Unfair Business Practices

On Call Employee Not Acting Within Employment During Accident

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

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

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

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

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

Liberative Prescriptions: Purpose and Importance

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

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

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

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

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

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

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

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

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

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

Drilling Accident Shows Standards for Reasonable Care

Published on: September 7, 2012 | By Berniard Law Firm

A field service technician sued a crew boat operator and several entities related to the drilling operations when he was injured during a personnel basket transfer and a mobile drilling unit. The trial court, applying a “reasonable care” standard, granted summary judgment in favor of the drilling companies and the service technician, Callahan, appealed the decision.

Callahan, an employee of Cooper Cameron Corporation, was hired to help install, repair and replace equipment on the offshore oil well. While transferring the mobile drilling unit, the ship moved abruptly, causing Callahan’s back to pop and sharp pain to shoot through it. Callahan returned to his cabin and later executed a successful personnel basket transfer. Once he arrived on the barge, he reported his injury to the medic. Callahan argued various claims of negligence, revolving around the decision to transfer him to the barge in unreasonably dangerous conditions. However, according to the district court, since no employee of the crew boat directed Callahan to leave his cabin for transfer, these companies could not be held liable, particularly given Cooper Cameron Corporation’s “stop work” policy which gives employees the right to stop working if they find the conditions to be unsafe. Callahan clearly knew of this policy since he has used it before, but did not apply in these circumstances.

On appeal, Callahan claimed that the trial court made a mistake in finding that the conduct of the drilling companies (Diamond, Golf Logistics, Eagle Consulting, and LLOG) was reasonable and therefore in granting them summary judgment. Summary judgment is appropriate if “there is no genuine dispute as to any material fact”. FED. R. CIV. P. 56(a). A material fact is one that might affect the outcome of the case if it is found in favor of a particular party.

BP Refinery Sued for Negligence in Gas Release

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

Contractor company employees working at a British Petroleum (BP) refinery sued the oil company for negligence. Workers at the refinery reported a “weird” gas smell while they were employed at the factory. None of the gas monitors about the refinery sounded an alarm. About 100 employees went to the hospital but none showed any injury due to gas exposure.

The employees claim that the substance was carbon disulfide gas. The mask of one of the plaintiffs tested positive for traces of carbon disulfide gas but the lab technician who took charge of the mask noted that the mask had not been well maintained enough to be tested properly. When the district court found for the plaintiffs, BP appealed the verdict. BP argues that it was wrong for the trial judge to have instructed the jury on res ipsa loquitur and that without that instruction, the plaintiffs could not have shown that the company to be negligent.

Res ipsa loquitur is a doctrine used in certain types of cases when the circumstances surrounding the accident constitute sufficient evidence of the defendant’s negligence to support such a finding. Basically translated, the doctrine concludes that if an accident could not have come about by any other method than the one claimed, then the fact that the event happened is proof enough that it happened in the manner claimed; in other words, “the thing speaks for itself”. Res ipsa loquitur is applicable only when: (1) the character of the accident is such that it would not ordinarily occur in the absence of negligence; and (2) the cause of the injury is shown to have been under the management and control of the defendant. Using res ipsa loquitur, negligence can be inferred by the jury without evidence of wrongdoing.

The Appeals Process and Receiving a New Trial

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

The legal system is not perfect; courts will make the occasional error. However, in our system, we have many different levels in order to help ensure that if there are errors, the next court in the process will work to correct it. One of the ways that a court can correct an error is to grant a new trial. A motion must be made to the court by one of the parties to signify that they would like to have a new trial. In many cases, the same judge will hear the motion and decide whether to grant a new trial. Sometimes the Court of Appeals will review the motion and send the case back down to the lower court for a “re-do.”

A new trial can only be granted for serious legal errors. These errors can be based on the judge or jury, depending on the type of trial. An obviously incorrect result based on the evidence presented would be a strong candidate as a case for a new trial. Often, new trials will be granted when the jury makes a determination that is completely contrary to the facts that were presented.1
The Court of Appeals for the Fifth Circuit considered a motion for a new trial in February this year. The case involved a group of three victims who were in a car accident with a company car, where the company car hit the victim’s vehicle. The three individuals were treated for injuries relating to the accident. The defendant’s liability was proven at a separate hearing, but the damages to be awarded was left up to the jury.

