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MARCH 2013 LEGAL UPDATE
LEGAL MALPRACTICE- Plaintiffs sued in legal malpractice after their medical malpractice action was dismissed as untimely. The legal malpractice suit was filed even though the dismissal of the plaintiffs' medical malpractice action was pending appeal. When the dismissal of the medical malpractice action was reversed and the medical malpractice action was reinstated, the plaintiffs refused to dismiss the legal malpractice action.The plaintiffs continued to pursue their attorneys arguing that a failure to properly defend the exception in the medical malpractice action caused damages in the form of additional legal fees incurred in the appeal. Under these facts, the Louisiana Fourth Circuit in Thibodeaux v. Braud & Gallagher, L.L.C., 12-0904 ( La. App. 4 Cir. 1/31/13), --So. 3d --- upheld a dismissal of the legal malpractice suit.The Braud Court reasoned that the plaintiffs could not show the prerequisites to legal malpractice because the underlying suit was, in fact, timely. The plaintiffs postulated that the dismissal could have been avoided had their attorneys made better arguments in the lower court. On this subject, the Braud Court stated:[W]e cannot suppose that a single ineffective (or even unsound) argument in the trial court can constitute actionable negligencewhen the party ultimately prevails on the very issue to which the ineffective argument was addressed.In its analysis, the Fourth Circuit reaffirmed the principle that an attorney need not make the best argument or identify every legal issue involved. Instead, the attorney's actions will be judged by the standard of the lowest acceptable conduct of a reasonable practitioner under the circumstances.ALLOCATION OF FAULT- a comparison of fault among multiple actors is an inherently subjective process. To add guidance to this otherwise inconsistent process, the Louisiana Supreme Court long ago set forth a number of factors which should be used to guide this analysis. These factors, known as the "Watson Factors," ask the trier of fact to consider the following:1) Whether the conduct resulted from inadvertence or involved an awareness of the danger;2) How great a risk was created by the conduct;3) The significance of what was sought by the conduct;4) The capacities of the actor, whether superior or inferior; and,5) Any extenuating circumstances which might require the actor to proceed in haste, without proper thought.The recent First Circuit decision in Guitreau v. City of Gonzales, 12-0794 (La. App. 1 Cir. 2/13/13), 2013 WL 557018 is an excellent example of the use of the Watson Factors.In Guitreau, the Louisiana First Circuit reversed the lower court's fault allocation and held a police officer 75% at fault when he pulled into the oncoming lane of travel and began to pass vehicles in pursuit of an alleged seatbelt violator. Although the officer used flashing blue lights and a "yelp" siren, the plaintiff did not see or hear these warnings. The plaintiff was injured when she took a left hand turn and her vehicle was struck by the officer's vehicle. The plaintiff was held 25% at fault because of the high duty of care imposed upon a driver making a left hand turn.Applying the Watson Factors, the Court felt that the plaintiff's conduct was mere inattentiveness, whereas the officer's conduct was a conscious decision (Watson Factor #1). The risk created by the officer's conduct was also greater than that presented by the plaintiff's conduct (Watson Factor #2). The Court observed that the pursuit of a suspected seatbelt violator was a "non-emergency situation." Had the officer been pursuing a kidnapper or wanted murderer, then the significance of what was sought through his conduct (Factor #3) would have been greater and the allocation of fault may have been very different.AGENCY PRINCIPLES- the Louisiana Third Circuit upheld a dismissal in favor of defendants in Henry v. Zurich American Insurance Company, 12-888 (La. App. 3 Cir. 2/6/13), -- So. 3d. ---. In Henry, the owner of a race horse sued a veterinarian when the race horse "Toolights Ruckus" died from a reaction to anesthesia. The owner asserted that he had not given any consent to the procedure such that the veterinarian should be held liable for the consequences of the non-authorized treatment. The owner contended that the trainer who took the horse to the clinic was not the owner and did not possess authority to consent to non-routine care.The veterinarian responded that it reasonably believed that the trainer was in fact the owner of the horse. In rejecting the claim against the veterinarian, the Henry court held that the failure to obtain consent lied with the trainer or, alternatively, that the trainer did in fact have sufficient authority to act on behalf of the owner as his representative, or mandate. The Court also implied that the owner would have consented to the procedure had his consent been necessary.In its discussions, the Third Circuit reaffirmed that allegations of veterinarian malpractice will be assessed under the same standards which govern medical malpractice claims.
