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dna-fingerprint-4-1163506-1024x724Imagine growing up with a genetic disorder and having to struggle with the difficulties that these disorders bring to people and their loved ones. Nobody chooses to have a genetic disorder, and if severe enough the disorder can cause major setbacks in a person’s life. Even with protections in place like genetic non-discrimination laws, many people throughout the country are denied health care coverage by their insurance providers because they have genetic disorders. Insurance companies do not want to provide coverage to these people because they are more of a “risk.” This can be very frustrating for the individual, especially because health care is so expensive today.

In New Orleans, Louisiana, Jane Doe (“Ms. Doe”) grew up as a dependent on her father’s Blue Cross insurance policy. At the age of eight, Ms. Doe went to her doctor and her doctor noticed that she had some of the physical characteristics of Marfan syndrome. Marfan syndrome is a genetic disorder of the connective tissue. It can have drastic affects on multiple systems in the body including the skeletal, cardiovascular, nervous, and respiratory systems. The doctor submitted claims to Blue Cross with the International Statistical Classification of Disease (“ICD”)-9 code of 759.82 (diagnostic code for Marfan syndrome), and from 1993 to the late 90s different doctors who treated Ms. Doe submitted claims to Blue Cross with the same diagnostic code. Blue Cross stated that the only information they received from the various physicians was the ICD-9 code 759.82. Blue Cross did not receive any other medical information surrounding Ms. Doe’s claims, so it was difficult for them to determine how exactly the physicians came to their medical conclusions. In November 1994 Ms. Doe was tested for Marfan syndrome, but the results were inconclusive. Ms. Doe was never diagnosed with Marfan syndrome, and she was only monitored for the disease because of the symptoms she already displayed.

Around the age of 23, Ms. Doe left her father’s insurance plan and applied for her own coverage with Blue Cross. Ms. Doe was required to take a medical questionnaire as a part of her application, and the questionnaire did not have any questions relating to genetic information. When Blue Cross reviewed Ms. Doe’s application the underwriting department reviewed her prior claims while insured under her father’s policy. Because there were multiple Marfan syndrome claims, Blue Cross denied Ms. Doe her health coverage.

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erasure-1237046-1024x768Courts are not perfect, and sometimes they do not always render the correct decision. When a court makes an error in their judgment it can be very frustrating for all of the parties involved. Error can be very costly especially when a major issue, like finding coverage for a victim of an automobile accident under an umbrella insurance policy, needs to be determined. Both the plaintiff and defendant wants the court to look in their favor, but it is also the responsibility of the court to make an error free and accurate decision that is fair and just to both sides.

One such case where the trial court made an error in rendering a final judgment comes from St. Tammany Parish, Louisiana. On May 26, 2010, Gary Michael Brown (“Mr. Brown”) was driving a truck that was owned by his employer J&J Diving Corporation. While driving, Mr. Brown got into an accident with St. Tammany Parish Sheriff’s Deputy, Scott Jarred (“Mr. Jarred”). Mr. Jarred filed a lawsuit against Mr. Brown, J&J Diving Corporation, and Progressive Insurance Company. On May 22, 2012, Mr. Jarred amended his original complaint and added two more defendants. These defendants were XL Specialty Insurance Company and Valiant Insurance Company, and they provided a Marine Excess Liability Policy, or Bumbershoot policy, for J&J Diving Corporation. Two days later, Mr. Jarred entered into a Gasquet release. A Gasquet release is where the plaintiff settles all claims with the primary insurance provider for a smaller amount than policy limits, but does not settle with the umbrella policy insurer. Gasquet v. Commercial Union Ins. Co., 391 So.2d 466 (La. Ct. App. 4th Cir. 1980), writ denied, 396 So.2d 921 (La. 1981). Mr. Jarred settled all of the claims against J&J Diving Corporation, Mr. Brown, and Progressive; but he reserved his claims against both XL Specialty Insurance and Valiant Insurance.