The jury awarded damages significantly lower than expected. Both sides presented experts to testify regarding the severity of the injuries and the treatments that the victims had to endure. The victim’s personal physicians testified and the defendant’s expert countered their testimony. The defendant’s expert pointed out that the procedures given to the victims were actually not credible treatments in the state of Louisiana and therefore unnecessary.

The Court of Appeals for the Fifth Circuit determined that the reason that the jury awarded damages that were so low was because the jury found the defendant’s expert to be more credible and awarded damages accordingly. The court decided that although the damages were very low if the jury would have believed the plaintiff’s experts, they did match the statements of the defendant’s expert.

In Louisiana, the jury is given great deference and their decisions can only be altered if there is an obvious flaw in their outcome. When deciding whether or not to grant a new trial, the court can consider whether the jury gave one expert too much credit. However, because of the need to balance between the deference granted to the jury and the ability to evaluate an expert, the court is only allowed to overrule the jury in extreme cases where the expert was not credible at all.

The court gives an example of such an occasion where they can overrule rule the jury’s decision. In their example, the defense flew in an from another state and he had a reputation for the testimony that he had provided, which was meant to refute the opposing party’s testimony as well. They granted a new trial because of this unwarranted grant of credibility to this individual. In this case, however, the court did not find any of these circumstances and determined that the jury could have reasonably believed the defendant’s expert testimony.

There are many checks built into our court system and new trial is one that can be used in some occasions. Having the right attorney can help preserve this opportunity and move your case forward.

Final Decision Important to Appeal in Iberia Parish Insurance Case

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

The appellate process is somewhat complicated. One of the major confusions is when a party is allowed to appeal. The simple answer is that a party can appeal a judgment after the lower court has rendered a final decision. But, what makes a decision final? Does the decision include the case as a whole or just a single part of the case? An attorney can address these questions can specifically, but a short overview is helpful as well.

Just like the federal level, a party cannot appeal a decision without that decision being final in Louisiana. A final decision will decide all of the elements of the case. None of the issues will be excluded. The court looks at each issue and renders a decision for either one party or the other on every issue. Therefore, if the court does not address even one issue, then the decision cannot be final.

There is one exception to this rule that is provided in the Louisiana Code of Civil Procedure, which governs all of the court procedures in civil lawsuits for the state. The exception states that a decision can be final even if it does not resolve all the issues as long as the court specifically states that their decision is final and gives valid reasoning for that ruling.

In a recent case, an individual brought suit against their insurance company because he believed that the insurance company failed to replace his roof adequately. He asked for attorney’s fees and penalties. The insurance company argued with this claim and the court granted their motion to dismiss the individual’s suit. The court ruled only on the attorney’s fees and penalties, and not on the adequacy of the roof’s repairs. The lower court stated that this was a final judgment, but did not give reasoning for their declaration as required by Louisiana Code of Civil Procedure. Therefore, the Louisiana Court of Appeals had to determine whether the lower court was justified in their final judgment.

Occasionally, the court will also allow a single issue to be appealed because that issue is extremely important to the rest of the case. The Louisiana Supreme Court has listed several factors to determine whether one of these “partial judgments” can be considered a final judgment for the purpose of appeal. These factors include:

– The relationship between the issues that have been resolved and the issues that have not been addressed. Does one issue need to be determined in order to find out the other? For example, the court may say that the decision cannot be final if the lower court found that car A hit car B because they did not resolve whether car B was making an illegal turn at the time of the collision. Whether car B was making an illegal turn could be a deciding factor in the case and needs to be addressed.

– Whether the issue might resolve itself as the case progresses. In the insurance case mentioned above, if the insurance company was not found to be at fault, then there would be no need to appeal the attorney’s fees and penalties because the insurance company would not be liable. There is no need to appeal when the trial court can make these determinations on its own.

