Articles Posted in Litigation

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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.

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dealer-1315871-1024x768People bring lawsuits in order to obtain compensation for wrongs they have endured. Even when there is no dispute about liability, determining the appropriate categories and amounts of damages can be complicated as it involves numerous legal and technical issues. Damages can encompass everything from past and future medical expenses to scarring to loss of enjoyment of life. However, there must be sufficient evidence from which a court can draw to support the award of damages. The following lawsuit that stemmed from a fight at a casino illustrates some of these principles.

Picou intentionally battered Daigle at a bar at L’Auberge du Lac Casino in Lake Charles, Louisiana. Daigle suffered a split lip, bruising, and has had headaches ever since. Picou admitted liability, leading to a bench trial on the issue of damages.  The trial court awarded $3,000.00 for past medical damages, $10,000.00 for past and future pain and suffering, $5,000.00 for scarring and disfigurement, $5,000.00 for past and future impairment, $2,000.00 for loss of enjoyment of life, $10,000.00 for past and future mental anguish, and $5,000.00 for past and future disability. Picou appealed the damage award, claiming that the trial court erred in awarding Daigle an excessive amount of damages.

La C.C. Art. 2315(A) (2017) states that “[e]very act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” When reviewing a trial court’s damage award, the appellate looks at the facts and circumstances of the case to determine if the trial court abused its discretion. Miller v. Lammico, 973 So. 2d 693, 711 (La. 2008). The appellate court will only overturn an award of damages if it finds that the trial court abused its discretion in awarding the damages.

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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.

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rain-rain-and-more-rain-1473187-1024x768The National Flood Insurance Program (“NFIP”) is intended to provide affordable flood insurance on fair terms. The Federal Emergency Management Agency (“FEMA”) is responsible for administering and regulating NFIP. There are multiple requirements and policies that claimants must follow in order to be eligible to recover on their claim. The following lawsuit looks at the requirements necessary to prove flood damages under the terms of a Standard Flood Insurance Policies (“SFIP”).

Construction Funding owned a piece of property located in Mandeville, Louisiana that was insured under a SFIP issued by Fidelity Insurance Company. Construction Funding claimed that this property suffered flood damage from Hurricane Isaac in August 2012. Construction Funding submitted a claim to Fidelity for a loss of approximately $76,000.

Fidelity is a participant in the NFIP and issues SFIP to NFIP participants. Although FEMA sets the terms of the SFIP, Fidelity is responsible for handling all claims arising under its SFIPs. Fidelity denied the claim, stating that the damages were unsubstantiated and there was insufficient proof that the damage was caused by Hurricane Isaac rather than a prior flood. Thereafter, Construction Funding filed a lawsuit against Fidelity. Fidelity claimed that Construction Funding was not eligible to bring the lawsuit because it had not complied with the SFIP’s terms.

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its-a-bird-its-a-plane-1450973-1024x683You may think that your company would be pleased if you try to comply with company policies. However, this is not always the case, especially when following policies can lead to adverse outcomes for the company, such as delayed flights or lost profits.

Roger Luder worked as a pilot and captain for Continental Airlines (CA). He was scheduled to fly from Miami to Houston He received a report from a co-pilot on an earlier flight from McAllen, Texas to Houston that the plane had previously encountered significant turbulence. Luder confirmed the turbulence, but noted that it was not in the aircraft logbook as required by CA’s protocol. Luder then logged the severe turbulence himself and called Operations Control to order an inspection. Operations Control ordered Luder to board the passengers for the next flight as scheduled, by Luder refused. Luder then received phone calls from several other officials at CA. These officials argued that the plane did not need an inspection because the turbulence was only moderate, not severe. After repeated calls, Luder threatened to report CA to the Federal Aviation Administration (“FAA”).

CA then inspected the aircraft. It found no defects, but the take-off of the next flight was delayed over thirty minutes. CA subsequently held an investigatory meeting and notified Luder in writing that he was suspended without pay and subject to a termination level warning for future improper conduct. CA claimed Luder received these sanctions for calling for the inspection in an unprofessional manner without following company procedure.

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school-1231939-1-1024x691It’s the subject of Lifetime Channel movies but something that no parent ever wants to believe would ever really happen.  A teacher, a person in authority over minors, takes advantage of a student and engages in sexual misconduct. When this happens, is it ever appropriate to apportion some percentage of fault to the student?  In a recent lawsuit out of Calcasieu Parish, the school board attempted to answer that question in the affirmative, but was taught a different lesson by the Louisiana Third Circuit Court of Appeal.

