Louisiana Personal Injury Lawyer Blog

In late 2010, the Court of Appeal of Louisiana, Fourth Circuit, shed some light on how the sale of a company may impact claims made by employees against the successor company in Pichon v. Asbestos Defendants AG. The plaintiffs in the case were the wife and children of the deceased Mr. Pichon. The plaintiffs alleged that Mr. Pichon was exposed to asbestos between 1955 and 2004. Mr. Pichon died in 2006 from Mesothelioma and Lung Cancer, which the plaintiffs argue was as a result of his exposure to asbestos. One of the defendants in the case was Detroit Diesel Corporation (DDC). DDC filed for summary judgment stating that there was no genuine issue of material fact and that it was entitled to a judgment as a matter of law. The Court broke its discussion down into two time periods: (1) Pre-1988 exposure by Mr. Pichon, before the creation of DDC, under which plaintiffs argued that DDC is liable under the theory of successor liability and (2) Post-1988, after the creation of DDC, under which plaintiffs argued that Mr. Pichon was exposed to asbestos as a result of DDC manufacturing.

In 1970, GM merged its Diesel Division with its Allision Division to create the Detroit Diesel-Allision Division. This division manufactured marine engines at Halter Marine. In 1988 GM and Penske formed DDC as a joint venture. Subsequently, DDC purchased the assets of most of the division that produced the marine engines. The sales agreement between DDC and GM stated that DDC would not be liable for GM's conduct or for claims relating to products manufactured, distributed, or sold by GM prior to closing. The Court stated that there were three ways in which a successor company could be held liable for the actions of the selling company: (1) When the successor company clearly assumed the liability or obligations (2) When the buying company was merely a continuation of the selling company or (3) Where is it found that the transaction occurred only to avoid liability. The Court stated that it was clear that DDC expressly denied any pre-sale liability for the actions of GM. However, the plaintiffs argued that DDC's liability was as a result of test number two, namely that DDC was a continuation of GM's Diesel-Allision Division.

In response to plaintiffs argument concerning the second test for successor liability, the Court cited to a U.S. Supreme Court case that held that successor liability could be found on the basis of the buying company being a mere continuation of the selling corporation where the sale was for all of the company's assets. The issue for the plaintiffs in this case was that DDC clearly did not purchase all of GM's assets. Further, DDC did not even purchase all of GM's assets concerning manufacturing of marine engines. DDC only purchase those assets relating to the Redford Operations. Because the plaintiffs were unable to provide evidence that DDC purchased all of GM's assets, the Court granted DDC's summary judgment on this claim and plaintiffs thus lost on this point.

The Court next turned to the claim that Mr. Pichon was exposed to asbestos after the creation of DDC. DDC provided the Court with evidence that GM had put in place a policy in 1980 that called for the eventual elimination of the use of asbestos. Further, DDC provided the Court with evidence that the use of asbestos by GM was completely eliminated by 1987, prior to the creation of DDC. DDC argued that there was no evidence that there was a continuation of the use of asbestos after the creation of DDC. The plaintiffs put forth evidence showing that there was a gasket specification sheet from 1986 that called for the use of asbestos. The plaintiffs argued that since there was no evidence of a gasket specification sheet subsequent to 1986 that showed that asbestos was not used, that it should be assumed that the use of asbestos continued post-1986 and into the period after DDC was created. The Court held that the indirect evidence provided by the plaintiffs did not negate the direct evidence provided by DDC that showed that there was a policy implementation and eventual phase out of the use of asbestos prior to the creation of DDC. The Court granted DDC's motion for summary judgment and the plaintiffs lost on this point as well.

The Pichon case is a good example of the precautions that workers should take in the workplace. If you have worked in an environment where asbestos was used, it is imperative that you seek medical and legal advice. If you work in any environment in which you deal with hazardous chemicals or materials you should frequently visit your doctor to make sure that you remain healthy. If the company for which you work is being bought, or is purchasing another company, or its division, you should seek legal advice as to how your rights will be impacted by the sale. Further, if you or a loved one suspects they have been exposed to asbestos, consulting with an attorney about their legal rights is a must.

In a post earlier this week, we reviewed the Third Circuit's treatment of a medical malpractice case that arose from a double knee replacement surgery. In addition to her enumeration of error about the faulty opinion returned by the state medical review panel, the plaintiff, Margie McGlothlin, also asserted there was no "reasonable factual basis" for the jury's conclusion that the hospital was not liable for her injuries. As part of its de novo review, the court examined the record for details on the two incidents that McGlothlin pointed to as the cause of her kneecap dislocation. The first involved her transfer between a wheelchair and her hospital bed at the rehabilitation center during which a nursing assistant, working without help, dropped McGlothlin. The other incident similarly involved a nursing assistant--again working unaided--who dropped McGlothlin as she was transferring to the restroom. The court reviewed the applicable standard of care for these situations:

The transfer from wheelchair to either bed or toilet of a bilateral knee replacement patient weighing almost 300 pounds requires at least two people assisting in the transfer together with the use of a gait belt.

Whether the hospital employees breached that standard of care, and whether that breach caused McGlothlin's injury, are questions of fact usually left to the jury. The second incident, in particular, involved several factual discrepancies. McGlothlin testified that, after she fell while attempting to make her way to the bathroom, she immediately called for her doctor, explained what happened, and submitted to an x-ray which revealed the dislocation of her kneecap. The nursing assistant caring for McGlothlin during this time, however, denied that the restroom incident occurred at all and maintained that McGlothlin never suffered injuries of any kind. The hospital further argued that McGlothlin's kneecap became dislocated as a result of activities during rehabilitation and without any negligence on the part of hospital employees. In reviewing the account of McGlothlin's progress, the court found no evidence of a "traumatic event" during therapy that could have caused the injury. However, the report did make note of McGlothlin's increased pain in her left knee and a corresponding reduction in recommended exercise by her therapist. Ultimately, the court found that McGlothlin's allegations had "credibility." Reviewing the entire record, the court concluded that McGlothlin carried her burden of establishing that during the restroom transfer, the nursing assistant breached the duty of the care, and that this breach resulted in an injury to McGlothlin's left knee. Accordingly, after considering the appropriate level of damages, the court reversed the trial court's judgment dismissing McGlothlin's claims and rendered judgment in her favor and against Christus St. Patrick Hospital. The court awarded McGlothlin the statutory maximum of $500,000.00 in damages, plus $62,341.29 in past medical costs and the expenses of reasonable future medical treatment.

