Negligence Claims

Prescription Important in Lawsuit Tied to Truck Fire

Published on: September 2, 2013 | By Berniard Law Firm

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.

Man Who Fell Through Chair Loses Case Due to Summary Judgment

Published on: August 31, 2013 | By Berniard Law Firm

Injuries can happen anywhere but do not always lead to successful legal suits. Larry Modicue was directed by Rose Kennedy, an insurance agent for State Farm Fire & Casualty Co. in West Monroe, Louisiana, to have a seat in her office, which resulted in the chair collapsing. Modicue is a 404-pound man who has sat in this same chair with no prior injuries or incidents but suffered a shoulder injury in the fall, requiring medical assistance.

Modicue sought relief for his injuries and brought suit against Kennedy and State Farm. Kennedy and State Farm’s, in turn, filed a motion for summary judgment. Summary judgment is a maneuver used by one party to have the court make a decision on part or the whole dispute without going to trial. For a motion for summary judgment to be granted there must be no disputes on material fact, showing that one party is entitled to judgment. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action and is favored by the courts and construed to accomplish these ends. In this case, Kennedy and State Farm’s motion for summary judgment was granted due to the fact that the court found no genuine issue of material fact.

Modicue appealed this decision arguing that the court erred in granting summary judgment. His reasoning was that 1) a Louisiana business owner has a duty to provide seating which is adequate for the general public, and 2) the facts of the case permit the application of res ipsa loquitor.

The court disagreed with Modicue. According to the Louisiana C.C. art. 2317.1, an owner is only responsible for damage of the object is if 1) he knew about a ruin, vice, or defect which caused the damage, or 2) he should have known of the ruin, vice, or defect, 3) the damage could have been prevented if he exercised reasonable care, and 4) that he failed to exercise reasonable care.

Modicue failed to show that there was prior knowledge on the part of Kennedy and State Farm of the chair being defected. There was also no reasonable belief that the chair was defected and could not support Modicue because he had sat in the same chair before without any injury or incident. The chair also did not contain any warning about the capacity at which it could hold.

Res ipsa loquitor, a rule of circumstantial evidence that applies when the facts suggest that the negligence of the defendant is the most plausible explanation of the injury, did not apply either. According to Harper v. Advantage Gaming, it is applicable when 1) the circumstances of the accident are so unusual that, in the absence of other evidence, there is an inference of negligence by defendant; 2) defendant had exclusive control over the thing causing injury; and, 3) the only reasonable conclusion is that defendant’s breach of duty caused the accident.

The original ruling in favor of Rose Kennedy and State Farm Fire & Casualty Co. was upheld due to Modicue’s failure to produce sufficient evidence showing the negligence of Kennedy and State Farm.

Legal Complications Arise in Homer Claim Against Auto Insurers

Published on: August 29, 2013 | By Berniard Law Firm

A case appealed from the Parish of Claiborne, arising from an incident in Homer, Louisiana, raises a couple of important issues regarding lawsuits against insurance providers.

In this case, the plaintiff was a passenger in a car that met the defendant, driving her own car, at an intersection. The plaintiff and the defendant were already at odds with each other, and the plaintiff claimed in trial that the defendant had tried earlier that day to strike the plaintiff with her car. Nonetheless, the plaintiff got out of the passenger side and walked to the side of the defendant’s car, where the plaintiff struck or attempted to strike the defendant with her hands. As the plaintiff returned to her own car, the defendant performed a U-turn, drove back towards the plaintiff and struck her with the vehicle, causing the plaintiff’s injuries.

The plaintiff sued the defendant’s liability insurer, as well as the agency providing underinsured motorist (UM) coverage for the vehicle in which the plaintiff was a passenger. An appeal of the first trial led to a retrial. In the retrial, the court held in favor of the defendant insurance companies, and the plaintiff appealed.

