While many of us think of pirates as something that only exist on television or in the movies they do still exist throughout the world.  While they no longer sack and plunder ships for gold they do cause great havoc by kidnapping ships and invading oil rigs off the coast of Africa.  But can a foreigner who was kidnapped while working on an oil rig off the coast of a foreign land sue his employer under the Jones act for failing to protect him while he was working on the sea?  The following case out of New Orleans Louisiana discusses these concepts and answers that question.

Robert Croke, a citizen of Canada, was working aboard an oil rig off the coast of Nigeria. He claims that gunmen boarded the rig, kidnapped him, and then held him hostage for ten days. After his hostage experience, Croke filed a lawsuit in New Orleans Louisiana against PPI Technology Services, L.P., and GlobalSantaFe Offshore Services, Inc. According to Croke, PPI was his employer while GlobalSantaFe was another employer of rig workers. In his lawsuit against both companies, Croke’s legal theory is negligence: he argues that both companies were negligent because they did not have measures in place that would have forestalled the incident. Since Croke is a Canadian citizen, and his alleged kidnapping occurred in Nigerian waters, the district court dismissed the case under the foreign seamen exclusion provisions of the Jones Act.

Not being happy with the dismissal Croke then appealed that decision to the United States Court of Appeals Fifth Circuit. The appeals court first looked to Croke’s assertion that the district court did not properly apply the foreign seaman exclusion provisions of the Jones Act. Specifically, the court looked at the following section. 46 U.S.C. § 30105(b) which states in summary that maintenance and cure (maintenance is payment for daily living expenses and cure is for medical cost) cannot be received under federal maritime law if the injured party is not a United States Citizen and further an exclusion applies if the accident occurs in non United States territorial zoned waters.

burn-baby-burn-1229975-1-1024x768A fire at a building you own cannot only damage your property but others as well.  So what happens when a fire starts at your property and then quickly spreads to others, are you liable for their losses as well? The following case demonstrates what happens in court when a piece of real estate catches fire, causing damage to a neighboring property.

The New Orleans Fire Department was called on January 7, 2011, to suppress a fire at property owned by the Fellowship Missionary Baptist Church (“the Church”). The property encompassed the church building located at 2101 Prytania Street and a residential house located at 2113 Prytania Street. The Church had not conducted worship services on the property since the church was damaged in 2005 by Hurricane Katrina. The fire was investigated by the New Orleans Fire Department, the State Fire Marshall’s Office, and the Bureau of Alcohol, Tobacco, and Firearms. All of the agencies agreed that the cause or the origin of the fire could not be determined conclusively.

Show and Tell of New Orleans, L.L.C. sustained water and fire damages to their nearby properties, along with the owners of the Magnolia Mansion. Those parties filed lawsuits essentially claiming that the Church was negligent for its alleged inattentiveness in maintaining its property in a safe and secure manner.  Further, the Plaintiffs alleged negligence in the Church’s failure to adequately secure the church to prevent vagrants, who the Plaintiffs claimed caused the fire, from habitually entering and inhabiting the church. The Plaintiffs also contended that the building was in a state of disrepair, that the property was a public nuisance, and that it had been cited as blighted property by the City of New Orleans in September and November of 2009.  All of these problems in the Plaintiffs eyes lead to the Church being liable for the damages they sustained from the fire.

The loss of a loved one is a terrible experience that no one should have to go through.  When that loss is caused by a car accident lawsuits are sure to follow. But what if your loved one was on a demo ride sponsored by a motorcycle company when tragedy strikes, can the motorcycle company be held at fault for the accident as well?  The following lawsuit out of Lafayette Parish tries to answer that question.

In 2010 in Scott, Louisiana Ralph Doucet was participating in a “demo ride” sponsored by Harley-Davidson and Cajun Cycles when he was fatally struck by car driven by Keith Alleman. Mr. Alleman alleged that he was distracted by the demo ride and this caused his inattentiveness.  The family of the deceased filed a lawsuit naming various defendants  including the sponsors (Harley Davidson) of the event alleging claims of negligence. In response to the lawsuit Harley Davidson filed a motion for summary judgment stating that the plaintiffs could not carry their burden of proof at trial.  In the motion Harley Davidson was essentially saying that the Plaintiffs would not be able to prove they were negligent at trial and therefore they should be let out of the case now.  After a hearing on that motion the trial court agreed with Harley Davidson and the plaintiffs appealed that decision to the Louisiana Third Circuit Court of Appeals.

