Articles Posted in Car Accident

rack-of-tires-1187131-1024x768Caveat Emptor. This is a common consumer warning, more easily recognized in English as “Buyer Beware.” But what if a defective product wasn’t actually bought, but given away for free? Monroe resident Jason Falcon faced this issue. In April 2012, Falcon called several local tire stores looking for a new tire for his pickup truck. He spoke to the manager of Ink’s Firestone (“Firestone”) of Monroe, Emmett “Ink” Cobb, who said he had a tire meeting Falcon’s specifications in stock. However, when Falcon arrived at Firestone to purchase the tire, Cobb said he did not have a new tire in the correct size available. Instead, Cobb invited Falcon to select a used tire from one of the piles outside the store for free. Falcon declined Cobb’s offer to mount the tire for $8.00 because Falcon, a mechanic at a local car dealership, planned to do it himself.

A few days after he installed the used tire, Falcon and his fiancee were returning from a trip to Baton Rouge when the tread came off the replacement tire. The tread separation caused Falcon to lose control of his truck, ultimately steering the vehicle into the median where it flipped over, landing upright. Falcon wasn’t injured, but his fiancee sustained minor injuries. The truck, damaged significantly, was a total loss

After the accident, Falcon filed a lawsuit against Firestone claiming that the defective tire caused the crash. The trial court rejected Falcon’s claim, reasoning that the tire could not have been defective because Falcon, as a professional mechanic, would have recognized the defective condition when installing the tire on his truck. Falcon appealed this judgment, claiming the trial court made three errors:  first, in deciding that the tire was not defective; second, in holding that Firestone was not negligent; and third, in finding that there was no sale of the tire in question from Firestone to Falcon.

crashed-car-1308788-1024x768A party to a lawsuit may wish to appeal a court’s decision that they find unfavorable. But under Louisiana law, in most situations only final judgments can give the Court of Appeal jurisdiction to hear the case.

In November of 2012, Jonathan Vince was the driver of a car in St. James Parish. Vince’s car crashed into a car driven by another person, Dale Koontz. Vince filed a lawsuit alleging that Koontz’s negligent actions caused the accident, which resulted in significant personal injury. Koontz denied the allegations and asserted that the collision was the sole responsibility of Vince or, that Vince’s driving was the reason for the accident. Koontz then filed a counter lawsuit within the lawsuit, a reconventional demand under La. C.C.P. art. 1060 alleging that Vince’s negligence caused the wreck. A reconventional demand is a claim filed against the plaintiff by the defendant in the same action.

At the trial, the parties agreed that Koontz’s reconventional demand would be decided by a judge should the jury find that Vince was liable for the accident. The jury returned a verdict in Koontz’s favor, determining that although Koontz was negligent, his negligence wasn’t the proximate cause of the car accident. The trial judge dismissed Vince’s complaint and deferred the reconventional demand ruling. Vince filed a motion seeking to get a new trial. He argued that the form used by the jury  to determined Koontz negligence was flawed as a matter of law. The trial judge agreed, finding the jury interrogatories were improperly written. Though he denied Vince’s motion for a JNOV, the judge granted a new trial.

that-hurt-1450455-1024x739Insurance policies can be varied, complex, and at times unintelligible.  Policies are generally purchased for a time of need. Yet in many cases, the insurance company worsens a stressful event by denying coverage. Coverage can be denied for many reasons including when the claimant is an “uninsured motorist.” In a recent case out of Pointe Coupee Parish, an employee faced this label and a denial of coverage.  

