Articles Posted in Civil Matter

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old-truck-lublin-1449942-1024x658Has your business sought to avoid litigation over its insured business activities by negotiating an out of court settlement? Louisiana business Meyers Warehouse, Inc. (“Meyers) pursued this route assuming its insurer, Canal Indemnity Company (“Canal”), would join Meyers in settlement negotiations. However, to its surprise, Canal refused to participate in Meyers’s defense. Unfortunately for Meyers, it misinterpreted key terms within its insurance policy specifying when Canal’s duty to defend it against claims and lawsuits arises.

Meyers is the owner and operator of several trucks, trailers, and trucking operations in Louisiana. Like many businesses, it purchased insurance coverage to protect against liabilities stemming from core business activities. In November 2011, Meyers received notification that one of its shipments contained contaminated liquid sugar. The contamination caused significant damage to the client’s production line.

Meyers and the client reached a settlement agreement in lieu of pursuing litigation. The agreement transferred the liability for damages to the third party contractor responsible for cleaning Meyers’s tankers. Canal was not involved in the negotiation process. Meyers filed its lawsuit against Canal because Canal refused to participate in Meyers’s defense during the settlement negotiations arising out of the November 2011 notification. The primary dispute between the parties was whether or not Canal had a duty to defend Meyers during the settlement negotiations even though no lawsuit against Meyers was ever filed.

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blacksmith-1500444-1024x768Accidents occur in daily life. Often, severe injuries result. However, prison accidents rarely are discussed. Prisoners who are victims of  accidents while serving time  are often provided with the same legal protections as an average person.

Mr. Fisher was serving time in Louisiana. During his time incarnated, Mr. Fisher worked within the prison where he was in charge of keeping the gas furnace running. On the day in question, Mr. Fisher followed the same procedure as he did daily for lighting the gas furnace. Unfortunately, upon lighting the furnace, an explosion occurred which caused Mr. Fisher’s severe injuries.

In his first trial, the Court concluded that Mr. Fisher did not meet the requirements to bring a lawsuit against prison officials for his injuries. In order to recover for this injury—much like an average person—Mr. Fisher was required to prove both of the following: vice or defect and actual or constructive notice. See La.R.S. 9:2800, La. Code Civ. P. arts. 966 and 967. The trial court held that Mr. Fisher did not meet his the standard for both elements. Therefore, the Court concluded summary judgment for the prison officials was appropriate. This decision dictated that Mr. Fisher could not recover for his injuries.

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truck-1422454-1-1024x683What happens if the trial court makes a mistake? The case can work its way through the court of appeals and even the state supreme court just to be sent back to trial court to begin again. This case involves a lawsuit filed in Louisiana court by a transportation company (“Star”) against another corporation (“Pilot”). Star is a national trucking company and Pilot owns a collection of truck stops that supply fuel to Star.

In 2014, the trial court decided to deny Pilot’s motion to dismiss the case for forum non conveniens, to grant Star’s motion in limine to exclude a certain promissory note from evidence, and to deny Pilot’s exception of prematurity and motion to stay proceedings pending arbitration. Forum non conveniens is a power the court can decide to use to dismiss a case where another court would be better suited to hear the case. A motion in limine is a motion filed by a party to a lawsuit which asks the court for an order or ruling limiting or prevent certain evidence from being presented in the case. Pilot appealed these decisions as well as applying for a supervisory writ challenging the rulings. A writ of supervisory control is issued to correct an erroneous ruling made by a lower court either when there is no appeal or when an appeal cannot provide adequate relief and the ruling will result in gross injustice.

In 2015 the Louisiana Fourth Circuit Court of Appeal denied Pilot’s writ application and Pilot sought a review of this decision in the Louisiana Supreme Court. The appeal was continued pending the decision of the Louisiana Supreme Court. The issue was then sent back to the court of appeals for an opinion.

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Is  arbitration the best choice even if you don’t think you chose it? In this case out of Orleans Parish the Louisiana Fourth Circuit Court of Appeals decided on an appeal for a declaratory judgment action seeking a decision that the parties had not agreed to arbitrate in their contract. A declaratory judgment is a decision by the court resolving a matter that was uncertain for the parties. Delta Administrative Services (“DAS”) brought this action against Limousine Livery, Ltd. (“LLI)”) and they are seeking not only a declaratory judgment saying that they did not agree to arbitration but an injunction against LLI to prevent them from moving forward with the arbitration it had already begun. An injunction is an order by the court telling a party to stop or to keep from beginning an action that could be harmful to another party.

In 2010, DAS and LLI entered into a contract for DAS to provide payroll and human resources services to LLI. The contract was a basic contract that was being used by DAS in its business at the time it made the agreement with LLI. The owner and manager of DAS customized the contract to fit the agreement before sending it to LLI. Neither DAS or LLI discussed that dispute resolution clause in the contract. The dispute resolution clause in this contract required choosing between and “either/or” provision and neither party made any indication that a choice was made. Both parties had representatives sign the agreement making both provisions of the alternative dispute clause an effective part of the contract.

