Insurance Dispute

June 8, 2010

Assessing Multiple Defendants’ Liability in an Asbestos Case

As research has revealed more about the dangers of asbestos and the mechanics of how it causes certain types of lung disease and cancer, medical and social opinion of asbestos has changed. Likewise, the law of asbestos-related injuries has changed in the last half century. For example, one of our blog posts recently discussed how workplace asbestos cases are now typically addressed through workers compensation proceedings rather than traditional personal injury tort law. A decision issued by the Louisiana Supreme Court in 1992 illustrates another change in the law related to asbestos injuries.

Background

The background and procedural history of Cole v. Celotex Corp, 599 So.2d 1058 (1992), is complicated. However, knowing the case is important when trying to understand the significance of asbestos litigation. The plaintiffs in the case suffered asbestos exposure in the course of their work duties and filed suit against twenty individual defendants. The defendants included manufacturers of the asbestos materials the plaintiffs encountered on the job as well as officers of their former employers. Additionally, the plaintiffs added as a defendant Insurance Company of North America (“INA”), the primary liability insurance provider for the officers.

May 20, 2010

Importance of Keeping Deadlines: Recent Court of Appeals Abandonment Decision

by Berniard Law Firm

While a plaintiff may have the best case possible, things do not always work out the way they should. Lawsuits don’t just fail on their merits. Sometimes not following procedural deadlines or simply not taking action at all can spell doom as well. In an April 2010 decision, the First Circuit Louisiana Court of Appeals affirmed the dismissal of Shirley W. Fleischmann of Baton Rouge’s claim against Keith Henderson and his insurance company. They did this because three years had gone by with no action taken to move the claim forward, thus bringing into play the Louisiana Abandonment Statute.

The claim arose when Henderson’s car (driven by Jennifer Parker) struck and killed Thomas E. Fleischmann while he was walking along the roadway. Ms. Fleischmann was the victim’s widow and included Henderson and his insurance company as parties in her wrongful death lawsuit filed in April 2002. The State of Louisiana (Department of Transportation) was named as a party as well but was dismissed in 2005 because effective request for service was not made within 90 days of commencement of the action.

In September 2008 Ms. Fleischmann filed a motion for a status conference to declare she intended to move forward against Henderson and his insurance company. In December of that year both parties filed a motion and order to be dismissed from the lawsuit as well because pursuant to LSA-C.C.P. art. 561 no action had been taken for three years. The trial court granted the order. Ms. Fleischmann filed a Motion to Reconsider the Ruling and the matter was heard in court in February 2009. The district court affirmed the dismissal and Ms. Fleischmann appealed claiming that the hearing previously held on the Department of Transportation’s Motion to Dismiss was a step in the prosecution or defense that interrupted tolling on the abandonment of her lawsuit against the other defendants. The Court of Appeals disagreed.

May 14, 2010

Understanding Property Damage Claims and Amount of Time to File Suit

by Berniard Law Firm

In Mallett v. McNeal, 939 SO.2d 1254, 2005-2289 (La. 10/17/06), the Supreme Court of Louisiana held that an unconditional payment of a property damage claim constitutes an acknowledgement sufficient to interrupt prescription. Thus, for example, an insurance company’s tender of an unconditional payment to an injured third-party claimant is an acknowledgement, and this acknowledgment interrupts prescription. In appropriate cases, Mallett may be of assistance to plaintiffs’ attorneys, who file actions to help injury-victims recover against tortfeasors and insurance companies after the victim’s case has prescribed on its face.

The Court’s holding in Mallett was based upon two consolidated cases. In the first case, plaintiff Jason Mallett (“Mallett”) suffered injuries on January 8, 2004, when his vehicle was struck from behind by defendant Paola McNeal (“McNeal”). McNeal carried an automobile liability policy issued by defendant United States Automobile Association (“USAA”). In November 2004, USAA issued two checks to Mallett: the first for payment of property damage, and the second for additional repairs. On February, 2005, more than a year after the accident, Mallett filed suit against McNeal and USAA, claiming damages for injuries. Because the one year prescription period had run on its face, Mallett’s claim would have been barred, unless USAA’s November 2004 payments interrupted the prescriptive period.

