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DECEMBER 2012 LEGAL UPDATE
BP OIL SPILL LITIGATION: A federal judge recently approved BP’s settlement with businesses and individuals who lost money because of the 2010 oil spill. BP estimated it will pay $7.8 billion to resolve economic and medical claims for more than 100,000 businesses and individuals. The settlement has no cap. In his decision, U.S. District Judge Carl Barbier outlined that none of the objections to the settlement have shown the settlement to be anything other than fair, reasonable and adequate. BP has already begun paying claims.SAME-SEX SEXUAL HARASSMENT: In EEOC v. Boh Bros. Construction Co. ___ F. 3d ___ (5 Cir. 2012), Kerry Woods filed suit against Boh Bros. for alleged same-sex sexual harassment by his crew superintendent. The superintendent allegedly referred to him with improper epithets and made lewd gestures in his direction. After complaining of the behavior, Woods was transferred to another construction crew. A year later, Woods was laid off for lack of work; thereafter, he filed an EEOC charge of discrimination. The EEOC brought an enforcement action.Apparently sympathetic to Woods, the jury returned a substantial verdict for actual and punitive damages. Despite evidence that the superintendent was a "world-class trash talker" and "master of vulgarity" and proof that Woods was a primary and constant victim of this offensive behavior, the 5th Circuit Court of Appeals found that it was not the court’s business "to clean up the language and conduct of construction sites." Title VII is not a general civility code, and it protects employees against discrimination, not against all forms of mistreatment. The Court found insufficient evidence that the superintendent acted "on the basis of gender" in his treatment of Woods. The lower court’s judgment was vacated and the case remanded.WORKERS' COMPENSATION AND ATTORNEYS' FEES: In Bihm v. Unit Drilling Co., WCA 12-569 (11/7/12), the Third Circuit Court of Appeals increased the lower court’s award of $60.00-$104.80 to $200.00 per hour in fees where the defendant raised every possible defense imaginable in its answer so as to preclude early resolution of the single issue in the case. The Court outlined, "It is clear to this court that the defendants intended to make it as difficult and expensive as possible for the claimant to pursue his right to medical care."
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NOVEMBER 2012 LEGAL UPDATE
CLASS ACTIONS & PRESCRIPTION: In Duckworth v Louisiana Farm Bureau Mutual Insurance Company, 2011-2835 (La. 11/2/12), the Louisiana Supreme Court granted certiorari to resolve whether a member of a putative class was entitled to the suspension of prescription provided for in La. C.C.P. art. 596 when an independent, individual lawsuit is filed before a ruling on the class certification issue.In this context, the Supreme Court held that, because plaintiffs were members of the proposed "class", they were entitled to the benefits of the suspension of prescription granted by La. C.C.P. art. 596, notwithstanding that they also filed individual actions prior to a resolution of the class certification issue. The Court thereby reversed the judgments of the lower courts, denied the exceptions of prescription and remanded the respective suits to the district courts for further proceedings.WORKERS COMPENSATION: In Hargrave v. Louisiana, 2012-0341 (La. 10/16/12), the Louisiana Supreme Court granted the state's writ application to consider whether the Office of Workers' Compensation judge erred in requiring a vocational rehabilitation counselor to comply with the so-called "Crain Brothers conditions," drafted by claimant's counsel, before the counselor could provide vocational rehabilitation services to the claimant. The Court held that the trial court erred in imposing the conditions without an evidentiary showing that any of the imposed conditions were reasonably necessary to resolve a "dispute . . . concerning the work of the vocational counselor" as provided in the vocational rehabilitation provisions of the Louisiana Workers Compensation Act. Accordingly, the Court reversed the ruling of the lower court and remanded the issue to the trial court for further proceedings. This ruling should discourage plaintiff attorney's efforts to impede reasonable access to information about their client's earning potential.WRONGFUL DEATH: In Udomeh v. Joseph, 2011-2839 (La. 10/26/12), the issue before the Louisiana Supreme Court was whether an alleged biological father could bring a wrongful death and survival action for his illegitimate child, where the father did not file a timely avowal action. La. Civ. Code article 198 requires a father to file to establish paternity within one year of a child's death. The father's wrongful death and survival petition asserted his paternity and was filed within the one year peremptive period of La. Civ. Code art. 198. The Court ruled that the father's petition was timely holding that, under Louisiana's "fact-pleading" system, his petition pled sufficient facts to state an avowal action. This ruling is another example of Louisiana courts using our "fact-pleading" system to eliminate procedural requirements otherwise present in the law.
