Random Miscellaneous

Calcasieu Parish May Be Liable For Damages Resulting from Failure to Ensure Drainage After Hurricane

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

Governments traditionally were immune from lawsuit. That has changed. In certain circumstances, governments may be held liable for the damage they cause. A coulee flooded homes in Lake Charles after Hurricane Rita, although the area is protected by a drainage district that operates pumps and pipes to ensure drainage. The Louisiana Court of Appeal affirmed a jury award against the drainage district in Bordelon v. Gravity Drainage District No. 4 of Ward 3 of Calcasieu Parish, No. 10-1318 (La. Ct. App. 3 Cir. 10/5/11).

Drainage district employees typically stayed in pump houses during hurricanes, but in July 2005, Louisiana state officials determined that no evacuation site in Calcasieu Parish could withstand a category 4 or 5 hurricane. The drainage district has automated pumps run by electricity, but if the power went out, the diesel-fueled backup pumps required human operation. Hurricane Rita was expected to hit land as a category 4 or 5 hurricane. The district decided to allow its employees to evacuate with their families to Opelousas, Ville Platte, and Lafayette. The whole area south of Interstate 10 in Lake Charles was a part of the evacuation.

Rita unexpectedly weakened to category 3 when it made landfall on Friday, September 24, 2005. Electrical power was wiped out across a wide area. The drainage district’s electric pumps at Pithon Coulee stopped at 9 p.m. No one was in the pump house to start the diesel pumps. When residents returned the next morning, their homes were fine, but the coulee waters were rising. Drainage district employees had yet to be recalled. The houses began flooding from the rising coulee waters after 3 p.m. Saturday. Early on Sunday, the district workers returned. They turned on the pumps at 8:30 a.m. By noon, the coulee was below flood stage.

Twenty-four homeowners sought damages from the district because it failed to plan a way to automate the diesel pumps and because its decisions during Hurricane Rita resulted in flooding. The district argued it was protected by governmental immunity under Louisiana Revised Statutes. A jury awarded the homeowners $1,570,219.60, although it recognized that the liability of the district’s insurer, American Alternative Insurance Corporation, was limited to $1 million. The drainage district and its insurer appealed.

Courts strictly interpret immunity statutes to limit their reach. Two statutes may protect the district. The Louisiana Homeland Security and Emergency Assistance and Disaster Act provides immunity when a government is “engaged in any homeland security and emergency preparedness activities” as a part of complying with the Act. An unpublished court of appeal decision persuasively limits immunity to actions taken during an emergency, but not before. Based on that decision, the jury decided against the drainage district because it failed to have a plan in place before the hurricane’s forecasted arrival. The court of appeal agreed. “A failure to plan for an emergency is not an emergency preparedness activity under the statutes conferring immunity for such activities.” The district was not immune for not having a plan to keep pumps running when the pump houses were not staffed and power was out.

Louisiana state and local governments also are not liable “based upon the exercise or performance or the failure to exercise or perform their policymaking or discretionary acts when such acts are within the course and scope of their lawful powers and duties.” Immunity exists for policymaking or acts for which a choice is acceptable within the government’s delegated powers. If the act is “not reasonably related to the legitimate governmental objective for which the policymaking or discretionary power exists,” or was done criminally or in some way intentionally, immunity does not apply.

The Louisiana statute is patterned after the Federal Tort Claims Act. A two-part test determines if immunity applies. Did the government employee have discretion, a choice, or did law require the employee to follow a certain course of conduct? If a specific action is mandatory, no immunity applies. If the employee has a choice, was that discretion “grounded in social, economic or political policy”? If not, the government may be liable. Louisiana has adopted the federal test for the state governmental immunity statute.

The court of appeal recognized that planning is an act of discretion, and ensuring employee safety above concerns to protect property “is clearly within the discretion of the district.” But, automating the diesel pumps had never been considered, although it would cost only $40,000 and the money was available. By statute, “the drainage district shall make adequate provision for the drainage of all lands and property affected thereby.” The district was required to provide adequate drainage of all property. The failure to consider a feasible alternative to ensure compliance with a statutory mandate prevented immunity for the effects of not automating the pumps. The court of appeal affirmed the district court jury verdict.