This rare course of action by the Third Circuit -- to reverse a jury verdict and substitute its own judgment following a de novo review, demonstrates the extremely high level of influence the medical review panel can have on the outcome of a trial. And in a case such as this one, where the review panel reached conclusions beyond those it was legally permitted to entertain, the prejudicial effect on the jury's analysis is striking. Accordingly, in order to preserve the integrity of the tort process, the appellate court felt obligated to correct the jury's inappropriate decision that resulted from the trial court's error in handling the panel opinion. The McGlothlin case shows how critical a persistent, zealous attorney can be for an injured plaintiff.

Continue reading " Lawsuit Over Double Knee Surgery and Subsequent Injury Leads to Ruling Demonstrating MedMal Complexity - Part 2 " »

Previously in this blog we have examined a number of cases involving medical malpractice claims. One common thread in these cases is the involvement of the state's medical review panel. This is because claims brought against healthcare providers under the Louisiana Medical Malpractice Act must be reviewed by a medical review panel before proceeding to court. The panel is made up of three doctors and one attorney. The panel's purpose is limited: its authorized by statute only to determine whether the evidence supports the plaintiff's allegation that the defendant healthcare provider failed to observe appropriate standard of care in the plaintiff's treatment and, if the standard was not met, whether the failure contributed to the plaintiff's injury. The panel is specifically prohibited from rendering conclusions about issues of material fact that do not require on an expert opinion. The panel's report, which it issues in writing, is considered an expert opinion which, though not conclusive, is admissible in any subsequent legal action.

In this post, the first of two on the case of McGlothlin v. Christus St. Patrick Hospital, we will explore the Third Circuit's treatment of the trial court's erroneous admission of the medical review panel's faulty opinion. The facts are as follows: In 1999, after nearly a decade of suffering with osteoarthritis, Margie McGlothlin checked into Christus St. Patrick Hospital in Lake Charles for a double total knee replacement. The surgery was successful, and McGlothlin's initial recovery uneventful. Three days after the procedure, McGlothlin was transferred from the main hospital to the rehabilitation wing. While there, McGlothlin alleged that she fell and injured her left knee on two separate occasions when the nursing assistants who were attempting to transfer her did so without assistance. McGlothlin, claiming that these falls caused the dislocation of her knee cap, first submitted her claim for damages to a medical review panel as required by the Louisiana Medical Malpractice Act. The panel rejected McGlothlin's claim, and she filed suit. During the trial, the parties did not dispute that McGlothlin sustained a kneecap dislocation while under the care of the hospital and that the standard of care for moving a double knee replacement patient requires the assistance of more than one trained attendant. But the hospital denied that either of the two falling events alleged by McGlothlin occurred at all and instead suggested that her dislocated kneecap resulted from physical therapy (a risk with all knee replacement procedures). Following a three-day trial, the jury returned a verdict for Christus St. Patrick's, and McGlothlin appealed.

One enumeration of error offered by McGlothlin centered on the trial court's admission of an edited version of the medical review panel's report. The editing resulted from McGlothlin's objecting during the trial to the hospital's attempt to introduce the report into evidence. McGlothlin argued that the report contained non-expert conclusions of issues of material fact, which violated the limited authority granted to the panel by state law. Specifically, the panel determined that there was "no violation of the applicable standard of care without even stating what that standard of care was. Instead, the panel's written reasons addressed only the factual conflicts raised by the information" presented by the parties. In an effort to preserve as much of the panel's report as possible, the trial court redacted from the report the panel's conclusion as well as part of the last sentence, which stated "but we feel that the versions of both of the incidents by the patient and her family appear to have numerous inconsistencies." The Third Circuit stated, "a clear reading of what remains of the medical review panel's opinion establishes to the reader that the underlying dispute was factual and not legal." Furthermore, one of the hospital's trial witnesses was an orthopedic surgeon who served as a member of the medical review panel. Although the trial court ruled that the witness could not, during testimony, state what the panel's (redacted) conclusion was, the witness "made it clear in his testimony that his opinion and that of the panel were based on factual findings." Thus, despite the trial court's attempt to shield the report's impermissible conclusions from the jury, its members were "fully informed" about how the panel's opinion was reached and that it had concluded the hospital did not violate the standard of care. The court held that the trial court's improper admission of the medical review panel's redacted opinion and the surgeon's direct testimony about the inner workings of the panel "tainted the integrity of the trial." Accordingly, the court determined that a de novo review of the record was required.

In a subsequent post, we will look at the court's analysis of McGlothlin's enumeration of error that there was no "reasonable factual basis" for the jury's conclusion that the hospital was free of liability.

Mesothelioma, also known as asbestos cancer, is cancer of the mesothelium, and is usually found on or around the lungs an individual has had prolonged exposure to asbestos in their homes or at work. Although the disease has become easier to detect in recent years, asbestos manufacturers have actually been sued by victims who have contracted the disease since as early as the 1920s and there is evidence that people were getting sick as early as the end of the 19th century.

Despite this long history, and high profile cases that have gone as far as the Supreme Court with nearly a billion dollars in compensation paid out, no Federal laws have been passed to delineate the compensation available to victims. The sad reality is that many suffering patients end up not getting the compensation they truly deserve due to the lack of regulation and confusion over what victims are entitled. This would seem to be an obvious case of injustice and is an unfortunate reality as working men and women simply cannot afford to aggressively pursue legal action against corporations, especially those that may have closed decades before.

The link between meso and asbestos was officially proven in the 1960s when scientists confirmed the presence of the disease in over 30 people who had been exposed to asbestos in South Africa. In 1962 mine workers were discovered who had mesothelioma and the condition was proven to cause cancer. Once workers are diagnosed with mesothelioma they can no longer work. This is just one reason why they must be properly compensated by their employers for their lost wages. Employers my be hesitant to pay damages; the reality is they could have provided the proper protective equipment to their workers that would have allowed them to work safely with asbestos and remain disease free. The question then significant to many is how you can tell if a person has contracted mesothelioma?

There are several symptoms that should be seen as a red flag (these symptoms are very similar to those for other conditions, including lung cancer). Keep in mind that these symptoms may not surface for years after asbestos exposure:

1. Shortness of breath - from fluid caught between the lungs and chest wall.
2. Chest pains - also caused by fluid. The pain will be felt under the rib cage and may be accompanied by coughing.
3. Weight loss.
4. Abdominal pain or swelling resulted from fluid building up in the abdomen.
5. Bowel obstruction caused by either fluid or tumors that have formed in the abdominal region.
6. Anemia - due to mesotheliomas affect on the tissue lining the lungs and chest cavity (the pleura).
7. Blood clotting - although this is only seen in severe cases.
8. Trouble swallowing - that occurs if the cancer has metastasized from the mesothelioma to other parts of the body.
9. Swelling in the neck or face - this also occurs if the cancer has spread.