When the contractual relationship between DAS and LLI ended, both parties invoked the contract. LLI attempted to follow the provision of the alternative dispute clause by going to mediation before resorting to arbitration. Mediation involves both parties meeting with a neutral third-party in hopes of settling the matter. Arbitration is an out of court dispute resolution where the parties agree to be bound by the arbitrator’s decision. DAS was aware and did not object to LLI’s attempt to set up mediation. LLI and DAS had two unsuccessful mediations, both of which DAS participated in without objection. LLI then filed for arbitration with the American Arbitration Association (“AAA”). At this point, DAS objected, stating that it had never agreed to arbitrate. AAA decided that the dispute met the requirements for them to move forward with the arbitration. DAS then filed a petition for declaratory judgment and a preliminary and permanent injunction. The basis for this petition is that DAS believed the “either/or” provisions that had been made a part of the contract were in conflict with each other and that because no choice was made there was never an agreement to arbitrate. The parties agreed to wait on the arbitration until the court could come to a determination. The District Court of Orleans Parish decided that DAS showed consent to arbitrate by signature and by participating in the mediation as a step of the arbitration agreement.

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openly-sky-1227535-1-1024x768In  Louisiana, the objection of prescription extinguishes a legal right of recovery when a party fails to exercise it over a given period of time. It is essentially a time limit on a claim, which can be raised in a couple of ways. Typically, it is raised by a peremptory exception, but it can also be raised by way of a prescriptive motion for summary judgment. One defense to the objection of prescription is the doctrine of contra non valentem. This doctrine is used to “soften the occasional harshness of prescriptive statutes.” Carter v. Haygood, 892 So.2d 1261, 1268 (La. Ct. App. 2005). A 2015 case from the Louisiana Fourth Circuit Court of Appeal discusses the operation of contra non valentem when pleaded in opposition to a peremptory exception or prescriptive motion for summary judgment.

The dispute in this case arose out of a construction project in which Plaquemines Parish sought to rebuild a parish-oriented drainage pumping station damaged by Hurricane Katrina. Shortly before the project’s completion, M.R. Pittman Group, L.L.C. filed a lawsuit against Plaquemines Parish and several of the parish’s engineering firms. Plaquemines Parish answered, bringing a reconventional demand (or counterclaim as it is known in other states) against Pittman, alleging a tort-based property claim for damages to the pumping station’s wing wall, and a third-party direct action claim against Pittman’s insurer, Gray Insurance Company. Both Pittman and Gray sought to have Plaquemines Parish’s tort claim dismissed on the basis of prescription. Gray filed a peremptory exception of prescription while Pittman filed a motion for summary judgment adopting the reasons put forward by Gray in support of its exception. Plaquemines Parish argued that the doctrine of contra non valentem should apply to toll the one-year prescriptive period.

According to the Fourth Circuit, Louisiana recognizes four situations where contra non valentem applies to prevent prescription: “1) where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiff’s action; 2) where there was some condition coupled with the contract or connected with the proceedings which prevented the creditor from suing or acting; 3) where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action; and 4) where the cause of action is not known or reasonably knowable by the plaintiff, even though this ignorance is not induced by the defendant.” In determining whether any of these categories apply, Louisiana courts will look at the individual circumstances of each case. Marin v. Exxon Mobil Corp., 48 So.3d 234, 245 (La. Ct. App. 2010).

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build-4-1213636-1-768x1024Insurance companies are coming under increasing pressure due to the recent proliferation of natural disasters in the United States. For an insurance company, navigating the boundary between legitimate and bad faith denial of claims can be a very risky business. However, courts are providing more and more guidance for insurers of companies who find themselves targeted by disaster. Recently, in Citadel Broadcasting Corp. v. Axis U.S. Insurance Co., 2014-CA-0326, the Fourth Circuit  Court of Appeal in Louisiana clarified the requirements a claimant must meet in order to receive payment  through an insurance plan.

Citadel Broadcasting (“Citadel”) was based in New Orleans at the time it sustained crippling damage from Hurricane Katrina. Prior to the incident, Citadel was insured by Axis U.S. Insurance (“Axis”) for physical damage and business interruption (“BI”) losses, including contingent business interruption income. This means that in addition to physical damage, Axis covered the loss of profits suffered by Citadel while it was restoring its locations and broadcasting capabilities. This BI coverage was to extend for 365 days from the date of the incident. Axis denied coverage to Citadel relying on “exclusion k”, a loss of market exclusion. Loss of market means that the coverage would be denied because Citadel had lost the opportunity to market their broadcasting to their listeners. A jury returned a verdict against Axis in the amount of $11,813,976, and this amount was mostly affirmed by the Court of Appeal.

Louisiana law imposes a relaxed burden of proof showing  that a particular catastrophic event actually caused the damage. Damages must be proven to a reasonable certainty, and the proof of loss must only be as precise as circumstances allow. See La Louisiane Bakery Co. v. Lafayette Ins. Co, 09-825, p. 28 (La.App. 5 Cir. 2/8/11) The court is given broad discretion over these questions due to the imprecise nature of the calculation of lost profits. The formula examines a company’s actual loss by comparing expected performance prior to the incident with actual performance after the incident, and does not require direct proof of loss of customers. For example, Citadel satisfied this requirement by demonstrating a loss of market share at the expense of an increased market share of its competitors, and by calculating actual loss according to Axis’ insurance coverage provisions.

