Articles Posted in Business Dispute

motel-sign-1258206-1024x768When a patron is injured by a third party at a hotel, the patron might wish to seek damages from a national franchisor. There are however several criteria to establish a franchisor’s liability making it very difficult for a patron to recover in the absence of direct links between the injury and negligence.  In a recent case out of New Orleans, a shooting victim was left with little recourse against the big company behind the local Motel 6.  

In this case, Jorge A. Espinosa was staying at the Motel 6 on Gentilly Boulevard in New Orleans, Louisiana when he was shot in the Motel’s parking lot. The armed robber entered the Motel’s parking lot through a missing section in the Motel’s fence.  Mr. Espinosa’s injuries left  Mr. Espinosa a paraplegic.  Mr. Espinosa filed a lawsuit against the national franchise, Accor Franchising North America (“Accor”) as well as the local franchisee, Century Bayou Hospitality, LLC (“Bayou”) and their respective insurance companies.  Mr. Espinosa claimed the missing section of the Motel’s fence led to the robber entering the property and shooting Mr. Espinosa.  The District Court for the Parish of Orleans granted Accor’s motion for summary judgment reasoning that Accor could not be held liable because there was no evidence that Accor controlled, owned, or operated the Motel.  Mr. Espinosa appealed to the Louisiana Fourth Circuit Court of Appeal asserting that Accor was directly negligent and that the company had authority over Bayou making them vicariously liable.     

To establish liability, a plaintiff must first show that the defendant had a duty to protect against the plaintiff’s injury.  To prove that defendant had a duty to protect against a property defect, the plaintiff must show that the defendant had custody over the thing which caused the damage and this thing contained a defect posing an unreasonable risk of harm which caused the plaintiff’s injuries.  See Wiley v. Sanders, 796 So. 2d 51, 55 (La. Ct. App. 2001).  The defective condition must be of a dangerous nature which would be reasonably expected to cause an injury to a prudent person using ordinary care.   A business has a duty to take reasonable care to ensure the safety of its patrons.  However, this duty does not extend to unforeseeable injuries that were caused by the criminal acts of third parties.  See Mundy v. Dep’t of Health & Human Res., 609 So. 2d 909, 912 (La. Ct. App. 1992).  Moreover, vicarious liability will not apply to the principal when an independent contractor relationship exists and the principal actor does not control the contractor’s day to day operations. See Morales v. Davis Bros. Const. Co.,  647 So. 2d 1302, 1305 (La. Ct. App. 1994).   

the-pig-1189462-1024x807When employees are fired they can often be entitled to benefits upon termination; including money payments to act as a substitute salary while the terminated employee searches for another job. While there is no federal requirement in the United States for an employer to offer severance pay, many do as it can be an attractive benefit to potential employees. Many employers choose to adopt a plan that falls under the Employee Retirement Income Security Act (“ERISA”).  Employers can get tripped up however when they fail to support a denial of severance pay by substantial evidence.   

In this case, Mr. Napoli was denied severance pay because the company he worked for claimed that he was terminated for violating company policies. Mr. Napoli was hired by Scios, Inc. in 2001 which was subsequently acquired in 2003 by Johnson and Johnson. He enrolled in the severance pay plan through Johnson and Johnson. After he was terminated, Mr. Napoli filed for severance pay and was initially told he was eligible. However, Johnson and Johnson later denied his claim asserting that Mr. Napoli committed a “Group 1 Violation” and that he made around $3,000 in wrongful charges to a corporate credit card. Mr. Napoli, in a wise move, hired an attorney who subsequently applied for severance pay again and requested additional information about why the claim was denied. Johnson and Johnson again denied the claim and included the provision of the severance agreement Mr.Napoli allegedly violated. Mr. Napoli appealed through the corporation’s internal procedures in 2012 and the claim was denied again.  