The first issue regards lawsuits against automobile insurance companies in general. The insurance policy itself is essential to establishing a case against an insurance provider. A plaintiff against an insurance company must enter the insurance policy into the record in order to prevail. As this case demonstrates, record of a court acknowledging an insurance policy and discussing the relevant parts of it in an earlier trial can sometimes serve as record of the policy in a subsequent trial.

In this case, the trial court held that the plaintiff had not entered the insurance policies into the record and so could not prove that the insurers were responsible for any payments. The appellate court decided that the defendant’s pleadings and stipulations, as well as records from the earlier trial and appeal served to prove the existence and contents of the insurance policies, even though the plaintiff did not re-enter the insurance policies during the second trial.

The second issue regards lawsuits to recover damages based on UM clauses. Uninsured motorist insurance, or underinsured motorist insurance, typically provides coverage to the policy-holder in the event that he is injured in an accident caused by a motorist with no insurance, or with insurance that does not cover all of the damage done.

Typically an “accident” must occur for the recovery of UM insurance benefits. When evaluating claims for UM insurance, courts examine incidents from the viewpoint of the injured party. If a vehicular assault is unprovoked or unexpected from the injured party’s perspective then it is “accidental” even if the aggressor acted intentionally.

In this case, the court found that the plaintiff provoked the incident when she struck or attempted to strike the defendant with her hands, so her injuries were not “accidental” and the provider of UM insurance was not liable.

Procedural details such as the need to file certain documents in order to make cases can destroy otherwise valid lawsuits. Further, the exact meaning and relevance of language in complex insurance contracts may be difficult to understand unless one knows how courts have interpreted the issues.

Insurance Policy Interpretation Pivotal to Car Accident Appeal

Published on: August 25, 2013 | By Berniard Law Firm

In its earlier opinion, the Court of Appeals held that Lawrence E. Metz’s 2003 Chevrolet Avalanche was in fact covered by the Safeway Insurance Company during an accident that happened in Bossier City, Louisiana. The Court of Appeals looked to the language of the policy that stated “when two or more automobiles are insured hereunder, the terms of the policy shall apply separately to each” to conclude that the paying of premiums applied separately to each of Metz’s vehicles.

Although Metz had not paid the additional premium on his second vehicle, he had paid for coverage on his Avalanche in full prior to the accident. Therefore, the Court of Appeals initially held that Safeway was still responsible for the damages Metz incurred in the accident, although they had canceled the policy prior. It seems, however, that the Court of Appeals overlooked some relevant language within Safeway’s Insurance Policy, which led them to grant a rehearing for the case. The Court of Appeals ultimately reversed their initial holding in favor of Safeway Insurance Company.

In the rehearing, the Court looked carefully at what exactly “when two or more automobiles are insured hereunder (emphasis added), the terms of the policy shall apply separately to each” referred to. That statement was under the following heading: “4. Two or More Automobiles—Parts I, III, and IV.” Parts I, III, and IV of the insurance policy were about “Liability, Expenses for Medical Services, and Physical Damage” respectively. Parts I, III, and IV of Safeway’s insurance policy had nothing to do with the payment of premiums.

On rehearing, this court decided that Safeway’s terms applied separately to each vehicle only with regards to “liability, expenses for medical services, and physical damage” and not with regards to the payment of premiums. Therefore, since Metz did not pay the premium on his additional vehicle, his entire policy had been effectively canceled two days prior to his accident, leaving him with no coverage.

Interpreting language is a complex matter that even courts get wrong. That is why it is crucial to get representation from lawyers who are skilled at language interpretation and application, and who will get it right the first time around.

Intent of a Contract’s Language Explored in Insurance Dispute

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

The method by which a contract’s ambiguous language is interpreted can decide who wins the case. A slight difference in statutory interpretation can acquit or convict a person charged with a serious felony or a petty misdemeanor. There are two main theories of interpretation: textualism and purposivism. Proponents of the textualism theory, or textualists, look to the precise language of the code, statute, contract, etc., in order to apply it to the facts. Pure textualists look solely to the four corners of the
document to aid them in interpretation.