– Whether the appeals court might have to consider the issue again in the future. If the court finds that they will likely have to review the issue again when the entire case is brought on appeal then they will probably not review that particular issue. Reviewing it twice would be a waste of resources for both parties.

– Miscellaneous factors such as delay, shortening the time of trial, frivolity of competing claims, expense, and economic and solvency considerations. For example, if deciding one particular issue will resolve a whole line of issues, then the appellate court may decide that issue and send it back to the lower court to finish the case.

Obviously, the court has quite a bit of discretion to decide whether or not to resolve an issue. Experienced attorneys can sometimes pick out these issues ahead of time, which would give clients an edge on appeals proceedings.

Contract Dispute Resolution in Louisiana

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

The state of Louisiana, like many other states, has very specific requirements that the judicial branch uses to help interpret contracts when the parties are in dispute. Generally, the court likes to stay out of contracts because the right to contract without interference from the government is something that the American society greatly cherishes. The ability to contract is a basic fundamental right that is guaranteed by the Fourteenth Amendment. The court will usually only interfere if there is a dispute or if the contract was in some way illegal. Therefore, it is very important to have a contract that is well written and that all parties understand completely.

If the court has to step in to work with a contract, then it will follow a few select guidelines. The ultimate goal of the court is to determine the common intent of the parties and enforce the contract in that way. In order to determine the intent, the court will look to the contract itself. In contracts that include terms of art or very technical requirements, the court will look to the common use of the word within that trade. For example, some trades include quantity information that is always larger than actually stated; think of a “baker’s dozen.” Even though twelve is technically considered a dozen, a contract between bakers may actually mean thirteen. This notion disregards the fact that in any other contract that is not between bakers, a dozen would equal twelve.

The court will also consider the contract in its entirety, not just a few sections or a single disputed term. It will determine what outcome is practical for both parties and technical terms will be given their technical meaning. In addition, if a word has more than one meaning, then the court will defer to the meaning that will carry out the goal of the contract. Consider a simple example. If a grocery store contracts to receive bananas and they receive plastic bananas instead of real bananas, the court will likely conclude that the other party providing the plastic bananas was at fault because the definition of a banana is commonly a consumable food, especially if it is going to be sold at a grocery store. The contract did not say that the grocery store wanted edible bananas, but the court will assume this information because the outcome becomes ridiculous without this assumption.

The court will generally try to stay within the language of the contract when attempting to resolve disputes. When the contract is clear and doesn’t lead to ridiculous consequences, then external evidence provided by the parties to show an alternative intent cannot be considered. The contract’s wording is therefore very important. However, if the contract is not clear or is ridiculous, then the court can consider some outside evidence in order to determine the common intent of the parties. In our banana example, if the grocery store has always ordered real bananas from this seller and has never requested plastic bananas from this seller, then that information could be considered in the court’s analysis.

The court has a means to determine whether the meaning of the contract is clear or not. Obviously if a term or issue is missing from the contract entirely, then the court will most likely deem the issue to be unclear or ambiguous. In addition, the court will also reason that an issue is ambiguous when “the language used in the contract is uncertain or is fairly susceptible to more than one interpretation.” If this is the case, then the outside evidence can be used to determine what the intent of both parties actually is.

A well written contract will convey the intention of both parties and will define all of its questionable terms so that there is no contention in the future. Sometimes, one party does not think a term in unclear when it actually is, so a conflict will arise. Competent attorneys are needed to create a well written contract and deal with conflict.

Careful Reading of Insurance Policies Crucial to Prevent Disaster

Published on: August 15, 2012 | By Berniard Law Firm

Insurance can be a tricky subject for the average consumer. There is a lot of paperwork, confusing terms, and many people do not understand what their insurance actually covers. However, the easiest way to combat the confusion is to take the time to read through your insurance policy. Oftentimes, the answers to all of your questions can be found buried deep within your policy. You just have to know where to look.

It is important to note that insurance companies will strictly follow and enforce the written policy, so it is vital that you are familiar with your plan. You should get a complete copy of the plan and keep it in your records in case you need it in the future. Pay particular attention to the four major sections. The four sections include declarations, conditions, insuring agreements, and exclusions.

