Insurance Dispute

August 16, 2013

Extensive Case Involving International Visitors and Travel-Insurance Policy Gives Rise to Hospital’s Jurisdiction Claims

Hospital’s Claims Dismissed for Lack of Personal Jurisdiction

The plaintiff hospital in Northshore Regional Medical Center, L.L.C., d/b/a Northshore Regional Medical Center v. Edith and Brian Dill, et al. recently appealed a judgment from the Parish of St. Tammany, dismissing their claims against one of the defendants in the case, White Horse Insurance Ireland, LTD, for lack of personal jurisdiction. Of all the choices facing someone that decides to resort to a court to settle a claim, choosing where to seek relief can prove to be the most important. Because a court will not hear a claim when it does not have jurisdiction, the wrong choice will lead to wasted time and money.In anticipation of upcoming travel, an English couple acquired a travel insurance policy that was underwritten by an Irish corporation, White Horse Insurance Ireland, LTD, (White Horse) and purchased through an English corporation, Atlas Travel Insurance Services Limited, d/b/a/ Atlas Direct (Atlas). The policy included coverage for travel in the United States, and as part of their travel, the couple, Mr. and Mrs. Dill were visiting Louisiana in November 2006. While in Louisiana, Mrs. Dill was stricken with a serious illness and was admitted to NorthShore Regional Medical Center, L.L.C., in Slidell, Louisiana. An extensive stay in the facility, coupled with emergency surgery brought NorthShore’s charges for her care to a final total of $1,256,229.08.

NorthShore’s payment requests to White Horse were handled administratively through Global Excel Management, Inc., (Global Excel) a Canadian corporation. Global Excel facilitated one $309,498.31 payment from White Horse to NorthShore in February, 2007. After requesting and failing to receive further payments, NorthShore resorted to filing claims against Mr. and Mrs. Dill, Atlas, and Global Excel in 2009, and adding its claims against White Horse in 2010.

August 12, 2013

Shreveport Property Owner Found Liable for Kitchen Ceiling Collapse

by Berniard Law Firm

Many people in New Orleans rent property. Whether a house, a duplex, or an apartment, these residents typically rely on property owners to make necessary repairs to the premises. Proper maintenance ensures that residents are safe and their well-being will be protected. Unfortunately, all too often property owners fail to remedy dangerous situations, which can lead to serious injuries. Wynn v. Luck, a recently decided lawsuit by the Court of Appeal for the Second Circuit, illustrates how a negligence claim can help victims of these situations obtain the compensation they deserve.

In that case, two women were injured when a large section of the kitchen ceiling in a rented house collapsed on them. Though the property owner claimed he did not know of the condition and therefore was not negligent for failing to repair it, the court found the record full of evidence to the contrary. First, an inspection of the property days after the incident found that almost all of the ceilings in the house were in dangerous disrepair and would have been noticeable during any visit by the property owner. Second, a maintenance man hired by the property owner provided services to the house on several occasions and, according to the court, he should have noticed the conditions and conveyed that information to the property owner. Finding the property owner constructively knew of the dangerous condition, the court held the property owner liable for negligence and the victims’ injuries.

According to Louisiana law, an owner or lessor of a property is responsible for the condition of his premises when leased to another. Therefore, the owner is liable for any damage or injuries caused by a defect in the property that he knew of or should have known of through the exercise of reasonable care, provided the dangerous condition could have been prevented through the exercise of reasonable care and the owner failed to exercise that care.

August 7, 2013

The Role of the Appellate Court and Specific Case Facts in Awarding General Damages

by Berniard Law Firm

General damages are defined as those that involve mental or physical pain, inconvenience, loss of intellectual gratification or physical enjoyment, or other losses that can not be measured in monetary terms. In determining an award of general damages, the Louisiana Supreme Court advocates deference to the lower court, and intervention by an appellate court only in the case of clear abuse of discretion. In a recent case, a plaintiff filed a personal injury claim when she was struck in her car by another driver (the issue of sole liability was not appealed by that driver or her insurance company).

The trial court awarded $25,000 in general damages for injuries sustained by the plaintiff to her knees as a result of the accident. Although she also suffered a back and shoulder injury, she only sought damages for her knee injury, and the court considered evidence accordingly. The plaintiff argued the court erred in awarding too small a sum for general damages for her knee injuries, and for not awarding general damages for her back injury. The trial court’s decision was subsequently affirmed.

The primary medical information in this case was found in the testimony of the plaintiff’s long-time physician. He noted that although she was referred to therapy and diagnosed with a back sprain, she had other problems that did not relate to the accident. She was discharged from therapy because she did not attend sessions with any regularity, and had inconsistently reported that her knee pain was “bearable.” He further testified that the accident had aggravated arthritis in her knee and back, but that this was a pre-existing condition. Additionally, she had been on prescription medication for back pain long before the accident, had filed for Social Security Disability 13 years prior, and had even been involved in other automobile accidents both before and after the accident in question.