If you are at risk for mesothelioma because you have worked with asbestos in the recent or distant past, and you experience any of these symptoms, it is vital that you contact your doctor right away for treatment. With good legal assistance, those struck with mesothelioma can get the compensation they need and deserve. After all, people who have been injured because of the negligence of their employers deserve some sort of financial support from the legal system. If you are diagnosed you may also benefit from legal assistance. Please feel free to contact us and an attorney experienced in mesothelioma litigation will be happy to talk to you about your case.

A recent Louisiana 1st Circuit Court of Appeal decision has raised many eyebrows by overturning a large portion of a lower courts award of $1 million to a group of residents in Baton Rouge's University Place subdivision. The 360 plaintiffs joined in alleging that the nearby Sewage Treatment Plant was causing them numerous problems. Specifically, the plaintiffs were alleging that the "operation and maintenance of the waste treatment facility caused petitioners personal inconvenience, mental suffering, embarrassment, and personal injuries. Plaintiffs also alleged a grave threat to health and safety by exposure to contaminated air and increased risk of serious disease to themselves, their family, and their progeny." The plaintiffs further contended that their property value had been permanently damaged by the presence of the sewage treatment plant. The court ultimately held that only one plaintiff out of the 360 plaintiffs initially named in the suit deserved compensation. The court came to this decision after the plaintiffs did not pass procedural requirements and/or missed vital legal requirements in order to remain in the suit. Exploring this case will illustrate that if proper procedural steps are taken and legal requirements understood and applied then case decisions are more likely to be affirmed and not overturned.

One of the major issues the court explored was the issue of prescription. The law governing the prescriptive period in this matter is La. R.S. 9:5624, which provides, "When private property is damaged for public purposes any and all actions for such damages are prescribed by the prescription of two years, which shall begin to fun after the completion and acceptance of the public works." This affected the plaintiff group's case due to the fact that the treatment plant had been originally built in 1960, yet, had been expanded several times, the last expansion began in 1997 and was completed in 1998. Thus, the time period of the last expansion to the filing of the suit would be the determined to be the legal time period in which plaintiffs would be allowed to complain and allege damages. This led the lower court to find that the last expansion of the sewage plant must be viewed as a new public work event for purposes of La. R.S. 9:5624, stating, "After all, it would neither be equitable nor just to hold parties responsible for filing a suit within two years of the plant's original completion date (i.e. 1960) when their property was not damaged until the plant was expanded in 1998." Thus, damages had not prescribed when the suit was filed; however, only the time period in which the last expansion was completed to the time the plaintiffs filed their claim would count towards calculating any potential damages.

The number of plaintiffs steadily declined as the lower court progressed due to the fact that they either did not follow legal requirements or they were not legally recognizable. The first 148 plaintiffs who testified gave conflicting testimony or testified that the expansion of the sewage treatment facility produced little or no change in their prior circumstances. Thus, most of these class members failed to establish that the action taken by the City-Parish in so far as expanding the treatment plant had caused them any health problems or defects that did not exist prior to the expansion. Essentially, the plaintiff's needed to allege that the expansion, which was what was legally at issue, was the main source of their problems, problems which did not exist prior to the expansion. A further dilemma the plaintiffs faced was that their expert testimony further supported the Court's conclusion that the plaintiffs had not proven by a preponderance of the evidence that they had suffered any legal damages caused by the sewage treatment plant. One expert even stated that it was hard to have a sewage treatment plant without an odor. Additionally, many plaintiffs lived in the area prior to the expansion without bringing suit. As a result, these individuals were aware of the various odors and impacts the sewage plant had upon the neighborhood. Therefore, the court held that since the plaintiffs gave conflicting testimony, did not prove their claims, and did not have supporting expert testimony, the 148 testifying plaintiffs should be dismissed from the case.

Additionally, more plaintiffs were dismissed based on legal requirements in which they failed to satisfy. Specifically, 209 plaintiffs were dismissed for failure to appear at trial and an additional 38 plaintiffs were dismissed because they were renters and not home owners. The reason renters were not allowed to bring a claim against the sewage treatment plant was because the court found that the renters "knew or should have known that a waste treatment facility was situated in close proximity to the apartments they chose to rent and that problems such as odor could be associated with this type of plant." Thus, at this point in the case, 247 plaintiffs had been dismissed for a lack of legal standing or for missing key procedural steps in order to "stay alive" in the suit.

Moreover, the appellate court held that damages should be awarded only for the time period after the treatment facility's last expansion and only awarded to those actually harmed and/or effected by the presence of the expanded facility. This factor gave many plaintiffs problems, for the court held that the majority of plaintiffs did not live in close enough proximity to actually be harmed or impacted in any major way. Further, the plaintiff group's complaint that their property values had been significantly impacted by the facility also failed legally. Instead of calculating the property values for the time period right after the facility's last expansion, the plaintiff group's experts were adding the total effect of the sewage treatment plant, which had existed since 1960. Thus, the court could not award the expert's suggested amount because it was not appropriate for the case. Only one plaintiff ultimately was held to have suffered any actual harm by the expansion of the treatment plant and that person was Greg Mitchell.

Mr. Mitchell suffered actual damage because of his home's close proximity to the plant. His damages were legally cognizable because his property was impacted as a direct result of the plant's expansion. In fact, the sewage plant's expert in real estate valuation acknowledged that "the Mitchell home had been damaged by the expansion of the treatment plant because prior to 1997, his residence was directly across the street from BREC park, whereas after the expansion, there were trickling filters (large tank structures) facing his home. It was his opinion that only the Mitchell home had been damaged by the expansion." Therefore, out of initially 360 named plaintiffs, only one ultimately prevailed because he satisfied legal requirements and procedural steps necessary for the court to recognize his allegations and ultimately find for him.

This case illustrates that were the 359 plaintiffs alleging the appropriate damages for the legal time period necessary to have a case, they might have been awarded damages like Mr. Mitchell. The fact that they were alleging damages for merely living near the treatment plant did not hold water legally, missing key legal requirements in making claims may cause the entire case to fail for a plaintiff. Thus, if the plaintiffs alleged that they had been impacted directly after the treatment plant's last expansion, they might have remained in the case. However, many plaintiffs failed to even show up when required for trial, thus, pulling themselves out of the case without any force whatsoever by the court. If a plaintiff is properly guided and advised by a legal representative as to what legal rights they have, what steps they should take, and what requirements they need to satisfy, a plaintiff will be much more likely to remain in the case and possibly be awarded.