The declarations section states who is being insured, what is covered, policy limits, and the effective dates of coverage. The correct name of the insurance company will also be found in this section. The timing of the coverage is very important. If the policy says that it is in effect January 1, then it does not apply if you have an accident a few hours sooner. For example, one man was rushed the hospital with a medical emergency, but was denied coverage by his insurance company because his hospital visit was merely five hours before his plan activated.

The next piece of the policy is the conditions section. This part includes all of the things that you must do in order to be insured. There may also be a conditions section for each coverage part (such as liability, collision, etc.). These conditions are important because they may also limit what the insurance company will cover and your ability to file a claim. A common condition, for example, is if you are going to file suit then you must file within a certain amount of time. Definitions for some of the terms of the policy may also be found in this section if they do not have their own section within the policy.

The third part of the policy is the insuring agreements section. This section states specifically what the policy will actually cover. Insuring agreements is also the most important section of your policy, so read this part carefully!

Lastly, the final section is the exclusions section. The exclusion section takes away or limits some of the insuring agreements coverage. It is vital that you read both of these sections together because you may think something should be covered based on the insuring agreements section, but actually, it is not covered because of the exclusions section.

A case in the Eastern District of Louisiana gives a good example of the importance of reading through your policy and knowing your plan well. An individual was in a car accident with a company vehicle. At the time of the accident, the individual who ran the company was insured under his own name in the amount of $300,000. Four months after the accident, the insurance was extended to $1 million and the policy changed to the company name. The victim of the accident then sued claiming that the insurance company had fraudulently led the victim to believe that the insurance coverage was only $300,000, not $1 million.

Unfortunately, the victim did not read the policy very well. The court ruled that the policy clearly stated the amount that it covered and who it covered. There was actually no fraud involved. It was just a matter of reading the policy. The timing of the accident was also important. At the time of the accident, the coverage was for $300,000, not $1 million, so the accident was only covered for up to $300,000.

Insurance coverage is very complicated and it is too important to be misunderstood. Coverage could be the determining factor in whether you have to pay a big bill on your own or with help from your insurance company.

Auto Insurance Case Illustrates Need for Following Statutory Requirements

Published on: August 10, 2012 | By Berniard Law Firm

It is widely accepted in Louisiana that insurance companies may limit coverage in any manner they desire, so long as the limitations do not conflict with the law or with public policy. Coverage limitations must be written into the policy and the burden to prove that a claim is excluded generally falls on the insurer. One common limitation for auto insurance policies is a driver exclusion. Louisiana law specifically authorizes insurance carriers and their customers to agree to exclude a resident of an insured’s household from coverage under a policy. LSA-R.S. 32:900(L). This arrangement allows the insured to pay a lower premium since excluding one or more drivers in the household from the policy would reduce the insurance company’s potential liability. A dispute over the effectiveness of an excluded driver provision was at the center of the recent case of Young v. McGraw.

In December of 2007, Vernon Washington took out an insurance policy for his two cars with the USAgencies Casualty Insurance Company. During the application process, Washington signed an excluded driver endorsement. The provision expressly excluded as insured drivers Aretha McGraw and her two children, Christopher McGraw and Tiffany McGraw. During the policy’s period of coverage, Aretha McGraw was involved in a car accident while driving one of Washington’s cars. The owner of the other vehicle, Jacqueline Young, filed a suit which named McGraw, Washington, and USAgencies as defendants. USAgencies filed a motion for summary judgment, arguing that McGraw was an excluded driver under its policy and therefore was not covered. The trial court denied the motion and, after a trial, the court concluded that the evidence presented failed to establish that Washington and McGraw lived in the same household when the policy was issued. Therefore, McGraw could not be considered an excluded driver under the policy because the requirements of LSA-R.S. 32:900(L) were not met. The trial court awarded Young personal injury and property damages totaling $5,800. USAgencies appealed.