Proponents of the purposivism theory, or purposivists, look to understand the legislative history and intent of the parties who drafted the language, to decide how to apply the law. Purposivists believe that this method of interpretation is the most effective way to ensure that the law is applied the way the lawmakers (legislative branch) would have wanted it. Usually, however, interpretation of language comes about through utilizing a combination of texualist and purposivist approaches.

In this case, the proper application of an insurance contract hinges on the language of the contract drafted by Safeway Insurance Company. Safeway issued a policy of automobile liability insurance to Lawrence E. Metz effective November 16, 2008, through May 16, 2009, which only listed his 2003 Chevrolet Avalanche as an insured vehicle. Although Metz paid in full for his policy covering auto insurance for his Avalanche, he attempted to add another vehicle, his 2008 Chevrolet Uplander, on the
same day he made his final payment for the Avalanche.

In response, Safeway sent a bill to Metz for the additional premium owed for coverage on the additional vehicle, which Metz denies ever receiving. After issuing a notice of cancellation to Metz when Safeway did not receive the additional premium, Safeway canceled Metz’s entire policy ten days after.

Just two days after Safeway had canceled Metz’s policy, Metz got into an accident in Bossier City, Louisiana, while driving his Avalanche. The question in this case: is Safeway responsible for covering Metz’s payments from the accident? Safeway argues that since Metz did not pay the additional premium for the Uplander, the entire policy was canceled, which meant Safeway was no longer Metz’s automobile insurance company. Metz argues that he had paid in full to have his Avalanche (the vehicle involved in the accident) covered, so Safeway should therefore cover the damages.

The Court of Appeals states that ambiguous policy provisions are generally construed against the insurer in favor of coverage. The court looks to a paragraph under the “CONDITIONS” portion of the Safeway policy to conclude that the terms of the policy apply separately to each of Metz’s vehicles. The policy states “when two or more automobiles are insured hereunder, the terms of the policy shall apply separately to each.” Therefore, the Court of Appeals held that the trial court was not manifestly erroneous in finding there was coverage on Metz’s Avalanche at the time of the accident.

There is, however, a dissent, arguing that when it comes to the paying of premiums, the terms of the Safeway policy does not apply separately to each vehicle. The dissenter argues that parsing of the premium coverage is “logically untenable.” His argument is further explored in the rehearing given to reconsider the majority opinion in this case, which is detailed in the next entry.

Louisiana Courts Take Firm Stance Against Misleading Health-Related Materials

Published on: August 16, 2013 | By Berniard Law Firm

Both trial and appellate courts found Janssen Pharmaceutica liable for damages under the Louisiana’s Medical Assistance Programs Integrity Law (MAPIL). The issue was whether the Attorney General could bring this action without alleging actual damages, as MAPIL requires. The courts considered the legislative intent behind the law to determine that Janssen was still liable.

The Attorney General of Louisiana filed suit against Janssen Pharmaceutica for violating the MAPIL, which prohibits people from presenting false or fraudulent claims or misrepresentations to the state medical assistance program funds. The jury concluded that Janssen had violated the law over 35,000 times, resulting in a fee of over $257 million.

The appellate court upheld the trial court’s decision. It would only be able to overturn the trial court if it found the trial court had abused its discretion. In other words, if the trial court’s interpretation of the statute was not reasonable, the appellate court could reverse it. However, this is a very high standard. Previous Louisiana case law required the court to read the relevant subsection of the statute in the context of the remainder of the MAPIL legislation, and the appellate court found that the trial court had done this, and its interpretation was reasonable. Thus, it was reasonable to interpret the statute to mean that if the Attorney General could prove false, misleading, deceitful statements, Janssen would be liable for civil penalties.