 Parents Steven and Leslie Gillespie filed a lawsuit on behalf of their sixteen year old daughter against the Calcasieu Parish School Board (“Board”) and its employee Lance Duhon for sexual misconduct.  The Gillespie’s daughter was a student at Sam Houston High School in Moss Bluff, Louisiana when she was solicited by Mr. Duhon to perform sexual acts in the classroom. These acts of sexual contact occurred daily for months until Mr. Duhon was arrested. This was not, unfortunately, Mr. Duhon’s first sexual misconduct accusation.  Five years prior to his abuse of the Gillespie’s daughter, Mr. Duhon engaged in similar conduct with another student at a different high school which resulted in Mr. Duhon not being rehired. Somehow he was hired at Sam Houston even though the Board had knowledge of his behavior at the other school.

Following a jury trial before the Judicial District Court for the Parish of Calcasieu, the Board was found to be 40% at fault, Mr. Duhon 50% and the Gillespie’s daughter 10% at fault. Punitive damages in the amount of $300,000.00 was assessed against Mr. Duhon.  The Gillespie’s appealed asserting it was erroneous to apportion fault to their daughter and asserted that punitive damages should also be imposed against the Board.

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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.  

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visual-construct-1545402-1024x686When you pay for a home to be built, it can be a stressful experience. That experience becomes even more stressful when you have fully paid for the construction of that home and the contractor ceases construction without even completing half of the construction. In such a situation, it takes an excellent lawyer to figure out who exactly is at fault for the failure to complete the job and how to get the money already paid back from the contractors.

Vernon Nicholas found himself in just such a situation when he paid for a house to be built in Ascension Parish, Louisiana and the builders stopped building after completing only approximately forty percent of the full construction project. They refused to complete the project or pay Mr. Nicholas back even though he had paid for the entire house to be completed. Luckily, Mr. Nicholas obtained a good attorney and was able to obtain a judgment against both the construction company, BBT Construction, and its manager, Ahmed Trench, individually despite the fact that neither showed up for the trial. Following an appeal by Mr. Trench contesting his individual liability, the Louisiana First Circuit Court of Appeal affirmed the trial court’s ruling.

Mr. Nicholas hired BBT to build his home and Mr. Trench signed the contract as the manager. Mr. Nicholas paid $332,418 upfront to BBT, which was the entire amount of the contract for the home. He also paid an additional $3,515 upfront for design fees. BBT completed about forty percent of the house before ceasing construction and refusing to complete the rest of the job. Having no other alternative, Mr. Nicholas filed a lawsuit to recover damages, costs and other expenses based upon the breach of contract and asserting unjust enrichment in failing to pay back the money taken for the full job. The contractors even refused to fix alleged defects in the construction.

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home-1221234-768x1024It can be complex to determine the superiority of claims when a piece of property has a mortgage and various judgments against it. Superiority of claims means the order in which money is to be paid to different parties who are all owed money from the property or individual who owns it. Most people want their claim to be deemed more superior than others because it can help them receive money from the property before someone else, which is especially important in cases where there is a limited fund of money.

In 2009, the Lake Villas No. II Homeowners’ Association, Inc. (“Lake Villas”) obtained a judgement of over $37,000 against Elise LaMartina, for past due monthly dues and assessments, dating back over seven years, plus attorney fees, costs, and interests. When Lake Villas attempted to collect the judgment, it found that the condo had a conventional mortgage that was superior to its judgment. The record holder of the mortgage was Elisa LaMartina’s mother, Jane.  

In June 2013, Lake Villas filed a motion seeking the sheriff to seize and sell Elisa LaMartina’s condominium. It also filed an order for her mother to show cause why the mortgage should not be canceled or, alternatively, that the court to fix the amount of the mortgage. Lake Villas believed judicial determination of the existence and amount of the mortgage was necessary before there sheriff could sell the condominium. La. C.C.P. art. 2291.

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broom-1-1206422-1024x688Employers have a duty to provide their workers with reasonably safe working conditions. Whistleblower statutes protect employees from retaliation when they report violations of this duty. However, not every imperfection constitutes an unreasonable danger.

Brenda Causey reported that she suffered pain and soreness at her job at Winn-Dixie in Tangipahoa after operating a floor-sweeper that rode roughly and bounced her around. She completed two inspection sheets detailing the unsafe conditions. She also contacted the company’s corporate headquarters to tell them about her injury and the floor-sweeper’s unsafe condition. Causey claimed Winn-Dixie’s management blamed the problem on a tire deformity. At first, management said it would not repair the tire, but after she complained to corporate headquarters, she was informed the wheel would be replaced. Causey was terminated less than a month after this event.

Causey filed suit in the 21st Judicial District Court in Tangipahoa, Louisiana, claiming she was terminated as a result of reporting Winn-Dixie’s violation of La. R.S.23:13, which requires employers to furnish employment that is reasonably safe for its employees and do everything reasonably necessary to protect the life, health, safety and welfare of its employees. Causey sought damages and attorney fees under the Louisiana Whistleblower Statute. Winn-Dixie countered that Causey did not engage in protected activity and could not establish a case. Further, they claimed Causey was terminated for failing to place a completed inspection sheet for the defective sweeper in the proper place in compliance with company procedures.

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