Lake Charles Insurance Defense Attorneys | Louisiana Workers Compensation

Louisiana Supreme Court Rules No Cause Of Action Exists For Negligent Spoiliation Of Evidence

July 20, 2015 admin Insurance Defense Allen Parish, Beauregard Parish, Calcasieu Parish, Cameron Parish, insurance defense, insurance defense litigation, insurance defense practice, Jefferson Davis Parish, Louisiana, Louisiana Supreme Court, Nieset, Plauché, Smith

The Louisiana Supreme Court has ruled in Reynolds v. Bordelon, 2015WL 3972370 that no cause of action exists for negligent spoilation of evidence. The court considered numerous public policy issues such as the speculative nature of the claim, predictability, societal justice, and opening “the flood gates for endless lawsuits,” stating:

In sum, we conclude that the benefits of recognizing a tort cause of action, in order to deter third party spoliation of evidence and compensate victims of such misconduct are outweighed by the burden to litigants, witnesses, and the judicial system that would be imposed by potentially endless litigation over a speculative loss, and by the cost to society of promoting onerous record and evidence retention policies.

Plauché, Smith & Nieset is engaged in the insurance defense practice, concentrating on insurance defense litigation and business litigation in Calcasieu Parish, Cameron Parish, Jefferson Davis Parish, Allen Parish, and Beauregard Parish. Plauché, Smith & Nieset also engages in the insurance defense practice throughout the state of Louisiana.

Court does not find fraud, but reverses Trial court to find comparative fault

April 18, 2015 admin Insurance Defense Allen Parish, Beauregard Parish, Calcasieu Parish, Cameron Parish, insurance defense, insurance defense litigation, Jefferson Davis Parish, Lake Charles insurance defense, video surveillance

In a slip and fall case, the Louisiana Third Circuit recently ruled that a plaintiff, who on video, slipped on rice, but did not fall, looked and saw that the rice was there, walked out of view of the store’s video surveillance camera, and then twenty-two seconds later walked back into view of the video surveillance camera, slipped and fell, did not commit fraud in doing so. The court did reverse the trial court’s assessment of 100% fault against defendant to find plaintiff 60% at fault for walking on rice she knew was there, finding that “under the facts of this case, the lowest allocation of fault to [plaintiff] that would not constitute an abuse of the trial court’s discretion would be 60%, with 40% of the fault allocated to [defendant]. Stevens v. Market Basket Stores, Inc. 2015 WL 1650796.

Office of Lake Charles Workers Compensation Wage

November 12, 2014 admin Workers' Compensation Allen Parish, Beauregard Parish, business litigation, Calcasieu Parish, Cameron Parish, employer, insurance defense, insurance defense litigation, insurance defense practice, insurer, Jefferson Davis Parish, Nieset, OWC, Plauché, Smith, workers' compensation

A recent amendment to La. R.S. 23:1201(H) established a procedure for an employer/insurer to send a notice of payment form to the employee or his representative (as well as the Office of Workers’ Compensation – OWC) declaring the amount of the average weekly wage and compensation rate. The claimant/employee then has an opportunity to notify the employer that he disputes this amount.

Upon receipt of a written notice from the claimant/employee that the compensation rate is wrong, the employer/insurer has five business days to either send the correct amount or file a request for a preliminary determination by the workers’ compensation judge. The preliminary determination hearing must occur within 15 days of the request. The hearing is by telephone and the judge may order the parties to produce relevant records (such as wages and records of hours worked).

No later than 30 days from the filing of the request for the preliminary determination, the judge is to render a recommendation. The employer/insurer is then given 10 calendar days from receipt of the recommendation to either pay the recommended amount or notify the employee and his representative in writing that it does not accept the recommendation.

At that point litigation can be filed on the AWW issue, and if the employer/insurer is found to have made an error in the calculation, penalties and attorney fees may be awarded. However, an employer/insurer who accepts the recommendation or agrees to pay in accordance with the recommendation, but files a dispute with the OWC to controvert the recommendation will not be subject to penalties or attorney fees on that issue alone.