Bar Fire Leads Court to Rule on Liability Under Lease Contract

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

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.

Haynesville Shale Frenzy Leads to Fraud Claim in Caddo Parish

Published on: July 30, 2013 | By Berniard Law Firm

Along with a much-needed economic boom, the recent shale frenzy in northwestern Louisiana has brought the typical controversy. Accidents and spills have raised environmental concerns and caused some to question whether the new jobs are safe. For one Caddo Parish couple, however, the shale boom has brought a very unique set of concerns—from whom should one accept legal advice?

Chesapeake Louisiana, L.P. held a mineral lease on the Stockmans’ property which was set to expire on July 14, 2008. The Stockmans desired to continue leasing the property, so in April they signed an extension of the lease. A month later, they were solicited by an agent of Petrohawk Properties, L.P., a competing mineral producer. The Stockmans informed the Petrohawk agent that they had already leased the property to Chesapeake. This, however, did not deter the Petrohawk agent.

The Petrohawk agent explained that “Louisiana is a race state” and “if Petrohawk recorded its lease first, the Chesapeake extension would be invalid.” It is true that in a “race” state, the first party to the courthouse to record the lease is said to have put the entire world on notice of the lease. That party’s lease then takes precedence over any subsequent lease on that property, even if the subsequent lease was signed first. While this may seem silly at first, the “race” concept reflects a basic preference the law makes for certainty. Recording provides a far more objective measure by which parties may determine priority and, indeed, this entire dispute could have been avoided if Chesapeake had simply recorded its extension immediately after signing.

On the other hand, while this statement may have been loosely true with respect to Petrohawk, it was highly misleading with respect to the Stockmans. Although the Petrohawk lease, if filed first, would trump the Chesapeake lease, it would nevertheless render the Stockmans liable for breach of the Chesapeake lease, in violation of the most fundamental principle of property law—that one may not sell what he does not own.

Unfortunately, tempted by the prospect of higher lease payments, the Stockmans took Petrohawk’s misguided advice without professional legal counsel. Instead Mr. Stockman only confirmed that Louisiana was indeed a “race” state and spoke with his neighbor, a geologist. His neighbor advised him to strike the warranty of title from the Petrohawk lease, an act which did nothing to relieve the Stockmans of their duties to Chesapeake. Upon learning of the Petrohawk lease, Chesapeake immediately slapped the Stockmans with a breach of contract suit.

Undoubtedly furious over having been lied to, the Stockmans filed a claim against Petrohawk for fraud. In Louisiana, a fraud claim has three elements: first, a “misrepresentation, suppression, or omission of true information”; second, the “intent to obtain an unjust advantage or cause damage or inconvenience to another”; and third, “that the error induced by the fraudulent act relates to a circumstance that substantially influenced the victim’s consent to the contract.”

The Stockmans claim rested on the notion that Petrohawk told them a half-truth. In stating that Petrohawk’s winning the race to the courthouse would “invalidate” the Chesapeake lease, Petrohawk assumed a duty to disclose to the Stockmans the rest of the truth. By only telling the Stockmans as much as they did, however, Petrohawk led them to believe they would not be in breach of their existing contract. This omission, the court held, amounted to fraud.

While the Stockmans eventually got out of their legal problems, they only did so at the expense of considerable time and resources. Real property law presents many complications and pitfalls for the ordinary layperson, the nuances of which should be explained by competent legal counsel. Avoid the hassle.

Driver Liability Varies When Car Accident Occurs

Published on: July 26, 2013 | By Berniard Law Firm

As is often the case, an accident between two vehicles can subsequently involve further vehicles not initially involved in the initial rear-ending accident. The driver of the subsequent vehicle which becomes involved in an accident after the initial crash may be unsure whether they are for damages caused by their own involvement or are able to make a claim for their own damages suffered. The possibility of being responsible or owed for damages in a multiple vehicle accident almost always depends on the circumstances surrounding the driver of the following car involved in the collision after the initial accident.

