Preparing for a Storm

Louisiana is a "direct action" state that continues to present new challenges for insurers. Over the years, Louisiana courts have expanded the duty to defend. This expansion created pitfalls for the insurer and forced the provision of a complete defense, even when all or a majority of the claim was not covered by the insurance policy. However, some of this expansion has been drawn back by the Louisiana Supreme Court which recently ruled that, in latent, long-term exposure cases, the duty to defend is to be spread across a number of years­­­--as opposed to the arbitrary selection of a single insurer to defend the entirety of the case. This change presents opportunities for immediate risk transfer and reimbursement to recoup what can be significant dollars invested in the defense of legacy and environmental actions.

A General Overview: Like many other states, an insurer’s duty to defend suits against its insured is broader than its liability for damage claims. The duty to defend is determined by the factual allegations contained in the plaintiff's petition, which are to be broadly construed. American Home Assurance Co. v. Czarniecki, 230 So.2d 253 (La. 1969). The court examines the duty under the “eight corners” rule which means that the duty attaches if a review of the four corners of the policy and the petition raises the potential for coverage and coverage is not unambiguously excluded. Once a complaint states one claim within the policy's coverage, the insurer has the duty to defend the entire claim, even though other claims in the complaint fall outside the policy's coverage. Treadway v. Vaughn, 633 So.2d 626 (La. App. 1 Cir. 1993), writ denied, 635 So.2d 233 (La. 1994).

Execution of the defense duty can present big challenges given that Louisiana is a direct action state where the attorney is often called upon to represent both the insured and the insurer. If the insurer does not properly handle the assignment, coverage positions can be waived. See Steptore v. Masco Const. Co., 643 So. 2d 1213 (La. 8/18/94); Sosebee v. Steadfast Ins. Co., 701 F.3d 1012, 1020 (5th Cir. 2012). Additionally, insurers must recognize that Louisiana has recognized Cumis (insured selected) counsel in situations when coverage positions issue. Belanger v. Gabriel Chemicals, Inc., 00-0747 (La.App. 1 Cir. 5/23/01); 787 So.2d 559, writ denied, 01-2289 802 (La. 2001); So.2d 612 (citing 46 C.J.S.§ 1157 (1993). In such a situation, independent counsel must be separately retained to represent the diverging interests.

When is the duty to defend discharged: The court will determine whether exhaustion of policy limits will terminate an insurer’s obligation to defend the insured on a case-by-case basis, taking into consideration whether the settlement was made in good faith. Holtzclaw v. Falco, 355 So.2d 1279 (La. 1977). An insurer that “hastily enters a questionable settlement simply to avoid further defense obligations under the policy” does not act in good faith and may be held liable for damages caused to its insured. Pareti v. Sentry Indemnity Co., 536 So.2d 417, 423 (La. 1988). The timing of its withdrawal from the suit is critical to a determination of the insurer’s good faith. A tender of policy limits into the registry of the court may terminate the duty to defend; however, the tender must comply with all of the statutory requirements (to include the admission of liability). In this connection, an insurer who wishes to tender its limits and admit liability may well face a challenge from the insured that such action is a breach of its good faith obligations. Pareti, supra.

Long-Tail Exposure Cases: For some time now, Louisiana courts have recognized the concept of “horizontal spreading” over a number of years based on the “trigger” of coverage each year a policy was in place. See Cole v. Celotex Corp., 599 So. 2d 1058 (La. 1992) and Norfolk Southern Corp. v. Cal. Union Ins. Co., 859 So. 2d 167, 192 (La. App. 2003),writ denied, 861 So. 2d 578 (2003). The practical effect is to hold each insurer liable to indemnify only for its pro-rata time on the risk and, if the insured was not covered for a period of time, it bore its own pro-rata portion of the risk.

Until recently, the courts held that the duty to defend in such actions was a solidary (joint and several) obligation, meaning that the insured could select any carrier and require it to defend the entire claim. Simply, the courts held that the duty to defend was not subject to proration such that an insurer who was on the risk for a very short time could be compelled to pay all of the fees and costs and must then file a reimbursement action to collect from other insurers. But, the Louisiana Supreme Court recently ruled that defense costs are now subject to proration in the same manner as with indemnity. Arceneaux v. Amstar Corp., 15-0588 (La. 9/7/16); 200 So 3d 277.