According to state law, the Louisiana Department of Transportation and Development (DOTD) has a duty to maintain the public highways in a condition that is reasonably safe for drivers exercising care and reasonable prudence, and even for those who are slightly exceeding the speed limit or who are momentarily inattentive. Ferrouillet v. State ex rel. DOTD. If the DOTD is aware of a defect in the roadway that cannot be immediately corrected, it must provide adequate warnings of the danger. The warnings should be "sufficient to alert the ordinary, reasonable motorist, based on considerations of probable volume of traffic, the character of the road, and the use reasonably to be anticipated." Generally, in order for the DOTD to be held liable for damages, injuries, or death on a roadway, the plaintiff must prove: (1) that the thing that caused the damage was in the DOTD's control; (2) that the thing that caused the damage amounted to a defect that presented an unreasonable risk of harm; and (3) that the defect was the actual cause of the plaintiff's damages. It is well settled, however, that the DOTD's duty "does not extend to protect motorists against harm which would not have occurred but for their grossly negligent operation of a motor vehicle." The tragic case of Lyncker v. Design Engineering, Inc. provides an illustration of this point.

During the afternoon of September 15, 2004, William Lyncker consumed a substantial quantity of of beer as he made preparations to his home, boats, and business equipment for the arrival of Hurricane Ivan in New Orleans. Around 8:00 PM, Lyncker decided to drive to a family member's restaurant to help with hurricane preparations there. The route to the restaurant would take him eastbound on Highway 90, which had earlier that day been closed by the DOTD approximately three miles east of the intersection with Highway 11 due to the installation of a floodgate in anticipation of the rising waters. Lyncker made his way toward Highway 90 on Highway 11 where, upon encountering a barricade, he drove off the road and over an earthen levee to avoid it. Lyncker continued toward the intersection with Highway 90 when he came upon additional warning signs and more barricades. Nevertheless, Lyncker turned onto Highway 90 and drove at speeds approaching 75 MPH. Lyncker did not slow down when he approached the caution-lit steel barricades that the DOTD had installed in front of the floodgate. In fact, Lyncker struck the barricades without even applying his brakes, and one of the barricades became trapped under Lyncker's truck. Still, Lyncker continued speeding towards the Highway 90 floodgate as the barricade dragged beneath his truck. Lyncker's truck was discovered crashed into the floodgate, which had collapsed. Lyncker was killed in the collision, and subsequent toxicology reports showed that Lyncker had a blood alcohol concentration of 0.21 percent (the legal limit is 0.08 percent) at the time of the accident.

Lyncker's family filed a wrongful death action against Design Engineering, Inc., the Orleans Parish Levee District, and the DOTD alleging negligence in the construction and maintenance of the floodgate, as well as failure to warn. The DOTD filed a motion for summary judgment based on the Louisiana Code Section that provides immunity when a driver sustains damages or death while driving under the influence of alcoholic beverages or drugs and is over 25 percent negligent. La. Rev. Stat. ß 9:2798.4. The district court granted the motion, finding that "any reasonable fact finder would be compelled to find [Lyncker] in excess of twenty-five percent negligent." On appeal, the Fourth Circuit noted that "since Mr. Lyncker crashed through the lighted barriers while heavily intoxicated and without slowing down, in this case, no warnings may have been enough to prevent the accident." The court agreed with the district court's finding that there was no issue of fact over Lyncker's being at least 25 percent at fault and further concluded that "Lyncker's intoxication is the sole and proximate cause of his fatal accident." Accordingly, the court upheld the district court's granting of summary judgment to DOTD under the immunity statute.

Lyncker's unfortunate situation demonstrates the law's effort to compare the relative fault of the parties when it is possible that more than one person's negligence caused an accident. In this case, it was not even necessary for the court to examine the potential negligence on the part of the DOTD because the court felt, as a matter of law, that Lyncker was at least a quarter responsible for this sad outcome due to his heavily intoxicated driving; under the Louisiana statute, this finding was the only one necessary to provide the DOTD immunity for the plainitiffs' claims.

Continue reading " Drunk Driver's Claim Against the Louisiana Department of Transportation Fails Under the "Gross Negligence" Exception " »

An attorney owes a fiduciary duty to his client. This means that, in keeping with the special relationship of trust between them, the attorney must put his client's interests ahead of his own and avoid harm to his client to the best of his ability. At its most basic level, the duty requires the attorney to avoid errors that other attorneys would reasonably avoid in the same situation. If an attorney fails to uphold this duty, his client may have an action for legal malpractice. Under Louisiana law, to establish a case for legal malpractice, a plaintiff must prove the following three elements: (1) that an attorney-client relationship existed; (2) that the attorney was guilty of negligence in his handling of the client's case; and (3) that the attorney's misconduct caused the client loss, damage, or injury.

Proving that an attorney-client relationship exists typically requires demonstrating that the client had engaged the attorney to represent him in some matter. This is often accomplished with a copy of the attorney's engagement letter, but this is not required. Nor is the exchange of a retainer or other payment necessary to prove the relationship. Proving an attorney's negligence requires establishing the standard of care for the legal services in question and demonstrating how the attorney's conduct deviated from this standard. Usually, this requires the input of an expert witness who can review the attorney's work and offer an option as to how it fell short of generally accepted practices. Finally, the client must be able to point to some tangible and quantifiable negative consequence of the attorney's negligence. If a plaintiff is unable to prove any one of these elements, his claim will be defeated. Additionally, even if a plaintiff can prove negligence, he can have no greater recovery against the attorney than would have been available in the underlying claim. Costello v. Hardy. This limitation served as the basis of the appeal in the case of Wharton v. Bell.

In February of 2006, Kirk Wharton hired an attorney (hereafter referred to as "the attorney")after the mortgage-holder on Wharton's house in East Baton Rouge Parish filed a petition to foreclose on the property. The property was eventually sold by judicial sale to Mortgage Electronic Registration Service (MERS) on September 20, 2006, over Wharton's objection. Due to a faulty assignment of the morgtage note and other irregularities in the transaction by MERS, Wharton, represented by the attorney, successfully had the sale set aside by the court in the foreclosure proceeding and settled with MERS. Yet, shortly thereafter, Wharton obtained other counsel and filed a malpractice action against the attorney, alleging that "had [the attorney] acted in a reasonably prudent and diligent manner and in accord with professional legal standards," the judicial sale could have been avoided altogether. Wharton's former attorney's malpractice insurance carrier, Continental Casualty Company, filed a motion for summary judgment, contending that because of Wharton's settlement and dismissal of his claims in the original foreclosure proceeding, he had suffered no damages and was therefore barred from pursuing the malpractice claim. After a hearing, the trial court granted Continental's motion and dismissed all of Wharton's claims. Wharton appealed.

