Blog
Explore news, articles, outcomes, and legal resources by category or practice area.
Thank you! Your submission has been received!
Oops! Something went wrong while submitting the form.
deselect
No items found...
No items found.
No items found.
Resource
DECEMBER 2013 LEGAL UPDATE
PREMISES LIABILITY - In Guillot v. Dolgencorp, LLC, CA 13-587 (La. App. 3 Cir. 11/27/13), the Third Circuit addressed whether a merchant had "constructive notice" of an alleged hazard on its premises. Video surveillance indicating that a cup was on the floor for at least two minutes prior to the accident, coupled with video surveillance showing that a discarded plastic bag was on the floor in another part of the store for ten minutes before the accident, was held to be "constructive notice" sufficient to impose liability upon a merchant under the Merchant Liability Statute, La. R.S. 9:2800.6.INSURANCE - In Picou v. Fid. Nat. Prop. & Cas. Ins. Co, CIV.A. 13-5951, 2013 WL 6796865 (E.D. La. Dec. 23, 2013), the Eastern District of Louisiana held that an insurance agent was not liable for failing to advise a client as to whether he was underinsured or carried the right type of coverage. The court held that the agent has a duty of "reasonable diligence" to advise the client, but that this duty was not been expanded to include the obligation to advise whether the client has procured the correct amount or type of insurance coverage. The court cited to the insured's own responsibility to request the type of insurance coverage and the amount of coverage needed.MEDICAL MALPRACTICE - In Luther v. IOM Company LLC, 2013-C-0353 (10/15/2013), the Supreme Court held that a medical diagnostic monitoring company and its employee/physician were not "qualified health care providers" ("QHCPs") under the Louisiana Medical Malpractice Act, LSA-R.S. 40:1299.41, et seq. ("MMA"), for purposes of alleged acts of medical malpractice. In Luther, the Patient's Compensation Fund ("PCF") forwarded a letter stating that the defendants were QHCPs. However, PCF later discovered that the defendants had not enrolled in the fund at the time of the alleged malpractice and therefore could not be QHCPs under the MMA.The defendants claimed that they detrimentally relied on the actions of the PCF under Louisiana Civil Code article 1967. In order to prove detrimental reliance, they needed to establish three elements: 1) a representation by conduct or word; 2) justifiable reliance; and; 3) a change in position to one's detriment because of the reliance. The Court rejected the claim of detrimental reliance and held that reliance on the PCF's notice was not reasonable. The Court reasoned that the defendants knew they were not qualified or could have easily discovered the truth. Further, the Court observed that it is usually more difficult to show detrimental reliance upon a governmental agency.
No items found.
Insight
Fraud Just Got More Expensive - Equity as a Factor in Attorney Fee Awards
The Louisiana Supreme Court recently held that the New Home Warranty Act ("NHWA") is not the exclusive remedy for a purchaser of a new home where the builder fails to disclose known defects in the Residential Property Disclosure Act ("RPDA"). Stutts v. Melton, 2013-0557, -- So.2d. ----. The Court also upheld an award of damages and attorney fees for fraud victims who elect not to seek rescission of a sales contract despite no Civil Code article expressly allowing for attorney fees in such instances.
Builder Chad Melton completed a home in Walker, Louisiana in 2004. He and his wife lived in the home for approximately nine months prior to selling the home to James and Lisa Stutts. The Residential Property Disclosure Act, La. R.S. 9:3196, et seq., requires disclosures of known problems with a home prior to sale. Melton provided the Stutts with a disclosure form, but failed to mention that color had previously been observed bleeding onto the walls of the home from the roof.
In Stutts, it was factually established that Melton was aware of the roof defect because he had entered into a $13,600 settlement with the roof manufacturer to fund the replacement of the roof. Nevertheless, Melton cleaned the walls and installed gutters instead of the more expensive roof replacement.
Melton's gutter solution was ill-advised and unsuccessful. After discovering the problem in the summer of 2006, the Stutts filed suit seeking as damages: the repair costs for the roof; costs for additional repairs; and attorney fees.
The Stutts filed a motion for summary judgment on their fraud claim citing La. C.C. art. 1953. The Meltons opposed the motion, arguing that the NHWA provides the "exclusive remedy" available to the Stutts. The motion was granted and, after a bench trial on damages, the trial judge awarded damages to include attorney fees.
The court of appeal reversed both the summary judgment and the money judgment, holding that the Stutts' claims were untimely under the NHWA.The NHWA provides a one year warranty period for new home construction and an additional thirty day period in which to file suit under the Act. By its terms, the NHWA provides the "exclusive remedies" between a builder and an owner relative to home construction.
The Louisiana Supreme Court reversed and reinstated that lower court's judgment. The Court held that the RPDA applied in this case because the home had been occupied by the Meltons after construction was completed. Even though the NHWA claims were prescribed, the Stutts possessed a timely claim that Melton had provided a fraudulent disclosure in violation of the RPDA.