At the outset, almost every long-tail exposure claim is a complex action that can take years to resolve. It is nearly always a very expensive proposition in terms of defense costs. The Arceneaux decision has meaningful, real-world impact upon both the insurer and the insured.

From the insurer’s perspective, it can easily calculate its percentage of time on the risk and thereby readily ascertain what it owes in the defense of the action. Insurers can applaud the fact that they no longer pay for uninsured time on the risk or the portion of recalcitrant insurers who do not wish to “participate” in a joint defense.

From the insured’s perspective, new incentive exists to scour all avenues to find older policies that may have been on the risk to avoid having direct participation in defense costs. In this regard, the insured will now have strong monetary incentive to keep all policies on file (or to take depositions of agents and brokers to identify coverage that may have been in place). Of course, insurers who otherwise might have remained unknown might now have an active role in long-tail exposure cases.

John Wolff is a member of the management committee and a senior partner at Keogh Cox with more than thirty years of experience. John has made his mark in a practice that has included complex litigation, commercial disputes, serious injury, bad-faith and insurance coverage, legacy/long-term exposure, and other matters. He has litigated numerous significant cases in state and federal courts and regularly appears before the courts of appeals in and out of the state. John has devoted attention to non-profit boards dedicated to assisting at-risk children. In his spare time, he enjoys spending time with wife, his three children, and grandchildren, playing tennis, and hiking.

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.

A deputy arrives at your home or office and announces that you have been served. You quickly realize you have been named as a defendant in a lawsuit. Now what?Whether the suit involves a breach of contract, an automobile accident, or the one and a million other circumstances that can lead to a suit being filed, the process is essentially the same in Louisiana state courts. This blog provides a general roadmap of Louisiana’s “pre-trial” procedure, which applies in most situations. Different procedures are involved with workers’ compensation claims, administrative proceedings, medical malpractice claims, and other areas.Petition/Answer - When a person or company believes they have been damaged by fault, breach, or neglect, Louisiana law provides that the person allegedly wronged, the plaintiff, may file a Petition for Damages. Louisiana does not have a “loser pays” system. For this reason, there is little disincentive to a plaintiff who wants to sue. Once the Petition is filed with the Clerk of Court, the Sheriff serves the defendant with a certified copy of the Petition and the “Citation.”A defendant has fifteen days to file an Answer or to secure an extension from either the plaintiff attorney or the Judge, by filing a Motion for Extension of Time to File Responsive Pleadings. A failure to respond to a suit or obtain an extension within 15 days of service may result in a default judgment.Trial by Judge or Jury -The parties advise if they desire a judge or jury trial in the initial filings. There is no right to a jury in cases which do not have a possible value of more than $50,000. If a plaintiff “stipulates” that case value is at or below $50,000, the defendant has no right to demand a jury trial under Louisiana Code of Civil Procedure article 1732.Exceptions - Defendants have the right to raise “exceptions” to the suit. Common exceptions include a claim that the suit is vague; is filed in the wrong venue (i.e., the wrong location); or is untimely, and therefore “prescribed.” Defendants can use the exception process to challenge the plaintiff’s legal ability to recover. Many exceptions are waived if they are not filed before or with the Answer.Discovery

• Written - After the Answer is filed, the discovery process typically begins. Discovery is an information-gathering process done through different methods. The parties to a lawsuit may issue written Interrogatories, Requests for Admission, and Requests for Production of Documents.
• Depositions - Depositions are a key component of discovery. A deposition allows the attorneys (or the parties themselves, if unrepresented) to ask questions of witnesses before a court reporter. The testimony is taken under oath and can be used later for certain purposes. For example, if the witness is not available to testify at trial, the deposition testimony can often be introduced in lieu of live testimony. Also, if a witness changes his testimony at trial, the deposition can be used to attack the testimony and credibility of the witness.

Case Deadlines - Typically, the court will establish a scheduling order to establish key dates such as deadlines to identify witnesses, exhibits, and any experts who may testify on behalf of the parties. The court often sets a deadline to file “dispositive” motions, such as motions for summary judgment where the plaintiff or the defendant tries to have the case determined before the trial.Alternative Dispute Resolution - Frequently, the parties agree to attempt to mediate the case with the assistance of a mediator. This is a voluntary process. In some cases, the parties will be bound by an agreement to arbitrate which will be conducted outside of the normal court process.There is no law or statute which sets the time frame for the “pre-trial” process. Depending upon the complexity of the suit, the pre-trial phase of a suit may take months, and often years.