Oil & Gas Clean-Up Not "Capped"

The “open and obvious” defense remains alive and well in Louisiana according to an article penned recently by Professor John M. Church of the LSU Law Center for the Louisiana Association of Defense Counsel. In April 2013, the Louisiana Supreme Court announced Broussard v. State of Louisiana, 2012-1238 (La. 4/5/13), 113 So.3d 175, which muddied the waters regarding use of the “open and obvious” defense. Some read Broussard as a pronouncement that the “open and obvious” defense was essentially dead in Louisiana. However, as reflected in Professor Church’s article, subsequent Louisiana Supreme Court decisions have given new life to the defense.

The defense is based upon the premise that an “open and obvious” defect is non-hazardous, because a reasonably-attentive plaintiff could or should have avoided the harm in the exercise of due care. Before Broussard, courts routinely ruled that a defendant owed no duty to a plaintiff when the alleged defect was “open and obvious.” Following Broussard, courts began to shift the analysis from a question of duty (an issue of law) to a factor that should be considered when analyzing a potential breach of that duty (an issue of fact). As such, some courts concluded that the defense was not properly addressed at the summary judgment stage.

In October 2014, the Supreme Court appeared to alter course when it affirmed a summary judgment granted on grounds that the alleged defect presented an open and obvious condition. See Bufkin v. Felipe’s Louisiana, LLC, 2014-0288 (La. 10/15/14), — So.3d — 2014 WL 5394087. In reaching this decision, the Bufkin Court focused on the duty element of plaintiff’s case, which seemingly contradicted prior interpretations of Broussard. Thereafter, the Court went even further, affirmatively stating that “[a]ny reading of Broussard interpreting it as a limit on summary judgment practice involving issues of unreasonable risk of harm is a misinterpretation of the Broussard case.” Allen v. Lockwood, 2014-1724 (La. 2/13/15), 156 So.3d 650.

According to Professor Church, Bufkin and Allen reflect a shift back to an analysis of the open and obvious defense on the duty level and remove any doubt regarding whether summary judgment is appropriate in this setting. Professor Church anticipates that the Supreme Court will continue to clarify this doctrine in future decisions. For now, Broussard remains an obstacle, albeit shrinking, in the defense of trip and fall claims.

Author: C. Reynolds LeBlanc

The Louisiana Supreme Court recently held that an insurance agent's negligent handling of a claim did not justify an award for mental anguish in Prest v. Louisiana Citizens Property Corp., 2012-0513 (La. 12/4/12). In Prest, it was alleged that the agent negligently failed to process a request for increased insurance sent more than 10 days prior to Hurricane Katrina.

Based upon representations from their agent, plaintiffs believed their property was insured up to the requested amounts for Katrina-related damages. However, the insurance company denied the additional coverage because the request for additional coverage was not reviewed.

The plaintiffs filed suit and settled the claim for insurance benefits. They reserved in the settlement the right to pursue a negligence claim against their insurance agent and took that claim to trial.

At trial, the Trial Court found the agent negligent and awarded damages to include a $75,000 award for "frustration, inconvenience and mental anguish." The Fourth Circuit affirmed. The Supreme Court likewise upheld the finding of negligence. However, it reversed the award for mental damages.

Generally, if a defendant's conduct is merely negligent and only causes mental disturbance without physical injury, the defendant is not liable for damages. Moresi v. State, 567 So. 2d 1081, 1095 (La. 1990). An exception to this rule exists when there is a likelihood of genuine or serious mental distress arising from "special circumstances."

The Supreme Court did not feel that the facts involving the additional insurance created "special circumstances" sufficient to disregard the general rule that emotional damages are not recoverable in the absence of physical injury. In its ruling, the Court acknowledged that the plaintiffs were likely stressed and inconvenienced by the insurer's failure to pay. Nevertheless, the Court did not find that the plaintiffs' stress was any greater than that experienced by a host of Louisiana citizens affected by Hurricane Katrina.

Louisiana Code of Civil Procedure article 1464 allows a defendant to select a physician to perform a physical and/or mental examination of a plaintiff to challenge the plaintiff’s claimed physical and mental injuries. This is called an Additional Medical Opinion (AMO); this was previously referenced as an Independent Medical Examination (IME). Earlier this year, the Louisiana Supreme Court, outlined the “good cause” requirement of the statute—an essential element required to proceed with an AMO. But, what remained as a question was the scope of an AMO and which party had the burden to deal with requested restrictions on the physician’s medical exam. This question was answered: In Augustine v. Safeco Insurance Company of Oregon, the Louisiana Supreme Court held that after “good cause” has been shown for the examination, the party seeking to limit the scope of the AMO bears the burden to justify the restrictions.

In Augustine, a sequel to Hicks v. USAA General Indemnity Company, Et al, the Court held that if the party to be examined for the AMO, usually the plaintiff, wants to place limits upon the examination, that party then has the burden of proof to justify the need for any restrictions or limitations with competent evidence. This ruling appears to show a trend in which the Court is confirming a defendant’s ability to obtain an AMO to support its defenses to a personal injury claim. Augustine follows another Supreme Court decision from March of 2022, in which the Court held that a party establishes “good cause” for an AMO if that party shows a “reasonable nexus” between the requested examination and the condition in controversy. See Hicks v. USAA General Indemnity Company, Et al. The Hicks decision eased the hurdles that defendants faced when seeking to compel AMOs pursuant to Louisiana Code of Civil Procedure article 1464. For more information on the Hicks decision, see our prior blog here. Supreme Court Clarifies “Good Cause” for Additional Medical Opinion (“AMO”) (keoghcox.com)

In Augustine, the defendants requested an AMO. The plaintiff agreed to the examination, but the parties were unable to agree on “certain restrictions” the plaintiff sought to impose on the scope of the examination. The defendants ultimately filed a Motion to Compel regarding this issue. The District Court limited the examination to only those tests that the plaintiff’s treating physicians had performed. The District Court also noted that it did not want the AMO to turn into a “fishing expedition.” The Court of Appeal denied the defendant’s request for review of the Trial Court’s decision. The defendants then sought relief from the Supreme Court, which vacated the Trial Court’s ruling and remanded the case for further proceedings consistent with its opinion.

In its opinion, the Supreme Court set forth the burden of proof each party has in the context of a Motion to Compel an AMO. As outlined in Hicks, the party requesting the AMO initially has the burden to establish “good cause” for the AMO. Importantly, the Augustine court found that once “good cause” has been found, “the court should presume that the examination will be conducted in a reasonable manner.” Because it is presumed the examination will be conducted reasonably, if a party opposing the AMO wants to place restrictions on the examination, the burden now shifts to that party to establish “special circumstances” that justify the restrictions they request. To meet this burden, the opposing party must produce “competent evidence” to establish (1) the need for the restriction and (2) that harm that will result if the restrictions are not imposed. The type of evidence that may support AMO restrictions under Augustine likely will vary depending on the unique facts of each case. However, Hicks and its “sequel,” Augustine, provide clarification and guidance to parties seeking to compel or limit an AMO under article 1464.

Case References:

Augustine v. Safeco Insurance Company of Oregon, 2021-01753 (La. 10/1/22), __ So.3d __.

Hicks v. USAA General Indemnity Company, Et al., 2021-00840 (La. 3/25/22), 339 So.3d 1106.

Written by Chad A. Sullivan and George A. Wright