Chris Loudermilk was driving a vehicle owned by his employer, Environmental Safety and Health Consulting Services Inc. (“ES&H”), when he was injured in an accident.  Mr. Loudermilk filed a lawsuit against his employer and their insurance company, XL Speciality Insurance Company (“XL”). As Mr. Loudermilk was not the policyholder, XL filed a motion for summary judgment to dismiss the claim entirely. Prior to the accident, ES&H had executed a form expressly rejecting uninsured motorist coverage.  This essentially meant that because of the rejection form, no lawsuit could go forward against XL. ES&H had in fact executed a valid form rejecting coverage for uninsured motorists, but when ES&H renewed their policy with XL for the time period covering the accident, two entities owned by ES&H were added to the named insured section of the policy.  The question before the Louisiana First Circuit Court of Appeal was whether this slight change to the policy caused the uninsured motorist coverage rejection to become invalid resulting in a proper grant of XL’s motion for summary judgment and dismissal of the lawsuit.

Summary judgment renders a judgment in favor of one party when there are no material facts in dispute and judgment is proper as a matter of law. Summary judgment for lack of coverage can be granted if there is no reasonable interpretation of the policy which would result in coverage. See Reynolds v. Select Properties, Ltd., 634 So.2d.1180, 1183 (La. 1994).  An insurance company can have a case dismissed at summary judgment if it can prove there is a policy provision which excludes coverage. See Simmons v. Weiymann, 943 So.2d 423, 425. (La. Ct. App. 2006). Louisiana Law allows an insured’s rejection of uninsured motorist coverage to remain valid for the life of the policy with no new rejection form needing to be executed unless there are changes to liability limits.  See La. R.S.22:1295.  The language of the statute also states however that the uninsured motorist rejection remains valid when a renewal is issued to the same named insured.  

crashed-car-1444299-768x1024Collision insurance covers car damages caused by driving-related accidents. For example, colliding into an object or another car, whether the insured driver caused this accident or not, are covered damages. Due to this breadth of possibilities, insurance companies write strict requirements into their policies, including the need to have a valid driver’s license on hand during an accident. A recent case in Louisiana involved Affirmative Insurance Company (“Affirmative”) denying collision coverage to an insured driver who did not have his license on him during a car accident on the intersection of Lapalco Blvd. and Ames Blvd. in Marrero, Louisiana.

Darryl Parker bought an Affirmative auto insurance policy for his 2001 BMW in 2013 with a $500 collision coverage deductible. At the time, Mr. Parker told the Affirmative agent that he had no valid driver’s license; however, the agent assured Mr. Parker that he could still purchase the policy without one. Mr. Parker was subsequently involved in a collision. Affirmative denied covering Mr. Parker due to his not having a license at the time of the accident, and Mr. Parker filed a lawsuit against Affirmative. Affirmative argued that a clause in the insurance contract barred coverage, while Mr. Parker argued that this provision should be void because Affirmative sold him insurance knowing that he was unlicensed at the time.

The Louisiana trial court granted Affirmative’s motion to dismiss the case; Mr. Parker appealed, and the issue before the Louisiana Fifth Circuit Court of Appeal (“the Court”) was whether the “barring” clause in the insurance policy was enforceable.

police-car-1414442-1-1024x683Car accidents can have long-lasting effects that are not immediately apparent at the time of the accident. Victims may initially report that they do not suffer from pain, only to be struck with it days, weeks, or even months later. This pain can have debilitating effects on one’s current and future career, as well as on one’s mental well-being and relationships with others. If a victim is not careful with the doctor he or she chooses or the actions he or she takes, a jury may dispute the damages (money) a victim may be entitled to.  If a personal injury case makes it to court, it is best to reach the ideal verdict at the trial court level, rather than at the appeals level. The following case illustrate this.

Sheila Tate and her friend Joyce Lee were driving down an intersection on Scenic Highway and 68th Avenue, when Baton Rouge Police Officer Kenney (operating a vehicle owned by the City of Baton Rouge) collided with Tate’s vehicle. Tate’s child, Jordan, and Lee’s child, Imiricle, were also in the car during the collision. The collision resulted in multiple injuries.

