Biomechanical Testimony: Reliability Sinks Expert Testimony

Under Louisiana law, all automobile liability policies include uninsured/underinsured motorist coverage (“UM coverage”) unless the insured affirmatively rejects such coverage, selects lower limits, or selects economic only coverage in writing. The question of what qualifies as a valid rejection of UM coverage has been debated in numerous lawsuits across the state. In Barbera v. Andrade, examination of this issue continued, and the court ruled that an initial rejection of UM coverage remains effective until changed by the insured’s written request.

In Barbera, the court examined whether UM coverage was triggered under a policy when the insured, who previously waived coverage, failed to respond to the insurer’s request to complete a new UM waiver form. It was undisputed that the insured executed a valid waiver of UM coverage in 2001. In 2014, the insurer sent the insured a letter that asked the insured to complete an updated coverage selection form and return it to the insurer’s office. The insured did not execute the updated form. A driver insured under the policy was involved in a motor vehicle accident in 2017 and filed a claim for UM benefits.

The insured argued the letter sent with the waiver form in 2014 was ambiguous and could be read to mean that failure to respond would mean that UM coverage would be read into the policy by default. Evidence also showed that some of the insurer’s employees also thought the failure to respond with the updated form would result in UM coverage.

However, La. R.S. 22:1295(1)(a)(ii) provides, “An insured may change the original uninsured motorist selection or rejection on a policy at any time during the life of the policy by submitting a new uninsured motorist selection form to the insurer on the form prescribed by the commissioner of insurance.” Thus, the Court ruled that the insured’s initial rejection of UM coverage could only be changed via written request by submitting a waiver form to the insurer. The intent of the parties was inconsequential.

Because the insured executed a valid UM waiver in 2001, it remained part of the existing policy. No event, such as a change in the policy’s liability limits, occurred that required the execution of a new UM selection waiver form, and the insured did not submit a new form to the insurer to obtain UM coverage. Therefore, UM coverage was not afforded under the policy, and summary judgment was affirmed in favor of the insurer.

Case Reference: Barbera v. Andrade, 22-147 (La. App. 5 Cir. 11/30/22), 2022 WL 1733087, --- So.3d ---.

In Moran v. Rouse's Enterprises, LLC, 19-2392019(La. App.5Cir. 12/26/19)- - - So. 3d - - -, the Louisiana Fifth Circuit held that thereis a forfeiture of all benefits when a worker’s compensation claimant commitsfraud, regardless of when the fraudulent conduct occurs. The court declined tofollow opinions from the First and Third Circuits concluding otherwise.

In Moran, the claimant obtained treatment for injuries toher back, right knee, and right shoulder after a slip and fall at work forRouses supermarket. In her deposition, the claimant Moran testified that sheexperienced knee pain only once before her fall; it was “years ago” and not“serious.” Moran also claimed that she experienced no prior shoulder or backpain. However, medical records established:

• Complaintsof knee pain on at least 8 separate occasions between 2012 and the job injury;

• Complaintsof right knee, right wrist, and back pain after a slip and fall in 2013; and

• A rightshoulder impingement diagnosis 2 months before the on-the-job accident.

Rouses and its workers compensation carrier affirmativelyalleged a violation of La. R.S. 23:1208, Louisiana’s workers compensation fraudstatute, following the claimant’s deposition. Paragraphs “A” and “E” of section1208 provide in pertinent part:

A. It shallbe unlawful for any person… to willfully make a false statement orrepresentation… for the purpose of obtaining or defeating any benefit orpayment under…this Chapter.

***

E. Anyemployee violating this Section shall… forfeit any right to compensationbenefits under this Chapter.

As part of their fraud defense, the defendants specificallydenied responsibility for all worker’s compensation benefits, i.e. benefitsthat that might have otherwise been due both before and after the fraudulentdeposition testimony.

Following trial, the workers compensation judge determinedthat Moran carried her burden of proving the occurrence of on-the-job injuryand disability. Nevertheless, the trial court also ruled that the claimant madefalse statements for the purpose of obtaining workers compensation benefits inviolation of section 1208, thereby forfeiting the right to both the pre andpost-deposition benefits that she was claiming.

On appeal, Moran argued that the forfeiture requirement ofsection 1208 applies prospectively only. Moran cited opinions from theLouisiana First and Third Circuits. After addressing the statute and the caselaw, the Moran court affirmed the decision of the workers compensation judgefinding that the forfeiture of benefits provided for in of Section 1208 isclear and unambiguous. The opinion states that “…if the legislature hadintended to limit the application … it would have clearly expressed that in thestatute.”

There are no Louisiana Supreme Court opinions which specifically address whether the Section 1208 forfeiture applies retroactively or prospectively only. Given the defined split in the Louisiana appellate courts, the issue is ripe for consideration by the state’s highest court.

Ed is a Keogh Cox partner who litigates Worker’s Compensation, automobile and premises liability as well as subrogation claims. He is an avid runner and enjoys traveling with his wife Jennifer and their three children.

For years, Louisiana plaintiffs attorneys have argued that the force ofimpact in an auto accident is not determinative of their clients’ injuries andshould be afforded little, if any, weight. A recent decision out of theLouisiana First Circuit Court of Appeal does damage to that argument. In Jonesv. Bravata, Jr. and The City of Baton Rouge, 2018 CA 0837 (La. App. 1 Cir.5/9/19), the First Circuit upheld the trial court's jury instruction on “forceof impact” where photographs showed only minor damage and the defendantdescribed the accident as a “bump.”

The accident occurred when a City employee rear-ended the plaintiffs'vehicle. Liability was stipulated and the only question at trial was damages.Mrs. Jones alleged severe neck and back injuries. She began treatment with anorthopedist within a week of the accident and thereafter received five“relatively non-invasive surgical procedures” in lieu of a lumbar fusionsurgery. The jury returned a verdict of $200,000, which included $150,000 inpast medical expenses and $35,000 in future medical expenses, but awardedlittle for general damages. Mrs. Jones appealed the verdict, asserting that thetrial court erred in instructing the jury on force of impact.

The "force of impact" jury instruction in dispute provided:

Whilethe force of a collision may be considered in determining whether a person wasinjured by an accident and the extent of the injuries sustained, it should notbe the only factor to consider in making such a determination. Even though theforce of impact may be slight, it does not preclude an award of damages.However, in determining causation, you may consider the minimal nature of theaccident.

In considering the plaintiff's assignment of error, the First Circuit noted that Mrs. Jones was correct that no witness specifically testified that the accident was too minor to have caused her injuries. However, there was evidence in the record upon which the jury could have reached the conclusion that this was a minimal impact.

Common sense would appear to support a connection between the force of an impact and the injury one could be expected to suffer. The recent Jones decision allows defendants to promote this common sense argument. Where the claimed injuries are disproportionate to the forces involved, this argument can make the difference at trial.

John Grinton is a partner of the firm admitted in state, federal and appellate courts throughout Louisiana. His practice focuses on commercial and construction litigation, representing insurance companies, architects, engineers, contractors and other businesses in all aspects of litigation. His workers’ compensation practice includes representing clients in medical billing disputes, healthcare provider disputes, statutory/borrowing/special employer disputes, and court approved settlements. John has been involved in complex cases involving construction defect claims, breach of contract and negligence actions, insurance coverage issues, lender liability, securities litigation and personal injury matters. He has firsthand experience in jury trials and arbitration's, as well as mediation, appellate briefing and oral argument.