Mr. Napoli filed a lawsuit in state court alleging that the company denied him benefits without just cause and that such an act violated ERISA. Johnson and Johnson responded by removing the case to federal court and counterclaiming for $3,000 in unauthorized credit card charges. The United States District Court for the Middle District of Louisiana agreed with Johnson and Johnson that the denial was based on a reasonable interpretation of the severance pay plan. Mr. Napoli appealed that decision to the United States Court of Appeals for the Fifth Circuit.  

drag-line-equipment-taking-a-swim-1219894-1024x659A primary concern that all business owners have is how to insulate themselves from any improper actions that their business engages in. Without some mechanism to separate the actions of the business from the business owner, a business owner would be personally liable for the business’s actions and could face legal claims against him or her for actions that the business engaged in. States, recognizing this problem, created many forms of corporate structures with varying levels of liability protection. Examples of such corporate structures are limited liability companies (L.L.C.), professional corporations (P.C.), and C corporations. While these, and other types of corporate structures, provide business owners with insulation from liability, business owners could still be personally liable for their company’s actions if those actions fall under a narrow set of circumstances. Recently, the Louisiana Supreme Court addressed whether one of these narrow circumstances occurred when determining whether an owner of a home construction company was personally liable for the actions of the company.

Jennifer Nunez contracted with Pinnacle Homes, L.L.C. (Pinnacle) to construct a home in Cameron Parish. Allen Lenard, a state licensed construction contractor and owner of Pinnacle, entered into a contract with Ms. Nunez on behalf of Pinnacle. The contract stated that the construction of the home would comply with all applicable national, state, and local building codes and laws. The Cameron Parish permitting board required that Ms. Nunez’s new home be ten feet above sea level. Not only would Ms. Nunez’s home need to be ten feet above sea level to comply with the permitting board, but the home would need to be ten feet above sea level for Ms. Nunez to obtain flood insurance.

After Pinnacle completed construction, Ms. Nunez ordered an elevation certificate so that she could obtain flood insurance. Through the certification process, Ms. Nunez was informed that her house did not meet the ten-foot base flood elevation as the permit required. Ms. Nunez’s home only stood at an elevation of approximately 8 and one-half feet. The house was fully constructed on a concrete slab and it was determined that it would cost approximately $201,600 to raise the base to the required ten-foot elevation.

closed-window-1218252-1024x683It is no secret that lawsuits are expensive creatures. It is perhaps baffling then that a party would retain an attorney, file a lawsuit, and maintain that lawsuit for over thirteen years without sufficiently actively pursuing that lawsuit.  Yet, that is exactly what happened in a recent case out of Livingston Parish.  And as the case explains, such inactivity within a case subjects the lawsuit to dismissal for abandonment.  Money and time wasted for all parties involved.  

In 2001, R.L. Hall and Associates, Inc. (“R.L. Hall”) filed a lawsuit against Brunt Construction, Inc. (“Brunt”) and Fidelity Deposit Company of Maryland (“Fidelity”) over a lien arising out of a construction contract.  The next action on record does not occur until 2005 when R.L. Hall filed a motion to compel discovery.  Then, in 2007,  R.L. Hall filed the first motion to set a scheduling conference. After the 2007 telephone conference between the parties, nothing else appeared in the record until the plaintiff filed a second motion to set a conference in December of 2010. After the court established discovery deadlines following the 2010 conference, nothing appeared in the record again until the plaintiff filed a third motion to set a conference on June 4, 2014. During 2011 however, counsel for R.L. Hall did send letters to lawyers for the defendants in an attempt to schedule depositions.  The informal correspondence, however, was not filed and does not appear in the court record.  The defendants then filed a motion to dismiss R.L. Hall’s claim because there were no steps taken to further the action in over three years.   The Judicial District Court for the Parish of Livingston dismissed the matter as abandoned.  

R.L. Hall appealed the dismissal to the Louisiana First Circuit Court of Appeal.  Pursuant to La. C.C.P. art. 561 an action “is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years[.]”  Upon the passage of three years without any steps taken in the case, the case is automatically dismissed without the need for a court order.  To maintain a case, a party needs only to take some step within three years of the last action toward the prosecution or defense of the action and the step must be in the proceeding and on the record. See Clark v. State Farm Mutual Automobile Insurance Corporation, 785 So.2d 779 (La. 2001).   Attempting to schedule a deposition through informal correspondence without a filed formal notice of deposition does not constitute a “step” which would interrupt the abandonment clock.   