The appeals court task was to decide whether or not the Plaintiffs provided enough evidence to negate Harley Davidson’s arguments.  The court first looked to the standards of establishing negligence in Louisiana.  In order to establish a case for negligence the plaintiff has to prove five elements (1) that the party had a duty to the injured party (2) that the party breached the duty (3) the party’s breach was the cause-in-fact for the injury (4) the party’s scope of duty and the scope of risk (5) that there are actual damages or injuries. Pinsonneult v. Merch. & Farmers Bank & Trust Co., 01-2217 (La. 4/3/02),816 So. 2d 270.

monopoly-raceauto-1463337-1024x768Antitrust laws protect competition and prevent monopolies. Ultimately, they are meant to protect consumers by ensuring healthy competition. Yet it is a common misconception that antitrust laws protect individual competitors in the marketplace; that each unique competitor is itself the competition that antitrust laws seek to protect. False. Antitrust laws are designed to protect competition – the integrity of the marketplace in which competition occurs – not individual competitors. See Brown Shoe Co. v. United States, 370 U.S. 294, 320 (1962). This is a lesson that Felder’s Collision Parts, Inc., a Louisiana company learned the hard way.

Felder’s is a Baton Rouge based dealer of after-market auto body parts. It sells body parts that are congruent with a major auto makers (“GM”) vehicles, but are not manufactured by GM. Felder’s filed an antitrust lawsuit against All Star dealers and GM alleging that GM’s “Bump the Competition” program was an illegal predatory pricing program which violated Louisiana and federal antitrust law. This GM program allowed competitors who purchase genuine GM parts for resale to sell those parts at a price designed to be lower than the local competitor’s price for the after-market equivalent of the same part. This bottom-line price was often lower than what All Star paid GM. The program subsequently allowed All Star to not only recoup the loss, but also recover a 14% profit.

The District Court ruled against Felder in his antitrust claims, reasoning that he fell short in his attempts to sufficiently delineate the relevant geographic market and to allege below-cost pricing. Because the Louisiana law claims were dependent on the federal antitrust claims, these claims were also dismissed. Felder’s appealed, alleging that the District Court erred in adding the payback amount to the price at which All Star sold its parts to customers.

oil-1441845-768x1024A recent case arising out of Tensas Parish, Louisiana, highlights the importance of checking on leases that burden any land before purchase. “Legacy lawsuits” are claims that oil and gas operations caused contamination on a property and generally name any operators who worked at the property and could have contributed to the contamination. In this aspect, the case out of Tensas Parish is no different. This case involves a legacy lawsuit where landowners purchased a property in 2002, but the property was subject to mineral leases/servitudes as early as the 1940s by different oil and gas companies.

In the case, the current landowners claim that their land was contaminated by the oil and gas exploration and production activities conducted or controlled by the oil companies.  The landowners sought to collect damages from the companies to restore the property to its pre-polluted state. They also asserted that the contamination was a result of the companies using the land for waste disposal and classified the pollution as a continuous tort. The appellate court disagreed with the position of the landowners, affirming the trial court, and cited Louisiana case law in support. See Marin v. Exxon Mobil Corp., 48 So. 3d 234 (La. 2010).  The Marin case states that a continuing tort is occasioned by unlawful acts, not the continuation of the ill effects of an original, wrongful act. The Court held that the alleged damage to the land occurred prior to the landowners purchasing the property.