The initial emergency room assessments for the Tate and Lee each reported no (or minimal) pain. Yet, Tate’s treatment involved a variety of doctors, where she underwent a series of medications and physical therapies before ultimately being given a “pass” by one of her last doctors to resume work.  The same was said of Lee, who went through a series of doctors before she eventually stopped complaining of pain. Tate and Lee filed a lawsuit, and on behalf of their respective children, seeking damages stemming from the car collision.

a-child-1431845-1024x768If you are at school or work and notice several people who are soaking wet and wearing rain jackets, you would not have to be a detective or even a good lawyer to confidently make the judgment that it’s raining outside. Similarly, the legal concept of summary judgment used by courts is when the undisputed facts surrounding a claim lead to a court concluding the lawsuit as a matter of law, not facts. When that concept is applied to only certain elements or portions of a case or claim, it is called partial summary judgment. Partial summary judgment and its effects were of primary importance for a Baton Rouge, Louisiana, woman’s case.

Jennifer R. Hayes was carefully driving westbound along Louisiana Highway 724 on a rainy day with her friend Mayola Casais (owner of the car) and Casais’ foster child Geneva Marie Fils in 2006. Out of nowhere an eastbound truck veered into her lane and hit head-on. As a result of the collision, Geneva sustained a fractured skull, an intracerebral hematoma, and a traumatic brain injury.

Geneva’s biological parents, John and Demitria Fils, filed a lawsuit against multiple parties when they found out about the accident. One of those parties included the Louisiana Department of Children and Family Services, which the Fils claimed should be liable because Geneva was under the custody and control of a foster parent which the Department assigned. The Fils sought monetary damages for Geneva’s injuries as well as loss of consortium, which is compensation for their familial loss for what Geneva’s injuries did to their health or family relationships. In 2011, Demitria Fils passed away and Geneva’s biological maternal aunt, Calvemia Reed replaced her in the lawsuit.

12-email-03-03-2019-pictureLife deals some people a tough hand. For Geneva Fils, a Louisiana infant in the foster care system, a car crash and severe injuries followed by a lengthy lawsuit added to her list of problems.

The Louisiana Department of Social Services (now known as the Department of Children and Family Services) took Geneva away from her biological parents following her birth. Several months later, on March 22, 2006, Geneva was in a car along with her foster parent, Mayola Calais and the driver Jennifer Hayes. Charles Guidry was driving in the opposite direction when he crossed the centerline, striking Geneva’s vehicle head-on. Geneva, who purportedly was improperly restrained in the vehicle, suffered a fractured skull among other serious injuries. Geneva’s biological parents filed a lawsuit on behalf of themselves and Geneva against the driver Guidry, her foster parent Calais, the driver Hayes, the State of Louisiana through the Department of Children and Family Services, and their insurance companies.

This particular decision came from an appeal of a motion for partial summary judgment involving a Louisiana statute which limited damages to $500,000 for any division or agency of the Louisiana government held liable for personal injury damages. See LSA-R.S. 13:5106(B)(3)(c) (2017). Plaintiffs argued that the individual defendants do not enjoy the protection of the damages cap, because unlike the Department of Children and Family Services, they are not a “state agency.” See LSA-R.S. 13:5102 (2017). The judge granted the Department’s motion as it concerned the Department’s liability for its negligent actions, but denied the motion regarding the Department’s vicarious liability for the actions of its agents. Both the Department and the plaintiffs appealed.

umbrella-1240650-1024x768When an employee is in an accident while driving the company’s car, is the company’s insurer liable? Generally, an employer is liable for employee accidents when driving a company car for employment duties. This can be difficult to determine in situations such as when an employee is on call and operating a company car, when the employee drives the company car at night, or when the employee drives the car on a personal errand with passengers. An accident involving St. Tammany Parish helped shed light on these issues.

On May 26, 2010, Gary Michael Brown, an employee of J&J Diving Corporation, was involved in a car accident with a St. Tammany Parish Sheriff’s department vehicle driven by Deputy Scott Jarred. Mr. Brown was driving a company car at the time of the accident with his girlfriend as a passenger. While Mr. Brown was not legally intoxicated, a field sobriety test indicated that he had been drinking before the accident. Before the accident, Mr. Brown had gone to retrieve his driver’s license from Gulfport, Mississippi after a company drag race event.