The Second Circuit Court of Appeal reviewed the evidence presented at the trial concerning whether McGraw was actually a member of Washington’s household at the time he took out the auto policy. McGraw testified that she and her children had lived with Washington continuously since 1998 and at the address of 1996 Joe G. Drive in Monroe since 2003. She admitted to giving the address of her parents’ house to the police officer at the accident scene, but said she “didn’t think it was a big deal” since she visits there every day and receives her mail there. Washington testified that he and McGraw had lived together at 1996 Joe G. Drive for seven years. He also explained that at the time he bought the auto policy, he informed USAgencies that McGraw was a member of his household but wanted to exclude her from coverage due to “financial constraints.” The court noted: “Our review of the record convinces us that the lower court’s finding that McGraw and Washington were not residents of the same household at the time the automobile liability policy was issued is clearly wrong.” “Consequently,” the court reasoned, “the trial court was manifestly erroneous in concluding that the policy endorsement excluding Aretha McGraw … under the policy was inapplicable and that … [she] was a covered operator of the vehicle at the time of the automobile accident.” The trial court’s judgment was, accordingly, reversed.

This case demonstrates the requirement that insurance companies carefully follow all statutory requirements, if they exist, when writing coverage limitations into policies. Post-contract reviews of the insurer’s processes may, like in this case, require a fact-intensive analysis and a clear understanding of the law’s requirements. Thus, a skilled attorney is essential for any party facing a dispute over a coverage limitation.

Texas Construction Injury Leads Court to Analyze Duty to Defend, Indemnify

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

Construction worksite accidents are common occurrences in New Orleans and Louisiana. When a lawsuit is filed seeking compensation for these workplace injuries, issues often arise concerning the multiple companies involved in the construction project and their insurance companies. Chief amongst these concerns are the duty to defend and indemnification.

The duty to defend refers to an insurance company’s obligation to defend an insured against claims made under a liability insurance policy. Though this may sound straight forward, in the construction context this theory can become complex. For example, if a construction company or contractor takes out insurance, the project’s other general and subcontractors may or may not be covered under that same policy depending on the wording of the insurance policy. In many cases, general and subcontractors will be covered as an additional insured under the insurance contract. If thi is the case, then the facts of the underlying claim must sufficiently allege liability in order for the duty to defend to engage.

These issues were closely examined recently by the Court of Appeals for the Fifth Circuit when a man injured at a construction site filed a lawsuit against the general contractor, but not his employer that was the subcontractor. The general contractor sought to have the subcontractor’s insurance company defend them as an additional insured under the subcontractor’s policy. After analyzing the policy, the court found that the general contractor was an additional insured under the subcontractor’s policy, but nevertheless held that the insurance company had no duty to defend the general contractor. The reasoning behind this finding was that neither the injured employee nor his employer, the subcontractor, where alleged in the complaint to have been responsible for the injury. Since the contractor could only seek the insurance company’s duty to defend through negligence on behalf of those directly insured, namely the subcontractor or the general employee, then that duty to d efend was not induced.

The second issue in these complex insurance cases is indemnification. If a company is covered under an insurance policy, then if that company is forced to pay liability damages in a lawsuit, the insurance company will essentially reimburse the company for those damages. However, legal costs associated with defending the claim fall under the duty to defend, not indemnification.

Since the duty to defend and the duty to indemnify are separate, it is possible that an insurance company will not have to defend an additional insured but must still indemnify that company. This is what happened in the construction injury case mentioned above. The district court found that the employee was at least one percent responsible for his injury, causing the insurance to be invoked. The Court of Appeals upheld this finding as the insurance company did not challenge that ruling, but rather challenged the finding that the contractor was an additional insured.

Anytime a business or individual takes on construction work, it is important to know whether insurance coverage is provided and, if so, by whom. This will ensure that any injuries, physical, emotional or financial, will be compensated. A failure in determining insurance coverage can lead to a long, drawn out claims process that can leave an individual or business emotionally and financially drained.

Insurance claims are a necessity in order to protect businesses’ and workers’ interests. Yet, disputes over insurance coverage can be lengthy and convoluted. These complexities require the expertise of an experienced, competent attorney.