The First Circuit reviewed the trial court's conclusion that Wharton was unable to point to any damages given that the judicial sale was cancelled. Wharton countered that the sale cancellation was merely "mitigation of damages" and that the trial court erred in granting the summary judgment as a genuine issue of material fact remained as to the amount of damages he suffered. The court concluded,

"Wharton has produced at least some evidence of damage that he suffered because of the wrongful judicial sale which was not part of the settlement with MERS. Further, no fault has been allocated to any party, and no damages have been assessed to anyone. Wharton has produced factual support to create a genuine issue of material fact as to what, if any, damages were suffered due to the actions of [the attorney] and his law firm."

For these reasons, the court concluded that the trial court erred in granting Continental's motion for summary judgment. It reversed the trial court's decision and remanded the case for further proceedings. While this does not mean that Mr. Wharton's claims of legal malpractice were proven at this point in the litigation, it does mean that he raised enough issues of contention that his claims of improper representation were not dismissed in whole at this point. A trial on the merits of all the claims will occur later, upon which point it will be decided if his attorney committed legal malpractice.

The Wharton case serves to remind plaintiffs to choose their counsel carefully. Although the legal malpractice action exists to help a client who has been damaged by his attorney's negligence recoup his losses, it is far better to retain competent counsel in the first place.

Continue reading " Legal Malpractice Action Connected with Wrongful Foreclosure on East Baton Rouge Parish Property " »

Mar'Kirney Holland, only four years old, died tragically in Orleans Parish after allegedly receiving negligent medical care in Lincoln Parish six years ago. This story provides a lesson on how important procedural motions are to a case. Plaintiffs often choose a certain jurisdiction because of different factors. Sometimes certain jurisdictions are chosen because of ease and convenience to parties and witnesses. Other times, plaintiffs have heard that certain courts or judges are more amenable and therefore, more likely, to rule in their favor. No matter the reasoning, deciding which court to proceed in is an essential decision that plaintiffs and plaintiffs' attorneys must make. In this case, Holland v. Lincoln General Hospital, No. 2010-CC-0038 (La. Oct. 19, 2010), Defendants were successful in having the case moved from Plaintiffs preferred location of Orleans Parish to Lincoln Parish.

Mar'Kirney was born prematurely on November 12, 1999, and from an early age suffered from hydrocephalus, a condition where cerebrospinal fluid pools in the brain. At Tulane Hospital in New Orleans, doctors inserted a shunt to drain this fluid. Most, if not all, of the treatment related to the shunt took place at Tulane Hospital. The most recent "shunt revision" took place at Tulane Hospital two weeks before her death.

However, when Mar'Kirney began to suffer headaches, nausea, and vomiting, her mother, Latisha Holland, took Mar'Kirney to the closer hospital, Lincoln General Hospital. There, after fruitlessly waiting an hour, leaving, and coming back, Latisha claims that the doctor diagnosed Mar'Kirney with an upper respiratory infection. This was not the case. Mar'Kirney worsened and had to be transferred to Tulane Hospital after CT scans revealed that the shunt was blocked. Mar'Kirney died less than 24 hours after arriving at Tulane's Pediatric Unit. Latisha brought a wrongful death and survival action against Lincoln General Hospital.

Generally, where proper venue lies in more than on parish, as in this case where Mar'Kirney was treated in both Lincoln General Hospital and Tulane Hospital, plaintiff may choose whichever venue to pursue the case. However, defendants may seek to move the case to another court because of the doctrine known as forum non conveniens. Although plaintiff's initial forum choice is given deference, the court may grant this motion if defendant is able to show why. This procedural doctrine is set forth in La. Code of Civ. Proc. art. 123(A). provides that:

For the convenience of the parties and the witnesses, in the interest of justice, a district court upon contradictory motion, or upon the court's own motion after contradictory hearing, may transfer a civil case to another district court where it might have been brought; however, no suit brought in the parish in which the plaintiff is domiciled, and in a court which is otherwise a court of competent jurisdiction and proper venue, shall be transferred to any other court pursuant to this Article.

Essentially this provides three factors which a court will consider in deciding whether to keep the case with itself or to move it to another court. These three factors are (1) convenience of the parties; (2) convenience of the witnesses; and (3) interest of justice.

In this case, Defendants were able to persuade the Supreme Court of Louisiana that these three factors weighed in their favor. They were able to show that Plaintiffs were residents of Lincoln Parish, Lincoln General Hospital's principal place of business is in Lincoln Parish, and the doctor involved in the initial diagnosis is a resident in the neighboring parish. Further, several of the key witnesses are residents of Lincoln Parish or neighboring parishes. The distance between Ruston and New Orleans is approximately a five hour drive and Defendants were able to show that it would be overly burdensome for them to travel this distance to litigate. Further, Plaintiff did not properly introduce evidence of witnesses who were living in New Orleans. Ultimately, the Court decided that in the interest of justice, the case should be moved to Lincoln Parish, granting Defendants' motion.

It is important to seek knowledgeable legal assistance as this case shows. Bringing a wrongful death and survival action is difficult and fraught with emotion. It is made more difficult by procedural tricks that sophisticated defendants utilize to have an advantage in the case. Further, if you believe you have a claim against a medical provider it may or may not be a medical malpractice claim. As an earlier blog entry discussed. Under the Louisiana Medical Malpractice Act, additional steps must be taken if the nature of the claim indicates that the MMA applies. If these steps are not taken, the claim will fail and is just one more reason why the success of your case depends on a bright, experienced attorney, who understands the intricacies of medical malpractice law.

Continue reading " Defendant's Motion to Switch Courts is Approved in Negligence Suit Against Hospital " »

Many of Louisiana's woes are from recent disasters such as Hurricane Katrina and the Gulf oil spill. However, for Plaintiffs in David v. Velsicol Chemical Corporation, their woes began long before then. Plaintiffs were residents and property owners in the Cow Island area of Vermilion Parish when they discovered that their lands had high levels of arsenic in the ground water, in some instances eighty times the Environmental Protection Agency's acceptable levels. Plaintiffs claim that Defendants' product, Cooper's Cattle Dip, contaminated their land and drinking water with arsenic and other hazardous chemicals causing the high rate of cancer in the area.

Plaintiffs' story begins before 1970 when Cooper's Cattle Dip was used in dripping vats located on, or adjacent to, all of the Plaintiffs' properties. The dip solution contained high concentrations of arsenic and other poisonous chemicals. After being dipped in the solution, the cattle would stand as the dip slowly dripped its poison into the Plaintiffs' lands. Although this dip eradicated the ticks that were killing cattle across the United States, it was deadly to humans and animals. This poisonous dip was simply allowed to run off into the ground and, as Plaintiffs alleged, contaminate the ground and eventually the water.

