Insurance Dispute Lawyer Blog

Fifth Circuit Court of Appeal Rules on Reasonableness of Forum Selection Clause

Published on: July 21, 2023 | By Berniard Law Firm

detail_forum_romanum_rome-scaled Most of us get into contracts, not fully understanding all the ins and outs of what we are signing. Similarly, the multiple provisions that can slither their way into contracts can include things like forum selection clauses which can be easily overlooked. But when a lawsuit erupts, can you argue a provision isn’t applicable? The United States Court of Appeals for the Fifth Circuit addresses this question in the following case.

Al Copeland Investments, L.L.C. owned a food manufacturing facility in Louisiana. In October and December of 2015, there was some property damage to the facility, and they submitted a reimbursement claim under an insurance policy. Their insurance was held with First Specialty Insurance Corporation (“First Specialty”). They denied this claim, and AI Copeland sued in the Eastern District of Louisiana, believing they were entitled to recover from the costs and damages of the property. First Specialty asked the court to dismiss the case because the policies forum selection clause requires litigation in New York State court, not Louisiana.

A forum selection clause is a section in a contract that states how all disputes must be litigated in a specific court in a jurisdiction that the parties agreed to.

The Impact of Timeliness in the Legal Field

Published on: July 20, 2023 | By Berniard Law Firm

time_clock_movement_motion-1-scaled Timing. We all know it’s important, but how important is it in the legal field? Properly filing documents, adhering to deadlines, and raising legal issues within specific timeframes can significantly impact the outcome of a case. In the following case, the Fifth Circuit Court of Appeal looks to the issue of timeliness in the legal field and whether the cause of actions has matured enough to be “ripe” for judicial determination.

Bayou Orthotic and Prosthetics Center, L.L.C. (“Bayou”) owned and operated a medical business that provides medical prostheses and relative equipment. In 2016, Leroy Davis needed an above-the-knee prosthetic from a prior accident, which Bayou provided. Morris Bart was representing Davis for his injuries and asked Bayou for medical treatment, providing that he would protect Bayou’s medical charges for around $29,000. Bayou treated Davis for almost ten years, racking up expenses to around $126,000.

Bart never paid, and Bayou sued. Bart filed an exception of prematurity because the commitment to pay Bayou depended on a suspensive condition – if the payment to Bart of settlement proceeds. This did not happen. Bayou disagreed and believed the agreement was based on a term, not a suspensive condition, and therefore, the payment from Bart had to have been paid within a reasonable period.

Analysis of Insurance Coverage Exclusion in a Complex Liability Case

Published on: July 19, 2023 | By Berniard Law Firm

news_stock_newspaper_glasses-scaled In the realm of insurance coverage disputes, a recent case has brought attention to the application of policy exclusions and their impact on the availability of coverage. Daphne Richardson Valteau took legal action after her father had been stabbed to death on premises owned by The Terraces Limited Partnership (“The Terraces”). The Terraces was managed by Latter & Blum Property Management, Inc. (“Latter & Blum”), while another company, Patriot Protection Agency, Inc. (“Patriot”), had been handling the security services for The Terraces.

Patriot’s liability insurance was through First Mercury Insurance Company (“First Mercury”), First Mercury moved for summary judgment, seeking dismissal of Valteau’s claims. First Mercury argued that the exclusions provided in Patriot’s insurance policy regarding intentional and criminal acts were valid and enforceable. After its motion was denied, First Mercury appealed, petitioning for a writ of certiorari from the Fourth Circuit Court of Appeal.

After reviewing the contractual language of Patriot’s insurance policy with First Mercury, specifically the “Exclusion of Specific Work” provision, the Appeals Court identified various issues that need to be addressed before summary judgment could be ruled on, as well as a major distinction from precedent Louisiana case law. The Court distinguished this case based on how the exclusionary language essentially provided no coverage to Patriot if the incident occurred on a property “established for the purpose of providing subsidized housing….”

Louisiana Inmate Failed to Establish Deliberate Indifference to Serious Medical Needs

Published on: July 18, 2023 | By Berniard Law Firm

prison_prison_window_window-scaled When a prison official fails to provide necessary medical care to an inmate, legal action may be pursued against the individual. However, claiming deliberate indifference to an inmate’s serious medical needs requires meeting specific criteria. As exemplified by the case below, these factors are crucial in preventing individuals from bringing frivolous claims against government officials, ensuring that legitimate cases receive the attention they deserve.

