Is a Driver at Fault for an Accident Involving a Deer?

May 30, 2013 admin Insurance Defense business litigation, driver at fault, insurance defense, insurance defense litigation, insurance defense practice, negligence

Is a driver at fault for an accident which occurs avoiding a deer which suddenly enters the road? Most Louisiana courts have held that an animal such as a deer or a large dog unexpectedly darting out in front of a vehicle at night constitutes a sudden emergency, exonerating the driver from fault for engaging in action which, upon cooler reflection may not have been the most favorable course. One who suddenly finds himself in a position of imminent peril, without sufficient time to consider and weigh all the circumstances or best means that may be adopted to avoid an impending danger, is not guilty if he fails to adopt what subsequently appear to be a better method, unless the emergency in which he finds himself is brought about by his own negligence. Hickman v. Southern Pack Transport Company, 262 So.2d. 385.
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.

Disciplinary Action on Judge Ruled Unconstitutional

May 10, 2013 admin Business Litigation business litigation, insurance defense litigation, insurance defense practice, legislative attempt, Louisiana Supreme Court, unconstitutional

In Prejean v. Barousse, Acadia Parish Clerk of Court, 2012-1177, the Louisiana Supreme Court struck down La. R.S. 13:4210 as being unconstitutional on its face, because it was an attempt to reduce a judge’s salary for failure to timely rule on a matter. This constituted a legislative attempt to discipline a judge. The Louisiana Supreme Court has consistently ruled that it has exclusive original jurisdiction over such matters.
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.

Travel Agent Liability

February 17, 2013 admin Insurance Defense insurance defense, insurance defense litigation, insurance defense practice, Louisiana First Circuit, travel agent

In the 1992 case of Philippe v. Lloyd’s Aero Boliviano, 589 So.2d. 536, the Louisiana First Circuit found that a plaintiff had a cause of action against a travel agent that was aware of risks associated with high altitude and rapid altitude changes, and failed to warn plaintiff of same.

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.

Lawyer Comment in Jury Argument

February 2, 2013 admin Business Litigation business litigation, insurance defense, insurance defense litigation, United States Fifth Circuit

The United States Fifth Circuit Court of Appeals recently addressed allegedly improper comments by counsel during jury argument. [Michael D Williams versus C & E Boat Rentals, LLC. (Fifth Circuit docket number 11 – 30904).] The Court reiterated several important principles. If an objection is made during trial, the wide discretion allowed the trial judge is reviewable on an abuse of discretion standard. If the objection is not made until appeal, the standard of review is plain error. It is important that the statements complained of have some basis in fact in the case (“Whether the closing argument statements at issue were based on evidence in the record is important to our inquiry.”) The common limiting instruction advising that statements by the lawyers are not evidence and that the jury must rely on its own interpretation of the evidence may cure statements where the court does not “applaud . . . counsel’s word choice”, but still finds some basis in the evidence for the statement.

Louisiana Maximum and Minimum Workers’ Compensation Rates

January 25, 2013 admin Workers' Compensation business litigation, insurance defense litigation, insurance defense practice, Louisiana Workers Compensation, workers' compensation

As of September 1, 2012 through August 31, 2013 the maximum workers’ compensation indemnity rate in Louisiana is $605.00. The minimum rate is $161.00. Approved mileage reimbursement is $.51 per mile pursuant to La. R.S. 23:1203d

Hospice Not Found Liable For Visitor’s Dog Biting Patient

August 2, 2012 admin Insurance Defense business litigation, Dog Biting, insurance defense, insurance defense litigation, insurance defense practice

In Marie v. American Alternative Insurance Company, a visitor to a Hospice brought his dog to the Hospice to visit a patient. The dog bit another patient. The patient sued Hospice. The court held that the dog’s presence at the Hospice did not create a unreasonable risk of harm. The court weighed the magnitude of harm versus the utility of having the dog on premises, the benefit being the pleasure derived from the dog by the patients. The Hospice did not have care, custody, or control over the dog. This decision was a reversal of the trial court that held the Hospice liable.

Jurisdiction Over Businesses Advertising on the Internet

July 2, 2012 admin Business Litigation business litigation, insurance defense litigation, insurance defense practice, jurisdiction, United States Fifth Circuit

The seminal case in the United States Fifth Circuit is Mink v. AAAA Development, LLC, 190 F.3d. 333. Mink adopted a sliding scale test wherein the court determines whether it has jurisdiction based on things such as electronic mail access, printable order forms, online ordering and payment, toll-free numbers on a website, interactivity with residents of a foreign state, and the number of customers in the state in question.

Penalties and Attorney’s Fees

May 10, 2012 admin Workers' Compensation Appellate Court, attorney's fees, business litigation, insurance defense litigation, insurance defense practice, penalties, prosecution, unsuccessful appeal, workers' compensation

The local District 3 court awarded $13,000.00 in attorney’s fees for prosecution of a claim, as well as penalties of $4,000.00. The Appellate Court found that while the initial denial of the claim may have been a close call, the employer continued to deny the claim “in the face of the growing evidence that uniformly supported and corroborated the claim.” The employer acted at its own peril. The Appellate Court citing Nash v. Aecom Tech Corp., reiterated that a workers’ compensation claimant is entitled to an increase in attorney fees to reflect additional time incurred in defending an employer’s unsuccessful appeal, and awarded an additional attorney fee of $3,500.00 for the work done on appeal.

Insurance Defense Conference Presentation

May 3, 2012 admin Insurance Defense insurance defense, insurance defense litigation, insurance defense matters, insurance defense practice, Louisiana Third Circuit Court of Appeal

On April 20, 2012 Plauché, Smith and Nieset Partner, Chris Ieyoub, was a guest presenter at the Louisiana Third Circuit Court of Appeal Annual Conference held at the Eola Guest House in Natchez, MS. Ieyoub, whose practice is focused primarily on insurance defense matters in Southwest Louisiana, presented a one hour Continuing Legal Education lecture on the topic of professionalism. The presentation entitled: From the Other Side of the Bench: The modern practice, professionalism and protocol from a practitioner’s perspective, was very well received by the Louisiana judges in attendance.

Federal Western District Court Grants Summary Judgment in Favor of Defendant

April 11, 2012 admin Insurance Defense business litigation, insurance defense litigation, insurance defense practice, Louisiana Western District, plaintiff, summary judgment

In Rhodes v. Whataburger Restaurants, 2012 WL 1100671, the Louisiana Western District granted summary judgment in a case in which a customer alleged she “tripped and fell over the ruffled edge of a rug.” The court found that the plaintiff had not alleged or provided any evidence showing a rip or tear in the mat, frayed edges, a curl, wrinkle or fold, or any condition related to the mat prior to her fall other than mere allegations that it was defective prior to the fall, which was “clearly insufficient to meet her burden.” The court further stated “the mere fact that plaintiff tripped on a weather related floor covering in the defendant’s store, standing alone, does not establish a condition that presented an unreasonable risk of harm.” The court further found that even if the mat had presented an unreasonable risk of harm, the plaintiff failed to show that Whataburger had actual or constructive notice of the condition presented by the mat prior to her fall.

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