Articles Posted in Insurance Dispute

ship-cranes-1238624-1024x683Insurance policy language is carefully crafted to limit the areas of coverage. A Ponchatoula area boating business tried and failed to extend their insurance policy coverage for accidents on the water to a land-based crane accident. So what happens when you try to cover a land based accident with maritime insurance? 

Larry Naquin was operating a land-based crane for Elevating Boats (EBI) when the pedestal of the crane snapped, and the crane toppled over. Mr. Naquin jumped from the crane and broke both of his feet and a suffered a lower abdominal hernia. The crane landed on another EBI employee and that employee was killed. As a result of his injuries, Mr. Naquin had several surgeries and attended physical therapy but was never able to return to physical work.

Mr. Naquin brought a lawsuit under the Jones Act. The Jones Act is a federal law that gives employees that work at sea the ability to sue their employers. At trial, the court held that Mr. Naquin was properly viewed as a Jones Act seaman and that EBI was negligent. Mr. Naquin was awarded $1,000,000 for past and future physical pain and suffering, $1,000,000 for past and future mental pain and suffering, and $400,000 for future lost wages. EBI appealed and challenged the grant of Jones Act seaman status as well as the negligence ruling. EBI lost the appeal and a portion of the verdict was vacated and sent back to the Trial Court.

car-breakdown-1444955-1024x683Comedian Chris Rock once famously opined that insurance should be renamed, “In-case-of.” You pay for insurance every month “in case of” some unfortunate circumstance occurring. Well, you better have access to an excellent attorney “in case of’ the other driver not having the insurance, or even the car, in his name. This is what happened to Wanda Kahl. When the insurance company disputed its obligation to pay for her injuries, Ms. Kahl was subject to a protracted legal battle in court.

Ms. Kahl was driving down Jane Ave in New Iberia one summer day in 2012 when she was rear-ended by a hit-and-run driver. She filed a lawsuit against the vehicle’s owner and his insurer. The registered owner, Tricky Chevalier, later testified in a deposition that the vehicle in question was ostensibly a “straw purchase.” That is to say, Chevalier had purchased, registered, and insured the vehicle in his name but all for the benefit of his cousin, one Joseph Pete. Mr. Pete operated the vehicle, and also paid the insurance premiums, while Chevalier remained owner in name only. After this deposition, Safeway Insurance moved for summary judgment. A summary judgment motion requests that the court rule for the movant without a trial because the evidence presented thus far shows “no genuine dispute of material fact.” La. C.C.P. art. 966. Safeway claimed Chevalier’s admission constituted a material misrepresentation of fact, without which he would not have received coverage. Since the coverage was procured by misrepresentation, Safeway argued that the contract for coverage was not valid, so they were not responsible for payment.

Ms. Kahl appealed Safeway’s summary judgment motion and countered with a summary judgment motion of her own, asserting that the law clearly states the accident must be covered. She relied on La. R.S.32:900(F)(1) to show that Safeway is obliged to pay. Safeway argued that the statute does not apply to the policy in question since this policy is an “automobile policy,” and not a “motor vehicle policy.” Safeway contended that to be a “motor vehicle policy,” the policy must be certified in accordance with La. R.S.32:898, and there no proof of this. Therefore, the policy in question is an automobile policy and not a motor vehicle policy. The trial court agreed, granting Safeway’s motion and denying Ms. Kahl’s.

Constr-hats-768x1024Dot your i’s and cross your t’s. We’ve heard it since kindergarten. Yet, sometimes it is easy to forget the basics when a case seems to be open-and-shut.

In 2003, Mr. JL, an East Baton Rouge employee of Landis Construction Company (“Landis”), was injured on the job. Landis’ insurance carrier, (“Gray”), paid workers’ compensation and medical benefits to the employee. Landis and Gray asked the Office of Workers’ Compensation Administration (“Board”) to reimburse the payments made to Mr. JL but the Board denied the request. Six years later, Landis and Gray entered a Consent Judgment with the Board. Later, in 2013, Landis and Gray filed a Petition to Enforce Consent Judgment to enforce the 2009 Consent Judgment. One year later, in 2014, Landis and Gray filed a Motion to Enforce Consent Judgment.

