2016 Historic Flood

I have met smart, sophisticated “business” people whose eyes glass over when they try to explain their understanding of “UM” coverage. The picture becomes murkier when discussing “economic-only UM,” a form of UM coverage many people purchase without even knowing it. Through many years and conversations, I have come to conclude that there is a general fogginess that obscures this entire subject with many, if not most, people. This blog is an effort to improve understanding on the subject.What is “UM” Coverage?“UM” signifies “uninsured motorist” insurance coverage, but is more properly described as “uninsured/underinsured” motorist coverage. A person, family, business, or group purchases UM coverage to respond to damages caused in an accident by someone who has either no insurance or not enough to cover the loss. You purchase UM insurance to protect yourself or those connected to you. Without UM, you are gambling that the person who caused the accident (the “tortfeasor”) will have insurance coverage, and enough coverage, to respond to the injuries and damages they have caused.Why UM?This question is simply answered in a two-part response:#1- The roads are dangerous-Unless you are a crop duster or an undercover agent, the most dangerous thing you will likely do on any given day is to drive on a public road, even more so in the age of “smartphones” and distracted-driving.#2- Many drivers lack sufficient liability coverage- An unhealthy portion of drivers have either no insurance on insufficient insurance coverage to address an accident involving severe injuries or damages. The State of Louisiana requires motorists to obtain at least the minimum insurance of $15,000 “per person,” $30,000 “per accident,” and $25,000 to address property damage. If you do not purchase UM, you are trusting that these limits will be enough, as they might be in a minor accident. But what if the injuries are severe or you have multiple passengers in your car, van, or suburban?Often, the same people who reject UM, will buy “collision” coverage on their car to make sure they are not left paying for a car note after the car is destroyed in an accident. In this limited way, you can think of UM insurance as collision coverage on you, your family, passengers, or employees.While perfect statistics are not available, many drivers on the road have no insurance. Frequently, drivers will obtain minimum limits insurance through a “premium finance” arrangement, but will have stopped paying the premiums (thereby losing coverage) by the time of an accident.What is “Economic-Only” UM?In Louisiana, UM coverage will be afforded to you unless you “waive” the coverage under La. R.S. 22:1295. Louisiana residents are presented with a form that allows them to waive or select UM coverage. They are also allowed to select “economic-only” UM. People often choose this option because it is cheaper, but economic-only UM coverage will only pay for economic damages such as lost wages, medical bills, funeral costs, and other monetary damages. Economic-only UM will not pay money to compensate for pain and suffering/mental anguish, scarring and disfigurement, or other non-economic damages.FAQS

• Can UM protect me from a hit-and-run driver? Yes.

• What if another driver’s negligence caused the accident, but there was no physical contact with that driver’s vehicle and they fled? In this scenario, UM may be available under La. R.S. 22:1295(1)(f); however, you will need to identify an “independent and disinterested witness” to establish the actions of the unidentified driver.

• Will UM protect me if I am at fault in an accident? No. The law would consider that a “moral hazard” and invite unscrupulous individuals to cause an accident in hopes of recovering under the policy they purchased.

• Will UM protect me if I am a pedestrian? It may, depending upon the terms of your insurance policy.

• What if an object falls from a vehicle and causes an accident? UM may be available in this circumstance. The ultimate answer may depend upon whether the “falling object” had come to rest before the accident. Rener v. State Farm Mut. Auto. Ins. Co., 99-1703 (La.App. 3 Cir. 4/05/2000), 759 So.2d 214, 215.

CONCLUSIONRational people may decide to reject UM to save money; and this decision may be the right one if they have health insurance, short-term disability, long-term disability, or others such protections. However, people often make such decisions with less than full information. Hopefully, you will make the smart choice.

In Louisiana, workers compensation benefits can beowed if an employee sustains an accident or develops an occupational diseasearising out of and occurring during the course and scope of theiremployment. The definitions and burdens of proof differ for each.

An accident is defined by La. R.S. 23:1021 as:

(1) “Accident” means an unexpected or unforeseen actual, identifiable,precipitous event happening suddenly or violently, with or without human fault,and directly producing at the time objective findings of an injury which ismore than simply a gradual deterioration or progressive degeneration.