Despite this, the trial court ruled that twenty-one of these Plaintiffs had no cause of action and no standing to proceed in the case. Just recently, the Third Circuit Louisiana Court of Appeals reversed the trial court's ruling allowing the twenty-one Plaintiffs a chance to prove their case under pre-Louisiana Product Liability Act (LPLA) strict liability law. As a side note, this case is governed by pre-LPLA strict liability law because the contamination occurred before enactment of the LPLA. For further discussion on the LPLA, please see an earlier entry on the blog.

In its ruling, the Third Circuit Court of Appeals discussed the fundamentals of Lousiana product liability law and strict liability law. Essentially Louisiana product liability law provides that:

A manufacturer of a product which involves a risk of injury to the user is liable to any person, whether the purchaser or a third person, who without fault on his part, sustains an injury caused by a defect in the design, composition, or manufacture of the article, if the injury might reasonably have been anticipated.

Under this rule, the plaintiff must prove

(1) harm resulted from the condition of the product;
(2) the condition of the product made the product unreasonably dangerous for normal use; and
(3) that the condition existed at the time that the product left the manufacturer's control.

However, strict product liability is different. As the Third Circuit explains, under the strict product liability:

Strict liability results form the conduct or defect of a person or thing which creates and 'unreasonable risk' of harm to others. Strict liability for injury suffered as the result of an unreasonably dangerous product attaches to a claim by any person injured by such product... Any person injured by the contaminated water or soil has a right of recovery and has standing to enforce that right.

In matters like this, the product itself is on trial and the plaintiff must provide proof that the product was unreasonably dangerous for normal use. The Court explains that the test to determine whether a product is dangerous per se is to weigh the danger-in-fact of the product versus the utility of the product. In addition, as part of this test, failure to warn or include warnings about the danger weighs heavily.

To show danger-in-fact, Plaintiffs in this case presented evidence demonstrating that there were no instructions from the manufacturer as to how to clean up the areas where the dip was allowed to runoff into the ground. Further, whatever warnings and instructions were provided would actually further contaminate the land. Defendant did not dispute any of this nor that the product was a toxic, hazardous substance designed to kill.

The Third Circuit ultimately decided that the Plaintiffs presented sufficient evidence at the hearings to state a right of action for damages based on the product being unreasonably dangerous and manufacturer's failure to warn. The Court ruled to reinstate all Plaintiffs dismissed and to allow them to proceed with their case against Defendants.

In cases like this where the origin of the harm was a long time ago and the effect of the harm is happening now, proof is hard to get. If the Third Circuit did not reverse the ruling, those twenty-one. Plaintiffs would be out of luck. This kind of story can happen to anyone and if it has happened to you, it is essential that you get legal help.

Continue reading " Court of Appeals allows Plaintiffs to Continue Suit in Product Defect Matter " »

According to Houma Today, a 17-year-old boy from Cut Off was killed on October 22nd when the car he was riding in struck a utility pole. The boy, Edward Domingue, and his 15-year-old girlfriend were going to pick up pizza and movies when she lost control of the vehicle. Questions remain regarding why the girl was driving since she did not have a driver's license. Further, the girl's mother and owner of the vehicle, Gillian Reynolds, adamantly stated that she would not allow her daughter to drive. While the facts are still not clear, civil liability for the accident and Domingue's death are also still up in the air.

Louisiana Revised Statute 32:52 states that no person shall operate a vehicle or allow another person to operate a vehicle owned or controlled by him if the driver is unlicensed. However, the simple fact that doing so is a statutory violation does not necessarily imply that the owner, or the unlicensed driver, was negligent. In Enlow v. Blaney, the Louisiana Third Circuit held that even though a 14-year-old was not licensed to drive, the fact that the vehicle's owner allowed her to drive without a license was "immaterial and irrelevant" to the issue of negligence where her "conduct in driving without a license was not a cause-in-fact of the accident." Following its rationale in Enlow, the Third Circuit ruled that even when the owner allows an unlicensed minor to drive her vehicle, she will not be liable for a resulting accident where evidence suggests that the minor was competent to drive and the fact the driver was unlicensed is not the cause-in-fact of the accident.

However, under general common law principles, if the owner knowingly allows a person who is incompetent to drive, such as by repeated instances of negligent or reckless conduct, the owner may be liable for negligence. This usually requires that the incompetent driver be "on a mission" for the owner, acting as the owner's agent or employee, or the owner is negligent for entrusting his vehicle to the incompetent driver. In order to establish negligent entrustment, a plaintiff must show that the vehicle's owner knew or should have known that the borrower is incompetent to drive. One case of particular interest is the 1993 case of Jones v. Western Preferred Casualty Co. In that case, the Louisiana First Circuit found that a 19-year-old vehicle owner did not negligently entrust his car to a 13-year-old where the 13-year-old had only driven a few times before, had been drinking, and the 19-year-old had never met the 13-year-old before that day.

In the 1953 appellate case Nelson v. Carriere, the Louisiana Third Circuit held that age or inexperience driving cannot "brand" someone incompetent to drive a vehicle or be presumptive evidence of negligence. This is not the case in all jurisdictions. For example, courts of several states including Illinois and Alabama automatically presume that a vehicle owner was negligent in entrusting her vehicle to an unlicensed driver. See, e.g., Chiniche v. Smith (Ala. 1979). In Louisiana, proof of inexperience, past negligence or reckless in driving, or failure to obey driving laws can provide evidence of incompetence but, as noted previously, cannot create a presumption of negligence or negligent entrustment.

Additionally, it is unlikely that Mr. Domingue's conduct in allowing his unlicensed girlfriend to drive will reduce her or her mother's civil liability. In Faulk v. Champagne, the Louisiana Third Circuit found that a passenger was not liable for permitting an unlicensed driver to operate a vehicle since the passenger had no legal duty to prevent the driver from driving and the passenger did not know or should have known that the driver was incompetent. It is not clear whether this was the case here. However, neither Mr. Domingue's girlfriend nor her mother will automatically be negligent simply because she was unlicensed. Instead, a court will consider inexperience as one of many factors in deciding any civil liability.

If you or someone you know was involved in a vehicle accident with unclear liability, consult with an attorney today in order to preserve your legal rights.

On the day after Thanksgiving in 2003, plaintiff Nicol Hannie's vehicle was struck by another vehicle driven by defendant Ray Guidry in LaFayette, Louisiana. Due to the holiday shopping sales offered that day, traffic was very heavy. Hannie, who had just finished eating at a restaurant, attempted to make a left hand turn onto a five lane roadway. The middle lane of the roadway was a turning lane. Because traffic was completely backed up in the two travel lanes immediately closest to Hannie, several cars in those lanes graciously created a space for Hannie to traverse and waved him through. As Hannie cautiously passed through the space created in the immediate two lanes, he inched onto the turning lane to complete his left hand turn. However, as soon as he began to pass through the turning lane in order to merge onto the distant travel lanes, he was struck by Guidry, who was allegedly using the turning lane as a passing lane and also traveling at a high rate of speed.