Usually, the owners of land burdened by mineral rights and the owner of a mineral right must exercise their respective rights concurrently with reasonable regard for those of the other. See La. R.S. 31:11. One cannot exercise their rights to the exclusion of the other; however, if the mineral lessee has acted unreasonably, excessively, or without reasonable regard for the landowner’s concurrent right of use of the land under the lease, then the landowner of the servient estate may seek redress to restore their right of use.

building-on-fire-1214366-706x1024The case may have seemed simple enough to the courts at first: interpret a contract.  The main question in the case before the U.S. Court of Appeals for the Fifth Circuit was whether to apply the business’ projected income versus the actual income when calculating the coinsurance reward.  The Court had to determine whether the language in the insurance policy and contract was clear as to which income it referred to.  The Court applied Louisiana law, and indicated that courts must apply the contract as a whole, rather than in separate parts.  The Court also applied the same law, which prior Louisiana Supreme Court decisions established, in determining that a court must enforce a contract as it is written when the contract’s meaning is clear and unambiguous.

Advance Products & Systems, Inc., (APS) of Scott, Louisiana, purchased an insurance policy in from Mt. Hawley Insurance Company in November of 2009 for its commercial property.  Mt. Hawley Insurance Company is an Illinois company with a Baton Rouge agent.  A fire damaged APS’s facility in September of 2010, about ten months after Mt. Hawley issued the policy.  A dispute subsequently arose between Mt. Hawley and APS during the claims-adjustment process, and Mt. Hawley then sued APS in a Louisiana federal court – the United States District Court for the Western District of Louisiana.  Mt. Hawley had the option to sue in federal court since the two parties were incorporated in different states.

The dispute stemmed from two provisions in the insurance policy.  The first provision involved coverage for income lost – business income coverage; the second, a coinsurance clause, required APS to be responsible for a percentage of certain losses because APS chose to purchase a limited level of coverage, as opposed to the full value of its income.  The policy applied the coinsurance clause as a penalty when the policy limit amounted to less than 90 percent of the sum of the net income and operating expenses ‘that would have been earned or incurred’ over a 12-month period.  APS’s coverage limit was $500,000; whereas it claimed to have lost $723,109 of income as a result of the fire.

paper-patriotism-1476481-1024x768It  costs money to file a lawsuit against a party who has wronged you, and it also costs money to defend yourself when another party brings a lawsuit against you. Imagine taking on those costs only to lose the case in the end — and then imagine having to also pay for the winner’s attorney’s fees.

The general rule in the United States, known as the American Rule, is that each party only pays their own attorney’s fees, regardless of who wins. This is unlike some other countries, such as England, where courts often require the losing party to pay the other side’s attorney’s fees. One leading policy behind the American Rule is to ensure that potential plaintiffs aren’t discouraged from bringing meritorious lawsuits out of fear that, if they lose, they will have to incur even more costs by having to pay the other side’s lawyer. There are exceptions to the American Rule, however. One common exception is where there is a statutory provision requiring the losing side to pay attorney’s fees to the winning party, as illustrated in a recent case in Baton Rouge.

In Heck v. Triche, the district court found (and the appellate court affirmed) that the defendant, Wayne Triche, was liable under state law — not federal law — for securities fraud. After this finding, however, the plaintiffs requested an award of attorney’s fees pursuant to Louisiana laws (La. Rev. Stat. Ann. § 51.712 & 51.714; Local Rule 54.2). The plaintiffs eventually submitted the documents needed for the district court to determine the reasonable amount of attorney’s fees. The district awarded attorney’s fees pursuant to a federal statute, 15 USC § 78r, in the amount of $121,800.

asbestos-1483119-1024x768It  seems that asbestos can be toxic not only to people, but also to companies as well. Anco sold, distributed, repaired, and installed insulation materials containing toxic asbestos that can cause mesothelioma and cancer from 1972 until the early 1980’s. The company based in Louisiana conducted business in Louisiana, Mississippi and Texas during that time. As a result, it has faced upwards of 2700 lawsuits across the three states.

In 1987 Anco took out a general liability insurance policy with the National Union. This policy failed to include an exclusion of asbestos coverage. Beginning in April 2009 Anco forwarded all pending asbestos related lawsuits to National Union. When National Union failed to pay claims made by Anco, Anco launched suit against the insurer claiming that National Union should be held liable for the defense costs incurred by Anco. However, the court granted summary judgment to many of the claims made by Anco. This meant the trial court found for National Union and dismissed many of Anco’s allegations.