The Court next addressed the Stutts' claim for attorney fees. The Court observed that no statute specifically authorized attorney fees where the plaintiff does not seek rescission of the sale. However, the Court reasoned, citing principles of equity found in Louisiana Civil Code article 4, that the legislature surely did not intend for victims of fraud to go uncompensated if they elect not to seek full rescission of the sale. Accordingly, attorney fees were held appropriate where fraud is committed but the victim elects not to seek rescission of the contract.
The Court's holding in Stutts may have a limited impact on the NHWA because of the peculiar facts of the case, i.e. the builder of the new construction living in the completed home before selling it to plaintiffs. However, the Court's award of attorney fees is an interesting development in the law. Time will tell whether the Court may be inclined to create further exceptions to the established rule that attorney fees cannot be awarded in the absence of statutory or contractual language awarding attorney fees.
Contracts
Fraud
Louisiana Supreme Court
Resource
NOVEMBER 2013 LEGAL UPDATE
NEW HOME WARRANTY ACT - In Shaw v. Acadian Builders and Contractors, LLC, 2013-0397 (La. 12/10/13), the Louisiana Supreme Court held that the appellate court misinterpreted the definition of "major structural defect" in the NHWA. The trial court determined that a stucco exterior was not properly applied and sealed by the builder. This allowed water to accumulate within the walls which, in turn, caused the loadbearing wall studs to rot. This rendered the home "unsafe, unsanitary and unlivable" under the five-year warranty provision in the NHWA statute.However, the appellate court ruled that the NHWA’s 5 year warranty did not apply because the improperly constructed stucco and moisture barrier system was not "loadbearing." The Supreme Court reversed and held that the defective component does not have to be "loadbearing" for a warranty violation to constitute a "major structural defect."MEDICAL MALPRACTICE – In Snider v. Louisiana Medical Mut. Ins. Co., 2013-0579 (La. 12/10/13), the Louisiana Supreme Court reversed the appellate court’s ruling that the defendant-physician committed malpractice when he failed to obtain informed consent. The plaintiff alleged that the defendant-physician performed unnecessary pacemaker implantation surgery which resulted in complications requiring further treatment and surgery.At trial, the jury found that the plaintiff failed to prove that the physician breached the applicable standard of care. On appeal, the plaintiff raised multiple assignments of error. The appellate court found merit only in the allegation that the doctor failed to properly provide all of the information required by subsection (E) of the Louisiana Uniform Consent Law.The Supreme Court reversed and remanded the matter back to the appellate court. The Court ruled that the appellate court should have employed a "manifest error" standard of review with regard to informed consent as opposed to the appellate court’s direct finding that the jury was wrong based upon the noncompliance with subsection (E).FORUM SELECTION - In Fidelak v. Holmes European Motors, 2013-0691 (La. 12/10/13), the issue was the enforceability of a forum selection clause contained in a contract between an auto repair shop and an engine supplier. The plaintiffs in the main demand filed suit in Louisiana State District Court against a Louisiana repair shop when the engine installed in their 2004 Land Rover failed a few days after the work was performed.The repair shop then filed a third party demand against the Texas-based engine wholesaler from whom the repair shop had purchased the engine. The wholesaler filed an exception of improper venue based upon a Texas forum selection clause in its contract with the repair shop. The trial court held that the forum selection clause was valid and enforceable such that the exception was sustained. The appellate court affirmed the trial court. After noting that the issue was res nova, the Louisiana Supreme Court reversed, finding that pursuant to LSA-C.C.P. art. 1034 the third-party defendant may not object to venue if the venue of the underlying "principal action" is proper.
No items found.
Insight
The Results Are In
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.
B.P.
Louisiana Supreme Court
Insight
Keogh Cox's Win in Toledo Bend Litigation Could Have National Impact in Flood Hazard Litigation
In a decision released October 9, 2013, the U.S. Fifth Circuit upheld the grant of the defendants' Motion to Dismiss by concluding that the Federal Power Act ("FPA") preempts property damage claims based in Louisiana state tort law where the alleged damage is the result of operations that comply with the FERC-issued license. Simmons v. Sabine River Authority, No. 12-30494, - F.3d - , (5th Cir. 10/09/2013).
This issue, recognized as a question of first impression in the Fifth Circuit, arose in a case where the plaintiffs, all Louisiana owners and residents of property located downstream from the federally-licensed hydroelectric Toledo Bend Dam situated on the Sabine River, sued Sabine River Authority of Louisiana and various Entergy defendants to recover damages for flooding incidents and to enjoin the opening of the Dam's flood gates in such a way as to cause inundation of the downstream properties.