no-fine-print-1419142-1024x768One of the least know parts of a personal injury suit occurs after trial or settlement. It’s called subrogation. Subrogation is the reimbursement of third parties for payments made relating to an accident. Many times, a subrogation claim is made by the injured’s own vehicle insurance provider or by the injured’s own medical insurance provider. Embedded in many insurance contracts is a “subrogation waiver.” As the name suggests, a subrogation waiver in an insurance contract provides that one party agrees to waive its subrogation rights against another party in the event of a loss. Typically, this waiver takes the form of insurers agreeing to forego its ability to seek payment from third parties who may be responsible for losses the insurer had to pay to its insured. In a workers’ compensation context, such waivers would prevent an insurer from seeking compensation from a party who may have been responsible for an employee becoming injured. Absent such waiver, an insurer would have the ability to seek compensation for what it paid in benefits from the party responsible for the work injury.

Recently, a Louisiana Court of Appeal ruled on a case involving a dispute regarding the scope of a subrogation waiver in an insurance policy between Offshore Energy Services, Inc. (“OES”) and Liberty Mutual. In this case, a man named Anthony Beslin was injured while working as an employee for OES. OES had a contract with Liberty Mutual where Liberty Mutual agreed to pay workers’ compensation benefits to any injured OES employee. The contract also contained a subrogation waiver where Liberty Mutual agreed to waive its right of subrogation against “[a]ll persons or organizations that are parties to a contract that requires you to obtain this agreement . . . . ” Based on the insurance contract with OES, Liberty Mutual paid workers’ compensation benefits to Mr. Beslin.

At the time of the accident, OES provided services to Anadarko Petroleum Co. (“Anadarko”) on an oil rig. Based on the contract between OES and Anadarko, OES had to provide workers compensation insurance to its employees and also agree that its insurer (Liberty Mutual) waive its right of subrogation against Anadarko and its Indemnitees (someone who is secure from the legal responsibilities of his or her action). One such indemnitee, Grey Wolf Drilling Co, L.P. (“Grey Wolf”), owned the rig on which Mr. Beslin was injured. It was alleged that a Grey Wolf’s employee’s negligence caused Mr. Beslin’s injuries. In addition to seeking workers’ compensation, Mr. Beslin filed suit against Anadarko, Grey Wolf, and the allegedly negligent employee seeking compensation. Liberty Mutual then intervened, asserting a subrogation claim against Grey Wolf for the workers’ compensation benefits it paid Mr. Beslin.

porquet-guardiola-1239750-683x1024Inherent in most insurance contracts is an insurer’s duty to defend its insured against certain lawsuits. Part of this duty requires the insurer to pay for all legal costs and other fees related to a particular lawsuit. In a commercial general liability (“CGL”) context, business owners often rely on an insurer’s duty to defend in order to avoid paying significant legal fees for defending actions which would ultimately be covered by a CGL policy. As one might expect, whether this duty to defend exists depends on whether the loss alleged in a lawsuit is within the scope of the policy’s coverage. As a recent Louisiana Appellate Court illustrates, it is very important that insureds understand the language of their CGL policies so as to know when a duty to defend exists.

This case involved a dispute between engineering consultants Chalmers, Collins & Alwell, Inc. (“Chalmers”) and their insurer, Certain Underwriters at Lloyd’s (“Underwriters”), over whether Underwriters owed Chalmers a duty to defend against an underlying lawsuit. The underlying lawsuit involved a contract Chalmers had entered into with Haland Operating Services, LLC (“Haland”) to work on the drilling of a well. As outlined in the contract, the well at issue was being dug in tricky conditions which required the use of specialized equipment. While the well was being dug, problems arose. The drill rig that Chalmers recommended Haland use was not able to handle the difficult drilling conditions and resulted in damage to the equipment as well as Haland’s interests in the well. Haland then terminated the contract with Chalmers and hired another engineering firm to complete the well. In response, Chalmers pursued an action in arbitration against Haland. Haland then brought their own claims against Chalmers in arbitration. Chalmers then demanded that Underwriters defend it against Haland’s claims. However, Underwriters declined to defend, resulting in the instant dispute. The Lafayette Parish District Court found in favor of Underwriters, finding that Haland’s claims were not covered by Chalmers’ CGL policy, and so Underwriters had no duty to defend. Chalmers’ appealed.