July 22, 2013

Dog Bite Incident Highlights Review of Ownership versus Custody for Liability

by Berniard Law Firm

In general, owners are responsible for any damage caused by the things that they own. Animals are no exception. For example, if you own a cow and it wanders into the road and a car hits it, then you are likely responsible for the damages related to that accident. Damages caused by household animals, such as dogs, are similar. Louisiana Code art. 2317.1 provides that “the owner or custodian of a thing is answerable for damage.” While owner is a relatively simple concept, custodian may not be.

The classic example of a custodian is someone who is watching a household pet while you are away. It is likely that if your dog bites someone while a caretaker is walking him, both you and the caretaker may be liable for the damage caused by the bite. In a recent case arising from the Parish of Jefferson involving a dog bite, the court explained the caretaker concept in a little more depth.

In that case, a family was visiting their father in a hospice and their dog accompanied them. The dog bit another visitor when the visitor attempted to pet him. The bitten individual has a permanent scar and lost feeling in his finger. All of the parties admitted that it did seem odd that the dog bit because he had never bitten anyone before and was not acting aggressive. In fact, the dog was sitting in the owner’s lap at the time of the incident. The dog had no history of aggressiveness, and all of its shots were up to date.

July 21, 2013

Second Circuit Affirms Notice Case Regarding Fallen Tree

by Berniard Law Firm

It is well established that an appeal court gives deference to a trial court’s finding of fact (ruling) unless the court was clearly wrong or acted in extreme error. In other words, even if the appellate court is convinced that they would have decided upon the evidence differently, the trial court’s findings cannot be reversed if it was reasonable that it could rule in the manner it did. Moreover, if there are two permissible rulings that could be determined, the trial court’s choice between the two cannot be found manifestly erroneous or clearly wrong.

On March 29, 2009, plaintiff Franklin Scott (“Mr. Scott”) was driving his tractor/trailer rig carrying saltwater west on Keatchie-Marshall Road in Caddo Parish (“Caddo”) where he failed to observe and avoid a fallen tree blocking the road. Mr. Scott’s truck slid 350 feet after the collision and hit several other trees before stopping. Among other injuries resulting in the crash, Mr. Scott suffered a “serious injury” to his neck.

Mr. Scott filed a personal injury suit in District Court against Caddo, property owners Roger and Marilyn Connell (“property owners”) and State Farm Fire and Casualty Company (“State Farm”) for failure to maintain the road from potentially hazardous conditions. After weighing the oral testimony of several witnesses, the District Court found in favor of Caddo. Mr. Scott appealed.

July 16, 2013

The Standard for Reviewing Medical Evidence After Auto Accidents

by Berniard Law Firm

Medical testimony after an automobile accident is complicated enough. When two accidents close in time are involved, it can get downright confusing. All the more so when a court is trying to determine which accident is to blame for not one but several different injuries. But despite questions of accuracy and the sufficiency of evidence, the role of a court of appeals is not to second-guess or set aside the trial court’s facts – provided they are reasonably arrived at and not obviously wrong.

This principle was on display in a case out of Vermilion Parish. Wanda Turner was involved in two accidents in 2010 – one in September and one in October. After the second accident, Turner filed suit against the insurer of the vehicle from the first accident, alleging neck pain, back pain, and migraines. She attributed all of her injuries to the first accident, rather than the second one, despite the fact that the second was more serious. The trial court ruled in Turner’s favor and awarded $8,500 in general damages ($3,500 for the migraines; $3,000 for aggravating her back condition; and $2,000 for her neck pain) and $1,800 in special damages to cover her medical expenses related to the first accident.

The defendant insurance company appealed the ruling, claiming a lack of medical evidence and unsupported testimony. The appellate court even noted numerous inconsistencies in Turner’s testimony. Despite this, and citing past legal precedent, the court explained that it was obligated to give great deference to the factual findings of the trial court. Unless those findings are obviously unreasonable or rife with manifest error, the appellate court will not set them aside. This was the standard applied to Turner’s claims.

July 12, 2013

Demonstrating Permissive Use of Vehicles Key to Insurers’ Liability

by Berniard Law Firm

Motorist Jennifer Lopez was injured in a hit-and-run accident with a truck near Vinton. At the time of the accident, the truck was being driven by someone other than its owner, Teri Ardoin. The driver fled the scene but the truck was tracked down and Ardoin identified as the owner. Lopez filed suit against both Ardoin and her insurer, Safeway Insurance Company. At trial, the issue was Safeway’s liability as insurer of the truck. The trial judge awarded damages to Lopez, but because of Safeway’s policy limits, Lopez’s own insurer, State Farm, had to cover the balance.

On appeal, Safeway contended that its coverage of the vehicle could not be proven without first establishing that the insured gave permission to drive the truck to the unknown driver. The appeal raises questions of the omnibus insurance clause provided by Louisiana statute, La.R.S. 32:900(B)(2). Under this law, an automobile insurance policy shall cover any person who uses the insured’s vehicle with express or implied permission of the insured. It’s up to the plaintiff to establish use of the vehicle with express or implied permission of the insured.

Demonstrating this permissive use requires fact-finding at the trial level. Without some proof of “manifest error,” such fact-finding will not be overturned on appeal. The trial judge in this case found that Ardoin’s truck was the truck involved in the accident. Further, he found Safeway liable for the accident. Several pieces of evidence were put forth to show this, including eyewitness reports identifying the truck and careful observation and recording of the license plate number.

