the exceptions that would have established coverage. As a preliminary measure, the court points out that because a minor who had permission from the owners drove the cart, then it fits into the exceptions clause. The court then walked through all of the exceptions to see if it could find a fit. First, the policy would cover a golf cart that was being driven for the purpose of playing golf. However, the girl was not going to the golf course, she was simply using the cart around her neighborhood, so the policy would not cover that action. Second, the cart would be covered if it was being used to service the residence, such as hauling things to make improvements on the house. Again, that is not what the girl was doing in this situation. Third, it would have been covered if she was transporting people with disabilities, but she was not; she was only transporting her friends who had no real need for the transportation.

Lastly, the insurance would cover injuries that occur at an insured location. Typically, for homeowner’s insurance, the obvious insured location would be the house, but using this clause, it would also cover the yard and some surrounding areas. The court ruled, however, that that cul-de-sac was not an insured area. It argues that if the cul-de-sac, a public location, is an insured area because it is near the girl’s home, then that would extend coverage to a number of locations that likely fall beyond the intentions of the parties, such as public roads to and from insured locations.

The court also considers whether their vehicle insurance would have covered the golf cart. However, it could not cover either because the contract states that it does not cover vehicles that either have fewer than three wheels or are designed for off-road use. The golf cart is not designed to be used on public road, it is designed for use on a golf course, and it has four wheels, so it falls neatly into the exceptions for coverage under the vehicle insurance plan.

The strict view that the court took on this insurance policy led the insurance company to be able to sneak out of the case and leave the families to fight it out amongst themselves. The result is that both parties suffer; one loses money and the other gains money that may take years to obtain (instead of in a lump sum, as the insurance company would have been likely to provide). This case teaches us two lessons: (1) Read your insurance policy carefully and (2) obtain a competent lawyer like those at the Berniard Law Firm to help you with your case.

Court Explains the Requirements of a Settlement Agreement

Published on: October 23, 2012 | By Berniard Law Firm

Recently, in the State of Louisiana Court of Appeal for the Third Circuit, a case was decided that effectively laid out the requirements of a settlement agreement. These requirements are especially important because many cases are settled before they get to court. In fact, settlement is often preferable because it saves a significant amount of time, money, and it allows the parties to reach a compromise that they not only come up with themselves, but that is also acceptable to both parties. That way, the parties share the benefits instead of there being a clear-cut loser and clear-cut winner as is usually the situation should a case go to trial.

In this case, an individual was seeking to enforce a settlement agreement with an insurance company regarding a life insurance policy. The life insurance policy involved three beneficiaries; however, it was unclear as to when the money should go to each beneficiary. There may have been a contingent beneficiary. That is, the policy was set up so that if one of the beneficiaries had passed away prior to the money dispersion, then it would go to a different beneficiary. However, the insurance company was unsure of this stipulation, so they did not give out any money at all.

As a result of all of this confusion, one of the beneficiaries entered into negotiations with the insurance company in order to get at least some money out of the life insurance policy. Louisiana Civil Code, Article 3071, defines compromise as “a contract whereby the parties, through concession made by one or more of them, settle a dispute or an uncertainty concerning an obligation or other legal relationship.” Therefore, the parties in this case sought to compromise regarding the payment of the insurance policy.

In addition to defining compromise, the Court also points out that the settlement agreement must be in writing and signed by both parties as required by Louisiana Civil Code Article 3072. In this case, there was an oral agreement, but when the parties attempted to put the terms in writing, there was still dispute regarding the agreeability of quite a few of the terms of the settlement. They created drafts and sent them back and forth, but nothing was ever finalized by way of a signature from either party. The Court recognizes that there are no other cases where a settlement was validated even though neither party signed the final settlement agreement.

The Court also goes on to explain that contracts, which are the basis of a compromise, require that there be a “meeting of the minds.” That is, both parties should completely understand and agree to the terms in the contract. The contract embodies the intention of both parties and if the intention of both sides is not fully included in the settlement, then that settlement cannot be valid. In this case, both sides described other terms that were either not included in the agreement or that appeared, but they did not approve of their inclusion in the settlement. The Court notes that there was no “acceptance and acquiescent from both parties” in this case.

Although the settlement agreement can be included in more than one document, it is apparent that there was no such agreement. It based this conclusion on the testimony of both parties, lack of signature on the settlement agreement, and other communications between the parties at the negotiation stages in this case (such as letters between the attorneys that expressed displeasure with terms in the agreement). Therefore, the Court concluded that a settlement agreement did not actually exist and that it could not enforce a settlement agreement that does not actually exist.

Obtaining settlement agreements can be somewhat complicated because they involve getting both sides to agree to many different terms. However, they are very valuable because they allow the parties to avoid trial and get their conflicts resolved quickly. The Berniard Law Firm is always interested in solving our clients’ problems quickly and effectively.

