Articles Posted in Insurance Dispute

car-buying-car-dealership-car-key-97079-1024x683Every adult has had to deal with some type of insurance in their life, whether it be home, auto, or life insurance. When it comes to car insurances, there are numerous different types of policies, and, in some situations, automobiles are covered by personal umbrella policies. Similar to any other contract, an insurance policy is a contract between the insurance company and the insured and must be interpreted using the general rules set forth in the Louisiana Civil Code. Reynolds v. Select Properties, Ltd., 634 So.2d 1180, 1183 (La. 1994). When the language of a policy is clear and unambiguous, the policy must be enforced as written, but the determination of whether a contract is unambiguous is a question of law. La. C.C. art. 2046.

In this case, Michael Rodriguez (“Rodriguez”) was driving a 2006 Toyota Tundra (“Tundra”) owned by Rodriguez Crop Consulting, LLC (“RCC”) and insured by Louisiana Farm Bureau Mutual Insurance Company (“Mutual Insurance”) when he struck Marcella Hurst (“Hurst”). Hurst was walking across a parking lot at L.A. Express when she was struck by Rodriguez’s vehicle. In February 2013, Hurst filed a lawsuit against Rodriguez, RCC, and the car insurers. Additionally, Rodriguez asserted that his claim for excess coverage under the umbrella policy was wrongfully denied, and that if the umbrella policy does not cover, then Blane Brignac (“Brignac”) and Kerney Trahan (“Trahan”), employees of Mutual Insurance, were liable because they held that the umbrella policy would provide full protection regardless of whether the vehicle was being used for personal or business reasons.

The Louisiana First Circuit Court of Appeal affirmed the trial court’s holding that the insurance companies were in the right when they denied Rodriguez’s claim for excess coverage under the umbrella policy. The Court of Appeal agreed the policy was not ambiguous and should be enforced as written. Under the policy, the Tundra falls squarely within the scope of a “regular use exclusion” included in the contract. Thus, the trial court correctly held that the car was not covered by the umbrella policy.

61-1024x683Insurance plans and policies are often riddled with complicated jargon and loopholes to protect insurance companies from financial loss. These confusing insurance provisions can lead an individual to think he/she is covered in case of an accident, but many times leaves individuals unprotected. In one recent Louisiana lawsuit, a consumer’s expectations of coverage are shattered by the complexity of insurance provisions.

 Cynthia Bennett was driving a vehicle that she borrowed from Service Chevrolet Cadillac (Service Chevrolet) in Lafayette, Louisiana when she was in a car accident with Samantha Brown. The vehicle Ms. Bennett was driving was a “covered auto” under a “garage policy” issued by Tower National Insurance Company (Tower) to Service Chevrolet. Samantha Brown had an auto liability policy issued under USAA and Cynthia Bennett had a personal automobile policy with Allstate that provided uninsured motorist (UM) coverage. Ms. Bennett was able to settle with USAA and Allstate but continued to pursue Tower National Insurance Company for the remainder of damages under her UM coverage provisions in Tower’s “garage policy.”

 Tower filed a motion for summary judgment. A motion for summary judgment should be granted when evidence shows that there is “no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B)(2). Tower argued that Ms. Bennett was not considered an “insured” under the liability portion of the policy because she had her own policy with Allstate, which showed that there was no genuine issue to material fact. Because Ms. Bennett had her own coverage under Allstate, she was not protected under Tower’s policy as an uninsured motorist. The trial court granted the motion for summary judgment and Ms. Bennett appealed that decision.

56Sometimes, a single witness can make the difference between winning and losing at trial. This is especially so when you are fighting for reasonable medical compensation. Since insurance companies generally try to give patients the least amount of money as possible, they look for all sorts of ways to do so. One way is to prevent a patient’s physician from testifying and giving an opinion of what he or she believes is causing the patient’s current pain. In the following case, the defendant attempted to do just this, but fortunately for the plaintiff, the Court of Appeal found error in the trial court’s decision to exclude the testimony of the plaintiff’s physician. 

Jasmine Jones and Keith Morgan were in opposite lanes of travel waiting for the traffic light to turn green. Morgan was driving a pickup truck while Jones was driving a compact car. When the light turned green, Jones headed straight, but Morgan made a turn and collided with Jones. Morgan struck Jones’s front tire, but Jones’s vehicle suffered only minor damage. However, Jones felt pain in her back and went to the Rapides Regional Hospital later that day. Dr. Gerald LaGlue, Jones’s initial physician, was unsuccessful in relieving Jones’s pain, and so he referred Jones to Dr. George Williams. Dr. Williams then referred Jones to Dr. Melanie Firmin who performed an epidural steroid spinal injection, which only increased Jones’s pain. 