If you believe you have been harmed by a government, it is hard to know what to do. Government duties come from statutes and regulations, and governments may be protected from lawsuits. But not always. A lawyer will be able to review your claim and determine the government’s authority and potential liability.

No Attorney’s Fees for Derry Man After Insurance Dispute

Published on: November 11, 2011 | By Berniard Law Firm

When one is successful on a claim against an insurance company the payment of the claim is expected to be prompt. Any delay in payment could result in the court imposing a penalty against the insurance company. In most, if not all, cases this penalty takes the form of court costs and attorney’s fees. But if an insurance company challenges a policy claim in court, and then loses, does that time when payment was refused constitute delay? The answer to this question is ‘it depends.’

In Louisiana Bag Co. v. Audubon Indemnity Co., the court held that if an insurer errs in interpreting its own insurance contract, then the insurance company will be held liable for the delay in payment resulting from the trial. This delay justifies the incurrence of penalties for attorney’s fees. If, however, the policy dispute revolves around facts rather than contract interpretation, then the “timely payment” provision is stayed during the trial. This was the situation of Maxley v. Universal Casualty Co. where Maxley’s car insurance policy through Casualty covered loss from both theft and fire. When Maxley’s car was stolen and set on fire, he filed for his claim. However, Maxley had left his car unlocked with the key in it. The policy through Casualty had an exception that nullified any claim if there was no evidence of forcible entry. The issue went to court with Casualty claiming it owed nothing under the policy because the theft was not through a forcible entry, and Maxley contesting payment was due under the fire provision of the policy rather than the theft. Maxley, in essence, argued that the exclusion provision for no evidence of forced entry was irrelevant because his car would have been recovered if it had not been for the fire.

The court found for Maxley, who then sought attorney’s fees for Casualty’s failure to make timely payment. The Third Court of Appeal upheld the denial of Maxley’s claim, stating that Maxley’s reliance on Louisiana Bag was misplaced. While Louisiana Bag relied on policy interpretation, Maxley’s case relied on a true disputation of the facts. It would be senseless to require the insurance company to pay the claim only to the have the claim payment rescinded if the facts were found in favor of the insurance company. This finding upholds efficiency in the industry as it is easier to withhold payment until truly due than it is to always make payment, then try to recoup it if made erroneously.

Insurance Company Taken to Task for Poor Handling Claims

Published on: November 3, 2011 | By Berniard Law Firm

It is well settled under Louisiana law that insurers owe a duty of “good faith and fair dealing” to their customers. Each insurance company is required to adjust claims in a fair and prompt manner and to make reasonable efforts to settle claims when possible. La. R.S. 22:1973 establishes that damages may be awarded against an insurance company that fails to meet this duty. One category of wrongdoing includes:

“Failing to pay the amount of any claim due any person insured by the contract within sixty days after receipt of satisfactory proof of loss from the claimant when such failure is arbitrary, capricious, or without probable cause.”

The statute also permits a wronged insured to collect penalties from the insurer “in an amount not to exceed two times the damages sustained or five thousand dollars, whichever is greater.” The purpose of this law is to discourage insurers from failing to live up to the promises they make to their customers in their insurance policies and for which the customers pay premiums.