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Keogh Cox gets into the holiday spirit with two local charities
Keogh Cox participated in the Baton Rouge Bar Association's annual Holiday Star project. Jenny McLin served as our chair and we were able to deliver many prized Christmas gifts to underprivileged children in our area.
Keogh Cox has for many years donated time and resources to an amazing local charity, the Bishop Ott Shelter in Baton Rouge. The shelter provides meals to homeless and disadvantaged people in Baton Rouge. This year Keogh Cox staff member Kristen Shelley went above and beyond to single handedly provide an entire Thanksgiving meal to Bishop Ott. Thanks to Kristen for reminding us all that this is a season of giving.
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OCTOBER 2012 LEGAL UPDATE
PRESCRIPTION: The Court in Sims v. American Ins. Co., 2012-0204 (La. 10/16/12) held that a plaintiff’s voluntary dismissal with prejudice of a case in federal court equates to a "voluntary dismissal" under the Louisiana Code of Civil Procedure Article 3463.In Sims, the plaintiff’s timely state court suit was removed to federal court. Thereafter, the plaintiff passed away. His survivors substituted as plaintiffs in the federal court suit. The survivors also filed a wrongful death and survival action in state court, one year and one day after the plaintiff’s death. Thereafter, the federal court suit was dismissed with prejudice.Under these facts, the Louisiana Supreme Court held that the federal court suit did not interrupt prescription for the later-filed state court action and dismissed the state court suit under an exception of prescription. Because the appeal was taken on the prescription issues, the Court did not consider the res judicata effect of the dismissed federal court action.ADMIRALTY: In Viator v. LeBeouf Bros. Towing, L.L.C., 2012-0314 (La. App. 4 Cir. 10/17/12), the Fourth Circuit reversed the trial court’s award of summary judgment because it found that an issue of material fact existed regarding whether the defendant vessel-owner breached an "active control" duty. This case offers greater definition of the "active control" duty. This duty recognizes that, while a vessel owner no longer retains the primary responsibility for safety in an area turned over to the stevedore, its maintains responsibility for the equipment and crew it still controls.The Viator plaintiff was injured onboard a vessel docked at his station when he attempted to lift a crossover hose that had fallen onto the vessel’s deck. The Court found the vessel owner had a duty to avoid exposing longshoremen to potential hazards arguably within the control of the vessel owner. An issue of fact existed regarding whether the vessel’s crew had operational control, and thus "active control," over the crossover hose.PREMISES LIABILITY: In Dickson v. City of Shreveport, 47,268 (La. App. 2 Cir. 8/8/12), the plaintiff tripped and fell on a sidewalk that crossed a driveway into a parking lot. The plaintiff alleged the City owned and maintained the sidewalk and "knew or should have known" about the sidewalk’s allegedly defective condition.The trial court denied the City’s motion for summary judgment, finding issues of fact regarding each of the plaintiff’s allegations. However, the Second Circuit reversed the trial court and granted the City’s motion. The Court commented that the social utility of the sidewalk outweighed the potential harm posed by its cracked condition. The plaintiff’s inability to point to any specific crack as the cause of her fall was cited in support for the Court’s decision. Further, the photographs showing a great number of cracks in the sidewalk signified to the Court that the hazard was "open and obvious," and therefore not unreasonably dangerous to this plaintiff.While cases such as Dickinson are helpful in the defense of trip and fall suits, the standard imposed upon private property owners is sometimes greater than the standard imposed upon cities or municipalities. With governmental entities, Courts often soften the standard because of the many miles of sidewalks these entities have to maintain.