XL Specialty Insurance and Valiant Insurance filed a motion for summary judgment on December 5, 2013. Their main argument surrounding the motion, was that the Bumbershoot policy only provided coverage to J&J Diving Corporation for their commercial diving contractor operations. The accident between Mr. Jarred and Mr. Brown was not related to those commercial diving contractor operations. Because there was no relation, the Bumbershoot policy should not provide any coverage for Mr. Jarred’s accident. Mr. Jarred filed a cross-motion for summary judgment on February 14, 2014 and requested that the trial court should find coverage for him under the Bumbershoot policy provided by XL Specialty Insurance and Valiant Insurance. Mr. Jarred’s main argument was that because the policy contained the word “contractor,” the Bumbershoot policy therefore expanded the coverage and should be provided to him. The trial court granted summary judgment in favor of Mr. Jarred on June 5, 2014 and certified that their decision was a final judgment because there was no just reason for delay.

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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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Servicing drilling platforms is big business in the Gulf of Mexico.  To transport pipes and other supplies out to the oil platforms ships or large vessels are often used. Unfortunately not all vessels are in “shipshape” as a recent case out of the Eastern District of Louisiana shows.

On May 28, 2013, the RICKY B, a boat operated by D&B Boat Rentals (“D&B”), began taking on water in its engine room while servicing drilling platforms in the Gulf of Mexico. The following day, after several attempts to stop the flooding, the RICKY B contacted Crosby Tugs, L.L.C. (“Crosby”) for assistance. At this point, the RICKY B had lost power and its crew was abandoning ship. Crosby agreed to dispatch a tug to tow the RICKY B to shore. When the tug arrived several hours later, RICKY B was sitting low in the water. The tug, following the owner and operator of D&B’s instructions, attached a tow line and towed the vessel to shallower waters at speeds of no more than five knots without pumping the water in engine room. However, after about 13 minutes into the towing, the RICKY B completely submerged and sunk to a rest on the bed of the Gulf of Mexico.

D&B filed suit against Crosby to recover expenses incurred in the boat sinking, alleging that Crosby negligently towed the RICKY B without pumping the water first, and at too high speeds, causing the boat to sink. After conducting a bench trial, the district court ruled in favor of Crosby. The Court found that D&B presented insufficient evidence to establish that Crosby acted with either negligence or gross negligence. The district court held that the nature of the services provided by Crosby were salvage, not towing; and because the damage ultimately suffered by the D&B was indistinguishable from the purpose of the salvage operation (i.e., to prevent the sinking), a gross negligence standard applied in determining Crosby’s liability instead of ordinary negligence. The standard of ordinary negligence is conduct that deviates from the proverbial “reasonable person,” whereas grossly negligent conduct is that which has fallen so far below the ordinary standard of care that one can expect, to warrant the label of being “gross.” Moreover, in this case, the district court held that even if the court applied an ordinary negligence standard that D&B presented insufficient evidence to prove Crosby’s ordinary negligence. Furthermore, under the Pennsylvania Rule, D&B is required show that the statutory violations of the RICKY B were not the cause of the accident, which they did not. The Pennsylvania Rule creates a rebuttable presumption of causation against an entity involved in a maritime accident if that entity is in violation of a maritime rule or regulation intended to prevent that type of accident.  See Pennzoil Producing Co. v. Offshore Express, Inc., 943 F.2d 1465, 1472 (5th Cir. 1991).

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sugar-cane-harvesting-1553007-1024x768On  September 24, 2006, New Iberia, Louisiana held its annual Sugar Cane Festival (“Festival”). Festival goers tend to enjoy, among other things: sugar cookery contests, photography shows, art shows, music, and a wide variety of food. However, on this particular day, those in attendance were exposed to tear gas deployed by local officers responding to vehicles blocking the street, causing traffic standstills. At around the time that the officers dispatched, Delphina Walker, owner of Gator’s Barbecue (“Restaurant”), was hosting quite a few patrons. Walker had hired a DJ for the event and to accommodate the hundreds of people gathered around the Restaurant, the DJ played loud music. The Restaurant is located on the 600 block of Hopkins Street near the intersection of Hopkins Street and Robertson Street, the area where the police were dispatched.