On October 27, 2004, Carl Guidry and his granddaughter were driving in Guidry’s pickup truck. They were rear-ended by Amber Guidry (no relation) and Guidry’s truck was knocked forward. Guidry suffered from neck and back pain following the accident. Two weeks later, on November 11, 2004, Guidry and his granddaughter were again rear-ended while driving in Guidry’s truck, this time by an SUV driven by Evelyn Smith. Guidry experienced further neck and back pain, as well as shoulder pain, after the second collision. Guidry sued both Amber Guidry and Evelyn Smith, and also sued his own uninsured/underinsured motorist (UM) carrier, Progressive. Guidry settled with Amber Guidry’s insurance carrier in the first accident for the policy limits of $10,000. At trial, the jury found that Guidry did not suffer damages in the first accident, but found that he did suffer damages in the second accident; they jury awarded Guidry medical expenses in the amount of $19,860 and general damages of $10,000. The jury also found that Progressive had been “arbitrary and capricious” in handling Guidry’s claims for general damages and medical expenses from both accidents; specifically, Progressive never tendered any money to Guidry for either claim. Accordingly, it awarded Guidry $50,000 for Progressive’s breach of duty and $10,000 in attorney fees. Then the trial judge awarded Guidry $100,000 in statutory penalties against Progressive.

Progressive appealed the penalty award to the Third Circuit. The court upheld the award after a review of Progressive’s handling of Guidry’s claims. Progressive admitted receiving proper notice of Guidry’s accidents in September, 2006 but disputed that Guidry could establish the amount of his damages. The general rule for UM carriers is that if the insured can show that “he was not at fault, that the other driver was uninsured or underinsured, and that he was in fact damaged,” the UM insurer cannot avoid liability just because the insured is unable to prove the exact extent of his general damages. Instead, the insurer “must tender the reasonable amount due as a sign of its good faith and its willingness to comply with the duties imposed upon it under the insurance policy.” See McDill v. Utica Mut. Ins. Co. The tendered amount would not be to settle the case, but to show good faith. Once the good-faith tender is made, the insurer must take “substantive and affirmative steps” evaluate the claim. In this case, Progressive opened its claim file in September, 2006 but did not depose Guidry’s treating physician and orthopedist until June, 2008–nearly two years later. It failed to pay Guidy any money towards the $3,500 in costs to repair his truck. Also, Progressive failed to tender any of the medical payment coverage ($5,000 per accident) included in Guidry’s policy, even though it ample evidence that injuries had resulted from the second accident. Guidry finally had shoulder surgery some four years after the second accident to relieve his debilitating pain, which was paid for by Medicare. Thus, the court concluded that “the jury was not unreasonable in finding that Progressive breached its duty to Mr. Guidry by failing to pay the amount of any claim within sixty days and by failing in its duty to timely investigate the accidents.”

What should have been a simple resolution for Mr. Guidry turned into a four-year-long nightmare of shoulder pain because his insurance carrier mishandled and delayed the payment he was entitled to receive under his policy. This case shows the value of an experienced accident attorney who can advocate on behalf of an injured victim.

Berniard Law Firm Files Class Action Lawsuit Against New Orleans Hotel

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

Louisiana’s Unfair Trade Practices and Consumer Protection Act seeks to prevent businesses in the state from engaging in “unfair or deceptive acts and practices” or “unfair methods of competition” when doing business with customers. The law allows anyone who falls victim to such practices to file a civil action against the perpetrator and recover treble damages (three times the amount of the actual loss) and attorney’s fees. Many types of undesirable conduct on the part of businesses can fall under the Act, including misrepresenting the features of a product or service, suggesting that a good or service has been approved or endorsed by a third party when no such sponsorship exists, or passing off used or refurbished items as new. Price misrepresentation is another area where violations of the Act are common.

On September 22, 2011, Jeffrey P. Berniard of the Berniard Law Firm, on behalf of its client, Bayou Internet, filed a class-action lawsuit suit in federal court against the Royal St. Charles Hotel in New Orleans. The suit alleges that the hotel routinely hid a $7.95-per-day “resort fee” from guests, which it failed to disclose until customers received their bills at the time of check-out. This practice of under-representing the true cost of a room at the Royal St. Charles makes it impossible for would-be customers to accurately compare prices when shopping for a place to stay in the French Quarter. Bayou Internet believes that it is among possibly thousands of customers who have paid for accommodations at the Royal St. Charles Hotel and fallen victim to the pricing misrepresentation. Bayou Internet has asked U.S. District Judge Helen G. Berrigan to issue an injunction ordering the Royal St. Charles Hotel to immediately end their practice of omitting the resort fee in advertised room rates. The complaint seeks an award for the plaintiffs of treble damages as provided for in the Unfair Trade Practices and Consumer Protection Act, as well as interest, court costs, and attorney’s fees.