Under Louisiana law, the obligation of an insurer to defend its insured is broader than its obligation to indemnify (obligation of the insurance company to pay for any injuries caused by its insured) its insured, which means that an insurer may have to defend its insured against lawsuits even though the policy would ultimately end up not covering the loss. Am. Home Assurance Co. v. Czarniecki, 230 So.2d 253, 259 (La. 1969). Determining whether an insured is owed a duty to defend requires looking at the allegations made by the third party. An insurer is obligated to defend a lawsuit against its insured unless the allegations are “unambiguously” excluded from coverage. However, even though some allegations by a third party may be clearly excluded from coverage under a policy, a duty to defend may still exist if “at least a single allegation” would not clearly be excluded. Duhon v. Nitrogen Pumping & Coiled Tubing Specialists, Inc., 611 So.2d 158, 161 (La. Ct. App. 1992). The factual allegations of a third party, rather than conclusory allegations, are what courts look at in making a determination whether an insurer must defend the insured.

whistle-1423801-1-1024x768Whistleblowers play a controversial role in the United States. Without Mark Felt, also known as Deep Throat, the world would have never known about the corruptions in the Nixon Administration and without Edward Snowden, the world would have never known the extent of the NSA’s surveillance on both U.S. citizens and foreign individuals. Congress recognized the importance of whistleblowers when it passed the False Claims Act. The False Claims Act allows individuals to bring lawsuits (called a qui tam action) on behalf of the United States when an individual or entity defrauds the United States Government. See 31 U.S.C. § 3729 (2015). The purpose of the False Claims Act is to incentivize individuals to monitor and prevent fraud against the United States by enabling the individuals to get a portion of any damage award that the court gives.

Gregory D. Guth brought a qui tam action against a law firm (RP) arising from the firm’s representation of Louisiana State University (“LSU”) in an expropriation proceeding against him. An expropriation proceeding is an action by a governmental authority where the governmental authority takes property from its owner for public use or benefit.

This case arose after Hurricane Katrina. The U.S. Department of Housing and Urban Development made federal funds available to the City of New Orleans (“the City”) in the form of Community Development Block Grants. The City set aside a portion of the block grants to build a medical center for the U.S. Department of Veteran’s Affairs and a teaching hospital for LSU. The City and the State of Louisiana entered an agreement assigning LSU the power and funds to acquire or expropriate property for the medical facilities. LSU then hired RP to acquire the necessary property.

hot-spicy-wings-1324961-1024x768Contractual relationships can advance or dissolve as time passes, often turning sour when promises are not kept.  One or both parties may attempt to break the relationship but the underlying contract is not so easily terminated.  As a result, the parties may find themselves in a court battle over seemingly small details.  In this recent Louisiana case before the United States Fifth Circuit Court of Appeal, the presumably costly break-up came down to one little word.   

Spencer Franchise Services of Georgia, Incorporated (“Spencer”) and WOW Café and Wingery Franchising Account, L.L.C. (“WOW”) contracted to develop restaurants in Georgia.  Spencer agreed to open, manage, and provide for WOW restaurants in Georgia as well as to provide reports to WOW regarding the franchise locations.  WOW granted Spencer the exclusive right to open WOW restaurants in Georgia (excepting two counties) and the right to receive royalty and other fees associated with franchise operations.  The parties’ relationship began to deteriorate with Spencer failing to inspect franchise locations and furnish WOW with reports.  Spencer claimed that WOW also breached the contract by failing to sell a minimum number of franchise agreements as arguably required by the contract.  The legal dispute centered on the contract language which stated the “Franchisor” was required to sell franchise agreements.  WOW asserted “Franchisor” was a typographical error meant to read “Developer” which would obligate Spencer to franchise sales.  Spencer argued that obviously the contract’s wording of “Franchisor”  was accurate since it obligated WOW to open franchises.  Spencer reasoned that language to the contrary would not have been worth its investment.