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lawyers-1491730-1024x768The last thing that you want to do after dealing with litigious matters is have to hire more lawyers.  However, if you believe your lawyer committed legal malpractice thats exactly what you will be forced to do.  Lawsuits containing claims of legal malpractice are taken very seriously by the courts presiding over them.  Very strict timelines dictate when you must file a lawsuit alleging legal malpractice and if your not careful your case could be dismissed before it gets started.  A recent case out of the Louisiana Fourth Circuit Court of Appeal discusses a lower courts ruling in a legal malpractice lawsuit in favor of Defendants, Romauldo Gonzalez, Sr., and the Law Offices of Romauldo Gonzalez, L.L.C. d/b/a Braden Gonzalez and Associates (collectively, “Mr. Gonzalez”) based on prescription arguments.

In July of 2013, Marco Tulio Miralda filed a legal malpractice lawsuit against Mr. Gonzalez. In his petition, Mr. Miralda alleged that he retained Mr. Gonzalez in early 2008 in regards to renegotiating a mortgage note held by Wells Fargo on his New Orleans home. Mr. Miralda was in default on his mortgage note and Wells Fargo had initiated foreclosure proceedings on the property. Mr. Miralda alleged that Wells Fargo was inclined to negotiate reinstatement of the loan.

Mr. Miralda was allegedly advised by Jose Chacon, a non-attorney employee of Mr. Gonzalez’s law firm, to deposit $30,000 into a trust account to serve as a down payment, for purposes of the renegotiation. Per the instructions, Mr. Miralda deposited $33,864.75 into the trust account.

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mailbox-1-1481771-1024x683In  order to file an insurance claim you first must have insurance coverage.  It’s important that you stay aware of the renewal dates for the continuation of coverage so that you do not end up losing out on critical insurance payments in times of crisis.  In certain situations it’s your insurance company or agent’s duty to notify you that your coverage has lapsed.  A recent case involving a homeowners insurance policy for a property located on Lafourche Street in New Orleans discusses the burden of proof necessary to justify a homeowner’s claims of improper notification of nonrenewal by his insurance agent.

In early 2000, after the roof of his property in New Orleans was damaged, Edward Collins filed a claim under his homeowner’s policy with State Farm Insurance Company. State Farm paid Mr. Collins for the damage per his homeowner’s policy for that claim. In 2004, Mr. Collins submitted a subsequent claim under his homeowner’s policy. State Farm performed an investigation and uncovered that Mr. Collins failed to repair his roof after his funds were disbursed for his 2000 claim. Upon this discovery, State Farm did not renew the homeowner’s policy when it expired in May of 2005.

Mr. Collins was sent a letter of nonrenewal on April 27, 2005. However, Mr. Collins asserts that he never received a notice of nonrenewal. In August of 2005, Mr. Collins filed a claim under the homeowner’s policy for damage to his property as a result of Hurricane Katrina. State Farm denied the claim, setting forth that there no longer was an existing policy for Mr. Collin’s property.

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yellow-bicycle-1494018-1-1024x768When one is injured by the actions of another, it is hard to consider all of the moving parts inside and outside of a lawsuit designed to make the injured person whole again. Past medical bills after an accident may come back to haunt someone who has been injured after they have won their personal injury lawsuit.

On February 22, 2013, Hiram Lawrence Armstrong was injured riding his bicycle on D’Abadie Street in New Orleans, Louisiana. He was struck by a car and taken to a Louisiana State University Hospital (LSU) and to University Medical Center Management Company (University). At the time of Mr. Armstrong’s treatment, LSU was a public hospital and University was a private hospital- the distinction is important and will become clear later.

Mr. Armstrong had some disputes regarding payment of his medical bills with the insurance companies involved, but worked out those disputes outside of this case. This case involves Mr. Armstrongís dispute with LSU and University of the amount of the medical bill and how those relative amounts are determined.

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pills-1158992-1024x683Patricia Jolynn Paulsell-Lathrop (Ms. Paulsell) was injured in a motorcycle accident on June 13, 2005. She, consequently, needed extensive medical care. Her health insurance company covered some of the medical costs. The Louisiana Department of Health and Hospitals- Medicaid Program (DHH) covered some additional costs. According to DHH, Ms. Paulsell received $69,131.92 in medical assistance payments from June 13, 2005 through December 8, 2008.

On December 11, 2008 Ms. Paulsell settled a lawsuit she had with the Louisiana Department of Transportation and Development (DOTD) seeking damages for her motorcycle injury.

Here is where it gets a little tricky- according to La.R.S. 46:446(B) DHH must be given notice within 30 days of any settlement stemming from an event that caused an injury requiring DHH assistance by any person who received DHH benefits; failing to provide notice of the settlement causes the benefits recipient to be responsible for total payments received.

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