On behalf of defendants, Keogh Cox moved to dismiss the suit by claiming state tort law claims for damages and injunctive relief interferes with the exclusive authority of the Federal Energy Regulatory Commission ["FERC"] to regulate and control the operations of the federally-licensed Toledo Bend project such that the plaintiffs' claims were preempted under the FPA. The District Court granted the motion after extensive briefing and argument by Keogh Cox attorneys, John P. Wolff, III, Nancy B. Gilbert, Martin E. Golden, and Virginia J. McLin.
In affirming the district court's ruling, the Fifth Circuit recognized U.S. Supreme Court precedent that has interpreted the FPA as "occupying the field of public water use and power generation except for water use rights." As a result, in accord with Ninth Circuit law, it interpreted the general savings clause in the FPA [16 U.S.C. § 821] narrowly to exempt only "a state property law regime [that] enables users of streams and wells to obtain proprietary rights in a continuing quantity of water." The Court also recognized that state damage claims can have the same effect as a state regulation and may serve as a collateral attack on a federal license, such that it refused to interpret the limited savings clause [16 U.S.C. § 803(c)] to permit "state tort law to supplant FERC's exclusive control of dam operations." Because "applying state tort law to set the duty of care for the operation of the FERC-licensed project would 'stand as an obstacle to the accomplishment and execution of the full purposes and objectives' of the FPA," the Fifth Circuit held plaintiffs' state law property damages claims were conflict preempted under the FPA.
That a single federal agency should control public water use and dam operations was noted to be especially appropriate because the Toledo Bend Dam spans Texas and Louisiana state lines and, if not preempted, different causes of action and standards of conduct could have been imposed under the laws of the two states.
Energy
Federal Courts
Preemption
Insight
Did I pass? - A Terrifying Question Gets More Terrifying
The July 2013 Louisiana Bar Examination results are set to be announced on October 11, 2013. Until then, applicants have but a few remaining hours to ponder whether the recent changes to the bar examination will have the same negative effect on passage rates as they did last year.
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. Under the new rules, an applicant must score a 650 or higher or will be required to retake the nine (9) section, week-long test encompassing over twenty one (21) hours of testing.
These changes did not go unopposed. The LSU Paul Hebert Law Center submitted a position paper to the Louisiana Supreme Court arguing against compensatory scoring. In support of its position, LSU cited the analysis of the Louisiana Supreme Court Committee on Bar Admissions which indicated that a sizable number of applicants could pass the bar under compensatory scoring, even though they failed two or more of the Code subjects.
Prior to implementation of the new rules, many feared that the changes would cause an artificial increase in the number of applicants who passed the bar. However, the exact opposite has occurred. The first examination under the new method was administered during July, 2012. The overall applicant passage rate was 61.32%, an 11.08% drop in the passage rate. The February 2013 examination demonstrated a similar decline. The February 2013 examination passage rate was 40.65%, a 12.95% drop from February 2012.
At this time, it is unknown whether the decline in the overall passage rate will become the "new norm." It has been suggested that passage rates will return to historical levels over time. Until then, applicants will continue to ponder, and the attorneys at Keogh Cox will continue to wish them luck.
B.P.
Louisiana Supreme Court
Resource
OCTOBER 2013 LEGAL UPDATE
Supreme Court decision of Arizona v. United States, 132 S.Ct. 2492 (2012). TheSarrabea Court found that the statute was "preempted" by federal law under the Supremacy Clause of the United States Constitution. Specifically, the Court identified the existence of "field preemption" with respect to "alien registration." With field preeemption, states may not legislate in an area the Federal Government has reserved for itself.
AGRICULTURE- The Louisiana Supreme Court of in Krielow v. Louisiana Department of Agriculture and Forestry, 2013-CA-1106 (October 15, 2013), considered the constitutionality of the "Rice Statutes," La. R.S. 3:3534 and La. R.S. 3:3544. The Rice Statutes established the Louisiana Rice Promotion Board and the Louisiana Rice Research Board, with the stated purpose to promote the growth and development of the rice industry in Louisiana. These statutes granted the authority to the Rice Boards to impose assessments on rice producers and the ability to prevent refunds to producers. In this context, the Supreme Court held the Rice Statutes facially unconstitutional because they improperly delegated governmental power to Boards not ultimately accountable to the voters.
NEW HOME WARRANTY ACT- The Louisiana Supreme Court in Stutts v. Melton, 2013-C -0557, considered whether a home purchaser was limited in their remedy against the seller/builder of the home to the New Home Warranty Act ("NHWA") remedies, or whether other remedies were available. In this case, the seller/builder was aware of a defect, but failed to notify the purchaser of the defect. After reviewing the record and the applicable law, the Supreme Court held that the purchasers were not limited to the provisions of the NHWA under the facts of this case. Because the builder was also the seller, the Court found that the builder had violated the Residential Property Disclosure Act in failing to disclose a known defect.
