Louisiana Court Limits Use of Biomechanical Expert Testimony

Limited liability companies (“LLCs”) are usually formed with the goal of protecting its members from personal liability for the actions of the LLC. Under Louisiana law, there is a “presumption” that the members of an LLC are not personally responsible for the liabilities of the LLC. However, a recent Third Circuit decision highlights how an LLC member may be exposed to personal liability for performance of a contract when the LLC’s name is not displayed on the contract.

In Bourque v. Bergeron, 2021-108 (La. App. 3 Cir. 12/1/21), 331 So. 3d 1089, the plaintiff filed suit against his contractor seeking damages from allegedly defective work. The contractor filed a motion to dismiss the claims against him individually, arguing that he was acting on behalf of his LLC and therefore had no personal liability. In support of his motion, the contractor introduced evidence that: (1) the contractor was the sole member of the LLC; (2) the required contracting license was in the name of the LLC; and (3) plaintiff’s checks were deposited into the LLC’s financial accounts.

The plaintiff argued that he contracted with the contractor individually, and the contractor did not represent that he was acting on behalf of an LLC. The proposal and invoices listed a business name, but did not indicate the business was an LLC. The trial court granted the contractor’s motion, finding the evidence showed the plaintiff was dealing with the LLC, and not the contractor individually.

On appeal, the Third Circuit recognized the general rule that an LLC member is not personally liable for acts committed by the LLC. However, it found an LLC member can be personally liable when they fail to disclose that the member is contracting on behalf of the LLC. The court noted that the proposal/invoice did not reflect the LLC’s involvement – it only included a business name along with the contractor’s individual name and address. Simply including a business name was not sufficient to alert plaintiff he was contracting with an LLC as opposed to an individual with a tradename. The Third Circuit reversed the trial court’s dismissal of the personal liability claims, finding issues of fact as to whether the contractor disclosed that he was acting on behalf of the LLC, which opened the door for potential personal liability for the LLC member.

This case shows that LLC members can create personal liability if they do not express that the LLC is the true party to the contract.

Effective August 1, 2021, La. R.S. 23:291.2 will impact the hiring practices used by many employers. Under the new statute, unless otherwise allowed by law, “when making a hiring decision, an employer shall not request or consider an arrest record or charge that did not result in a conviction, if such information is received in the course of a background check.” This is a dramatic change for employers who consider arrest histories in the hiring process. But the statute does not stop with arrest records.

When considering “other” types of criminal history records, i.e., convictions or pleas, an employer “shall make an individual assessment of whether an applicant’s criminal history record has a direct and adverse relationship with the specific duties of the job that may justify denying the applicant the position.” In this assessment, the employer is to consider:

(1) The nature and gravity of the offense or conduct;

(2) The time that has elapsed since the offense, conduct, or conviction; and,

(3) The nature of the job sought.

Upon written request, an employer shall also make available to the applicant any background check information used during the hiring process. While an arrest is not proof an applicant engaged in criminal conduct, a conviction record is usually sufficient to show criminal conduct. See EEOC guidance at https://www.eeoc.gov/pre-employment-inquiries-and-arrest-conviction.

With convictions, the new Louisiana statute places a burden on the employer to make an assessment as to whether the criminal offense has a direct relationship to the specific job duties of the applicant. The statute gives little guidance as to how employers are to reach a conclusion.

At its core, the statute prohibits requests for arrests records and requires an employer to conduct an analysis as to whether a conviction is relevant to the job function before refusing to hire an employee on the basis of a conviction. The statute minimizes administrative burdens when it bars a consideration of arrests. Yet, it sets forth three factors employers must now weigh and measure for other criminal records. One reasonably asks how this statute- which appears designed to limit discretion in rejecting applicants with documented criminal records- will impact “negligent hiring” claims and other areas of the law.

Under Louisiana law, uninsured/underinsured insurance coverage is implied in any automobile policy of insurance, and UM coverage will be read into the policy unless it is validly rejected. This rejection of UM coverage must be “clear and unmistakable.” The Louisiana Supreme Court recently addressed the issue of what qualifies as a valid rejection of UM coverage in Baack v. McIntosh, 2021-01054 (La. 6/30/21), --- So.3d ---.

The Louisiana Commissioner of Insurance provides a form which must be completed to reject UM coverage. This form allows the insured to initial one of four selections regarding UM coverage: (1) UM coverage at lower limits than liability coverage; (2) economic-only coverage with same limits; (3) economic-only UM coverage at lower limits; or (4) no UM coverage. A representative of the insured must initial one of these options for that option to apply to the policy at issue. This list does not include an option to select UM coverage. Therefore, the Baack Court held that “the only way to ‘select’ UM coverage on the form is to not initial any of the provided choices.”

The insured in Baack properly rejected UM coverage through the UM form in 2002. A proper rejection of UM coverage remains valid for the life of the policy, and a new form is not required when a policy is renewed. However, the Court found that, under La. R.S. 22:1295, an insured may change its rejection of UM coverage at any time by submitting a new UM form to the insurer.

In 2011, the insured increased its liability limits under the policy, which required completion of a new form. UM coverage again was properly rejected. Even though not legally required, the insurer sent new UM waiver forms to the insured in 2012, 2013, and 2014 when the policy was renewed. However, the insured completed each of these forms without initialing any of the four selections related to UM coverage. The insurer later issued the insurance policies without objection. The court found that the insured changed its rejection of UM coverage when it submitted the new forms in 2012, 2013, and 2014.

Because the insurer did not initial these forms when they were resubmitted, the insured “selected” UM coverage under Baack’s analysis, and UM coverage was afforded under the policy. Importantly, the Court held that, if the insurer believed the failure to make a selection on the forms was a mistake, it was the insurer’s responsibility to follow-up with the insured to make any necessary corrections. Three justices dissented and argued that the majority opinion negates other law which provides that an insured must make a “written request” to add UM on a policy where UM is rejected. UM cases are often fact-intensive and each case should therefore be assessed under their own specific facts.