At trial, the district court agreed that Guidry was impermissibly using the turning lane as a passing lane. They reached this conclusion by noting that Guidry's intended turn-off was nearly 700 feet away from the scene of the collision, and he could have stayed in the inside travel lane several hundred feet further before entering the turning lane. Furthermore, the high rate of speed Guidry was driving, as witnessed by others, tended to show that Guidry may have been impatient and did not want to remain in the travel lanes before commencing his left handed turn in the turn lane. Accordingly, the district court held Guidry to be 100% at fault for Hannie's resulting injuries.

Dissatisfied with the verdict, Guidry appealed to the Third Circuit Court of Appeals of Louisiana. Guidry denied all fault and contended the Court of Appeals should review the district court's finding under a de novo standard of review.

De Novo is a Latin expression that means "anew." When a litigant asks an appellate court to review a district court's findings de novo, that litigant is asking the appellate court to completely disregard the district court's legal conclusions, and to instead apply its own findings based on the record before it. Because the district court is the fact-finding court, the appellate court typically must defer to the district court's evidentiary and testimonial findings, unless those factual findings were clearly wrong. However, an appellate court does not have to defer to the district court on questions of law.

In Louisiana, an appellate court may review a lower court's legal conclusions de novo only if the district court's legal error was prejudicial. A legal error is prejudicial if it "materially affects the outcome of the trial court's fact finding process and deprives a party of substantial rights."
In the instant case, Guidry argued that the district court applied an impermissible legal standard by enunciating a two-car-length rule for the execution of a left turn in a center turn lane. Guidry argued that this two-car standard was not based on any existing legal standard and was created out of whole cloth by the district court.

While the Third Circuit Court of Appeals agreed that the two-car standard was a misstatement of law insomuch as no such brightline rule previously existed, it concluded the underlying general idea that a car should only travel a limited distance in a turning lane to be legally sound. Moreover, the reviewing court found that even if the two-car standard constituted legal error, it still would not have prejudiced Guidry. Witnesses reported Guidry operating his vehicle in an "erratic" manner, at speeds "way too fast for the turning lane." Consequently, Guidry was nevertheless operating his vehicle in a negligent manner at the time of the collision, supplying an alternative basis for the district court's conclusion that he was 100% at fault. Accordingly, the appellate court affirmed the verdict in favor of Hannie.

As Hannie v. Guidry shows, a case is never fully resolved until an appellate court has denied a request for or reviewed an appeal. It is thus important to be aware of which review standards an appellate court must apply.

Continue reading " Hannie v. Guidry Spells Out Standards for DeNovo Appeal " »

This post constitutes part two of an introduction to mesothelioma:

Tissue changes resulting from asbestos exposure cause fluid to become trapped between the lung and the chest wall. This trapped fluid induces three symptoms which are often the initial symptoms a patient notices comprising coughing, chest pain, and shortness of breath. The trapped fluid creates uncomfortable pressure between the chest wall and lungs which the patient describes as chest pain under the rib cage. Coughing may accompany these symptoms which are typically the initial symptoms a patient experiences.

Additional symptoms may begin developing over several decades. For instance, weight loss may occur which is a symptom often seen in conjunction with cancerous tumors. Also, anemia may result when mesothelial cells comprising the pleura (lungs) and pericardium (heart) are involved. Blood clotting abnormalities typically present only in severe mesothelioma cases.

Fluid buildup in the abdominal cavity is also problematic for several reasons. First of all, the mere fact that the fluid buildup occupies space causes the patient to experience pain and swelling. Both this fluid buildup as well as tumor formation interfere with the functioning of the digestive tract and nearby organs. Another unpleasant negative consequence is bowel obstruction and the associated difficulties.

Metastasis occurs when cancer moves from the original body part initially afflicted to another body part and thus creates even more problems. If the mesothelioma metastasizes, it may move to the head and neck area causing swelling in the area and possibly difficulty swallowing.

In addition to mesothelioma (cancer of the mesothelium surrounding an organ), asbestos exposure may cause lung cancer wherein the tissue inside the lung itself is involved. Another distinguishing factor between the two asbestos cancers is the prevalence of lung cancer from other causes. In contrast, the only known cause of mesothelioma in the United States is exposure to asbestos.

While any physician can assist you with questions or diagnoses, it may be helpful to interact with a physician specialist. Pulmonologists specialize in lung diseases and oncologists specialize in cancers with some oncologists even focusing particularly on asbestos cancer.

Continue reading " Mesothelioma and Asbestos: Part II " »

Asbestos was recognized to be a toxic substance as long ago as the 1890's although it was not linked with specific diseases until recently. A multitude of lawsuits have been filed against asbestos manufacturers since 1929 with cases even traveling up to the United States Supreme Court. Nonetheless, no Federal Laws were ever created to address compensation for those suffering as a consequence of asbestos exposure leaving many sufferers without any assistance at all. Compensation is meant to address not only medical costs but also the pain and suffering resulting from the asbestos exposure as well as loss of income.

Although asbestos exposure is often 'on the job' exposure, a spouse simply washing the clothes of a family member subjected to 'on the job' asbestos exposure is likewise subjected to inhalation of asbestos dust and fiber. Even such seemingly minimal asbestos exposure places the spouse at risk for also succumbing to asbestos induced health problems. Residents living near factories or mines utilizing asbestos are also at risk for developing asbestos inhalation health disorders.

Unfortunately, asbestos inhalation may trigger a multitude of health problems. For example, a condition termed asbestosis refers to an inflammatory, chronic and prolonged lung disease that may inflict permanent lung damage. Moreover, asbestos exposure places an individual at risk for developing cancer. Due to the ubiquitous nature of asbestos and the magnitude of the damage it inflicts, compensation for asbestos related injuries lies in the billion dollar range. In general, the symptoms of asbestos related diseases include, but are not limited to, shortness of breath, wheezing, hoarseness, a persistent cough and/or coughing up blood, difficulty swallowing, chest pain, loss of appetite, weight loss, fatigue, or anemia.

One form of asbestos cancer affects mesothelial cells. The associated cancer is termed mesothelioma, or more specifically, malignant mesothelioma. Asbestos was definitively linked as the causal agent of mesothelioma by observing that a group of mine workers were succumbing to mesothelioma after working in an asbestos mine during a specific time period which was the only activity all of them had in common.

Mesothelial cells form a tissue termed the mesothelium which protects organs by producing a lubricating fluid. Location within the body sometimes dictates the name given to the mesothelium. For example, the pleura lines the lungs and internal chest walls, the peritoneum lines the abdominal cavity, and the pericardium surrounds the heart. While the pleura (mesothelium lining lungs and internal chest walls) is the mesothelium most commonly affected by asbestos exposure, the other mesothelial tissues may also succumb to asbestos cancer.