This type of claim under the Unfair Trade Practices and Consumer Protection Act is representative of the wide variety of issues that the Berniard Law Firm stands at the ready to help consumers resolve. If you feel you have been a victim of fraud, misrepresentation, or other unfair business practice, don’t feel like you are powerless against “big business.”

Appeal Violates Louisiana Statute, Policy for Judicial Effectiveness

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

“Judgment” may sound very final but not every judgment has such gravitas. Only final judgments are appealable under Louisiana law. When Doug Selman Builders, LLC. appealed the judgment against it in Webster v. Doug Selman Builders, LLC., it violated the legislature’s restriction on appeals.

The defendant was accused of defectively constructing the home that the plaintiffs purchased. At the trial level, the defendant sought and obtained an exception as to consequential damages. The defendant was less successful in responding to the plaintiffs’ claim for mental anguish and mental distress. The parties could not agree whether or not to make the judgment immediately appealable. If they had, the trial court could have certified it as such, though apparently not without incident. In the instant case, defense counsel submitted two versions of the proposed judgment: one with the certification and one without. The judge signed the one with the certification. It would seem that the judgment would have become appealable at this time. This was not the case.

The appellate court ordered the defendant to show why this appeal was not taken from an interlocutory appeal. The defendant’s argument that he was only appealing the ruling on the denial of his exception for mental anguish and non-pecuniary damages. However, the law in this area is clear: a denial of an exception is interlocutory by nature and cannot be designated as immediately appealable. When confronted with this seemingly bizarre result, it behooves us to ask why the incentive structure is set up to obtain it.

Though it may not always be readily apparent, judicial efficiency is an important goal in Louisiana and the United States. The court system does not enjoy hearing repetitive litigation if it can be avoided. The Louisiana statute that barred the defendant’s action in this case serves to make sure that a defendant has actually lost his or her case before taking it before the higher court. The denial of an exception simply causes the defendant to actually have to defend himself on the merits of his case.

Under the scheme set up under this statute the litigation would progress in a logical manner. The plaintiff will file a suit, the defendant will file his answer with his proposed exceptions, he will either win or lose on these, the case will proceed through discovery and to trial, the defendant will either win or lose. Then the defendant will decide whether or not to appeal the final judgment. If the defendant’s argument were to be adopted as the law, litigation would have needlessly circuitous steps. The plaintiff files a complaint, the defendant answers asserting several exceptions, the defendant appeals any denied exceptions, the defendant wins his appeal and the case is remanded for a judgment reflecting this or the defendant loses his appeal and appeals again or lets the case be remanded to the trial court so he can defend himself, win or lose and maybe appeal again. This system is untenable to say the least. If denials of exceptions are appealable, then why not make any lost motion or evidentiary objection appealable? This would make litigation more complicated than it has to be and waste a significant amount of time.

Appeals are only able to be taken from final judgments because final judgments incorporate the compilation of all pre-trial motions and filings as well as the record at trial. This allows appellate courts to have a better picture of the controversy before passing judgment. It also allows the parties to complain about everything they think the trial court did wrong all at once. This system may not be perfect but it is certainly better than the one that the defendant proposes with his argument in the instant case.

U.S. 5th Circuit Court of Appeals Clarifies Retroactive Renewal of Flood Insurance

Published on: October 3, 2011 | By Berniard Law Firm

Those living in low-lying areas and near rivers often seek, and often obtain, flood insurance. Many of the policies granted come from insurance providers that have opted into the National Flood Insurance Program (NFIP). Under this program, property owners are issued flood insurance through the Federal Emergency Management Agency (FEMA). The federal government, in an effort to expand the NFIP, created the Write Your Own program. These policies provide identical coverage as regular NFIP insurance, except they are administered through local insurance companies. These insurance companies increase community awareness of the NFIP in return for expenses related to claims written and processed. FEMA retains all responsibility for claim losses.