Insurance Complications in Wrongful Death Suit

Published on: October 17, 2012 | By Berniard Law Firm

Wrongful death cases get very complicated when they involve insurance companies and employers. In a recent case, an individual was killed in the scope of his employment with Dunham-Price, Inc. He was driving a concrete truck at the time. The individual’s family brought a wrongful death case against the Department of Transportation and Development (DOTD). This case went to trial and awarded the individual’s wife and children $700,000 in damages, based on the finding that 50% of the fault was attributed to the DOTD and 50% of the fault was attributed to the individual driving the concrete truck.

This case seems like a classic wrongful death suit. However, it also involved two insurance companies, so it gets a little more complicated than it would first appear. There are two overreaching concepts in this case. The first is the third-party defendant and the second is appeals for partial judgments.

In most cases, there are two parties-one plaintiff and one defendant. However, the defendant also has the ability to call in parties who may be liable to the defendant should the court rule in the plaintiff’s favor. Insurance companies are usually privy to this type of liability. That is, if the defendant is found to be liable, then they have an insurance company that is supposed to cover them for that type of situation. In this case, DOTD called in two insurance companies: Liberty Mutual Insurance Company and Valley Forge Insurance Company (VFIC).

Third party defendants differ from a second defendant in that where there are two defendants, they could both be separately liable for the accident. For example, if there is a three-car pile-up and two cars hit one car at virtually the same time, then they could be both called into court. In a third-party defendant case, the third party should help compensate the defendant even though they were not liable for, or even remotely involved in, the accident itself.

The other concept that this case illustrates is appeals for partial judgment. In this case, VFIC stated that although they prove insurance for DOTD, the policy did not cover for the type of accident that the concrete driver experienced. Therefore, they sought a summary judgment to dismiss the claim against them. Summary judgment occurs when there are no material disputes of fact and one party is therefore entitled to have the decision run in their favor. This type of motion allows the court to throw out cases where there is a clear winner and bringing the case in full would be a waste of the court’s time. VFIC’s argument was that if the policy did not cover the accident then they cannot owe DOTD anything, as a result, they could not be involved as a third-party defendant.

The Court agreed with VFIC and granted the request for summary judgment. DOTD then proceeded with the rest of the case involving the family of the deceased. At trial, as mentioned, DOTD lost and was ordered to pay damages. Therefore, DOTD appealed the judgment and sought to also appeal the summary judgment that the Court granted for VFIC.

However, there is a time limitation in which a party is allowed to appeal. In Louisiana, parties have sixty days to appeal or seek a new trial after a final judgment. In the course of the other portion of the trial, DOTD’s sixty days had run, and although they were still in trial with other parties, the issue with VFIC was complete. Because VFIC was removed from the case previously, the grant of summary judgment constituted a partial final judgment and the sixty days to appeal started to run when the notice of judgment was served. Therefore, DOTD could appeal the rest of the case, but could not appeal the summary judgment granted to VFIC because its time limit had expired.

There were many procedural intricacies involved in this case. These intricacies require competent legal representation to navigate.

On Call Employee Not Acting Within Employment During Accident

Published on: October 11, 2012 | By Berniard Law Firm

Respondeat superior or, more simply, vicarious liability is a principle by which an employer can be found liable for the actions of its employees. It allows plaintiffs injured by people who are at work to collect money for their injuries from the often deeper pockets of the enterprise itself. However, an employer is not exposed to liability for activities of its employees that are not included in the course and the scope of their employment. The risks associated with doing business are placed upon those seeking to do business. In the case of Migliore v. Gill, a doctor was found not to be engaged in the course and scope of his employment during a period of “on call” time.

In terms of the incident, Dr. Javed Gill may have made an error while driving. As a result of this alleged error, or at least the resulting accident, Mr. George Migliore was injured. Regardless of who was actually at fault during that accident, which is a matter for another day, the accident happened. The issue at hand in the decision made by the Fifth Circuit Court of Appeal was whether or not Dr. Gill’s employer, Oschner Clinic Foundation, was in any way responsible for Dr. Gill’s conduct. Dr. Gill was not on an errand involving his work at the time of the accident. He was on call at the time of the accident. This meant that Dr. Gill was required to wear a beeper and report to Oschner within thirty minutes of receiving a call during this period. He was not performing activities for which he was employed. He was not driving in the location of the accident for any purposes besides his own. The trial court found, and the appellate court agreed, that Dr. Gill was outside both the course and scope of his employment. The appellate court stated that it might have found differently if Dr. Gill had been summoned by Oschner and was on his way to work at the time of the accident.