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October 2012 Firm News
Gracella Simmons will serve as a panelist at the seminar hosted by the Louisiana Association of Defense Counsel on December 7, 2012 in New Orleans and as a panelist on that same date for a presentation at the Louisiana Judicial College Seminar.Gracella Simmons will be guest lecturer at the LSU School of Law on Oct 31 and November 7 on the topic of mediation.Every month, a team from Keogh Cox provides hot meals for the homeless men and staff at the Bishop Ott Shelter in Baton Rouge.According to their mission statement, The Bishop Ott Shelter serves homeless men by offering more than just a bed and a meal. The center helps the homeless find employment, improve their education, receive substance abuse treatment and get back on their feet.Gracella Simmons has been selected with attorneys from Louisiana and other states to participate in a Masters in Trial seminar in New Orleans on December 5, 2012. The CLE approved seminar, hosted by the American Board of Trial Advocates (ABOTA), will be a mock trial including a jury and jury deliberations.Steve Judice was a musical participant in a fundraiser in Weatherford, Texas benefiting the Texas Alzheimer's association. A silent auction was held in which, among other items, a future private house concert was offered. The event raised over four thousand dollars for Alzheimer's research.Gracella Simmons, a former member of the Board of Directors of the Baton Rouge Symphony, will conduct the Baton Rouge Symphony Orchestra during the 2012 "Homes for the Holidays" Christmas Pops Concert on December 2, 2012.Several attorneys with Keogh cox recently participated in the Baton Rouge Bar Association's Belly Up with the Bar event. The team cooked chargrilled oysters and bacon-wrapped shrimp, and won both the Most Original and People's Choice awards. Team members included Chris Jones, Reynolds Leblanc, Tori Bowling, Jenny McLin, Richard Wolff, and Brent Cobb. The event raised money to benefit programs supported by the Baton Rouge Bar Association Foundation.Gracella Simmons serves on the Board of Directors of Yelp!BR. Yelp!BR is holding its third annual Yappy Halloween Run Saturday, October 6. The event, which is for the entire family, will include dog adoptions, a Spooky 5K and 1 mile stroll, live music, a costume contest and other events. Yelp!BR is a nonprofit animal welfare organization that is committed to ending euthanasia of healthy and treatable companion animals in the greater Baton Rouge area.Chris Jones is the current Chair of the Board of Trustees for the Louisiana Arts & Sciences Museum, which is celebrating 50 years with its Golden Anniversary Gala on October 5, 2012.
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SEPTEMBER 2012 LEGAL UPDATE
LANDOWNER LIABILITY - The Louisiana Supreme Court recently considered the extent of any duty owed by a landowner to protect others from the negligence of third parties. In Ponceti v. First Lake Properties, Inc., 2011-C-2711 (7/2/12), a young child suffered a leg injury after a teenager lost control of his bicycle while performing a "stunt." The plaintiff alleged that the landowner should have prevented the riding of bicycles on the sidewalk in violation of a City Ordinance.Under these facts, the Louisiana Supreme Court upheld summary judgment in favor of the apartment complex and utilized the "balancing test" from Posecai v. Wal-Mart Stores, Inc. to determine the threshold issue of duty. The Court found that no duty existed under the facts of the case because: 1) the general presumption is that no duty exists; and 2) the plaintiff could not show that the apartment owner possessed knowledge of similar occurrences in the past.UNINSURED MOTORIST - The Louisiana Fourth Circuit Court of Appeal in Terrell v. Fontenot, 2011-CA-1472 (6/27/12) held that verbal instructions given to a legal representative to reject Uninsured Motorist coverage by a corporate officer were sufficient to grant this authority.The Terrell court held that the term "legal representative" for purposes of the rejection of UM means any individual authorized on behalf of an entity to advise that UM coverage has been rejected. As a result, verbal instructions to reject UM given by the president of the company to a long-time employee were sufficient to demonstrate a proper rejection of UM.WORKER'S COMPENSATION - The Louisiana Fifth Circuit Court of Appeal ruled in Flach v Diebold, Inc.,12-CA-1 (7/31/12) that the doctrine of "estoppel" did not benefit an employee who alleged that the continued payment of wages after an accident "lulled" him into not filing a timely workers compensation claim.The jurisprudence has recognized the impact of "estoppel" when an employee is lulled into a false sense of security by the employer and is induced to forgo the filing of the claim until the prescriptive period has expired. To utilize this estoppel defense, the claimant must show that the employer's words, actions or inactions induced the claimant to withhold suit. While the employer in Flach paid the plaintiff for missed work, it also clarified that the payments were not compensation benefits and even discussed with the worker that the worker's compensation carrier was refusing to pay. Therefore, the payments did not support the estoppel defense.
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August 2012 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.