July 2, 2013

Summary Judgment and its Significant Impact in the Judicial System

by Berniard Law Firm

Is it possible for your case to be over even before it begins? Yes … well, sort of. Through what is known as summary judgment, it is possible for a court to render a decision in favor of one party and against another before there is a trial on the issue. You may be wondering, “What is the point of this?” and “Isn’t it only fair that I get my day in court?” Essentially, the purpose of summary judgment is to avoid unnecessary trials and litigation. It is important to note that although orders for summary judgment are common in civil cases, they do not apply in criminal cases because a criminal defendant has a constitutional right to jury trial.

According to a report researched by the Federal Judicial Center, 26% of all plaintiffs file motions for summary judgment, whereas defendants file 71% of all summary judgment motions. A judge may also on his or her own determine that summary judgment is appropriate. Nonetheless, orders granting summary judgment for defendants can have detrimental effects on plaintiffs who have sustained injuries, financial hardships, and who may have even lost a loved one. The adversity associated with orders of summary judgment can be shown in a recent case out of Jefferson Parish. Favre v. Boh Bros. Construction Co., L.L.C.

In Louisiana, summary judgment is appropriate if the declarations under oath, depositions, admissions of fact, and legal authorities show that there is no genuine issue as to a material fact and the party requesting the order is entitled to a judgment as a matter of law. A fact is considered to be a material fact if it is needed to prove one party’s case, or establishes a point that is crucial to a party’s position and success. Also, a genuine issue is an issue where two reasonable parties disagree. So, for example, if two parties could reach only one conclusion as to the dispute, then there is no need for a trial and summary judgment is appropriate.

July 1, 2013

Tragic Incident Involving Infant Demonstrates Assignment of Liability

by Berniard Law Firm

Any injury suffered by a child under medical care is especially tragic. However, litigation after such an injury is essential for families who often have to do so in order to afford future medical costs down the road. Recently, the parents of an infant sued a group of doctors and a medical equipment provider alleging that the defendants caused their daughter’s brain damage. The jury found another doctor, one who was not sued, to be one hundred percent responsible for the girl’s injuries. The parents appealed this decision but the decision was upheld by the appeals court.

After a stay in the neonatal ICU, the infant in question was sent home with her parents with a device which recorded her breathing and heart rate. This device alerted the parents when problems arose and every so often sent the recorded data to her doctors. After a while, the device began to reach capacity quickly and would delete some of the information as it was programmed to do. The infant’s doctors said they did not receive some of the information they should have received, which proved to be the cause of the tragedy. The infant was again hospitalized and found to have permanent brain damage due to lack of oxygen. The parents alleged that this brain damage caused when the infant was being monitored by the breathing device.

The parents argued that the failure of the device to properly send information to the doctors caused the doctors not to perform surgery which would have prevented the brain injuries their daughter sustained. The equipment provider argued that the infant’s original injuries occurred before she was born and progressed to her current injury.

June 18, 2013

When is a Hotel Responsible for the Injury of a Guest?

by Berniard Law Firm

We hear about injuries to customers resulting in large settlements in the news frequently. In any industry, there is some risk that clients or customers will be injured during the time they are patronizing the establishment. When these injuries occur it often results in a lawsuit. Who is at fault (and as a result, liable for the damage) generally comes down to a determination of the “duty” that is owed by the establishment owner to his patrons.

So when can someone be injured and lose? One scenario presented itself in Darlene Johnson v. Super 8 Lodge-Shreveport in 2008. Mrs. Johnson and her father were guests staying in a Shreveport, Louisiana, Super 8 Lodge hotel “Jacuzzi Suite” after evacuating their home as a result of a hurricane. Like most hotel rooms, this one had a television for guest use. Unlike many, this suite’s TV was positioned at a 90 degree angle to the bed, making it awkward to view while laying in bed but designed to be comfortably viewed from the provided couch. The hotel was aware that not all guests preferred to have the television facing the bed and offered a service moving the entire entertainment center around for them. While the majority of guests didn’t request it, it wasn’t an unusual request. In fact, Mrs. Johnson was aware of this service and had requested it multiple times during her stay. However, during this incident, Mrs. Johnson did not request the entertainment center be moved. Instead, she attempted to do it herself and was injured as a result of the television falling on her. She subsequently sued suggesting the television should have been secured to the entertainment center with a pivoting platform, as they should have anticipated a guest trying to move the TV themselves.

The crux of the debate is a matter of what level of duty was owed to their guests by the hotel operators. Duty is a technical term in negligence law that sets the lowest obligation that someone owes to someone else in a situation. A hotel is required to exercise “reasonable and ordinary care including maintaining the premises in a reasonably safe and suitable condition.” While they are not required to absolutely guarantee the safety of guests, hotels must be careful to keep them from anticipated injury. To succeed in a suit such as this, a guest needs to demonstrate that the television was in the hotel’s custody, that it created an unreasonable risk of harm to others, and that something about the defective condition caused the damage. The court ruled in favor of the hotel.