Negligence Claims

Insurance Company to Pay Damages to Mother of Man Killed in Automobile Accident

Published on: April 5, 2011 | By Berniard Law Firm

On May 28, 2005, Brian Smith was delivering a car as a surprise gift to his mother. Chaos unfolded, however, when a trailer came loose in Morehouse Parish from a truck being driven by one of the defendants, Joshua Pruett. The truck, at the time, was being utilized as part of his delivery duties for Broubar, Inc., which was doing business as Acadia Crawfish. The trailer crossed the centerline and collided with the driver’s side of Mr. Smith’s car, and Mr. Smith died as a result of the injuries he sustained in the accident.

Mr. Smith’s mother, Gracie Smith, filed lawsuits against Acadia Crawfish, Pruett, Scott Broussard (the owner of Broubar, Inc.), and Farm Bureau as liability insurer and as Brian Smith’s uninsured motorist (UM) insurer. She later filed a separate lawsuit against Progressive Security Insurance Company and Broubar, Inc. The lawsuits were later consolidated into one lawsuit.

All of the parties to the lawsuit agreed that the defendants were liable for the accident because it was clear that the ball on the truck driven by Mr. Pruett was too small for the trailer hitch and he had not used any safety chains to ensure that the trailer would remain attached to the truck. They went to trial on the issue of damages for survival and wrongful death.

A survival action compensates the survivors for the damages suffered by a victim from the time of injury to the moment of his or her death. The cause of action is “inherited” – it belongs to the victim and is passed on at death. Damages in a survival cause of action can include the victim’s pre-impact fear, and if there is even a tiny amount of evidence showing any pain of suffering by a victim before his death, damages are warranted. The evidence in this case showed that the victim undoubtedly was in great fear as he attempted to avoid the collision. He had massive abdominal and chest injuries, with partial amputation of his lower left leg and hemorrhage in his brain. The Second Circuit therefore ruled that an award of $250,000 was not an abuse of discretion.

A wrongful death action, on the other hand, compensates the beneficiaries, usually family members, for their own injuries which they suffer from the moment of the victim’s death on. In this way, the wrongful death action belongs to the survivors, not the victim. Usually, the plaintiff in a wrongful death action can claim loss of love and affection, loss of services, loss of support, medical expenses and funeral expenses. In this case, Mr. Smith had supported her financially and was very close with her, more so than any of his eleven siblings. Awards for lost future income or support are, however, intrinsically difficult to calculate with absolute certainty and a plaintiff must be able to show an amount with reasonable certainty, not rely on mere speculation. Mrs. Smith was a widow and her only source of income was Social Security. As a result, she relied heavily upon the money her son often gave her. Except for an error in calculating the value of the car that Mr. Smith was driving, the appellate court affirmed all other aspects of the wrongful death action and Mrs. Smith was awarded a total of $584,368 for compensatory damages, loss of support, loss of services, and funeral expenses.

Progressive Insurance appealed the trial court’s determination that it was the primary insurance carrier for a substitute truck and was therefore liable for damages. Mrs. Smith had settled out of court with Farm Bureau for $100,000 under the liability coverage and $10,000 under the UM coverage. Farm Bureau then wanted to be indemnified by Progressive Insurance and filed a cross claim against Progressive. If the truck, which was a temporary truck (a 1998 Dodge) being driven by Mr. Pruett because the one he usually drove was being repaired, was insured by Progressive, then Progressive would ultimately be responsible for paying damages. The 1998 Dodge in connection with the trailer was found to be one vehicle and was a “temporary substitute vehicle” which, under La. R.S. 22:1296 requires insurance companies to extend coverage to temporary substitute motor vehicles. The 1998 Dodge was owned on paper by Broubar, Inc., but was normally used by Mr. Broussard, and he considered it his personal truck. The trial court found that all of the companies that Mr. Broussard owned were operated independently, so the truck could not be seen as an uninsured vehicle belonging to Broubar, Inc. (which would disqualify it from being a temporary substitute vehicle and, therefore, being covered by the policy). An insurance company cannot escape liability by not defining “temporary substitute vehicle” in its policy. The trial court ordered Progressive to pay all the damages, and that determination was upheld on appeal.

Although obviously complex, insurance dispute is a subject matter that attorneys like ours feel comfortable navigating. If you have any questions regarding a matter like this, it is important to consult with an attorney about your legal rights.