Plaintiff fails to meet the stringent burden imposed by Louisiana’s premises liability statute

August 27, 2014 admin Insurance Defense Allen Parish, Beauregard Parish, Calcasieu Parish, Cameron Parish, insurance defense, insurance defense litigation, Jefferson Davis Parish, Lake Charles insurance defense, premises liability

Summary judgment upheld in favor of operator of gas station and convenience store in a slip/fall claim by plaintiff who failed to meet the stringent burden imposed by Louisiana’s premises liability statute, La. R.S. 9:2800.6

The premises liability statute continues to protect merchants when faced with spills that are not created by the merchant, or due to insufficient time and other circumstances, are not detected by merchants prior to a patron’s slip/fall. A patron slipped then fell in an oil slick located in a parking space while the patron walked from the store to her vehicle. The appellate court held in favor of the operator of the gas station/convenience store by applying the “stringent” burden of proof imposed upon the patron by the La. premises liability statute for merchants under La. R.S. 9:2800.6. The pivotal issue in this case was that patron failed to prove actual or constructive notice (the temporal element which was the “essential element” that needed proof in this case) against the operator. Patron failed to establish that the oil spill existed for some period of time that was sufficient to place the operator on notice of the existence of the spill. The court reasoned that the evidence and arguments made by patron were mere speculation or suggestion, all insufficient, preventing patron from meeting her stringent burden of proof.

Finley v. Racetrac Petroleum, 48,923 (La. App. 2 Cir. 4/9/14); 137 So.3d 193

Insurer’s Duty To Investigate Is Ongoing And One That Fails To Re-Investigate A Wind Damage Claim May Be In Bad Faith

August 18, 2014 admin Insurance Defense Allen Parish, Beauregard Parish, business litigation, Calcasieu Parish, Cameron Parish, insurance defense, insurance defense litigation, insurance defense practice, Jefferson Davis Parish, Nieset, Plauché, Smith

A Motion for Summary Judgment was denied against an insurer that sought a ruling it was not in bad faith in investigating a wind damage claim by its insured. In this case, the insured sustained wind and flood damage from Hurricane Isaac. Specifically, plaintiff contended the insurer conducted an inadequate, 30-minute inspection of the home on the wind damage claim, paid the claim on that inspection ($2,857.73), but refused to reinvestigate the claim when plaintiff submitted an estimate over $50k after the insurer’s inspection. Based on these facts, the district judge opined that a reasonable jury could find the insurer acted in bad faith.

Lockett v. American National Property & Casualty Co., 13-5407, 2014 WL 2768720 (E.D. La. 6/18/14)

Third Circuit Upholds Piercing of Corporate Veil for Liability

May 13, 2014 admin Business Litigation, Insurance Defense, Workers' Compensation Allen Parish, Beauregard Parish, Calcasieu Parish, Cameron Parish, insurance defense, insurance defense litigation, Jefferson Davis Parish, Louisiana Third Circuit Court of Appeal, Plauché, Smith & Nieset

The Louisiana Third Circuit Court of Appeal recently upheld piercing of the corporate veil to hold individual members of a corporation liable for a judgment in favor of a workers compensation claimant where there were multiple entities with the same owner(s), there was extensive co-mingling of funds between the entities and one member completely funded all of the operations. The Court noted it appears that those companies were set up to avoid liability, but no efforts were made to treat these companies as separate entities. Hector v. Mo-Dad Environmental Services LLC, et al, 134 So.3d 133 (La. App. 3 Cir. 2014)

Court of Appeal Holds Sheriff Office Owed No Legal Duty to Suicide Victim

March 31, 2014 admin Insurance Defense Allen Parish, Beauregard Parish, business litigation, Calcasieu Parish, Cameron Parish, Court of Appeal, insurance defense, insurance defense litigation, insurance defense practice, Jefferson Davis Parish, Louisiana Third Circuit Court of Appeal, Nieset, Petition for Damages, Plauché, Smith, Third Circuit

In Simon v. Theriot, 127 So.3d. 1057, the Third Circuit Court of Appeal affirmed a trial court’s ruling granting an Exception of No Cause of Action dismissing the claims asserted by the survivors of a suicide victim. A lawsuit for wrongful death was asserted by the survivors of decedent. On October 8, 2010, the decedent dropped off his girlfriend at her home, and shortly thereafter a phone call was placed to 9-1-1 Emergency to file a complaint against him. St. Martin City Police and St. Martin Sheriff units were dispatched to the scene and found decedent occupying the vehicle, barricaded inside with a weapon. Decedent had placed phone calls to family members indicating his intent to kill himself. Over the next several hours, he was counseled by family members by cell phone to not shoot himself and to await the arrival of his father at the crisis scene. A crisis negotiator with the St. Martin Parish Sheriff’s Office was in control of negotiations with decedent at the scene. The crisis negotiator prohibited the family members from having any additional communications with him so as not to interfere with his handling of the negotiations. Decedent continued to call family members, and the phone calls went unanswered. Decedent subsequently shot and killed himself while in his own vehicle. Suit was filed by the surviving family members alleging negligence against law enforcement in the manner in which the crisis negotiations were conducted. The law enforcement defendants filed an Exception of No Cause of Action claiming that the survivors failed to state a legal cause of action against them. The trial court granted the Exception of No Cause of Action in favor of the defendant law enforcement agency, and an appeal was taken to the Third Circuit.

