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.

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.

Third Circuit Court of Appeal Rules in Workers’ Compensation Case

March 24, 2012 admin Insurance Defense, Workers' Compensation Allen Parish, Beauregard Parish, Calcasieu Parish, Cameron Parish, insurance defense, insurance defense litigation, insurance defense practice, Jefferson Davis Parish, Lake Charles, Lake Charles insurance defense, Louisiana, Louisiana Third Circuit Court of Appeal, marijuana, Marinol, Nieset, Plauché, Smith, workers' compensation

On March 7, 2012 the Third Circuit Court of Appeal rendered a decision in a case in which the trial court refused to award penalties and attorney’s fees, or otherwise find that a workers’ compensation insurer was in bad faith. The workers’ compensation insurer questioned a physician’s prescription of Marinol, which he prescribed for the stated purpose of providing some relief of pain and improving capacity for sleep. The court stated, “The FDA does not even recommend Marinol for treatment of pain conditions related to bodily injuries. Obviously, this drug is used in very limited circumstances.” The claims representative requested additional information from the treating physician, who failed or refused to provide it, and, the matter resulted in litigation. The Third Circuit Court of Appeal affirmed the trial court, finding that the judge did not commit manifest error in refusing to impose penalties or attorney’s fees upon the workers’ compensation insurance defendant.

Louisiana Workers’ Compensation Law Update

March 15, 2012 admin Workers' Compensation Allen Parish, Beauregard Parish, business litigation, Calcasieu Parish, Cameron Parish, carriers, Form 1008, Form 1010, Form 1010A, insurance defense, insurance defense litigation, insurance defense practice, insurers, Jefferson Davis Parish, Louisiana Workers' Compensation Act, medical provider, medical treatment, self-insured, workers' compensation

The Louisiana Workers’ Compensation Act was recently amended by the legislature to include Medical Treatment Guidelines. The new procedural rules for the Medical Treatment Guidelines were just passed and go into effect on April 20, 2012.

This is going to affect all medical treatment requests received from providers, effective April 20, 2012. The process begins with the medical provider sending a Form 1010 to the carrier with documentation to support his requested treatment. Insurers, self-insureds, and third party administrators will need to designate someone within the company to receive these forms. Many carriers are designating someone in their Utilization Review department to receive and process the claim.

The carrier must respond within 5 days with a Form 1010 or a Form 1010A. If the information is insufficient to make a decision, the carrier must reply with a Form 1010A explaining why the initial request was insufficient and what other information is necessary. If the information is sufficient or is supplemented to become sufficient, then within 5 days, the carrier must file a Form 1010 either approving the requested treatment or denying it.

If the carrier does not respond within 5 days, or timely denies the requested treatment, then the medical provider must file a Form 1009 with the OWC within 15 days to obtain an opinion from the OWC MD Review. This opinion shall carry great weight.

Any party aggrieved by the OWC MD opinion may file a Form 1008 within 30 days and place the matter into litigation. An expedited hearing shall occur within 15-30 days. The decision of the OWC MD may only be overturned when shown by clear and convincing evidence the decision was not in accordance with the published Medical Treatment Guidelines.

Plauché, Smith & Nieset, LLC 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.

Payment for Non FDA Approved Drugs in Workers’ Compensation

February 26, 2012 admin Insurance Defense, Workers' Compensation AIDS, business litigation, cancer, FDA, insurance company defendant, insurance defense, insurance defense litigation, insurance defense practice, Louisiana Third Circuit Court of Appeal, marijuana, Marinol, MS, non-FDA approved use, workers' compensation

An insurance defense case was recently argued at the Louisiana Third Circuit Court of Appeal. The issue was whether Marinol, a synthetic form of marijuana, an FDA approved drug for cancer, AIDS and MS, when prescribed for a non-FDA approved use, must be approved by the employer in a workers’ compensation setting, or whether the insurance company defendant on behalf of the employer has a right to demand more justification from the doctor as to the basis upon which the doctor relies in prescribing the drug for a non- FDA approved use.

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. Plauche, Smith & Nieset also engages in the insurance defense practice throughout the state of Louisiana.

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