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JULY 2012 LEGAL UPDATE
CORPORATE PROTECTIONS - Generally, a shareholder of a corporation or member of a Louisiana LLC are not liable for the debts or liabilities of the entity. In Charming Charlie, Inc. v. Perkins Rowe Associates, LLC, 2011- CA 2254, the plaintiff/lessee alleged that the defendant/lessor was liable for $682,500 in lease reimbursements. The plaintiff also alleged that the managing member of the lessor, a LLC, was personally liable under allegations that he was: 1) the "alter ego" of the LLC; and, 2) fraudulently induced the plaintiff into the lease. These allegations were dismissed under an exception of no cause of action.In its ruling, the First Circuit confirmed that corporate protections from personal liability are not to be easily set aside. Because the petition failed to set forth facts showing fraud or that plaintiff could satisfy the "piercing the veil" factors, the granting of the exception was upheld. However, the matter was remanded to allow the plaintiff an opportunity to plead facts, if any exist, to support a cause of action. CCP Art. 934 gives a plaintiff one chance to cure a defect when an amended petition may resolve the issues raised through the defendant's exception.CONSTRUCTION LAW - In 2010, the Legislature enacted R.S. 9:2780.1, an anti-indemnity statute that rendered null any indemnity, defense or hold harmless provision in certain motor carrier transportation and construction contracts. The Act became effective in January 2011 and was a significant change in the law.The statute's impact has been greatly limited through amendments which are effective this summer. The following modifications were made:The definition of a "third party" was modified to exclude any party who contracted with the indemnitor or who was at the indemnitee's facility at the invitation or direction of the indemnitor. This narrows the scope of the ban on indemnity.A new section was added to allow indemnity up to the amount of insurance if insurance was procured as a cost of the contract or under an "additional insured" listing.MEDICAL MALPRACTICE - The recent First Circuit ruling in Shawn Crystal v. F. Allen Johnston, 2011-CA 1264, provided an interesting commentary upon the expert testimony required to demonstrate a breach of the standard of care in a medical malpractice claim. In Crystal, the plaintiff complained of the method used by the physician in the performance of an arthroscopic surgery.During a bench trial, it was factually established that the best method to perform a part of the surgery was the method outlined in Campbell 's Operative Orthopedics. Even though the defense expert conceded that the method described in Campbell 's "may be the safest way to perform the procedure," the trial court concluded that a physician is not required to utilize the safest method. Instead, the focus should be upon whether the method utilized by the doctor was reasonable and supported by sound medical judgment.
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JUNE 2012 LEGAL UPDATE
SANCTIONS - in Wilson Acosta v. B&B Oilfield Services, Inc., the Third Circuit Court of Appeal affirmed an award of $7,500 in attorney fees and $65.04 in costs as sanctions in a revocatory action. The Wilson plaintiff alleged that the defendant’s sale of assets rendered it insolvent, and should be revoked as a sham transaction. Summary judgment was granted in favor of the defendants. Sanctions were awarded because the plaintiff continued to pursue the revocation after the facts of the claim demonstrated that revocation was not available. On this subject, the Court stated:In light of the information available to Plaintiff, Wilson Acosta and his counsel as of February 15, 2011, the continued pursuit of the litigation after that date was without reasonable basis.This decision shows that Code of Civil Procedure article 863 (which allows sanctions for the filing of unsupported pleadings) can have "teeth" under appropriate facts.PENALTY AND ATTORNEY FEES - in State Farm Mutual Auto. Ins. Co. v. Norcold, the Third Circuit Court of Appeal held that a third party claimant can recover penalty and attorney fees under La. R.S. 22:1892 for an insurer’s failure to make a written offer to settle a property damage claim within 30 days after receipt of satisfactory proof of loss. The statute expressly requires the making of such an offer whether the claimant is the insured or a third party, but only provides for a penalty based on the amount "payable to the insured."WORKER’S COMPENSATION - In Clay v. Our Lady of Lourdes Regional Medical Center, the Louisiana Supreme Court reversed the Court of Appeal’s decision to require that the employer prove that a job was offered to the claimant (to establish the ability to earn 90% of his pre-injury wages). The Supreme Court held that the supplemental earning benefits statute merely requires proof that a job was offered, or is available . The Supreme Court observed that the Court of Appeal’s decision effectively rendered "the second part of the statute meaningless."Environmental - In a pair of bills sent to the Governor for signature, the Louisiana legislature struck a compromise on hotly contested issues