Unfair Business Practices

Supreme Court Required to Rule on Discrepancies in Results of Louisiana Code

Published on: February 14, 2013 | By Berniard Law Firm

Kevin and Corliss Stenson, Et Al. v. City of Oberlin and Meyer, Meyer, LaCroix and Hixson, Inc. is a very interesting and very important case to come out of the Parish of Allen. The case resulted in divergent opinions between the trial and appelate courts of the Allen Parish, ultimately requiring the Supreme Court to settle the matter. The Supreme Court accepted the case on a Writ of Certiorari, not just to resolve the conflicting results of the trial and appelate courts, but to “resolve a split in the circuits as to whether Louisiana Code of Civil Procedure article 1153, the so called ‘relation back’ doctrine, controls the Fuseliers (the plaintiff in the present case) intervening action or whether Louisiana Code of Civil Procedure 1067, providing the time limitation exception for incidental demands, governs.” The results of this Supreme Court decision will significantly impact future jurisprudence by setting a controlling precedent not just for the Allen Parish, but statewide in decision involving a choice between these two statutes. Before the Louisiana Supreme Court granted Certiorari in this matter, the Second, Third, Fourth and Fifth Circuits confronted similar situations requiring a decision between which of these two statutes to apply.

In the present case the residents of the City of Oberlin brought claims for “property damage and personal injury caused by sewerage overflow” against the City of Oberlin. They later decided to join Meyer, Meyer, LaCroix and Hixson (MMLH) as defendants. For present purposes, the important events to note in the procedural history of this case are the filings of a Second Supplemental Petition for recognition of class status on March 11, 2005, and the service of this petition on the defendant MMLH on March 17, 2005.

On July 20, 2006 Silton and Robin Fuselier filed a petition to intervene as plaintiffs. To intervene means to “become a party to a legal prceding begun by others in order to protect an alleged interest in the subject matter of the proceeding.” The Fuseliers claimed that they too had been damaged by the sewerage overflow.

Happy Mardi Gras!

Published on: February 12, 2013 | By Berniard Law Firm

As a Louisiana law firm, our practice takes great pride and enjoyment from Fat Tuesday and all of the history that follows. For all of our readers in the New Orleans area, have a safe and happy holiday.

Postings will resume shortly. In the meantime, laissez les bon temps rouler!

Insurance Dispute Over Traffic Accident Leads to Appeal

Published on: February 3, 2013 | By Berniard Law Firm

The Third Circuit Court of Appeal for the State of Louisiana affirmed a Pineville City Court’s decision to grant the plaintiffs’ awards for lost wages and injuries that resulted from a serious traffic accident. The decision was affirmed by the appellate court after a finding that the plaintiff was not negligent in the incident and there was no clear showing of error made by the the trial court.

In considering the defendants, Empire Fire & Marine Insurance Company and the defendant driver’s allegation that the trial court erred in the vehicular accident case, the appellate court explored the facts and reasoned that the offered evidence to support a finding of error was not valid. In order to overturn a trial court’s decision, a court of appeal must find manifest error or determine that the initial ruling was clearly wrong. If the testimony provided is not credible, or the inferences of fact were not reasonable, the appellate court may overturn a decision. However, in this case, the appellate court declared that the testimony was credible, in fact, the defendants own testimony supported the trial court’s ultimate decision. Furthermore, the trial court’s assessment of damages is a finding of fact to which appellate courts give great deference on review. It is not an easy task to simply overturn a damages award, thus, as a result, the record must clearly reveal that the jury abused their discretion in making its award.

The plaintiff in this case was a young woman who was driving her Pontiac Grand Prix with her son and an acquaintance who had his ten year old son as passengers. the plaintiff’s vehicle was in the far right lane on a four lane highway with two eastbound and two westbound lanes. The lane the plaintiff was traveling in became heavily congested, thus, she looked in her rear view mirror to determine whether or not the left hand lane was safe to enter. This is an important factor to consider, since the defendant driver testified that he saw her check her rear view mirror numerous times, supporting the idea that she did not simply enter into the lane negligently. In addition to the plaintiff driver checking her rearview mirror, the adult passenger in the vehicle also checked out the window to assure her that it was safe to change lanes. As she entered the lane, an eighteen-wheeler operated by the defendant collided with her Pontiac, making it spin to face the opposite direction. The issue raised by the incident was who was at fault for the collision.