As the crowd, comprised of adults as well as children, proceeded to dance and enjoy the Festival in a possibly rowdy fashion, tear gas was deployed by the police officers. Many of those effected by the gas claimed that the police deployed it with no warning. The police, however, claim that they had issued numerous warnings through a public address system. The facts recalled by the police and some of those in the area where the gas was used are in conflict in other instances as well. For example, there is dispute as to whether or not there was fighting amongst individuals in the crowd and whether or not motorcycle riders revved their engines in response to police warnings.

In response to the events, five individuals filed for certification of a class-action suit for damages. At the trial level, the court granted the certification but the Defendants, a Sheriff and five of his deputies, appealed the certification. Ultimately, while the issues raised by the Defendants were valid, Louisiana’s Court of Appeal for the Third Circuit (Court of Appeal) found them to insufficient to decertify the class, as it affirmed in part and remanded in part.

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crash-test-dummies-1251143-1-768x1024Car accidents are among the most common reasons for a lawsuit. An average car accident is often difficult to conclude which party is at fault. Issues are further complicated if insurance claims are involved. Who is truly at fault for the accident if a vehicle malfunctioned?  A trial becomes increasingly complex if a Plaintiff claims that a company is at fault for his injuries. Specific elements are required for a successful trial.

Recently, a multiple car accident occurred in near St. Tammy’s Parish. Mr. Bordelon allegedly caused the accident by swerving into multiple lanes and colliding with two vehicles. The second crash involved Mr. Reynolds who sustained serious injuries when his car landed in a ditch. However, Mr. Reynolds did not simply blame Mr. Bordelon for the accident, but additionally filled a lawsuit against Nissan- the company who designed and manufactured his vehicle under Louisiana Products Liability Act (“LPLA”). Mr. Reynolds sued Nissan due to his air bags’ failure to deploy. The trial court denied Mr. Reynolds’ claim and granted Nissan summary judgment.

However, Mr. Reynolds appealed the trial court’s decision to the Supreme Court of Louisiana. In reviewing the trial court’s decision, the Supreme Court utilized a de novo standard- using the criteria as the trial court. Overall, the Plaintiff took issue with the trial court excluding certain evidence. According to the Supreme Courts’ analysis, the trial court properly excluded evidence. Largely, evidence was excluded due lack of verification. Mr. Reynolds presented pictures of the alleged accident, but no verification of the date, time or address to prove pictures where in fact of the accident.  See La.Code Evid. Art. 401. and La.Code Evid. Art. 803.

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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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quito-capital-of-ecuador-1227335-680x1024Not just any court can hear any case. Depending on certain factors, your local court may not be the right choice to bring your matter. A New Orleans attorney found this out the hard way in a recently decided case.

The matter arises out of a situation where the court affirmed a workers’ compensation judge’s ruling granting Mr. Feingerts’ attorneys $10,000 upon Mr. Feingerts’ $50,000 settlement. Mr. Bruce Feingerts was at one time represented by James Babst for the case that resulted in a settlement. After two requests for payment from Mr. Feingerts’ attorneys who actually settled his case, Mr. Babst petitioned for concursus regarding the the disputes and submitted the settlement funds to the concursus proceedings in the Orleans Parish Civil Court.  However, this was not the court in which the case was currently being litigated.  At the time Babst filed the concursus the case was still pending with the Office of Workers’ Compensation Administration.

The Louisiana Code of Civil Procedure defines a concursus as a proceeding where multiple parties having competing or conflicting claims to money can combine their cases and present their claim against the other claiming parties (La. C.C.P. art. 4651). Not being happy with having to litigate a separate case in a new court, Mr. Feingerts lawyers sought to implement the judgment and sought a penalty against Mr. Babst for their time and effort with the Office of Workers’ Compensation Administration (“OWCA”) stating that they were the only court that should hear the concursus proceedings. The OWCA agreed and heard the case.

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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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