relating to "Corbello" actions/Legacy claims relating to responsibility for environmental cleanup of property in the state. Both of these statutes apply to all cases that are not set for trial as of May 15, 2012House Bill 618 (Enacting Code of Civil Procedure Articles 1552 and 1563)Article 1552 provides that any party in any civil action alleging environmental damage pursuant to R.S. 30:29 may request that the court enter an "environmental management order" that allows the parties to access the property, investigate, test, etc. All tests relating to the property must be produced to all parties or such testing cannot be used by the party as evidence in the civil action.Article 1563 provides that a party may enter a "limited admission" for specific environmental damage without global admission if a "feasible" remediation plan is offered and accepted. Such a limited admission does not result in a waiver of any rights or defenses of the admitting party, but the admission and comments by the department shall be admissible in a civil action.Senate Bill 555 (R.S. 30:29)This bill amends R.S. 30:29 to provide a number of rules pertinent to civil litigation:It provides that any party can conduct a full range of discovery of "any employee, contractor, or representative of the department involved in the feasible plan."The bill also provides for a preliminary hearing, if requested within 60 days of service of "a petition or amending petition" pursuant to which a defendant may require the plaintiff to make a showing that supports the claim of environmental damage against that defendant, in default of which a dismissal without prejudice will be entered as to that defendant.Prescription on a covered action "shall be suspended for a period of one year" from the time that the department is physically served with notice of intent to investigate-the details of which are defined by the statute.Any "subsequent judicial demand...shall identify on a map the location of any alleged environmental damage and include the results of any environmental testing performed on the property. Failure to include this information at the time of the filing of the judicial demand shall result in exclusion of the information."On a determination of liability or upon a limited admission of liability, the court will require the party to submit a "feasible plan." No party may have any ex parte communication with "any employee, contractor, or representative of the department."The bill also provides that any "responsible party" waives any indemnification against punitive damages arising out of the environmental damages. Other claims for indemnification may be enforced, however.
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April 2012 Firm News
On April 27, 2012, two Keogh, Cox & Wilson attorneys again volunteered to participate in Law Day sponsored by the Baton Rouge Bar Association. Chris Jones served as moderator for a mock trial performed by school children from several schools participating in the annual Law Day. Jenny McLin served as civil attorney and assisted the student defense team present their case.
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Sudden Shifts - Burden Shifting under Louisiana Law
Winning or losing in court often comes down to who possesses the burden of proof. Like a driver at a four-way stop, a litigant has to know when it is their turn.
Civil Procedure Article 966, the "Summary Judgment Article," provides that the mover bears the burden of proof. The Louisiana Supreme Court recently addressed this burden in Dan Veuleman & Jody Veuleman v. Mustang Homes, LLC, 2013-C-190 (La. 4/5/13), - So. 3d - in the context of insurance coverage.
The general rule in Louisiana is that an insurer bears the burden of proving that a loss falls within a policy exclusion. In Veuleman, the insurer argued that the loss was excluded through a "work product" exclusion. However, the "work product" exclusion contained a "subcontractor" exception. The plaintiffs argued that the work was performed by a subcontractor and should for that reason be covered under the policy.
At the hearing, the insurer introduced its policy as evidence of the exclusion. However, it offered no evidence to show who performed the work at issue. The plaintiffs attempted to introduce an affidavit to establish that the work was performed by a subcontractor. The court of appeal rejected the affidavit as insufficient and concluded that the plaintiffs did not establish that their claims were spared from the work product exclusion.
The Louisiana Supreme Court disagreed. It stressed that the insurer, not the plaintiff, possessed the burden of proving that the policy exclusion applied. The Court stated that "[t]he insurer offered no proof to accomplish its burden." Id. at 1.
The Veuleman Court held that the appellate court "erroneously shifted the burden of proof on the motion for summary judgment" to the plaintiffs and that the insurer had the burden to show that "the exception [to the exclusion] is not met." In keeping, the Court vacated the summary judgment and remanded the matter for further proceedings.
The Veuleman decision reminds that a litigant should be aware when it is their turn to go.
Insurance
Louisiana Supreme Court