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Insight
Legislature Strikes Out in Effort to Control High School Sports
The Louisiana Supreme Court recently struck down legislation which sought to regulate the charter of the Louisiana High School Athletics Association, Inc. (LHSAA). See Louisiana High School Athletics Association, Inc. v. State, 2012-1471 (La. 1/29/13), - So.3d -. This is a significant development because it allows the LHSAA to govern much of high school athletics without state interference.
The LHSAA was formed in 1920 to promote and regulate interscholastic athletic competition in Louisiana. In 1988, the LHSAA reorganized itself as a private, non-profit corporation. Membership in the corporation is voluntary and its members include both private and public schools. The LHSAA's charter states that its bylaws can only be amended by a majority vote of its members present and voting at a regular meeting.
Prior to the Louisiana Supreme Court ruling, the LHSAA enacted regulations: prohibiting a student's participation in athletics for one year if the student transfers to a new school; defining what is a "family" for purposes of complying with residency requirements; and, prohibiting home school students from sports unless they enroll in a member school.
In response to controversy over these regulations, the Legislature passed various laws to limit the impact of the LHSAA regulations. For instance, La. R.S. 17:176(G) expanded the definition of "family" to allow students to more easily comply with LHSAA's good faith change of residence rule. Additionally, LSA-R.S. 17:236.3(A) required the LHSAA to allow home school students to participate in athletics without enrolling in a LHSAA member school.
The State took the position that it possessed the authority to enact the statutes because public education is under Legislative control and the LHSAA performs significant administrative functions affecting public education. It argued that the laws were a legitimate expression of governmental power and designed to allow parents and students to optimize the best learning environment, without sacrificing participation in athletics.
The LHSAA opposed these statutes, arguing that the statutes violated the Louisiana Constitution. The trial court agreed with the LHSAA and declared the statutes unconstitutional. Thereafter, the Louisiana Supreme Court exercised its appellate jurisdiction and accepted writs.
The Supreme Court noted that the Louisiana Constitution prohibits the Legislature from passing a local or "special law" regarding certain enumerated subjects, including amending, renewing, extending or explaining the charter of a private corporation. LA. CONST. art. III, § 12(A)(7). The Court held that these statutes were improper "special" laws which arbitrarily singled out the LHSAA and, in effect, re-wrote the LHSAA's bylaws.
The Court found that the Legislature essentially modified the LHSAA charter to allow the Legislature, as a non-member, to amend the LHSAA bylaws without any approval of the LHSAA or its members. As such, the statutes were unconstitutional.
The impact of the Court's ruling may reach beyond the arena of athletics. While the particular facts of this case involve participation in high school athletics, the decision reinforces the policy of this state to allow private institutions to self-govern their affairs. As such, this decision shows the Supreme Court's willingness, at least for the time being, to halt to the gradual expansion of State power.
State Power
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Insight
Louisiana Supreme Court Rejects Mental Anguish Claim
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.
