What Happens Outside of Vegas?

Keogh Cox's recent blog entry "Did I pass?" looked at recent changes to the Louisiana attorney's "bar" examination and discussed the negative impact these changes seem to be having on the bar passage rate. Since that post, the results from the July, 2013 exam were released, and they are not good. In fact, the overall passage rate (53.34%) was among the lowest ever for a July examination.

By way of recap, on October 19, 2011, the Louisiana Supreme Court ordered the implementation of the first changes to the grading standards of the Louisiana Bar exam since the exam was instituted. These changes: began "compensatory scoring;" eliminated essay portions of the test; included "multiple choice" format portions; doubled the score value of the "Code subjects;" ended the "conditional failure" status; and, placed a five-time limit on unsuccessful attempts to pass.

The following reflects how the graduates of various law schools fared in the recent exam:

SCHOOL # PASSED FAILED

LSU 171 120(70.18%) 51(29.82%)

LOYOLA 203 115(56.65%) 88(43.35%)

SOUTHERN 154 53(34.42%) 101(65.58%)

TULANE 88 56(63.64%) 32(36.36%)

OTHER 147 63(42.86%) 84(57.14%)

TOTAL 763 407(53.34%) 356(46.66%)

The consistent decline in the overall applicant passage rate since the recent changes suggests that these low numbers can no longer be regarded as a coincidence.

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.

"I never worry about action, only inaction."

- Winston Churchill

The Louisiana Supreme Court's decision not to take up a case is sometimes just as important as a decision to grant Writs and issue a ruling. Recently, much attention has been given to the Court's decision not to grant a Writ filed by Louisiana State University.

On August 28, 2013, the Court denied a Writ brought by LSU in a case filed by local media outlets in the 19th JDC demanding access to information regarding LSU's presidential candidates. The media appears interested in the interview process and why only one of the 35 candidates was formally interviewed. The media outlets argue that the information concerning the candidates is "public record" under Louisiana law.

Prior to the Writ filing, the state District Court had ruled that the information was public record and ordered LSU to produce the requested documents. LSU did not comply with this order. On August 14, 2013, LSU was held in contempt of court and fined $500 per day. LSU filed a Writ to the Louisiana Supreme Court. The Louisiana Supreme Court denied the Writ, stating that LSU had a "sufficient remedy" through a suspensive appeal. The Court offered no further explanation of its ruling.

Attorneys on both sides have publically offered differing opinions as to the significance of the Court's Writ denial. The attorney for the media outlets stated to Nola.com that LSU now must comply with the district court's order and produce the requested information. However, the attorney for LSU argues that the Court's Writ denial is functionally a "stay" of the District Court's order because the Supreme Court specifically expressed that LSU could file a suspensive appeal. LSU has expressed an intention to appeal the entire case to the Louisiana First Circuit.