Jarred settled his claims with Brown, J&J Diving and Progressive, the company’s primary insurer. However, Mr. Jarred later added XL Special Insurance Company and Valiant Insurance (“Underwriters”) who insured J&J Corporation with a Marines Excess Liability Policy (“excess commercial insurance policy”) as defendants. The trial court granted Mr. Jarred’s motion for summary judgment and found the Underwriters were liable for the accident under J&J Diving Corporation’s excess commercial insurance policy. The Underwriters appealed, arguing that their insurance policy did not cover Mr. Jarred’s accident.

72-Email-03-03-19-1024x512While many steps may be taken to prevent accidents, most are, unfortunately, unpredictable. For many people, automobile insurance is the silver lining to unforeseeable car accidents. However, the type of insurance policy you have can determine how much of the accident is covered, if it is covered at all, so it is important to understand exactly what you sign up for and always double check for changes. This issue was explored in a case brought to the Twenty-Fourth Judicial District Court for the Parish of Jefferson.

Through an independent insurance agent, Agent C, Mr. B. had car insurance from Allstate Insurance Company. For this plan, Mr. B signed an underinsured/uninsured motorist (“UM”) waiver, which declined all UM coverage. Mr. B married Bridget B in January of 2007 and the following month, Mrs. B went to Agent C’s office to change the insurance policy. She did not meet with Agent C and instead requested the office staff add UM coverage to the policy. No documents were signed and when Mr. B called Agent C to confirm the policy’s changes, there was no mention of UM coverage. In July, the Bs received correspondence from Allstate with the alterations to their insurance and included a declarations page disclosing the coverage included in the plan. Both Mr. and Mrs. B retained their insurance documents and renewed it bi-annually, but did not review the declarations page in detail.

In March of 2012, the B family got into a car wreck. When they filed an insurance claim against Allstate, they were surprised to hear that UM coverage was not part of the policy. The Bs filed a lawsuit against Agent C and Allstate, for not adding UM coverage to the policy. Agent C filed a motion for summary judgment, stating that based on the facts of the case the Bs would not be able to prove their allegations. See La. C.C.P. art. 966 (2017). In his motion, Agent C argued that the Bs’ claim was barred by the peremptive period, which requires all causes of action against insurance agents to be brought within one to three years. See La. R.S.9:5606 (2011).

61-Email-03-03-19-1024x680The loss of loved ones is never easy, especially when they are taken away in sudden, unexpected ways. Though there is no dollar value that can replace human beings, monetary damages are a form of recovery in cases of wrongful death. Sometimes the steps to that recovery can be difficult, especially when insurance is involved. This issue was explored in a wrongful death action brought to the Twenty-Ninth Judicial District Court in St. Charles Parish.

On May 26, 2013, a head-on collision with another vehicle killed Esther Centeno and her unborn fetus. On behalf of Esther’s minor daughter, Laylonie Polanco, Carlos Polanco—Laylonie’s father—filed a wrongful action against the driver of the other vehicle in the collision: Jennifer Englade. The action was also brought against Ms. Englade’s insurer, National Automotive Insurance Company (“National”).

National filed a motion for summary judgment, a motion for judgment as a matter of law when there is no genuine issue of material fact. La. C.C.P. art. 966 (2017). In the motion, National argued that Ms. Englade was not covered by National at the time of the accident because her automobile insurance policy was canceled on March 30, 2013, due to failure to pay for a premium. In support of the motion, National provided a declarations page of Ms. Englade’s policy, the notice of cancellation, and affidavits of “Preparation of Cancellation Notice” and “Mailing” dated March 18, 2013. The trial court granted the motion for summary judgment and Mr. Polanco appealed.