An occupational disease is defined by La. R.S.23:1031.1 as:

B. An occupational disease means only that disease or illnesswhich is due to causes and conditions characteristic of and peculiar to theparticular trade, occupation, process, or employment in which the employee isexposed to such disease. Occupational disease shall include injuries due towork-related carpal tunnel syndrome. Degenerative disc disease, spinalstenosis, arthritis of any type, mental illness, and heart-related or perivasculardisease are specifically excluded from the classification of an occupationaldisease for the purpose of this Section.

C. Notwithstanding the limitations of Subsection B hereof, everylaboratory technician who is disabled because of the contraction of anydisease, diseased condition, or poisoning which disease, diseased condition, orpoisoning is a result, whether directly or indirectly, of the nature of thework performed, or the dependent of a laboratory technician whose death is theresult of a disease, diseased condition, or poisoning, whether directly orindirectly, of the nature of the work performed shall be entitled to thecompensation provided in this Chapter the same as if said laboratory technicianreceived personal injury by accident arising out of and in the course of hisemployment.

As used herein, the phrase “laboratory technician” shall mean anyperson who, because of his skills in the technical details of his work, isemployed in a place devoted to experimental study in any branch of the naturalor applied sciences; to the application of scientific principles ofexamination, testing, or analysis by instruments, apparatus, chemical orbiological reactions or other scientific processes for the purposes of thenatural or applied sciences; to the preparation, usually on a small scale, ofdrugs, chemicals, explosives, or other products or substances for experimentalor analytical purposes; or in any other similar place of employment.

Except as otherwise provided in this Subsection, any disabilityor death claim arising under the provisions of this Subsection shall be handledin the same manner and considered the same as disability or death claimsarising due to occupational diseases.

In general, if an employee can prove that they were exposed toCoronavirus at work, and that the particular exposure caused them to contractCoronavirus disease, they may be able to prove a compensable accident. The burden of proof is a tough one, of course, because it would seem to benearly impossible for an employee who contracts the Coronavirus to prove thecontraction resulted from work as opposed to exposure in some otherenvironment. However, it is important to note that one Louisiana courtdid find that a claimant was able to meet that burden when he contracted theWest Nile Virus by proving to the satisfaction of the Workers CompensationJudge, rather incredibly, that a particular mosquito bite occurring at work wasthe cause. Allen v. Graphic Packaging, 51,080 (La.App. 2^nd Cir. 1/11/17), 211 So.3d 1219. If a claimant isable to prove the occurrence of an accident, then the usual workerscompensation medical and indemnity benefits would be payable depending onmedical needs, disability status, or even death benefits if the employeeexpired as the result of such an accident.

For an employee to be able to prove that theircontraction of Coronavirus disease fits within the definition of anoccupational disease, they would have to prove that it was “due to causes andconditions characteristic of and peculiar to” their employment. Somehealthcare workers and others in related fields who become infected would seemto have an easier time proving their cases than others whose work would notcustomarily lead to such exposures. The definition above includeslaboratory technicians (which could be an expansive list as defined) whocontract a disease as the result exposure to something that they are workingon/with. The statute also provides some timing elements for claim filingand causation presumption, most of which would not seem to apply because ofnovel nature of the current Coronavirus outbreak. As with claims assertedas accidents, the usual medical and indemnity benefits would be payabledepending on the circumstances of the individual worker.

For additional details on the Allencase, please review Keogh Cox blog “One Particular Mosquito: West Nile Virus Foundto be a Compensable Workers’ Compensation Claim” by clicking here: https://keoghcox.com/one-particular-mosquito-west-nile-virus-found-compensable-workers-compensation-claim/.

