Creating Obstacles to Frivolous Claims

The costs of litigation can be substantial, but a seldom used statute arms defendants with a tool to minimize these costs. If a defendant has not filed another pleading, La. R.S. 13:4522 allows the defendant to request that a court order the plaintiff to post a bond as security to cover certain costs. If the plaintiff fails to post this security in the time fixed, his case will be dismissed without prejudice.

The security identified in this statute can include expert witness fees, deposition costs, exhibit costs, and other related expenses. The defendant bears the burden of showing the amount needed for proper security. If a plaintiff’s damages are questionable, or preliminary investigation shows that the plaintiff might be apportioned most of the liability for the incident, the attorney filing the suit may think twice before pursuing the claim further, especially if a substantial amount of security is ordered.

By its terms, the statute does not apply to cases brought in forma pauperis. It also does not apply to claims filed in the Parish of Orleans. Everywhere else, the provisions of La. R.S. 13:4522 can add a layer of protection in the defense of frivolous claims.

John Grinton is a Keogh Cox associate whose practice areas include commercial and construction litigation. When not practicing law, John spends most of his time with his wife and son, and their two dogs.

On June 27, 2025, in an Opinion authored by Justice Amy Coney Barrett, the United States Supreme Court determined that “universal injunctions,” injunctions issued by district judges that apply nationwide, “likely exceed the equitable authority that Congress has given to federal courts.” In Trump v. CASA, Inc., the Supreme Court, with a 6-3 vote, concluded that district courts do not have authority to issue universal injunctions which seek to prohibit the enforcement of a law or policy against anyone nationwide. The decision limits the relief afforded by the district courts in consolidated matters to only the parties in those actions.

By prohibiting the use of “universal injunctions” in federal courts, litigants already have started to utilize another procedure to seek the relief they seek – class actions. Class actions are a special procedure provided by both federal and state law that allows one or more class representatives to file suit and seek to represent the interests of other similarly situated individuals or companies. Prior to the Supreme Court’s ruling in Trump v. CASA, Inc., a single litigant could apply for a universal injunction through an individual action. Now that the Supreme Court has declared that process unavailable for application of an injunction nationwide, class actions may be the procedural process litigants attempt to use to achieve that same purpose. It remains to be seen whether class actions will be an effective way to achieve broader relief for individuals impacted by government policies.

References:

Trump v. CASA, Inc., --- S.Ct. ---, No. 24A884, 2025 WL 1773631 (U.S. June 27, 2025).

The nation’s first suit seeking a declaration of coverage under a commercial property policy for business interruption and extra expenses incurred as a result of COVID-19 was filed in a Louisiana state court on March 20, 2020. Since then, similar suits have been filed across the nation by restaurants, casinos, dentists, dive shops, movie theatres, repertory theatre companies, etc. Clearly, the same coverage issues raised in the Louisiana case will be litigated throughout the nation.

The suit in Cajun Conti, LLC, et al v. Certain Underwriters at Lloyd’s, London, et al, Suit No. 2020-02558, was filed on March 16, 2020, in the Civil District Court for the Parish of Orleans, State of Louisiana. Plaintiffs, doing business as Oceana Grill, a restaurant in the French Quarter, allege coverage should be declared to exist because: 1) the property policy is an “all risks” policy such that all risks are covered unless the insurer can clearly and specifically establish an exclusion from coverage; 2) the policy does not contain any exclusion “for losses from a virus or global pandemic;” 3) the virus has “physically impact[ed] public and private property” as it “physically infects and stays on the surface of objects or materials, ‘fomites,’ for up to twenty-eight days;” 4) such “contamination … [is] a direct physical loss needing remediation;” and, alternatively and in addition, 5) the current and future state orders limiting its operations serve to trigger the civil authority provisions of its policy.

A key issue in Cajun Conti as well as in the other COVID-19 business interruption coverage litigation will be whether the existence of the novel coronavirus constitutes a “direct physical loss or damage” under the intendment of an all risks property policy. The Cajun Conti plaintiffs cite to Widder v. Louisiana Citizens Prop. Ins. Corp., 2011-0196 (La. App. 4 Cir. 8/10/11), 82 So.3d 294, writ denied, 2011-2336 (La. 12/2/11) for the premise that the existence of a hazardous condition that renders the insured property unusable or uninhabitable is sufficient to constitute a “physical loss or damage” sufficient to trigger coverage. Notably, in Widder, the actual presence of inorganic lead in the insured property was confirmed to exist and coverage was therefore available. Because policyholders have the burden to establish the existence of “physical loss or damage,” reliance on Widder may require the Cajun Conti plaintiffs to establish coronavirus was actually present in their property or that its presence otherwise caused their property to be unusable or uninhabitable. Presence in the community may not be sufficient to prove the coronavirus made the insured property uninhabitable or unusable.

One of the items of proof required for the triggering of coverage under the civil authority provisions of a commercial property policy is that the alleged business loss was caused by an action by the civil authority that prohibited access to the insured premises. Relying on out-of-state jurisprudence, one Louisiana federal court has determined this factor requires proof that access to the insured premises be “actually and completely prohibited,” which is not satisfied if the access is merely “limited or hampered.” Kean, Miller v. National Fire Ins. Co. of Hartford, C.A. No. 06-770 (M.D. La. Aug. 29, 2007), 2007 WL 2489711, *4-*6. The state orders expressly referenced in the Cajun Conti suit would appear not to satisfy this standard as they served only to limit occupancy and required earlier closures. Even the subsequent stay-at-home orders [Proclamation Number 33 JBE 2020 and 41 JBE 2020, issued respectively on March 22, 2020 and April 2, 2020], may likely be insufficient to satisfy this requirement as they do not expressly mandate closure of restaurants, but simply require restaurants to “reduce operations to continue minimum contact with members of the public,” expressly allow for curbside delivery, drive-thru, and delivery services, and only prohibit the consumption of food and beverages on site.

The specific facts of each business interruption claim and the terms of the relevant policy should be considered in every occasion. Yet, these suits may face problems of proof generally. For now, we expect the novel suits to continue.

John has been practicing over 30 years and is a Senior Partner with firm where he serves on the Management Committee. He has devoted attention to non-profit boards dedicated to assisting at risk children. He enjoys time with his three children and grandchildren. He also enjoys tennis and hiking.

Nancy B. Gilbert is a partner with Keogh Cox in Baton Rouge, Louisiana. She is a puzzle-solver by nature, and specializes in providing clear and in-depth analysis of complex litigation issues.