In the second case, plaintiff Charles Richey (“Richey”) was involved in an automobile collision with defendant Kameron Dixon, who was driving a car owned by Keith Dixon (“Dixon”). Dixon was insured by defendant Infinity Insurance Company (“Infinity”). Following the collision, Infinity issued a check to Richey and stated that the check represented payment for the total loss of Richey’s vehicle. Before the end of the prescriptive period, Richey filed suit in an improper venue. Under Louisiana law, if an action is commenced in an improper venue, prescription is interrupted only as to defendants served with process within the prescriptive period. Unfortunately for Richey, no defendants were served before the end of the prescriptive period. Therefore, Richey’s claim would have been barred, unless Infinity’s issuance of checks had interrupted the prescriptive period.

May 4, 2010

Underinsured Motorists and Protections Available to Louisiana Drivers

by Berniard Law Firm

Louisiana law requires motorists to carry liability insurance on any automobile they own. This coverage pays for property damages or personal injury for which you may be legally responsible. Unfortunately, not everyone on the road has insurance. However, insurance companies have built in protection for drivers that are injured by an uninsured/underinsured motorist.

In 1999, Carol Tedeton was injured during her employment with an automobile service station. She was hit by a minor without adequate car insurance. To recover for her injuries, Carol argued that she was covered under the garage’s uninsured/underinsured motorist (“UM”) policy.

Under La. R.S. 22:1406(d), any person who enjoys the status of insured under a Louisiana motor vehicle liability policy which includes uninsured/underinsured motorist coverage enjoys coverage protection simply by reason of having sustained injury by an uninsured/underinsured motorist.

April 21, 2010

DeRidder Man Successful Against Insurance Company: Court Explains Principle of Res Judicata

by Berniard Law Firm

In 2005, Dale Spires of DeRidder was in a car accident that was caused by April Roberts. He sued Ms. Roberts and her insurance company paid out $10,000, which was the limit under her insurance policy. The suit was dismissed in 2006.

In 2007, Spires filed an additional lawsuit against his uninsured motorist carrier, State Farm, and alleged that Ms. Roberts was underinsured and as such he was entitled to additional recovery for the damages he sustained in the accident as well as for his emotional distress. State Farm argued that under Louisiana law, Spires had to assert all causes of action in the first suit against Ms. Roberts and was precluded from collection additional damages from state farm since the action arises from the same accident. As such, Stare Farm argued, because Spires did not bring the claim against State Farm when he sued Ms. Roberts he could no longer do so. The trial court agreed and dismissed the claim, leading to the Spires appeal.

In a 2008 decision, the Court of Appeals reversed the trial court judgment and found that the Spires were entitled to pursue a claim against State Farm for additional damages. The case hinged on the court’s interpretation of La.Code Civ.p. art 425 which states, “A party shall assert all causes of action arising out of the transaction or occurrence that is the subject matter of the litigation.” According to the Court, art. 425 is merely a reference to the broader principle of res judicata.

April 2, 2010

One if by land, Two if by Sea: Different Types of Insurance Needed to Protect Against Storms

by Berniard Law Firm

Although it has been half a decade since the devastation caused by Hurricane Katrina, the dangers Louisiana residents face from both unruly weather and their insurance providers are far from over. A new study released Monday reveals that New Orleans is one of the gulf cities most at risk for hurricane related damage. The study, available here, also reveals that the damage done by Katrina was primarily attributable to storm surges.

A “storm surge” is simply the rise of water caused by a storm. Storm surge damage refers to the harms caused by the flooding that results from this rise of water. This type of damage is distinct from the wind damage that may also be associated with a massive storm. The difference between flood damage and wind damage is important for a few reasons.

Primarily, the difference is important to insurance providers and their willingness to cover a claim in the event of damage to a home or property. Oftentimes general home insurance traditionally does not cover flood damage. As a result, separate insurance to protect against flood damage commonly must be retained by a home owner in order to cover storm surge damage. This is important because when a catastrophic storm hits there is no way of knowing what specific aspect of the storm will cause the eventual damage to a property or home. If a homeowner has failed to secure flood insurance they must prove that the damage their home suffered was as a result of wind (and not the storm surge) to recover under their insurance policy.