The trial court held for Landis and Gray, awarding $28,095.60 in April of 2017. The Board appealed.

revolt-368925-unsplash-1024x683Imagine you are driving home from work and you collide with another vehicle. Would your employer be liable for the damages? For most commuters, the employer is not accountable for any accidents that occur on the way to or from the place of work and the employee’s residence. But in certain cases, such as where an employee is traveling with a specific business purpose under the direction of the employer, the employer may be on the hook under a theory known as vicarious liability. Effectively, vicarious liability holds an employer liable for an employee’s negligence when the employee is acting within the scope of the employer’s business. La. C.C. art. 2320.

On December 20, 2009, James Richards was traveling from Texas to his home in Florida along Interstate 10. In Bienville Parish, Louisiana, Richards collided with a van, causing the death of the driver and severe, paralyzing injuries to the passenger, Ricky Winzer. In 2010, Winzer filed a lawsuit against Richards and Richards’s employer, Certified Constructors’ Service, Inc. (“CCSI”). Winzer alleged that Richards was acting in the course and scope of his employment at the time of the accident, making CCSI liable through the doctrine of vicarious liability. CCSI filed a motion for summary judgment, arguing that Richards was not employed at the time of the accident and therefore CCSI could not be liable for his negligence. The trial court, after an evidentiary hearing in which depositions, interrogatories, and payroll documents were submitted, granted CCSI’s motion. Winzer appealed to Louisiana’s Second Circuit Court of Appeal.

Upon review, the Court reiterated the general rule under Louisiana jurisprudence that an employer is not liable for an employee’s negligence when they are driving to and from work unless the employer provides the transportation, pays expenses or wages for the time spent traveling, or has assigned the employee a specific  task to perform for the employer. See Woolard v. Atkinson, 988 So. 2d 836 (La. Ct. App. 2008). To determine if the employee’s actions fall within one of the above exceptions, courts must examine the following factors:  the employer’s power of control; the employee’s duty to perform the act in question; the time, place, and purpose of the act in relation to the employment; the relationship between the employee’s act and the employer’s business; the benefits received by the employer from the act; the employee’s motivation for performing the act; and the employer’s reasonable expectation that the employee would perform the act. See Orgeron v. McDonald, 639 So. 2d 224 (La. 1994).

the-last-drop-1306724-1024x768Louisiana, like most states, requires drivers to maintain liability insurance (or less commonly, a liability bond or certificate of self-insurance) to legally operate a motor vehicle. In 1992, an amendment to this law explicitly allowing insurance companies to offer “named driver” exclusions in their policies, which allowed an insured the option of paying a lower premium in exchange for insurance that provides no coverage while the specifically named driver operates a covered vehicle. The law was upheld by Louisiana courts, though it did create some disagreements in its interpretation, both among the appellate courts and between the Louisiana Supreme Court and the legislature. One of these disagreements concerned whether the owner of a vehicle could purchase liability insurance and then, through the named driver exclusion, exclude himself from coverage under the policy. Although the Louisiana Supreme Court determined that to allow such a maneuver would be violative of public policy, their interpretation was overruled by subsequent legislation explicitly allowing it.

In Bourg v. Southall, a motor vehicle accident occurred in Marrero, Louisiana where there was no question of fault: Plaintiffs were stopped at the intersection of LA-45 and Lapalco when they were hit from behind by an intoxicated driver. Although Plaintiffs were able to recover damages at trial, that ruling was overturned by the Louisiana Fifth Circuit Court of Appeal on the basis that the driver of the vehicle was listed in a named driver exclusion of the policy, despite the fact that he was both the owner of the vehicle and the named insured (he purchased the policy).