These policies, like any other insurance policy, are only active for the policy period. However, once the policy period has expired, FEMA and Write Your Own insurers typically extend a grace period of thirty days. This means that if the policy holder pays a renewal premium within thirty days of the policy’s expiration, the renewal will be retroactive, essentially covering the gap between the policy expiration and the payment of the premium. If the policy holder fails to pay the renewal premium before the grace period ends, then the policy terminates at its original expiration date and no grace period claims can be processed under it.

This retroactive policy renewal was the issue in Campo v. Allstate Insurance Company. Here, Campo’s flood insurance expired and Allstate sent him notice of the expiration along with the option of retroactive renewal. During this grace period Campo’s property was damaged by Hurricane Katrina. Due to the excessive number of claims arising from Katrina, FEMA increased NFIP grace periods from thirty days to ninety. Campo contacted Allstate and procured an insurance check to cover his living expenses. No further discussion of policy renewal took place. Campo’s ninety day grace period expired without any renewal premium payment. Therefore, when Campo filed his insurance claim it was denied as the policy was not retroactively renewed to cover the damage caused during the grace period. Campo sued Allstate claiming that Allstate had negligently misrepresented the status of his policy.

The only way to succeed on a claim of negligent misrepresentation by an insurance company is to show that the insurance company had a legal duty to supply correct information, that that duty was breached, and that damages resulted from justifiable reliance on that misrepresentation. In most cases, as in Campo’s, the third prong of this test is the most difficult to satisfy. The reasoning behind this is simple: policy holders have access to correct information through the policy contract that they possess. Thus, courts may find damages flowed from an unjustified reliance on the misstatement because the policy itself is clear.

Yet, under this test, Campo succeeded on his damages claim in district court. The U.S. Court of Appeals for the 5th Circuit, on the other hand, reversed in favor of Allstate. The reasoning behind this decision is that Campo was fully aware that he was required to pay a premium in order to obtain the retroactive renewal of his policy. In conversations with Allstate, Campo failed to discuss the renewal, and, in addition, the check provided by Allstate during the grace period was not a promise that it would pay Campo’s claim. In short, the court viewed Campo as being responsible for knowing the terms of the insurance policy he held. Insurance policy holders have access to the terms of their policy and are therefore in a position to familiarize themselves with relevant provisions.

Since much of Louisiana is prone to flooding, it is important to protect yourself by obtaining flood insurance. However, once a policy is issued, be sure to read through the terms and know the conditions of renewal. When a policy expires, it is the policy holder’s responsibility to take action for renewal.

Insurance disputes such as these are complex and best left to an experienced practicing attorney.

Nuances of Insurance Policies Crucial When Pursuing Coverage

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

When litigation involves multiple parties, all of which are big national or international organizations, there is a higher likelihood that something is going to end up in the litigation process. The unfortunate nature of insurance coverage is that companies will try to find little nuances to try to argue their case, or will add little nuances to make any future case more difficult for opposing parties. One party to a contractual agreement may cite to these nuances to find a loophole to escape from any potential liability and, subsequently, leave someone who believed they had full coverage with nothing. Despite these loophole efforts, a court can still look at the realities of the circumstances and come to real life conclusions to the exclusion of the argument of either party. This is true in the case of Federal Insurance Company v. New Hampshire Insurance Company, when the court ultimately looked at the reality of a contractual agreement and decided that no matter what the terms of the contract were, the whole contract was in regard to a personal injury case.

Our previous blog post discussed this case but a brief summary is as follows:
The case began when Wayne Robinson was unfortunately hurt by an explosion at a chemical plant. The explosion occurred because there were certain chemicals used by the plant that reacted with each other to cause the explosion. One of the defendants in Mr. Robinson’s case was Thomas and Betts Corporation (hereinafter T&B). T&B allegedly manufactured a product that contributed to the explosion that caused Mr. Robinson’s injuries. T&B had liability insurance from both New Hampshire Insurance Co., which was the primary insurance provider, and Federal Insurance Co., which was the secondary, or excess insurance provider. Ultimately, Mr. Robinson settled with T&B.