In cases that involve physical injury, defendants often request an “Additional Medical Opinion [AMO]” from a physician of their choice as part of the defense of the case. Louisiana Code of Civil Procedure article 1464 allows a defendant to select a physician to perform a physical and/or mental examination of a plaintiff to challenge the plaintiff’s claimed physical and mental injuries. At times, a plaintiff may voluntarily agree to the examination. However, if an objection is lodged to the requested examination, a defendant must proceed with a Motion to Compel the Additional Medical Opinion. In the context of the motion, the defendant must establish the following for the AMO to be ordered pursuant to article 1464:

1. The mental or physical condition of a party is in controversy; and
2. “Good cause” exists for the AMO.

Because Louisiana courts routinely hold that a plaintiff puts his or her physical and mental condition in “controversy” by filing suit and requesting damages for physical and mental pain and suffering, the focus of a motion for an AMO is often on the “good cause” requirement. “Good cause” is not defined in La. CCP article 1464, and its meaning is not clear. Recently, however, the Louisiana Supreme Court provided guidance on the issue in the case of Hicks v USAA General Indemnity Company, et al., holding that a showing of “good cause” requires that a moving party establish a reasonable nexus between the requested examination and the condition in controversy.

In Hicks, the defendant moved for an AMO with an orthopedic surgeon after plaintiff filed suit, alleging personal injuries to his neck, back, and arm as a result of an accident. In the context of the Motion to Compel, it was argued the plaintiff put his physical condition in controversy by alleging injury. The defendant noted plaintiff treated with two physicians, one of whom did not believe plaintiff was a surgical candidate. The defendant also maintained “good cause” existed because a plaintiff “who asserts mental or physical injury… places that mental or physical injury clearly in controversy and provides the defendant with good cause for an examination to determine the existence and extent of such asserted injury.” In support of this argument, the defendant also highlighted inconsistent medical testimony concerning plaintiff’s physical conditions and treatment in support of “good cause.”

In opposing the motion, the plaintiff argued “good cause” was absent because two physicians already had offered opinions on plaintiff’s condition and treatment.

The trial court denied defendant’s Motion to Compel AMO on grounds that “good cause” did not exist. The trial court noted that two physicians already had been deposed and that a physician selected by the defendant could review plaintiff’s medical records and the depositions of the other doctors to offer an additional medical opinion at trial. The case proceeded to trial, where the defendant introduced testimony from a physician who relied upon the materials referenced in the court’s ruling to support his medical opinion. Not surprisingly, the plaintiff argued the opinion of the defendant-selected physician should be discredited because he never examined plaintiff.

After a trial judgment in favor of plaintiff, the defendant appealed. The appeal court also concluded “good cause” did not exist for the AMO, noting the absence of “definitive guidelines as to what constitutes good cause.” The appeal court also noted the fact that defendant had the ability to obtain the desired information by other means was relevant in deciding whether good cause was shown.

The Louisiana Supreme Court reversed the lower courts’ decisions. It started its analysis by noting the basic premise of our system of justice: that both sides to a dispute stand on equal footing in gathering evidence and preparing for trial. It noted the AMO allowed under La. CCP article 1464 actually limits the extensive discovery permitted under Louisiana law, as it balances considerations of “sanctity of the body and the right to privacy with considerations of fairness in the judicial quest for truth.” Article 1464 seeks to achieve balance by requiring more than “relevance” for an AMO, granting the right to courts to order an AMO only when a plaintiff’s condition is “in controversy” and “good cause” supports allowing the examination. The Supreme Court also noted that an AMO may be one party’s only opportunity to independently ascertain the existence and extent of the other party’s claimed injuries.

After balancing these competing interests, the Louisiana Supreme Court found “good cause” under article 1464 requires the moving party to establish a reasonable nexus between the requested examination and the condition in controversy. The decision as to whether the moving party has demonstrated both the “in controversy” and “good cause” requirements lies in the sound discretion of the trial court. At times, the pleadings alone may contain sufficient information to establish a reasonable nexus.

As part of its decision, the Louisiana Supreme Court noted that although meeting the statute’s requirements may entitle a defendant to an examination, a defendant is not entitled to any AMO it request; reasonable limitations may still be applied. It remains the trial court’s role to balance the competing interests and rights of the parties, considering both “sanctity of the body” and the implication of one party’s privacy rights against considerations of fairness for the moving party.

After employing its analysis, the Louisiana Supreme Court concluded the defendant in Hicks demonstrated “good cause” because plaintiff alleged severe injuries as a result of the accident, claimed damages, and inconsistent medical testimony concerning plaintiff’s physical condition existed. It remanded the case for a new trial.