La. R.S. 32:900(L) clearly allows the owner of a vehicle to purchase liability insurance on a vehicle and to exclude himself from coverage under the policy. Sensebe v. Canal Indemnity Co., 58 So.3d 441, 451 (La. 2011). Furthermore, this provision does not set forth any specific requirements with respect to the form to exclude a named person from coverage; the only requirement is a written agreement. See Gilbert v. Reynoso, 917 So.2d 503, 505–06 (La. Ct. App. 2005).

torn-ligament-and-fractured-bone-bandages-1631721-1-1024x727
Whether we like it or not, bureaucracy pervades our lives. A failure to follow a single step of an administrative task can have far-reaching consequences. This is especially so when dealing with an insurance company. The case of Dr. James Moss is an example.

Dr. Moss, a Shreveport urologist, suffered from osteoarthritis. Because his condition prevented him from performing his work, he filed a claim with his insurance company, Unum. Unum denied Dr. Moss’s claim and told him that if he wished to appeal the denial, he had to file a written appeal within 180 days. Rather than filing a written appeal, Dr. Moss directly sued Unum, arguing that filing a written appeal would have been useless. The District Court was not convinced of Dr. Moss’s argument and dismissed his lawsuit. Dr. Moss then decided to file a written appeal with Unum. Unfortunately, by this point, more than 180 days had passed, and Unum refused to accept Dr. Moss’s appeal. Dr. Moss went back to court to sue Unum a second time. Again, the District Court rejected his claim because he had failed to file a written appeal with Unum. However, this time, the District Court told Dr. Moss he could not bring the same lawsuit against Unum ever again because he could no longer file a written appeal with Unum. Dr. Moss appealed the District Court’s decision.

The Fifth Circuit Court of Appeals first noted that Dr. Moss’s insurance policies were governed by the Employment Retirement Income Security Act of 1974 (“ERISA”). ERISA allows an individual to sue his or her insurance company. 29 U.S.C. § 1132(a)(1)(B). However, before being able to sue, the individual must “exhaust available administrative remedies.” Denton v. First Int’l Bank of Waco, 765 F.2d 1295, 1300 (5th Cir. 1985). This simply means that the individual must follow procedures for relief given to him or her by the relevant agency before seeking other options. Only after the individual has gone through these procedures and only after these procedures fail to provide relief can he or she sue the agency. In this case, Dr. Moss had to file a written appeal with Unum, and only after his written appeal was rejected could he sue Unum.

oil-platform-1336513-1024x683The term concurrent-cause is a legal doctrine that may be vital to your commercial property. If loss or damage occurs as a result of two or more causes, one event may be covered while the other is not. It would not matter if the events happened at the same time, or if one event occurred before the other. That is why [i]t is essential that the insured produce evidence which will afford a reasonable basis for estimating . . . the proportionate part of damage caused by a risk covered by the insurance policy.” Travelers Indem. Co. v. McKillip, 469 S.W.2d 160, 163 (Tex. 1971). 

The following case discusses the legal implications that a concurrent-clause can play in litigation in Louisiana.

Seahawk operated a drilling rig used in the Gulf of Mexico. In February 2010, the Rig became damaged, the legs were misaligned due to severe weather conditions.

sunset-dunes-1358916-1024x768In the law, words matter greatly. How even one word is defined can make or break a lawsuit. However, courts do not allow words to be defined willy-nilly. There are certain methods courts will use to define words. In the case below, we will see how the plaintiff’s case was rendered moot due to the court’s interpretation of a word.

Michael Smith, Danielle Schelmety, and James Johnson were friends who decided to celebrate Michael’s birthday at his home in Ruston, Louisiana. Michael’s dad, Dr. William Smith, owned an off-road vehicle called a Rhino. James and Danielle wanted to go for a ride on the Rhino. With permission, James drove the Rhino with Danielle as his passenger. Unfortunately, James was a bit reckless and flipped the vehicle over onto the passenger side while making a turn. Danielle, who was sitting in the passenger seat, received severe injuries to her left arm. Danielle sued Safeco, Dr. Smith’s insurance company, arguing it was liable for the accident. However, Safeco argued that it could not be liable because James, the driver, was not covered by the insurance company’s contract because he was not a “resident” according to the contract. The District Court agreed and denied relief for Danielle.