After examining Jones further, Dr. Williams opined that the cause of her pain was radiculopathy, which likely originated from her car accident. However, Dr. Williams never actually performed a diagnostic test to determine if Jones’s pain was caused by radiculopathy. However, he was prevented from testifying about his opinion of Jones’s pain because the defendants succeeded in their Daubert motion, which essentially asks the court to exclude expert witness testimony because it is not reliable. As a result, Jones did not succeed in obtaining as much compensation as she desired because Dr. Williams was not able to testify. 

69-Email-05-22-19-picture-1024x683Insurance policies are often complex and difficult to understand. However, especially when an insurance policy is at issue in a lawsuit, it is essential that you fully read and understand what the insurance policy covers in order to maximize your chance of recovery success, as well as understand the principles that courts use in interpreting policy provisions.

In September 2014, Peyton Wilt was tragically killed when he was riding in a gyrocopter, an experimental amateur-built aircraft, piloted by Darren Mahler. Lindsey King, the mother of Peyton, brought a claim individually and behalf of Wilt, against Mahler’s insurance company, Old Republic Insurance Company. King alleged that the Mahler’s pilot insurance policy covered the bodily injury and property damage resulting from the crash.

Old Republic filed a motion for summary judgment, arguing that its policy did not cover the gyrocopter’s flight or crash, or Peyton’s death. Old Republic pointed to the declarations section of the insurance policy, which listed a 1973 Piper PA-28-140 fixed wing aircraft, not the gyrocopter involved in the crash. King countered that the policy covered “any aircraft” “used by the named insured” which was not described in Item 5 of the Declarations. In response, Old Republic argued that King’s argument would lead to absurd results because it would provide coverage for any aircraft that Mahler used, without consideration of its ownership airworthiness, certification, weight, or seating capacity. The New Orleans Parish Civil District Court found in favor of Old Republic, dismissing all claims against Old Republic with prejudice (meaning the claims could not be filed again). King appealed this finding.

car-buying-car-dealership-car-key-97079-1024x683In today’s world, consumers are faced with increasingly complicated contracts and waiver forms for even the simplest transactions. These contracts not only have the potential to confuse consumers, but create an opportunity for corporate exploitation. The following case illustrates an example of the courts reaffirming protections for consumers over companies. 

Andrea Weddborn and Rene Martinez (“Plaintiffs”) had two car insurance policies that covered their 2007 Toyota Camry. They purchased these policies from Affirmative Insurance Company (“Affirmative”) and National Insurance Company (“National”) (collectively referred to as “Defendants”). In December 2012, Plaintiffs were involved in an automobile accident in Orleans Parish of Louisiana. The accident was caused by an unidentified driver of another vehicle who changed lanes, struck Plaintiffs’ vehicle, and then fled the scene. 

Both Affirmative and National refused to compensate Plaintiffs for the damages suffered in the accident, arguing that Plaintiffs’ insurance policies did not include Uninsured Motorist (“UM”) coverage. Plaintiffs subsequently filed suit against the insurance companies.

art-close-up-costume-1144283-1024x683A Mardi Gras Ball can be an exciting and fun event; however, when someone is injured, the mood turns from festive to fearful. If you were the one injured, from whom do you recover your damages? Can you even recover? If you are the organization, are you insured? Who will bear the cost associated with the injury? For an organization, having a strong insurance contract from the beginning can work to alleviate these concerns and many others.  

 Ms. Clesi had attended a Mardi Gras Ball at the Pontchartrain Center when she sustained injuries resulting from a fall. She then filed suit against The City of Kenner (“the City”) and Certain Underwriters at Lloyd’s of London (“Lloyd’s”). The underlying case is pending. The City proceeded to file for damages against The Krewe of Argus (“Argus”). The City alleged that there was a Use License Agreement between it and Argus, which required Argus to obtain an insurance policy from Lloyd’s for the use of the Pontchartrain Center for its Mardi Gras Ball. The City claimed that it was entitled to protection under the insurance policy in the same way Argus was. If the City’s claim was correct, Lloyd’s would be forced to defend the City against Ms. Clesi’s damages claims. Further, the City seeks reimbursement from the attorney fees and other costs associated with defending Ms. Clesi’s suit.

The trial court found in favor of the City. An appeal followed. Defendant appellants argued that the court must further interpret the indemnification provision of the Use License Agreement so that there could be a determination of the scope of Lloyd’s duty to defend the City.   

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).

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