It is generally presumed under the law the vehicle following other vehicles involved in an accident will be at fault for the resulting accident when it collides with the initial collided vehicles. However, a driver can avoid this presumption of liability if it is shown they were following at a safe distance under the circumstances, their vehicle was under control, and they were closely observing the vehicle ahead of them. There is an additional method of proving no fault for liability referred to as the sudden emergency doctrine. A following driver may be absolved of liability under the sudden emergency doctrine if it is demonstrated the lead driver negligently created a hazard which could not reasonably be avoided. A court is going to look at the circumstances from which the emergency arose and determine whether the person in the position of imminent peril had sufficient time to consider and weigh all circumstances or the best means to adopt to avoid the impending danger of the emergency.

A recent case before the Second Circuit Court of Appeal of Louisiana, King v. State Farm Insurance Co., succinctly demonstrates the applicability of the sudden emergency doctrine in absolving the following driver from complete liability while awarding the following driver damages for injuries incurred. In this case, Ms. King was following a vehicle which struck another vehicle from the rear. Ms. King then swerved onto the shoulder to avoid the accident. Unfortunately, at the same time Ms. King swerved, the vehicle in front of her bounced to the side of the collision directly into Ms. King’s path on the shoulder where she impacted it. The court looked favorably upon the facts that Ms. King had been traveling beneath the speed limit, was observing the car in front of her, and was at a relatively reasonable behind the lead car. The court found that in addition to this the lead driver had created the emergency situation through his own collision, and Mrs. King had taken reasonable precautions by braking, and steering away from the accident. Despite her precautions, the unexpected turning of the vehicle into her emergency path was something she could not have sufficiently avoided in time. Hence, the court found the lead driver had created a hazard resulting in a Ms. King facing a sudden emergency. The court found the lead driver 100% at fault for the damages and injuries Ms. King suffered as a result of the lead driver’s original collision.

In a case involving liability of parties, the court must assess the relative fault of each of the parties. A following driver will not be responsible for liability under the sudden emergency doctrine, unless their actions caused the emergency. In the example case above, the lead driver was found to have created the emergency, and thus Ms. King was at no fault in the subsequent collision. The Court of Appeal of Louisiana held that the trial court had correctly awarded Ms. King for the damages and injuries she had suffered as a result of the accident.

If you believe you have a claim arising from a multiple vehicle accident, contact the Berniard Law Firm. Providing the best experts in liability and assessing accident claims, our law firm is fully capable of meeting your litigation needs.

Permission Involving Use of Government Vehicle Crucial to Lawsuit

Published on: July 22, 2013 | By Berniard Law Firm

In this auto-related blog post, plaintiff Fartima Hawkins seeks to recover damages resulting from a February 5, 2008, automobile accident in Baton Rouge Louisiana. The accident occurred when Ms. Hawkins’ vehicle was broadsided by a government vehicle being driven by Sergeant Sean Fowler, a recruiter for the United States Army. Ms. Hawkins filed suit naming, among others, Sergeant Fowler and his personal liability insurer, Allstate, as defendants

After Hawkins filed suit against them, Allstate filed a motion for summary judgment, alleging that the policy issued to Fowler excluded coverage for the accident. Allstate claimed Fowler lacked permission to use the government vehicle for commuting purposes or, alternatively, because Fowler used the vehicle for his regular use insofar as he drove it back and forth from his home in Baton Rouge to his office in Covington each day. Allstate further asserted that its policy did not afford coverage under either circumstance and summary judgment was therefore appropriate.

The trial granted Allstate summary judgment reasoning that whether Mr. Fowler had implied permission or not, it either falls within the regular use exclusion because back and forth to work every day is regular use or alternatively falls within the lack of permission exclusion. Plaintiff subsequently filed a Motion for New Trial and/or Reconsideration which was denied by the trial court.