Chemical Release Ruling a Helpful Guide for Recent Spills/Leaks

Published on: April 1, 2011 | By Berniard Law Firm

In Oakdale, Louisiana, on March 8th, 2000, a pressurized tank owned by Arizona Chemical Co., Inc., containing a heat transfer fluid over-heated. The tank had a safety shut off valve which failed, resulting in the short-term release of chemical vapor into the air. The vapor, containing biphenyl and phenyl oxide, drifted toward the home of a nearby resident, Ms. Edna Miller. The release was short lived and was contained within 30 minutes but caused very real damages. Edna and Bruce Miller sued Arizona Chemical Co, Inc., for personal injuries following the chemical release. As a result, Edna Miler was awarded $12,5000 in damages. However, Bruce Miller’s claim was denied as a verdict in favor of Arizona Chemical was issued.

Both parties appealed the decisions in the Third Circuit Court of Appeals. The Court of Appeals affirmed Edna Miller’s award for $12,500 and refused to award her additional damages. Bruce Miller’s claim on appeal was also denied, and he was awarded no damages. Edna Miller was awarded damages while her son Bruce was not because he could not meet his burden of proof to show that the chemical release caused him any harm.
At the time of the exposure Edna was inside her home. Her son Bruce was at work, as a groundskeeper at a nearby high school. Mr. Miller left work to check on his mother when he heard about the chemical release. He found Edna outside on the lawn, nauseous, and about to leave the area. He helped her into her car and she drove away. Bruce Miler stayed on the property for several minutes, went in the house, had a glass of water and washed his face. He said his eyes and throat were burning and he felt shortness of breath.

Later that day Mrs. Miller visited the emergency room with heart palpitations, shortness of breath and nausea. She was released when she no longer had symptoms from the chemical release. Arizona Chemical company paid her medical bill and the bills of four other people that day who complained of symptoms related to the chemical release. Mr. Miller did not seek medical attention that day. He stated that five hours after the exposure he developed a rash on his hands. This rash was later found to be caused by his taking Celebrex and by his long time smoking habit, not from the chemical release. He has suffered skin rashes many times before in his life.

In order to recover damages for personal injury the injured party must prove that the other party was the primary, if not only, cause of the injury. Mr. Miller’s treating family practitioner testified that his breathing problems, rashes, and other symptoms were related to the chemical exposure. However, the physician did not know until the day of trial what chemical the Millers were exposed to, nor the type of ailments that particular substance could cause. The doctor said that the timing of the chemical release and Mr. Miller’s symptoms were what led him to that conclusion. The Defendant presented opinions of expert toxicologists who testified that Mr. Miller’s continuing symptoms could not have been caused by the brief transient exposure to the chemical vapor on March 8, 2000. Because Mr. Miller could not show that the cause of his symptoms was due to the chemical release, the Court of Appeals affirmed that he was not entitled to damages from Arizona Chemical Co., Inc.

Showing that an action by one party caused injury to someone can be complicated. The inured party must prove that their injury was caused by the other party and that the injury caused them some harm. In this case Mrs. Miller suffered some harm, but not harm requiring compensation more than the $12,500 the court said. Mr. Miller was not able to meet his burden of proof showing that the chemical release was the cause of his injuries and thus failed at his claim.

If you have suffered an injury due to chemical release or some other action of another party, you may be entitled to damages if you can meet the proper burden of proof. Whether or not a party has met their burden of proof is a question for the judge or jury and is essential to receiving compensation for personal injury. If you or someone you know has suffered an injury due to another party, an experienced attorney can help you determine if you may be able to meet the burden of proof to be awarded damages by the court.

DePuy Settlements May Offer Spectrum of Opportunities for Recovery

Published on: March 27, 2011 | By Berniard Law Firm

Nearly ten years ago, consumers sued Sulzer Medica for producing defective hip and knee implants. The company ultimately settled with the affected parties. Although the underlying facts of the Sulzer Medica litigation are technically different from those of DePuy, the Sulzer Medica outcome is nevertheless instructive. If anything, the outcome of the Sulzer Medica recall may reflect the outcomes that will emerge in forthcoming DePuy litigation.