The interest of discussing policy nuances hinges upon the terms of the agreement were between T&B and Mr. Robinson. In that agreement, T&B would give Mr. Robinson $5 million for bodily injuries and an additional $1.2 million for a potential breach of contract claim another plaintiff may have had against Mr. Robinson. In fact, by settling with T&B, Mr. Robinson was breaching his agreement with the plaintiff company. After Mr. Robinson reached his agreement with T&B the other plaintiff sued Mr. Robinson for breach of contract. This breach of contract was supposed to be covered by his settlement agreement with T&B. However, soon after the settlement, Mr. Robinson received a letter from New Hampshire Co., T&B’s primary insurer, that it was going to cover his $5 million settlement, but would not cover his $1.2 million settlement because it was for a breach of contract and therefore, outside the scope of its policy covering T&B.

As a separate issue, the court discussed whether the New Hampshire policy covered contractual agreements. However, it came to the conclusion that the use of the phrase “legally obligated to pay” rendered the policy to cover tortious actions. However, the court went on to explain that the entire settlement between T&B and Mr. Robinson did in fact relate to and cover the bodily injury claim. The settlement could only cover the bodily injury claim because the only action for which T&B was liable to Mr. Robinson was the bodily injury. Therefore, the settlement could not be for any breach of contract claim.

The $1.2 million settlement was a by-product of T&B inducing Mr. Robinson to settle his bodily injury claim against T&B. The court held that even though this separate amount is categorized as reimbursement for a breach of contract claim, it is still within the bodily injury claim because the settlement was made in consideration for the bodily injury claim. Therefore, because the bodily injury claim was covered by the New Hampshire policy, New Hampshire was liable for the entire settlement. Mr. Robinson received money from Federal, T&B’s secondary insurer, therefore Federal stepped into T&B’s shoes in its claim for reimbursement from New Hampshire. Therefore, New Hampshire owed Federal the money it paid to Mr. Robinson.

Even in cases where a contract defines things in a certain manner or when the law defines different terms, the realities of a contract are the ultimate facts that define a contract. Although, the New Hampshire policy only covered tortious actions and even though the settlement between Mr. Robinson and T&B defined two different amounts, one for bodily injury and the other for a breach of contract, the reality was that both amounts were in consideration for the bodily injury claim and therefore the reality was that New Hampshire owed the entire amount as per its policy with T&B.

The Importance of Defining Terms in a Contract

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

The terms in a contractual agreement between parties can have the effect of changing entire meanings of contracts. This is especially true in more complex litigation and more complex business agreements. If a business agreement requires the participation of multiple partners or parties, an ambiguously defined contract can have the effect of increasing the amount of litigation which will occur every time there is a legal dispute between any or all of the parties. The clear practical effect of writing clear-cut and well defined contracts is that, in the long run, there will be less of a chance that any dispute will require a long, drawn-out litigation process which has the effect of draining the wallets of all the parties involved.

This is most important where one or more of the parties is a single individual with limited resources, and in some situations, is represented by smaller firms that have much less financial resources compared to bigger business entities with more resources and financing at their disposal. As a legal practice, any person that becomes part of a contractual agreement should clearly define any type of ambiguous terminology in an effort to save the agreement from getting the definitional application of common law or practice. Never is this more necessary than when an individual is pushed up against an insurance agency that holds their financial future in their hands. The importance of defining a contract can be clearly seen in the case of Federal Insurance Company v. New Hampshire Insurance Co.