In this case, Gregory Bailey, a Louisiana prisoner, filed a lawsuit against several defendants, including East Baton Rouge Parish Prison, the prison warden, the 19th Judicial District Court for East Baton Rouge Parish, a judge, and Dr. Vincent Leggio, alleging acts of deliberate indifference to his serious medical needs. The U.S. District Court for the Middle District of Louisiana dismissed Bailey’s claims, stating a failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6) and summary judgment under Federal Rule of Civil Procedure 56(a). This appeal to the U.S. Fifth Circuit Court of Appeal follows.

In his appeal, Bailey moved to progress in forma pauperis, thereby challenging the District Court’s decision that his appeal was not accepted in good faith. The Court of Appeal then reviewed Bailey’s good faith claims regarding whether his legal points were substantiated on their merits and not frivolous. See Howard v. King.

Timely Filings and the Road to Justice: The Implications of Abandonment in Civil Litigation

Published on: July 17, 2023 | By Berniard Law Firm

number_three_three_wood-scaled Navigating the intricacies of civil litigation requires strict adherence to procedural rules, as the failure to meet deadlines or follow the correct timeline can result in serious consequences for plaintiffs seeking justice. In the case of Michael Neal Rollins, an inmate who filed a lawsuit against the State of Louisiana, Louis Ackal, Sheriff of Iberia Parish, and the Corrections Corporation of America, the impact of missed deadlines and abandoned filings became evident. Rollins alleged physical abuse during his transportation back to the Iberia Parish Jail, but his case was ultimately dismissed due to abandonment. This instance highlights the critical importance of timely and diligent filings within the legal system, emphasizing the need for plaintiffs to navigate the complex procedural landscape to have their claims heard.

Rollins filed a lawsuit against the State of Louisiana, Louis Ackal, Sheriff of Iberia Parish, and the Corrections Corporation of America. Rollins was an inmate incarcerated at the Iberia Parish Jail in New Iberia. In 2008, Rollins was returned to the Iberia Parish Jail from prison in Winn Parish, having been evacuated there during Hurricane Gustav. After his subsequent release, Rollins filed his suit against the State of Louisiana in 2009 for injuries he suffered while transporting back to the Iberia Parish Jail from Winn Parish. Rollins alleged that officers physically abused him on the bus and in the Iberia Parish Jail parking lot.

Over seven years later, in 2017, the State of Louisiana filed a Motion to Dismiss the suit on the grounds of abandonment. The state claimed that there had been no filings or steps taken to proceed with the case since 2014. The plaintiff filed a counter-motion, alleging that it had filed a motion requesting discovery materials from the defense. The defendants argued that one of the defendants, Sheriff Louis Ackal, never received these requests. The district court ruled in favor of the defense, stating that failure to serve the request to all the defendants negates it as a step in prosecuting the action. Thus the district court dismissed the case in its decision, from which the plaintiff appealed.

Injured Dump Truck Driver Deemed 50% At Fault For Collision On Job Site

Published on: July 16, 2023 | By Berniard Law Firm

caterpillar_truck_dump_truck-scaled Workplace accidents can strike unexpectedly, leaving individuals injured and grappling with the complex question of who bears responsibility. However, when such accidents involve heavy machinery and contractual relationships, determining fault can become even more challenging. In the case of Clark Nixon, a dump truck driver at Terrebonne Levee & Conservation District (TLCD), the lines blurred further when an incident unfolded on the job site. As Nixon seeks justice for his injuries, the lawsuit shines a light on the intricate interplay of liability, contractual obligations, and the need for skilled legal representation to recover medical costs and hold those at fault accountable.

Nixon worked a contract job as a dump truck driver at Terrebonne Levee & Conservation District (TLCD). Nixon’s duties as a dump truck driver included delivering dirt to TLCD, where the surplus would eventually be used to build a levee. Specifically, Nixon would back his truck up to the dirt mound and unload the dirt from his truck. Once finished, a bulldozer truck would follow by pushing the dirt mound up a ramp, then reversing down the ramp to make room for the next dump truck. On the TLCD job site, there was also an individual known as the “spotter,” who verified the dirt being dumped and directed the dump truck driver where to unload their pile of dirt.

After a spotter verified the dirt in Nixon’s dump truck, Nixon began to back his truck towards a specific dirt pile to unload. David Danos was handling a bulldozer at the same time. As Nixon was reversing toward the dirt pile, his truck collided with Danos’ bulldozer, which was traveling down the ramp after moving the dirt.

Dealing with Flood Damaged Property? Be Prepared to Show Causation

Published on: July 15, 2023 | By Berniard Law Firm

flood_fields_pasture_trees-scaled The story of an underdog seeking justice against a powerful corporation is a familiar legal narrative. And while we may be inclined to root for the little guy, that does not relieve him from proving he has a valid case.