In Louisiana, an insurance policy is interpreted by the rules of the Louisiana Civil Code that govern contract interpretation. Marshall v. Louisiana Farm Bureau Cas. Ins. Co., 182 So. 3d 214 (La. App. Ct. 2015). If an insurance policy contract contains clear terms, then a court interpreting the contract does not need to go through a thorough analysis. La. C.C. 2046. However, if the contract contains terms that are exclusionary and also ambiguous, then the terms are interpreted in a way that is favorable to the insurance holder. Byrnside v. Hutto, 110 So. 3d 603.

roof-1171576-1024x768The Louisiana Code of Civil Procedure provides that a court has wide discretion in granting a continuance (a postponement of the proceedings) in any case where appropriate. See La. C.C.P. art. 1601. But what constitutes appropriate grounds for a continuance? A court must take into account the specific facts of the situation in order to determine whether a continuance should be granted. A recent case in the Louisiana Court of Appeal explains this process.

The roof of Mr. and Mrs. Abington’s Baton Rouge home was damaged in Hurricane Isaac. The Abingtons contacted Mr. Spears of the Louisiana Roofing Company to replace the roof. The company not only failed to complete the roof repair, but subsequently caused more damage to the Abingtons’ home. After the Abingtons filed a lawsuit, the case was continued three times at the request of Mr. Spears. The first continuance was granted due to Spears’s failure to answer depositions and to answer discovery requests. The second continuance was granted so Spears could find a new attorney; Spears’s first attorney requested to withdraw from the case due to Spears’s volatile behavior, making her fear for her safety. The third continuance was granted to Spears’s new attorneys so they could get acquainted with the case.

Several days before trial, Spears filed a pro se motion for a continuance. (A pro se motion is one filed by the litigant himself, without the aid of an attorney.) The request was denied by the trial court. Two days before trial, he fired his second set of attorneys, and hired a new attorney who requested another continuance for trial preparation and to avoid a scheduling conflict. This request was also denied. At trial, no counsel appeared to represent Spears, so he once again asked the court for a continuance. The request was denied and the trial proceeded, resulting in a judgment in favor of the Abingtons.

ancient-ruins-flooded-by-water-1622023-1-1024x683There are multiple requirements and policies that claimants must follow in order to be eligible to recover on a claim under a National Flood Insurance Program (“NFIP”) Standard Flood Insurance Policy (“SFIP”). See 44 C.F.R. pt. 61, app. A(1) art. VII sec J (2009). Failure to comply precisely with these requirements will prevent claimants from recovering for their claims. The following lawsuit reviews the “proof of loss” requirement and what can occur if one is not submitted with your flood claim. 

Cummings’s home in LaPlace, Louisiana was damaged by Hurricane Isaac in August 2012. Cummings submitted a flood loss claim to Fidelity. Fidelity assigned an independent adjuster to inspect the flood damages. Cummings worked with the independent adjuster to file a signed proof of loss for approximately $42,000, as required by his SFIP. Fidelity subsequently paid Cummings for the $42,000 in building damage, as requested in his proof of loss. Cummings also submitted a four-page list of the contents he claimed were damaged in the flood. He claimed these had a total replacement value of over $104,000. However, Cummings never submitted a proof of loss for the claimed damages to his home’s contents. Cummings also failed to include the amount on the front page of his proof of loss. Fidelity denied Cumming’s claim for content loss, providing a letter that stated that Fidelity required additional proof to assist in proof of damage and ownership of the claimed contents. The letter instructed Cummings to review his insurance policy agreements and forms, but did not tell him to submit an additional signed and sworn proof of loss.

Cummings filed a lawsuit for the contents of his house that he claimed were damaged in the flood. The district court awarded Cummings $25,000 plus interest, holding that Cummings’ photographs, testimony, and written statement were sufficient proof of loss. Fidelity appealed.