Insurance
Supreme Court
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Resource
JANUARY 2013 LEGAL UPDATE
ABANDONMENT: In Food Perfect, Inc. v. United Fire and Casualty Company, 2012-2492 (La. 1/18/13), - So.3d-, the Louisiana Supreme Court held that informal settlement discussions do not qualify as a waiver of abandonment. The undisputed facts of the case indicated that the plaintiff's last formal activity in the suit occurred on June 4, 2008. On April 13, 2012, the defendant filed a motion to dismiss and argued that the suit was abandoned because the plaintiff did not take any "steps" in prosecution of the case for more than three years.The Court recognized two exceptions to abandonment- (1) when the failure to prosecute is caused by circumstances beyond the plaintiff's control; and, (2) when the defendant waives the right to assert abandonment. After June 4, 2008, the plaintiff and the defendant occasionally engaged in informal settlement discussions. The trial court found that these informal discussions amounted to the defendant's waiver of abandonment. The Court of Appeal upheld this finding. However, the Supreme Court reversed, dismissed the case and held that informal settlement discussions could not be construed a waiver of abandonment.SLIP AND FALL: In McClelland v. City of Shreveport, 47,570 (La. App. 2 Cir. 1/16/13), - So.3d -, the plaintiff filed suit after she tripped on a sidewalk while walking her dogs. The court found that the sidewalk presented an unreasonable risk of harm even though the plaintiff was familiar with its condition. A city official acknowledged that the cracks in the sidewalk could have presented a danger to pedestrians and justified the expense undertaken to repair the area shortly after the incident. Corroborative testimony revealed that the area had been a problem for "many years." Based upon this evidence, the Second Circuit affirmed the trial court's ruling which allocated 50% fault to the city and 50% fault to the plaintiff.Many Louisiana cases have rejected liability when presented with proof that a defect was obvious and fully known to a plaintiff. Perhaps implicit in the McClelland court's decision to uphold the finding of liability on the part of the city, despite the plaintiff's awareness of the defect, is the notion that the defect presented a hazard even when known to the plaintiff. In McClelland, the evidence showed that the entire sidewalk area was defective and that the plaintiff was trying to avoid the "worst cracks" when the accident occurred.INSURANCE: In Daniels v. Imperial Fire and Cas. Ins. Co., 47,572 (La. App. 2 Cir. 1/16/13), - So.3d -, the plaintiffs were passengers in a car struck by an unknown driver. Following the accident, they sought recovery under the driver's uninsured motorist ("UM") policy. The insurer denied the claim on grounds that the plaintiffs were not "insured persons" under the policy. The plaintiffs alleged that the insurer's denial of their claims was arbitrary, capricious or without probable cause and petitioned for penalties and attorney's fees. The trial court found that coverage was present but rejected the plaintiffs' claims for penalties and attorney's fees.On appeal, the appellate court recognized the holding in the Louisiana Supreme Court's decision of Bernard v. Ellis, 2011-2377 (La. 7/8/12), - So.3d - that permissive passengers of a vehicle are insureds who are entitled to UM coverage and that an insurer's denial of UM payments to permissive passengers would qualify as bad faith. However, Bernard had not been decided at the time the Daniels matter was before the trial court. Moreover, appellate courts had previously offered inconsistent rulings on this issue. Given the legal uncertainty present at the time, the insurer had a legitimate reason to deny the plaintiffs' claim. Therefore, the insurer's actions were not arbitrary, capricious or without probable cause.
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News
Partner Chris Jones elected a Director-at-large for the Board of Directors for the Baton Rouge Bar Association
Partner Chris Jones was installed yesterday as a Director-at-large for the Board of Directors for the Baton Rouge Bar Association at a ceremony held at the United States District Court for the Middle District of Louisiana.
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News
Keogh Cox has been recognized by American Lawyer Media as one of the 2013 Go-To Law Firms at the Top 500 Companies
This list is compiled by gathering data from general counsel to Fortune 500 Companies. The list is distributed annually to In-House Counsel at all Fortune 500 Companies as well as to leading business executives and law firms.Mary Anne Wolf will present a seminar on professional liability at the annual Louisiana Engineering Society conference in Lafayette on January 23, 2013. www.les-state.org.
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News
Gracella Simmons has been named a Super Lawyer 2013
We are proud to announce that Gracella Simmons has been named a Super Lawyer 2013. Super Lawyers honors attorneys who have been nominated by their peers and evaluated through independent research. No more than five percent of the attorneys in a state can be named to the Super Lawyer list: www.superlawyers.com.
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News
Keogh Cox participates blood drive with Our Lady of the Lake Regional Medical Center
Keogh Cox participated in its traditional blood drive with Our Lady of the Lake Regional Medical Center on December 17, 2012 at our offices. Participating in the blood drive were Missy Troxclair, Casey Tompley, Gracella Simmons, Rhonda Pumphrey, Steve Whitlow, Connie Easterly, Richard Wolff, Betty Barnes and Nancy Gilbert.
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News
Gracella Simmons appointed to the Law Institute Committee on Expedited Jury Trials
Gracella Simmons has been appointed to the Law Institute Committee on Expedited Jury Trials. The mission of the committee is to draft proposed legislation for the implementation of expedited jury trials in Louisiana. In connection with this appointment, she served as a panelist at the seminars conducted by the Louisiana Association of Defense Counsel and the Judicial College in New Orleans on December 7, 2012.
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