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.

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.

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)

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).

Can a City Not Be Liable for the Acts of an Off Duty Police Officer Driving a City Owned Vehicle?

November 19, 2013 admin Insurance Defense Allen Parish, Baton Rouge, Beauregard Parish, business litigation, Calcasieu Parish, Cameron Parish, insurance, insurance defense, insurance defense litigation, insurance defense practice, Jefferson Davis Parish, Louisiana, Nieset, off duty police officer, personal insurance policy, Plauché, self-insured, Smith

An off duty police officer driving a police vehicle owned by the City of Baton Rouge rear-ended an individual. The City was exempt from having to carry insurance on the vehicle. The vehicle was “self-insured.” However, the police officer was off duty; therefore, the City was not liable for the negligence of the police officer. The police officer’s personal insurance policy excluded coverage because the police officer was using a city owned vehicle. The victim was left without recoverable insurance absent the victim’s own UM insurance. The court in Cooper v. Reed, 845 So.2d. 411 (La. 1^st Circ. 2003) stated:

Absent a legislative requirement that government vehicles be insured for any permissive use, the City, therefore, may allow unlimited personal use of its vehicles with impunity. This leaves members of the general public, as well as the employee-drivers, unprotected for much of the time these vehicles are being used. Given this state’s strong public policy that only insured automobiles be allowed on its roads, the legislature should consider if this is the result it intended.

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.

Insurance Defense Involving Claims Against School Boards

January 30, 2012 admin Insurance Defense abused, Allen Parish, Beauregard Parish, business litigation, Calcasieu Parish, Cameron Parish, claims, discipline, discipline of children, harasses, insurance defense cases, insurance defense litigation, insurance defense practice, Jefferson Davis Parish, lawsuits, Louisiana, mistreated, Nieset, Plauché, school boards, Smith, statute, student

Sometimes insurance defense cases involve defending School Boards against a myriad of claims, including the discipline of children, and whether the discipline rises to the level of a malicious, willful, or deliberate cause of bodily harm. La. R.S. 17:416 provides for a teacher to discipline or correct a pupil who disrupts normal classroom activities, who is disrespectful to a teacher, who willfully disobeys a teacher, who uses or abusive or foul language directed at a teacher or another pupil, who violates school rules, or interferes with an orderly education process. However, the reliance on this statute does not mean that lawsuits will not be filed. In XYZ v. East Baton Rouge Parish School Board, 697 So.2d. 27, a high school senior who was not allowed to graduate because he missed classes and assignments, and failed to perform the adequate makeup work, sued the school. A Motion for Summary Judgment was granted in favor of the School Board.

In ABC v. St. Charles Parish School Board, 790 So.2d. 696, a student alleged that a teacher continually mistreated, harassed, and abused the student for things such as denial of medical treatment, unwarranted disciplinary action, refusal of a piece of pizza, and unfair punishments. This lawsuit was not entertained because the statute of limitations had run.