INSURANCE- In Orleans Parish School Board v. Lexington Insurance Company, 2012-CA-0095 (8/26/13), the Fourth Circuit held that an insurance policy provision which excluded damages "caused by mold" applied to damages resulting as a consequence of the initial presence of mold. The court reasoned that, once mold appears, the policy exclusion applies to all damages caused by the presence of the mold. However, the court also commented that there may be coverage for mold removal if the plaintiffs could prove that the mold resulted from a covered occurrence.
NEGLIGENCE- In Currie v. Scottsdale Indemnity Company, 2012-CA-1666 (8/26/13), the Louisiana First Circuit overturned a summary judgment which had been granted where a plaintiff voluntarily encountered uneven concrete covered by a puddle of water. Despite evidence that the plaintiff possessed pre-incident awareness of the defect, the court believed that material issues of fact existed in the determination of whether there had been a "breach of duty." The court highlighted the factual nature of deciding whether there had been a "breach of duty," as opposed to the legal question involved in deciding whether a "duty" is owed.
APPEALS- In Quality Paint Hardware & Marine Supply, Inc. v. Crescent Coating and Services, Inc.,2013-CA-129 (8/27/13), the Louisiana First Circuit ruled that a minute entry and an oral judgment that had not been signed by the trial court were insufficient to divest the trial court of jurisdiction. As a result, the oral "judgment" could not be reviewed through the appeals process.
No items found.
Insight
An Exercise in Inaction
"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.
Louisiana Supreme Court
Public Records
Resource
SEPTEMBER 2013 LEGAL UPDATE
RESTAURANT LIABILITY- The recovery by plaintiff against the Department of Health and Hospitals (DHH) was upheld in the First Circuit's recent Travis v. Spitale's Bar, Inc., 2013 WL 4105400 (La. App. 1 Cir. 8/14/13) decision. In Travis, the plaintiff became ill due to vibrio vulnificus bacteria contained in raw oysters sold by Spitale's Bar. Although Spitale's posted the required safety warnings in its bar, the statutorily-mandated signs were not posted in the restaurant area nor on the menu. The jury allocated fault as follows: DHH (40%), Spitale's (33%) and plaintiff (27%).On appeal, DHH argued that the trial court failed to properly instruct the jury on the law of "superseding negligence." DHH contended that the decision by the plaintiff to ignore his physician's instruction to avoid raw seafood constituted superseding negligence. In rejecting this argument, the First Circuit held that the court's charge to the jury was adequate because they "informed the jury that they were permitted to assign fault to Mr. Travis for his role in causing his own injuries."INSURANCE- In Lockwood v. Allstate Ins. Co., 109 So. 3d 931 (La. App. 2 Cir. 2013), the Louisiana Second Circuit held that an insurance policy that expired one hour before an accident did not provide coverage. The insurer offered to renew the policy, but the insured did not pay premium timely. The original policy contained an "Automatic Termination" clause, stating: "If we offer to renew or continue your policy and you or your representative do not accept by making timely payment of . . . premium due, this policy will automatically terminate at the end of the policy period." The court held that the policy expired according to its terms.The court found that the facts presented a "nonrenewal" as opposed to a "cancellation," and, therefore, not subject to the statutory procedures for cancellation.CONTRACT- The Louisiana Supreme Court recently issued a ruling upholding the long-standing contract law cannon that parties must read their contracts. In Cynthia Fry Perionnet and Elizabeth Fry Franklin v. Matador Resources Company, 2012-2292, 2012-2377, -- So. 3d --, the Court held that a contract could not be rescinded for unilateral error when the party's alleged error was inexcusable. Specifically, the Court found that the plaintiffs claiming error: 1) could show no excuse for failing to read and understand the contract; 2) plaintiffs were self-proclaimed experts in the contractual subject matter; and, 3) the original contract was on the plantiff's own forms. Because the Court could find no plausible excuse for plaintiff's error, the contract was not rescinded.
No items found.
News
August 2013 Firm News
John P. Wolff is a member of the Board of Directors of the Baton Rouge Epicurean Society, a non-profit organization which has goals to include raising local awareness of childhood health and nutrition issues; helping young students learn about community involvement, cultural preservation and leadership; and awarding endowment funds and scholarships in the epicurean arts. The Society's annual event, Fete Rouge, will be held on August 23 and 24, 2012.Gracella Simmons has been named to the Board of Directors of Yelp!Baton Rouge. This organization is a nonprofit animal welfare organization that is committed to ending euthanasia of healthy and treatable companion animals in the Greater Baton Rouge Area.Andrew Blanchfield has been elected as President of Bocage Racquet Club, a member owned club in Baton Rouge. Bocage is a nationally-recognized center for tennis and recreation.
No items found.