Spencer and WOW filed numerous lawsuits against each other asking the United States District Court for the Eastern District of Louisiana for summary judgment. A court may award a party summary judgment when there is no genuine dispute about any material fact.  FED. R. CIV. P. 56(a).  When the court grants summary judgment, the judge is deciding the case according to the law, no fact-finders (usually a jury) are required.  The District Court found “Franchisor” as written was a clear mutual error and determined there were no facts remaining in dispute. The District Court granted summary judgment in WOW’s favor and rescinded the contract.  Spencer appealed arguing summary judgment was not proper in this case as it was not clear from all the evidence that “Franchisor” was a mistake and thus there were still questions requiring resolution by a jury.  

money-1537576-1-768x1024What if you are injured, hire a lawyer, and that lawyer fails to sufficiently work on your case? Outrage ensues and you may choose to fire that lawyer and hire a second.  But is that first lawyer entitled to payment if you happen to win and receive an award in your case? In a recent Louisiana case, the Fifth Circuit Court of Appeals decided that the answer can be in the affirmative.  

After David Corey was the injured, he hired Salvador Brocato and Lionel Hutton to handle his personal injury lawsuit. In the two years that Mr. Brocato and Mr. Hutton handled Mr. Corey’s case, the attorneys did little work on his case: failing to hire an investigator,  failing to adequately prepare Mr. Corey for his deposition, and failing to hire experts as well as other faults. Mr. Corey fired Mr. Brocato and Mr. Hutton and subsequently hired Arnold & Itkin, LLP, to handle his case.  Arnold & Itkin worked on Mr. Corey’s case, and eventually secured a settlement of $2,187,500, with $875,000 awarded in attorneys’ fees. Mr. Brocato and Mr. Hutton intervened seeking a share of the amount of the attorneys’ fees awarded for the work they had done on Mr. Corey’s case prior to termination. The United States District Court for the Eastern District of Louisiana awarded Mr. Brocato and Mr. Hutton 20% of the awarded attorneys’ fees. The judge calculated the percentage based on the principles of quantum meruit: generally expressed as the actual value of the services performed. In this case, the amount of work completed before termination was calculated at 20%.  Contending that to award the 20% would be an improper and illegal award of a contingency fee to lawyers who did not have a contingency fee agreement, Arnold & Itkin appealed to the United States Court of Appeals for the Fifth Circuit.  

Louisiana fee awards in quantum meruit are calculated by factors set out by the Louisiana Supreme Court. See State, Dep’t of Transp. & Dev. v. Williamson, 597 So. 2d 439 (La. 1992). There are ten factors, including the ultimate result, obtained, the importance of litigation, the amount of money involved, the extent of the work performed, skill and diligence of the attorneys, the number of appearances made, intricacies of the facts, and the court’s own knowledge. Courts may consider these factors in the quantum meruit analysis when a contingency fee agreement has been discharged or when a contingency fee agreement was never involved. See City of Alexandria v. Brown, 740 F.3d 339 (5th Cir. 2014). The factors sometimes referred to as “Saucier Factors” are applied even when the attorney was discharged either with or without cause, although courts must reduce the award of an attorney discharged for cause according to the gravity of cause for discharge. Saucier v. Hayes Dairy Product, Inc., 373 So. 2d 102 (La. 1978).

hand-with-money-1056938-1024x689It is not uncommon for a victorious party in a lawsuit to seek attorneys’ fees upon their win.  There is no guarantee however the judge will agree an award of attorneys’’ fees are warranted.   In some cases filed in state court, the defendant can remove the case be heard in federal court.  If the federal court lacks jurisdiction, however, the case will be sent back to state court.  Whether the attorneys’ fees associated with the removal process can be recouped by the winning party is the subject of a recent lawsuit out of New Orleans.

CamSoft Data Systems, Inc. (“CamSoft”)  teamed up with Active Solutions (“Active”) and Southern Electronics Supply (“Electronic”) to install video surveillance systems in New Orleans. Just before the trio submitted their proposal for their joint venture for the future sale of the video surveillance system, Dell, Inc. (“Dell”) used their existing contract concerning the sale of technology to the state of Louisiana to halt the proposal. Moreover, Dell then sought to oust CamSoft from its joint venture with Active and Southern, who both then sold proprietary information that belonged to CamSoft. Later, in another business dealing, Dell ousted Southern and Active and replaced them with NetMethods, and cut Southern and Active out of the agreed arrangement.

CamSoft filed a lawsuit against Dell in Louisiana State Court, seeking its rights in the video surveillance system recognized and a share of the proceeds of the suit Active and Southern had against Dell. Using state law instead of federal patent law, CamSoft alleged breach of fiduciary duty and breach of contract.