Mesothelioma may have a latency period which is a period of time after the patient is exposed to asbestos but before the cancer is detected and the patient is primarily asymptomatic (without symptoms). In fact, mesothelioma may have an unusually long latency period even ranging from ten to sixty years. Over time, the patient begins developing symptoms with some symptoms taking decades to present.

In August 2007, Dwight Phillips was dropping off his step-son, Joseph Shelvin, at school. The school’s principal, Louella Cook, noticed that Phillips’ vehicle was in the school’s bus-unloading area. After noticing Dwight’s vehicle, Phillips approached Dwight and informed him that he was unloading the child in the wrong area. She then directed him to the car drop-off area. According to Cook, Dwight then began screaming at Cook. During this screaming, Dwight told Cook that he would return and "get her." Cook contacted the police because she feared for her safety as well as for the safety of the staff and visitors of the school.

When the police arrived, the investigating officer interviewed both Cook and Dwight. According to the officer, Dwight admitted that he threatened Cook and Dwight was subsequently arrested for disturbing the peace by threats. Sometime prior to this incident, a bus driver reported that during a bus stop, a man, who was talking loudly, got on the bus and refused to get off. Cook and her staff questioned the students who were on the bus during the incident including Joseph Shelvin, Dwight Phillips’ step-son. After speaking with the students, Cook and her staff learned that the man was Dwight Phillips. After Phillips’ arrest, Shelvin, Phillips and his wife Joy filed suit against the Lafayette Parish School Board and Dr. Louella Cook. On appeal to the fifteenth judicial district court, the court only examined the claims against the Board and Cook for Dwight Phillips’ defamation and Shelvin’s emotional distress.

To successfully assert a claim for intentional infliction of emotional distress (IIED), the person bringing such a claim must show an (1) intent to cause (2) severe emotional distress by (3) extreme and outrageous conduct. According to Louisiana courts, "[t]he conduct must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community." Because tortious or illegal conduct does not rise to the level of extreme and outrageous, "[t]he distress suffered must be such that no reasonable person could be expected to endure it." Essentially, one cannot be liable for IIED for "mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities." In this case, the Phillip’s and Shelvin failed to successfully assert a claim for IIED. There was no evidence that Cook’s conduct was extreme and outrageous or that she intended to cause Selvin severe emotional distress. In relation to the "drop-off" incident, Cook never spoke to Shelvin about it. When Shelvin and the other students were questioned about the incident where the man refused to get off the bus, Cook was never alone with any of the students. Moreover, none of the interviews lasted over ten minutes.

Louisiana courts have consistently held that IIED claims must deal with extremely outrageous conduct and not just offensive behavior. Thus, it is important for persons interested in pursuing IIED to an attorney to evaluate the viability of such claims and examine the nature of the complained of conduct.

Continue reading " Understanding Claims Involving Intentional Infliction of Emotional Distress " »

On the evening of August 2, 2005, Latiffany Dunn slowed her car as she approached the intersection of Pearl and Washington Streets in Homer, Louisiana. As she came to a stop, a vehicle driven by Latonya Harris pulled up beside Dunn's vehicle. Shatara Harris, Latonya's sister, was a passenger in Latonya's vehicle. Shatara got out of the car and approached Latiffany's vehicle. The two women argued, and Shatara took a swing at Latiffany. As Shatara walked back to Latonya's vehicle, Latiffany drove off and then circled back. As it passed by, Latiffany's car clipped the open passenger door of Latonya's vehicle. Shatara, who was attempting to get into the car at the same time, was injured when the door slammed closed against her. Latiffany did not stop her car, but instead drove to the Claiborne Parish Sheriff's Department where she filed a report about the incident. A sheriff's deputy interviewed Latiffany, transported her to the Homer Police Station, and then arrested her on a charge of aggravated second degree battery. Latiffany later pled guilty to simple battery. Shatara filed suit against Latiffany and her auto insurance carrier, U.S. Agencies Casualty Insurance Company, Inc. for damages arising from her injuries. U.S. Agencies filed a motion for summary judgment on the grounds that Latiffany intentionally struck Latonya's vehicle, which would have excluded coverage by the terms of the policy. The trial court granted the motion and dismissed U.S. Agencies from the suit; Shatara appealed.

Under Louisiana law, an insurer may limit the coverage it provides by the terms of its policy, but the insurer has the burden of proving that the facts and circumstances support the exclusion. Furthermore, "a summary judgment declaring a lack of coverage under an insurance policy is not appropriate unless there is no reasonable interpretation of the policy, when applied to the undisputed material facts, under which coverage could be provided." The policy provision that U.S. Agencies pointed to excluded coverage for bodily injury or property damage "caused by an intentional act" or "caused ... while engaged in the commission of a crime." U.S. Agencies argued that Latiffany committed a crime (as established by her guilty plea to the battery charge) and also that she intentionally struck Latonya's vehicle to injure Shatara.

With respect to the crime exclusion, the Second Circuit noted that the policy defined "crime" as "any felony or any action to flee from, evade or avoid arrest or detection by the police or other law enforcement agency" (emphasis added). The court concluded that the crime exception was inapplicable because Latiffany's guilty plea to simple battery--a misdemeanor offense--did not fit the policy's definition. Furthermore, the court explained that Latiffany's guilty plea was not determinative as to her intent to strike Shatara. While a guilty plea from a criminal matter is admissible in a civil case, it is not conclusive evidence. The court acknowledged that "summary judgment is appropriate only if there is no factual dispute as to intent," which, after reviewing the trial record, was "not the case here." The court reasoned, "we cannot say as a matter of fact that the record shows [Latiffany] intended to hit either Latonya's vehicle or Shatara with her vehicle... Even though Latiffany pled guilty to simple battery, we find that the record shows that a genuine issue of material fact exists as to whether Latiffany's actions constituted an intentional act." Accordingly, the court reversed the trial court's granting of summary judgment and remanded the matter for further proceedings.

The Harris case reflects Louisiana's position that "exclusionary provisions are to be strictly construed against the insurer with any ambiguity construed in favor of the insured." Presumably, this is to help protect consumers who purchase insurance by preventing insurance companies from attempting to avoid coverage through vague language in the policy. Insurance companies will nevertheless put forth whatever arguments may be available to avoid payouts, so a plaintiff should always obtain experienced counsel when pursuing an auto accident or other claim where a defendant's liablility policy is in place.

Continue reading " Homer Car Wreck Case Examines Insurance Policy's Treatment of Intentional Injury " »