Both Federal and New Hampshire insurance companies became involved in litigation because they both insured Thomas and Betts Corporation (hereinafter T&B). T&B made a product which contributed to an explosion at an aluminum processing plant in Gramercy, Louisiana, leaving employee Wayne Robinson with injuries. Ultimately, Mr. Robinson sued T&B, which had liability insurance from both Federal and New Hampshire. Thus, when the suit began, Federal and New Hampshire’s policies kicked into effect. New Hampshire was the “first insurer” for T&B. Federal, on the other hand, was T&B’s second layer excess insurer. On the eve of the trial, Mr. Robinson came to an agreement with T&B which had the effect of potentially extinguishing the law suit. T&B was going to pay Mr. Robinson $5 million dollars in damages for his unfortunate bodily injuries, and an additional $1.2 million in consideration for a potential breach of contract claim by another plaintiff company against Mr. Robinson. Subsequent to this settlement, New Hampshire notified Mr. Robinson that it was going to pay him the $5 million, but that it would not pay him the $1.2 million promised by T&B. When Mr. Robinson then received a letter from the plaintiff company, he sent the notice to Federal to show the demand made of him. Federal ended up giving Mr. Robinson $990,000 for the potential breach of contract claim against Mr. Robinson. The pertinent part of the agreement between T&B and Mr. Robinson is as follows:

“Thomas and Betts and Its Insurers agree to hold harmless, indemnify and defend Wayne Robins, et al, The Fields law Firm and Cleo Fields for any amount owed to AXA, Kaisers Subrogated Property Reinsurers, Caleb Didriksen and the Didriksen Law Firm, not to exceed 1.2 million dollars.”

Eventually, Federal sought the $990,000 from New Hampshire arguing that the amount should have been given to Mr. Robinson as part of T&B’s policy with New Hampshire. New Hampshire argued that this amount was not within T&B’s policy with it. The pertinent part of T&B’s policy with New Hampshire was that New Hampshire, “becomes legally obligated to pay by reason of liability imposed by law or assumed by [T&B] under an Insured Contract because of Bodily Injury.” This seems simple enough, however there was no definition of “legally obligated to pay.” In the world of contracts, the contracting parties have the ability to define things in any manner they see fit. These definitions should, however, be included in the contract itself in the index of terms. When a contract does not define any of the material terms, the terms should be filled in by the court. In this case, the court decided that since the phrase was not defined, it should be filled in with what was commonly used in Louisiana. It Louisiana, it was well settled that the use of the phrase was for damages arising out of tortious actions and not from a contractual obligation. Therefore, on the face of the assertion, Federal would be out of luck because it sought money from New Hampshire for money it gave Mr. Robinson due to a breach of contract. Even though the court sided with Federal for other reasons, Federal would have been dealt a strict blow because it did not read the policy between T&B and New Hampshire clearly enough to see that the term was not defined.

Therefore, before taking any action any party should clearly read any existing agreement between relevant parties and should make sure any contract it signs has clearly defined terms that will not lead to unnecessary litigation which will only serve to drain resources.

The Delicate Nature of Lawyer Malpractice

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

Lawyers are professionals and are held to a certain standard of care by the law due to the delicate nature of their work. A lawyer is not required to win every case he or she takes – such a standard would be impractical and impossible to maintain. However, a lawyer must advocate to the best of his or her ability for a client at all times. This includes a myriad functions such as filing documents, arguing before judges and tribunals and negotiating on behalf of clients. If a lawyer fails to live up to a client’s expectations of professionalism and conduct, that client may file suit for malpractice.

To be successful in such a suit the client must prove that the lawyer’s conduct breached the standard of care for an attorney practicing within the jurisdiction. Once malpractice has been alleged and proven, it falls to the attorney to prove that even if he or she had been operating under the standard of care, the client would have lost his or her case. This second burden ensures that clients only collect when they suffer an actual loss.

In Semmes v. Klein, a legal malpractice case originating in St. Tammany Parish, Mr. Klein, the attorney, originally filed a suit on behalf of the wrong person. He realized this error and partially corrected it by withdrawing that suit. However, Mr. Klein failed to file a new suit on behalf of the correct party. Mr. Klein was fortunate because the potential plaintiffs in this case no longer possessed the legal interests that they thought they did by the time the case would have begun.