Anco appealed the partial summary judgment found by the trial court. In particular, Anco attempted to appeal the dismissal of the duty of National Union to pay legal costs. Anco cited three main reasons for their appeal. “(1)a genuine dispute of material fact exists as to the date that Anco first tendered claims under the Policy; (2) even if Anco’s tender of the claims was untimely, the district court erred in not excusing Anco’s tardiness; and, (3) the court erred in concluding that Anco’s failure to tender claims timely under the terms of the Policy relieved National Union of its defense obligations because National Union did not claim that it was prejudiced by Anco’s late tender.”

poker-hand-1522811-1024x769Discrimination can come in many forms and if you are faced with a potential workplace discrimination issue it is important to take your concerns to a good lawyer because the contours of discrimination cases can be very complicated.  Esma Etienne, a waitress and bartender, found herself in just such a situation when she alleged that the general manager at the Spanish Lake Truck & Casino Plaza in New Iberia, Louisiana refused to trust and promote qualified employees simply because their skin was of a darker shade.  According to Etienne, she was passed over for promotion to a managerial position at Spanish Lake because she was “too black.”  Based on this belief that she had faced discrimination in the workplace, Etienne filed a Title VII suit in the Western District for Louisiana Federal Court.    

In support of her claim, Etienne presented an affidavit from a former manager at Spanish Lake stating that the general manager did not trust darker skinned black people with certain responsibilities, such as handling money.  Further, the manager alleged that the general manager and his wife made several statements that Etienne was “too black to do various tasks at the casino.”  In response, Spanish Lake argued that it hired a more qualified candidate than Etienne and the decision was based purely on merit.  The district court agreed and granted summary judgment in favor of Spanish Lake.  The court based its decision on its finding that Etienne had merely supplied circumstantial evidence, shifting the burden away from Spanish Lake and on to Etienne, and pointed to the fact that a majority of the managers at Spanish Lake were black.  The court seemed to believe that the fact that so many managers were black was dispositive under Title VII and that the allegation that the discrimination was based on shade of skin was insufficient.  The Fifth Circuit Court of Appeals did not agree.  It reversed the grant of summary judgment in favor of Spanish Lakes and remanded the case for consideration by a jury.

The Fifth Circuit pointed out that while there had never been an explicit ruling in the circuit that color was an unlawful basis for discrimination in the workplace, the text of Title VII is clear that employment discrimination is prohibited on the basis of an individual’s “race, color, religion, sex, or national origin.”  It was improper for the district court to rely so heavily on the fact that Spanish Lake had hired numerous black managers when the issue at bar was discrimination based on skin shade.  Etienne was alleging that Spanish Lake discriminated based on the fact that she was too dark, not the fact that she was black.

truck-on-hwy-1615510-1-1024x682Renting a U-Haul truck can be a necessary burden when you are tasked with moving a lot of stuff from place to place. During the rental process you might be asked whether or not you want supplemental insurance policies.  But who do you sue when an accident happens?  In the following case out of New Orleans, Louisiana one plaintiff finds out who definitely cannot be sued when a U-Haul and Fedex truck collide.

JR was driving a rented commercial truck (U-Haul), when his truck crashed into a delivery truck (Fedex)  in New Orleans. JR filed a lawsuit against the delivery truck and also named the insurer of the company he rented the truck from as a Defendant as well. JR named the company from whom he rented a truck as a Defendant because he claimed to have purchased “risk protection” from that company in the course of his rental agreement with the company.  JR believed that the risk protection insurance would provide him with uninsured motorist coverage. The plaintiffs went on to add RW Insurance Company as another defendant, apparently believing that RW was the commercial company’s insurer.

However, RW insurance apparently is only a claims administrator for the commercial company and not an insurance company.  Upon receipt of the lawsuit RW wanted out as soon as possible.  To do so they filed a motion for summary judgment (MSJ).  If RW could prove that there was no genuine issue as to the material fact that they were not an insurer for the commercial company and thus owed no coverage to JR they could be dismissed from the case.  See Louisiana Code of Civil Procedure article 966.  They did just that and the trial court granted their motion.