Louisiana First Circuit Finds for State Trooper in Fatal Shooting

Thousands of people are currently dealing with the devastating flooding in Baton Rouge and surrounding areas. Here are a few pieces of information that may assist you as you begin to recover from this event:

1. Do your best to document your property damage claim as best you can. Take as many pictures of the damage as possible, whether of your house, commercial building, personal contents or inventory. These photos will be your proof of damage for whatever damage claim you are able to make, whether through your insurance company or otherwise.
2. Similarly, try and compile whatever pictures you can of your house or business, and its contents, from before the flood. To the extent, there is a dispute of whether a specific item was damaged or not, or even existed in the home or building before the flood, these pictures will be invaluable.
3. As soon as possible, attempt to itemize all of the contents in your home. A handwritten list is fine. Go through each room and attempt to list out every one of your possessions. Try and identify the make or model of each item, what you paid for it, and how old it is. Some insurance companies will require this specific information before you will be paid for each item. Of course, it is unlikely that you will have purchase documents for each item in your possession. Although this type of documentation is not required to prove your claim, it is obviously helpful for the insurance company to process it.
4. Keep records of what you spend to live elsewhere, including food and toiletries. If you rent a hotel room or are required to rent a house, make sure to keep records of what you pay.
5. Likewise, keep good records of any expenses you incur to repair your home or business. An organized and well-documented insurance or property damage claim is always better received and more quickly processed than one that is not.
6. With respect to insurance claims, and to the extent the policy provides coverage for your specific loss, an insurance company has an obligation, by law, to pay all undisputed amounts to you within a certain period of time. In other words, your insurance company has to at least pay you for everything that is undisputed. If there is a legitimate dispute over something, the insurance company can withhold payment for those items but must pay you for the items for which there is no disagreement. If the insurance company does withhold payment without a legitimate reason or fails to pay you within a certain amount of time, it may be responsible for certain statutory penalties and costs. You will need to discuss this with an attorney if you feel your insurance company is not treating you fairly.
7. To this point, because the insurance company must pay all undisputed amounts if there remain any disputed items, do not sign anything until the claim is fully resolved. You are not required to sign anything to receive any undisputed money under your policy.
8. If you have flood insurance, depending on the policy language, you may be eligible to receive immediate, emergency payments. Ask your insurance company what your policy provides, but do not assume what you are told is correct. Ask for a copy of your policy and read it for yourself.
9. To date, President Obama has made available federal disaster aid to residents of the parishes of East Baton Rouge, Livingston, Tangipahoa, and St. Helena. If you do not have flood insurance, you should immediately register with FEMA. You can also call FEMA at 800-621-3362. More information about the available federal assistance, including those for some businesses, can be found here.
10. The Louisiana State Bar Association and the Baton Rouge Bar Association will be providing free legal services to assist anyone with any legal issues arising from this disaster. For now, you can call the LSBA at 504-566-1600 or 800-421-5722 or the BRBA at 225-344-4803. More information will be disseminated as efforts are further coordinated.

Hopefully, this information will provide you with a little bit of information about the property damage claim process.

Sometimes, a number of people or parties will file claims, in which each party alleges the same or similar injuries that were caused by the same or similar conduct. In these circumstances, federal and Louisiana law recognize class actions as procedural devices that can be used to aggregate the parties’ claims into a single action.

The purpose and intent of class action procedure is to adjudicate and obtain res judicata effect on all common issues applicable to the representatives who bring the action. However, this res judicata effect also applies to all others who are “similarly situated,” provided they are given adequate notice of the pending class action and do not timely exercise the option to exclude themselves from the class. Class actions are commonly filed in matters that involve common facts and damages such as plant explosions, claims based upon allegedly defective products, or claims involving employment practices or civil rights violations.

Before a court can hold a trial on the merits of a class action, the court must determine whether all of the procedural requirements are met for certification of the class. In making this determination, the court rules on whether the matter may proceed as a class action or whether the named parties must bring individual claims. In Louisiana, the threshold requirements for class certification are found in La. C.C.P. art. 591(A), which provides:

A. One or more members of a class may sue or be sued as representative parties on behalf of all, only if:

(1) The class is so numerous that joinder of all members is impracticable.

(2) There are questions of law or fact common to the class.

(3) The claims or defenses of the representative parties are typical of the claims or defenses of the class.

(4) The representative parties will fairly and adequately protect the interests of the class.

(5) The class is or may be defined objectively in terms of ascertainable criteria, such that the court may determine the constituency of the class for purposes of the conclusiveness of any judgment that may be rendered in the case.

Every one of these requirements must be met for an action to be maintained as a class action. Stated differently, the class cannot be certified if even one of these threshold requirements is not met. A party seeking class certification must also establish one of the additional requirements outlined in La. C.C.P. art. 591(B).

In Doe v. Southern Gyms, LLC, the Louisiana Supreme Court held that a court must conduct a “rigorous analysis” of the class certification requirements, to ensure that every one of them are satisfied before a case is certified as a class action. Moreover, it is the plaintiff’s burden to prove that every requirement of La. C.C.P. art. 591 is satisfied. While only the procedural requirements for class certifications are relevant to determine if a matter should be certified, the “rigorous analysis” required of the court oftentimes requires analysis of the overlapping merits of the plaintiff’s underlying claim. See Wal-Mart Stores, Inc. v. Dukes.

Whether a matter should be certified as a class action is often a contested issue involving high stakes. If it is certified, the matter proceeds as a class action, where the claims are asserted on behalf of the entire class and can result in substantial damage awards. If the matter is not certified, the claim representatives must pursue their claims individually, which leads to significantly less exposure for defendants named in the action.

Case References:

Doe v. Southern Gyms, LLC, 2012-1566 (La. 3/19/13), 112 So.3d 822, 829.
Wal-Mart Stores, Inc. v. Dukes, --- U.S. ---, 131 S.Ct. 2541, 2550, 180 L.Ed.2d 374 (2011).

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/.