Many times factual determinations rest on testimony provided. In this case, the officer at the scene provided the conversations he had with both parties following the accident. What the officer had to say leaned heavily in the plaintiff’s favor, since the eighteen-wheeler driver declared that he saw the plaintiff check her rear view mirror numerous times and as he was behind her, decided to change lanes at essentially the same time she did, resulting in the collision. Following the accident the plaintiff driver and her passengers and the three passengers sought medical attention, the doctor’s report indicated that two of the passengers suffered various soft-tissue injuries, including cervical, thoracic, and lumbar strains, a post-traumatic headache, and clavicle damage. In order to remedy there injuries physical therapy, medication, and cold/hot packs were prescribed. Unfortunately, none of the injured parties had medical attention, so the medical expenses began to weigh heavily on their finances. Specifically, the plaintiff’s acquaintance that was riding in her vehicle the day the collision occurred was a carpenter, his injuries grew increasingly worse, negatively impacting his ability to perform his work duties. With the loss of income, increasing medical expenses, and the need for future help, the lawsuit ensued. The trial court held that the defendant driver was solely responsible for the accident and the trial court awarded $9,500 in general damages to the adult passenger plaintiff as well as $11,000 in general damages as well as $1,500 in lost wages to the driver plaintiff. Both adult passengers were reimbursed for their medical expenses.

The trial court determined that the testimony provided by all the parties and the resulting injuries supported the finding of damages and responsibility. Yet, the defendants attempted to portray to the appellate court, that the fact at issue was the trial court’s failure to apply appropriate law to the facts of the case. The entire basis of their argument was that the plaintiff driver “it must be presumed…did not look before she turned because if she had looked she would have surely noticed the appellant’s 18-wheeler.” Further, the defendants alleged that the plaintiff did not testify at trial due to a prior felony conviction, thus her declarations in regards to the collision should be held unreliable. Neither argument succeeded. First, the defendant driver testified that he saw the plaintiff driver check her rear view mirror “numerous times,” this negates the defendants argument that she simply “should have known.” Secondly, the trial court was fully aware of her prior felony conviction, but apparently found the plaintiff’s position more credible then the defendant driver’s. Lastly, the plaintiff had no obligation to testify, no one subpoenaed her as a witness, the defendants never called her to the stand.

The defendants failed to provide any authority for their positions, they simply argued that the trial court’s ruling was not fair. In order to make a legal position, one must first build a foundation using precedent, case law, or statutory authority. Without a foundation a building will fall, as such, the defendant’s argument failed without having any support.

If you have been injured in a car accident, you need representation that will be able to build the legal foundation you need in order to have a supported legal argument.

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

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

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

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

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

The rejection form was validly executed, but the “named insured” changed on the policy. However, the court rejected this notion because although the name changed slightly, the entity that was insured did not. The court explained that LSA-R.S. 22:1295(1)(1)(ii) specifically says, “Any changes to an existing policy, regardless of whether these changes create new coverage, except changes in the limits of liability, do not create a new policy and do not require the completion of new uninsured motorist selection forms.” Therefore, since the limits of the liability were not changed, a new waiver form was not required and the waiver form signed six years prior to the accident was still valid.

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

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

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

Rental Car Accident Leads to Louisiana Insurance Dispute

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

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

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

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

Vehicle Defect Leads to Redhibition Claim in Louisiana

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

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

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

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

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

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

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

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

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

Phrasing in Policy Contracts Can Lead to Federal Review

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

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

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

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

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

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

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

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

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

Difficulty in Setting Aside Insurance Release Forms and Settlements

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

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

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

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

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

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

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

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

Strict Reading Sneaks Insurance Company Out of Child Injury Case

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

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

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

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

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

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

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

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

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

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

Court Explains the Requirements of a Settlement Agreement

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

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

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

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

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

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

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

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