The Court of Appeal affirmed the decision of the trial court finding that the facts alleged in the Petition for Damages did not impose a duty upon the sheriff’s deputies. The Court of Appeal noted the deputies were alleged to have been confronted with an armed, barricaded, and suicidal individual who was never in custody during the encounter. Under these circumstances, no duty arose on the part of the sheriff or his deputies to protect this individual. Further, the Court of Appeal found that Louisiana law does not impose a duty on a sheriff to allow family members to participate in crisis negotiations to assure the survival of a suicidal man. Specifically, the Court of Appeal noted that the suicide victim was not in police custody at the time of incident, distinguishing the factual scenario from other Louisiana jurisprudence, and found that no duty existed.

Recent Interpretation of the Statutory Exclusion to Limited Liability by the Louisiana Supreme Court

January 21, 2014 admin Business Litigation Allen Parish, Beauregard Parish, business litigation, Calcasieu Parish, Cameron Parish, insurance defense, insurance defense litigation, insurance defense practice, Jefferson Davis Parish, limited liability, Limited Liability Companies, limited liability company, Louisiana, Louisiana Supreme Court, Nieset, Plauché, Smith

In Mary P. Ogea v. Travis Merritt and Merritt Construction, LLC, No. 2013-1085, the Louisiana Supreme Court provided businesses and members of Limited Liability Companies with clarification on the statutory exceptions to the shield of limited liability. Specifically, the Louisiana Supreme Court provided guidance to businesses and members of Limited Liability Companies concerning the following enumerated exceptions to the general rule of limited liability: fraud, breach of professional duty, or other negligent or wrongful acts. The court found that mere licensure in a particular field does not result in one being considered a professional for the purposes of the exclusion. The failure to produce competent evidence that an individual member of a Limited Liability Company is a professional as defined by the various Revised Statutes on the subject was fatal to the claimant’s ability to avail herself of that exception to the general rule of limited liability. Finally, to determine whether an individual member of a limited liability company is personally liable under the “negligent or wrongful act” exception to the general rule of limited liability, the court will consider the following: (1) whether the conduct could be fairly characterized as a tort; (2) whether the conduct could be characterized as a crime, for which a natural person, not a juridical person, could be held culpable; (3) whether the conduct at issue was required by, or was in furtherance of a contract between the claimant and the LLC; and (4) whether the conduct at issue was done outside the member’s capacity as a member.

Workers Compensation: Penalties and Attorney Fees

January 6, 2014 admin Workers' Compensation Allen Parish, Beauregard Parish, business litigation, Calcasieu Parish, Cameron Parish, employer, insurance defense, insurance defense practice, Jefferson Davis Parish, Louisiana, Nieset, Plauché, Smith, Third Circuit

In Roy v Schilling Distributing Company, the Third Circuit denied attorney fees to an employee/claimant, based upon its finding that the employer’s vocational efforts (communication efforts, attention to medical records and details, testing and follow-up) were “minimal” and “sometimes missing altogether” but not “arbitrary and capricious” under RS 23:1201(I). No. WCA 13-242 (10/16/13).

Duty to Defend: “Eight Corners” Rule

December 13, 2013 admin Insurance Defense Allen Parish, Beauregard Parish, Calcasieu Parish, Cameron Parish, insurance defense, insurance defense litigation, insurance defense practice, Jefferson Davis Parish, Louisiana

Whether or not an insurer has a duty to defend its insured is determined by the allegations of the injured plaintiff’s petition. The insurer is obligated to furnish a defense to its insured unless the allegations of the plaintiff’s petition unambiguously exclude coverage to the insured under the applicable insurance policy. This is known as the “eight corners rule,” whereby an insurer must look to the four corners of the plaintiff’s petition and the four corners of its policy to determine whether it has a duty to defend. Lodwick L.L.C. v Chevron U.S.A. Inc., Second Circuit, No. 48,312-CA (10/2/13).

1 2 3

Home