For those unfamiliar with the Sulzer Medica situation, here is a brief synopsis:

Sulzer Medica is a Swiss company that produces artificial joint replacements. It has since changed its name to Centerpulse. In December 2000, the company discovered that machinery oil had contaminated some of its knee and hip implant parts. Consequently, affected joint replacement units failed to adhere to the bone of recipients. Sometime in 2000, the company recalled the defective units. affecting approximately 32,000 people in the United States. Many had to undergo revision surgeries to remedy the problem.

Chinese Drywall Claims Continue as Thousands Still Face Problems

Published on: March 25, 2011 | By Berniard Law Firm

In a recent decision, a Palm Beach County, Florida, judge ruled that because homebuilders did not manufacture the defective drywall that eventually caused damage to homes, and because they were not within the “chain of distribution,” they could not be held strictly liable for the alleged defects. Strict liability would make it easier for a potential victim to recover money from the homebuilder because the victim would not have to prove that the homebuilder had been negligent in any way. The victim would merely have to show that a product standard was not met along the supply line that led to their injury.

In this case, the homeowner, Marlene Bennett, sued the homebuilder under several theories: 1) breach of contract, 2) tort law, and 3) private nuisance law. The plaintiff asserted damages against the homebuilder, installer, supplier, and manufacturer of the drywall for installing faulty materials, economic losses for declines in home values, and personal losses for the alleged nuisance caused by the drywall emitting fumes. All of these claims, and defendants, are designed to cover the wide spectrum of expenses and responsibilities that can develop as a result of this caustic material being installed and slowly ruining a family home.

Upon going to trial, the case hit its first roadbump when the judge did not let the private nuisance claim go forward. Usually, nuisance law claims are used when someone is unreasonably interfering with the private property rights of another. The judge analyzed Florida law and decided that nuisance law usually had to do with things tied to the land itself, not parts of the house like drywall. The plaintiff may still be able to claim under a breach of contract claim (for breach of implied warranty or other claim) but because there are so many parties involved from the manufacture of the drywall to its installation, it is difficult for plaintiffs to recover damages.

It is important, however, to note that this is only one case, and was in a Florida court, not a Louisiana court. It has not yet been adopted by other judges or upheld by higher courts, and the case law is still developing in this area. It is possible that a Louisiana court could decide the case completely differently. The proper attorney with the most thorough understanding of product liability and insurance dispute (like those at our firm) will use legal theories and tools like this to navigate the judicial process.

In addition to this case, there are a number of ongoing legal efforts in the courts right now in Louisiana, Virginia, California, and Florida dealing with the issue of whether builders can be held liable for defective drywall. Much of the drywall involved in the litigation was manufactured during a specific period of time in China and believed to cause damage to electrical wiring and fire safety equipment.There has been a settlement in federal court involving Knauf Plasterboard Tianjin, which produced one-fifth of the defective drywall, recently settled in federal court to help pay to fix the damage their defective drywall caused. Homeowners may choose to have their homes repaired or to sue for money damages and do the work themselves.

Our firm has made steady progress within the courts and continues to take on clients looking to receive the damages they deserve due to this defective wallboard. If you are a homeowner with defective drywall that is emitting fumes, lowering your home value, or other damage, we may be able to help you.

Court of Appeals Affirms Policyholder’s Rejection of UMBI Coverage

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

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

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

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

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

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

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

LA Supreme Court Disregards Exclusion for Automobile Business in Liability Policy

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

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

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

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

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

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

Interpreting Insurance Policies: What does a Term really Mean?

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

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

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

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

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

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

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

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

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

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

Court Hears Appeal Regarding Alleged Insurance Company Delays

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

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

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

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

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

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

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

Bossier Parish Police Jury Ordered to Repair Faulty Pipes

Published on: March 15, 2011 | By Berniard Law Firm

A recent ruling by the Second Circuit Court of Appeal for the State of Louisiana ordered the Bossier Parish Police Jury to repair the pipes running under the land that the plaintiffs, Steven and Melanie Petchak, own in Bossier Parish. It was also ordered to pay damages to the plaintiffs for damage to their house.