Having vicarious liability attach to the conduct of on call employees would be potentially disastrous for the types of companies that utilize an on call system. A company would be placed in the position of having either to have the employee come into the office or pay them to stay home thereby limiting the risk that their conduct would cause an accident. Having liability attach only when the employee’s activity is within both the course and scope of his or her employment is a much more narrow standard that seems to follow with such cases. When, however, are employee actions within the scope and course of an employee’s employment?

The Louisiana Supreme Court has determined that the “course” of a person’s employment refers to place and the “scope” of a person’s employment refers to the activities that a person is performing. In Orgeron v. McDonald, 639 So.2d 224 at 226 (La. 1994), the court stated that “an employee’s conduct is within the scope of his employment ‘if the conduct is of the kind he is employed to perform, occurs substantially within the authorized limits of time and space, and is activated at least in part by a purpose to serve the employer.'” Because of this, and because of the effects it would have on public policy, “on call” employees are not considered to be within the scope of their employment for purposes of vicarious liability.

Liberative Prescriptions: Purpose and Importance

Published on: October 1, 2012 | By Berniard Law Firm

In Louisiana, like many other states, there are certain restrictions on the period in which you may bring a lawsuit. There are several practical reasons for these restrictions. First, it is important to restrict the period so that people are not in constant fear of being sued for actions that happened years ago. For example, if you cause a car accident, it would be unreasonable to have to defend that issue 20 years after it happened. If we did not have some restrictions, you could be sued for any wrongdoing you’ve ever done over the course of your entire lifetime. Second, if the complaining party brings the suit quickly, then the court is more likely to deal with more accurate information. In our simple car accident example, one can assume that it would be easier to remember the details of a car accident that happened six months ago as opposed to one that happened 20 years ago. Lastly, time frame limits help create efficiency for the court and for those who are involved in the suit. Evidence is easier to obtain when the suit is brought quickly and that makes the trial much easier on all the parties involved.

Louisiana has a variety of codes that describe the time frame limitations for bringing suit. They are known as liberative prescription and the time frames vary by the type of injury involved. For example, the liberative prescription for car accidents is generally one year from the date of the accident in Louisiana. However, you can also file for an interruption, suspension, or renunciation of the liberative prescription. In order to comply with the liberative prescription, you only need to take action that will bring the suit forward; the suit does not need to conclude within this time frame.

One such liberative prescription case was addressed by the Fifth Circuit Court of Appeal for the State of Louisiana in Dec of 2011. In this case, the complaining party was injured as a result of a car accident on March 19, 2003. Shortly after the accident (October 30, 2003), the injured party filed suit. At this point, the injured party was well within the yearlong liberative prescription for the type of suit he was bringing.

However, the next step in the suit would be to notify the other party that they are being sued and call them into court so that the litigation process can commence. There are very stringent methods involved in this notification process that the courts have detailed extensively. Time and manner restrictions are particularly important. The law has set up these safe guards so that when people are sued they are afforded every right of due process as required by not only state laws, but also by the Constitution of the United States. Unfortunately, the injured party in this case either failed to follow those rules or did not make any effort of informing the other party that they were being sued. Therefore, after giving them over six years to comply, the court dismissed the original complaint on November 30, 2009 without prejudice.

The concept of prejudice was important for this case as well. When a court dismisses a case without prejudice, that means that the complaining party is welcome to try the suit again in the future. Dismissal without prejudice is common when there are simple procedural errors that can be easily corrected. However, if the court dismisses with prejudice, then the complaining party cannot bring a suit for the same incident against the same party in the future. Because this complaint was dismissed without prejudice, the complaining party might be able to sue again.

However, the major issue in this case was that even after the suit was dismissed without prejudice, the defendant argued that the plaintiff could not sue again because the liberative prescription period of one year had already run. The plaintiff, in opposition, argued that the liberative prescription was interrupted because they already filed suit once within the liberative prescription period.

Following the general notion that the complaining party need only start the lawsuit within the liberative prescription period, then the complaining party may have been able to file again. However, when a complaint is dismissed, the party is starting an entirely new lawsuit, so it is possible that the court would have denied the commencement of this new lawsuit because it falls well outside the liberative prescription period.

Unfortunately, in this case, the court was unable to weigh in on the issue because the complaining party presented no evidence in support of their argument. When the court does not have evidence to consider, then it cannot rule in favor of the party whose burden it is to convince them of the facts – the plaintiff in this case. In fact, the plaintiff’s counsel did not even show up for the hearing regarding the liberartive prescription issues in this case.

Liberative prescription issues vary from case to case and can be somewhat complicated. Contact the Berniard Law Firm if you have any legal needs as soon as possible after a potential legal situation arises so that you can avoid these complications.