In Louisiana, a plaintiff will not see his case go to trial if it lacks support to overcome a motion for summary judgment. The opposing side will look for holes in the plaintiff’s claim, posing the question: if you have not produced facts suggesting I committed this offense, how will you obtain the requisite evidence to prove it at trial? Accordingly, every “essential element” of a claim requires factual support to serve as a basis for deliberation at trial. La. C.C.P. art 996(c)(2).

The Mitchells, owners of a Shapes Gym in the Parish of Ascension, faced this “make it or break it” moment of summary judgment in their case against neighboring businesses, Wal-Mart, and Aaron’s. The Mitchells alleged that the neighbors’ improperly designed and maintained stormwater drainage systems were to blame for six inches of rainwater that flooded the gym in 2009 and again during litigation of the first flood claim in 2014.

Medical Deaths Aren’t Always Medical Malpractice

Published on: July 14, 2023 | By Berniard Law Firm

medical_patch_association_pills-scaled When a patient suffers from harm done to them by the negligence of a health care provider, he may be a victim of medical malpractice. A recent Louisiana Fifth Circuit Court of Appeals case explained why it is not always a case of medical malpractice when an avoidable medical death occurs.

Andrew Moonan fell at home and was taken by ambulance to the emergency room, where an x-ray showed two fractured ribs. Several days after being released, Moonan called Dr. Monte, his primary care doctor, after hours, requesting he return to the hospital. A couple of days later, he collapsed and was taken to the hospital, where he died due to a pulmonary embolism. His wife and son filed a complaint for medical malpractice against Dr. Monte with the Louisiana Division of Administration. The panel unanimously determined Dr. Monte was not negligent and did not breach his standard of care with Moonan.

The Moonans filed a medical malpractice lawsuit against Dr. Monte and his insurer, claiming Dr. Monte breached the standard of care in several ways, including failing to inform Moonan of the risks associated with staying in bed all day and the risk of a pulmonary embolism, allowing his medial technologist to tell Moonan to get up and walk since his condition was not serious, and failing to tell Moonan to return to the emergency room. The jury reached a unanimous verdict in favor of Dr. Monte, and the Moonans filed a motion for a new trial which the trial court denied. The Moonans appealed, claiming the trial judge erred in allowing Dr. Diechmann to testify as an expert because it violated the court’s Scheduling Order, and the judge erred in redacting two parts of the wife’s timeline because it contained crucial information about the credibility of the parties.

Demonstrating Injuries to Children in Auto Accidents: Understanding the Requirements and Legal Proceedings

Published on: July 13, 2023 | By Berniard Law Firm

children_s_children_asian-scaled When accidents involve children, gathering factual information regarding their physical health becomes even more crucial for building a solid case. This is particularly evident in a vehicle collision that took place in Lafayette, Louisiana. The case highlights the specific requirements for demonstrating injuries to children in an auto accident and what is and isn’t required to prove injuries to a child.

On January 19, 2015, Bradley Quoyer was backing out of a driveway onto a street in Lafayette, Louisiana, when his vehicle collided with the rear passenger side of Neosha Robertson’s vehicle. At the time of the collision, Ms. Robertson’s two minor children were in the back seat. She filed a lawsuit against the driver, Clement Bradley Quoyeser, and his insurance company on behalf of herself and her children, claiming that they both suffered injuries.

Quoyer filed a motion asking that the children be dismissed from the lawsuit, and the trial Court granted this motion. Robertson disagreed with the ruling and therefore appealed.

Can An Independent Medical Examiner Determine Maximum Medical Improvement in a Worker’s Compensation Case?

Published on: July 12, 2023 | By Berniard Law Firm

manzanar_relocation_center_manzanar_445-scaled Being injured at work is never what you want to deal with. What’s worse is dealing with multiple independent medical examiners making opinions on your medical state. In the following case, the Louisiana Court of Appeal First Circuit addresses whether a medical examiner’s determination of maximum medical improvement is closely related to the worker’s condition and ability to work.

Ella Hamilton injured her neck and shoulders while moving trash bags into a dumpster while working as a custodian for GCA Services. Hamilton filed a workers’ compensation claim, and GCA Services paid indemnity and medical benefits to and on behalf of Hamilton in connection with her workers’ compensation claim. A dispute arose between the doctors that reviewed Hamilton’s alleged injuries and whether or not he could return to work.

Dr. Charles Bowie, a neurosurgeon, diagnosed Hamilton with a cervical disc disorder and opined that she required cervical fusion surgery. He believed her injuries prevented her from working. On the other hand, Dr. David Ferachi, an orthopedic surgeon representing GCA Services, agreed with Dr. Bowie but stated that Hamilton could return to work as a custodian with certain limitations.