The facts of this case are confusing at best as they involve corporations and individuals comingling in all manner of contracts and deals. No party in this matter can be held truly blameless because all had a part in gumming up the legal framework in which they were all operating. Due to this confusing legal climate, the trial court did not render a verdict entirely favorable to either party. The trial court dismissed the malpractice claims of the plaintiffs at the defendant’s cost and both parties appealed. On appeal, the trial court’s decision was affirmed.

As professionals must be held accountable for their actions, attorneys are no different and are meant to act on behalf of their clients. This case showcased the type of situation that can arise when an attorney fails to do his or her due diligence. Through a full disclosure of information it could be found that the true interests of the clients may not have been upheld by the attorney in question. In this case, according to the filing of misconduct, Mr. Klein failed to make even the slightest inquiry into the situation in which he was becoming involved. As a result, his clients continued to operate under false assumptions until it was too late.

This case highlights the complexities of insurance litigation, as well. The owner of a particular piece of real property (real estate) insured the property. Then the owner gave the rights to collect the insurance proceeds to a separate entity. After Hurricane Katrina hit, the property was damaged and had to be repaired. Who would do the repairs? Who would actually collect the insurance payouts? Apparently, the answers to these questions were not the same. Enter Mr. Klein. According to his former clients, Klein made the situation worse by failing to behave according to the requisite standard of care. For this, his clients alleged to have suffered a bit of hardship and, in the end, was held accountable in the amount of their legal fees for the malpractice suit against him.

This case demonstrates not only the rules upon attorneys but also the need for clients to hire carefully. By being selective in who represents your case, you prevent not only having your case go poorly but also having to resort to such measures as suing your legal representative.

Federal 5th Circuit Decides Excess Insurers Are Not Required To Pay Pre-Judgment Interest

Published on: September 16, 2011 | By Berniard Law Firm

In order to avoid extreme costs incurred from accidents, some businesses purchase two types of insurance policies. The first and most common type of insurance is primary insurance. Under this policy, business assets and liabilities are covered in exchange for the payment of a premium. This coverage, however, is capped in order to protect the insurance company from excessive claims. For this reason, many businesses, especially those dealing with expensive equipment and goods, will carry a second insurance policy that provides coverage beyond what is offered through the primary insurer. These policies are known as excess insurance. Premiums for these excess policies are often lower and provide a much higher cap on claim amounts. Excess insurers are able to provide such cheap, yet extensive coverage because the chance of such a catastrophic accident occurring that exhausts the primary insurance cap is minimal. However, as is evident in Indemnity Insurance Company of North America v. American Commercial Lines, L.L.C., where multiple boats collided on the Mississippi River, maritime accident costs sometimes extend beyond primary insurance coverage, bringing questions of how excess insurance money should be handled by courts.

When insurance disputes arise, many times the insurance company will concede the full policy amount, deposit it with the court, withdraw from the proceedings, and leave the claiming parties to battle out their rights to the money in court. Statutory provisions guide the timeline for when primary insurance policies must be deposited with the court, but what is the protocol for an excess insurer that wants to follow the primary insurer’s footsteps? This was the main question in the American Commercial Lines case. The plaintiffs sued the excess insurers claiming that the excess insurers deposited the policy amount with the court too late, resulting in the loss of hundreds of thousands of dollars in interest that could have been distributed amongst the victims. In deciding the case the court had to analyze a couple different issues.

The first issue dealt with determining what law applies to the case. Since the case involves maritime insurance, the court had to decide between maritime law and state law. Statutes provide that if no federal maritime law controls the issue, then state law applies. Because no specific maritime provision covers when an excess insurer should deposit policy amounts with the court, Louisiana court applies. This means, as mentioned above, that excess insurance will not kick in until after all primary insurance funds have been exhausted. This essentially answers the question the second issue poses: when does the excess insurer need to deposit policy amounts with the court?