Mr. and Mrs. Petchak bought Lot 363, which was part of a subdivision plat (Subdivision No. 5), in 1994. In the conveyance records for Subdivision No. 5, several drainage easements, or rights of way, were referenced. These included a 25-foot easement running north to south and a 10-foot easement running east to west. The 10-foot easement extended 5 feet into the Petchaks’ lot. In 1978, the Bossier parish Police Jury had enacted a resolution which agreed to maintain the drainage facilities of Subdivision No. 5. Additionally, Ordinance 509 of Bossier Parish stated that the Police Jury were to forever have a right of way in order to maintain the drainage channels, and that no buildings were to be erected on the right of way.

The house that the Petchaks bought was built between 1983 and 1985, and the Petchaks purchased the home in 1994. They soon noticed a sinkhole developing on their property, and found out that the previous owner had noticed a different sinkhole, in a different place. The previous owner had called the Police Jury, who filled in the sinkhole twice, first with dirt and later with concrete. The Petchaks called the Police Jury about the new sinkhole, which was then filled in with dirt.

Ten years later, in 2005, the Petchaks began to notice problems with their home, including broken windows, sticking doors, and damaged flooring, walls, and woodwork, which were concentrated at the part of the house closest to the sinkholes. A new sinkhole appeared, and the Petchaks hired a civil engineer to inspect the house, who recommended that the drainage system be repaired before attempting to repair the home’s foundation.

In January 2006, the parish engineer offered to fix the drainage system, but only if the Petchaks would agree to sign a release for any past and future damages associated with the problem, which the Petchaks refused to do.

After more investigation, it was discovered that the pipe was not constructed in accordance with good engineering practices. Despite the pipe changing direction, the parish had not installed junction boxes, which would have stabilized the joint and prevented the separation of the concrete. Because the pipe did not contain any junction boxes, experts believed that either water was escaping or dirt was infiltrating in, causing destabilization of the soil around the drain. The drain was likely bedded in a granular fill, which is a quick-to-erode material, instead of the usual clay. All of this together caused a massive loss of support soil from under the foundation of the house and resulted in damage to the house.

The Second Circuit Court of Appeal decided that the recordation of the easement and Ordinance 509 created duties on the part of the Police Jury to maintain the drainage system as well as a burden on the owner of the land to let the Police Jury onto the land when required. Although the suit would not have been allowed if it were a tort suit under sovereign immunity, it was allowed to go forward because it was based on the special relationship between the Petchaks and the Bossier Parish Police Jury created by the easement. The court also pointed out that prospective owners usually do not conduct underground surveys of the condition of the utilities in easements. Additionally, the Petchaks knew that the right of way existed, could see the manhole cover which was evidence of the right of way, and trusted that the easement would not make the condition of their property worse. The court also found that the Police Jury constructively knew of problems with the drainage system by 1992, when the first sinkhole was reported, so it could not at this time claim lack of knowledge.

DePuy Parent Company Johnson & Johnson Admit Flaws in Cleaning Process

Published on: March 7, 2011 | By Berniard Law Firm

Reuters News Service reports that Johnson & Johnson has blamed “lax cleaning procedures” for its massive recalls of over the counter medicines and artificial joint replacements. “Insufficient equipment cleaning procedures and instances where people failed to adequately document cleaning procedures” are among some of the identified cleaning issues. The company has cited to “label irregularit(ies)” as well.

Johnson & Johnson has recalled nearly 200 million bottles of over the counter medicine products in the past year. Benadryl, Tylenol, and Rolaids are among the brands affected. Some batches of Softchews Rolaids were found to have wood and metal bits in the tablets. What’s more, odors have been reported in some of the other products. In light of Johnson & Johnson’s lack cleaning procedures, one may wonder what sort of research went into the DePuy ASR hip implants. DePuy, a division of Johnson & Johnson, announced in August 2010 a nationwide recall of the ASR hip replacement systems. The artificial hips contain design flaws stemming from too-shallow cups that don’t properly house the ball associated with the joint replacements. Complications of this design flaw include metallosis caused by microscopic metal shavings and substantial loss of mobility, to name a few symptoms. Moreover, pseudotumors have been reported in some recipients of DePuy’s ASR joint replacement products.

In light of Johnson & Johnson’s quality control flaws, and resulting defects, the federal government is beginning to pay attention. The Justice Department is considering potential charges against the corporation. The F.D.A. has initiated an investigation. Congressman Darrell Issa has expressed concern, too. At least one shareholder has filed suit against Johnson & Johnson’s board of directors in response to the manufacturing errors the company have committed recently.