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News
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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News
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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Insight
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
Resource
MARCH 2012 LEGAL UPDATE
Peremption/Prescription - In Stewart v Continental Casualty Co., the Louisiana First Circuit held that Louisiana's "relation back" doctrine for amended pleadings does not cure a claim already perempted under La. R.S. 9:5605. La. R.S. 9:5605 provides a three year peremptive period for legal malpractice actions. In Stewart, the plaintiff timely sued the insurer. However, an amended pleading joining the insured attorney did not "relate back" under La. CCP Article 1153 because the claim against the attorney had perempted and peremption "destroys" the cause of action.Wrongful Death - The Louisiana Third Circuit in Hutto v McNeil-PPC, Inc. upheld an award of $1,000,000 in a survival action involving a six-month old infant. The court also upheld an award of $2,000,000 to each of the infant's teenage parents.Premises Liability - In Chambers v Village of Moreauville, the Supreme Court held that the failure to repair a one-and-one-quarter to one-and-one-half inch deviation in a city sidewalk did not amount to a breach of duty by the municipality to keep the sidewalk in a reasonably safe condition. The court found that the trial court erred when it failed to consider the cost of repairing sidewalks in the village as part of the "risk-utility balancing test."
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FEBRUARY 2012 LEGAL UPDATE
Med Mal - The Louisiana Supreme Court in Joe Oliver v. Magnolia Clinic, 2011-C-2132 has again upheld the constitutionality of the $500,000 cap on damages in medical malpractice actions. The ruling reversed a Third Circuit decision which found the cap unconstitutional as applied to nurse practitioners. In support of the cap, the State argued that multiple valid reasons supported the cap, to include the lowering of medical malpractice insurance and the promotion of access to affordable medical care.Vicarious Liability - In Buford v. Williams, 2012 WL 469871 (2/14/12), the Louisiana Fifth Circuit held that an alleged rape by a hospital employee was not fully subject to the medical malpractice cap. Under the ruling, allegations that the hospital failed to properly train and supervise the employee were subject to the $500,000 cap. However, the allegations of respondeat superior (vicarious liability) were not under the cap. The court reasoned that, under Civil Code article 2320, the employer/hospital "stood in the shoes" of the employee. Because rape is an intentional act and not subject to the protections of the medical malpractice cap on damages, the protections of the cap were not available to the hospital for its vicarious liability.Premises Liability - In Cline v. Cheema, 2012 WL 581237 (2/22/12), the Fourth Circuit upheld a trial judge's ruling that a 1/12 to 2 inch rise in a concrete expansion joint constituted an unreasonably dangerous condition under the specific facts of that case. The defendant had cited to cases which held that similar problems were not unreasonably dangerous defects. The Cline court distinguished those cases because the cases cited involved sidewalks owned and maintained by government, and a private defendant owned the sidewalk in Cline. The court reasoned that a governmental defendant has to maintain many more sidewalks and therefore may have a lesser duty than a private defendant.
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News
February 2012 Firm News
Gracella Simmons served as a panelist representing the Board of Governors of Louisiana Association of Defense Counsel and ABOTA (American Board of Trial Advocates) in a seminar, Louisiana Jury Summit, hosted by ABOTA for the Louisiana Judicial College in New Orleans on February 3, 2012.
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JANUARY 2012 LEGAL UPDATE
Workers' Compensation - In Benoit v. Turner Industries Group, LLC, 2011-1130 (La. 1/24/12), the Louisiana Supreme Court reversed a judgment of the Office of Workers' Compensation, which awarded the claimant $625,168.27. The claimant qualified for Medicaid, and Medicaid paid $203,124.68 for medical expenses. The remaining $422,043.59 was "written off" under the Medicaid program.The Court held that "under La. R.S. 23:1212(A), the payment of medical expenses by Medicaid extinguishes any claim by the employee against the employer for those expenses [aside from] a narrow exception, whereby the state is granted a right to recover these expenses from the employer." As such, the OWC erred in awarding the claimant medical expenses paid by Medicaid. Similarly, the claimant was not entitled to the "written off" amount. "[T]he mere fact that the employer may have benefited from a reduction of expenses through the Medicaid write-off process, does not impermissibly diminish the employer's liability for medical expenses."The employer was liable for the reduced portion of the medical expenses paid by Medicaid, but that reimbursement was owed to the state, not the claimant.Insurance - In Oubre v. Louisiana Citizens Fair Plan, 2011-0097 (La. 12/16/11), a divided Louisiana Supreme Court concluded that La. R.S. 22:658(A)(3), currently 22:1892, regarding the timely initiation of lost adjustment, does not require a showing of bad faith by the insurer. The statute simply requires proof of notice and no action for over thirty days. The Court also ruled that the provisions of La. R.S. 22:1220(C), currently 22:1973, "cap" the penalties for such inaction at $5,000 when damages are not proven.Vicarious Liability - In Nizzo v. Wallace, 11-467 (La. App. 5 Cir. 12/28/11), an employee was involved in an altercation with a co-employee during the scope of her employment. The plaintiff/employee sued the employer and co-employee. The plaintiff/employee reached a settlement agreement with the employer, and the employer was released from the action.Under these facts, the Court held that the settlement with the employer-tort feasor barred the recovery of damages against the co-employee for whom the employer was vicariously liable. The Court relied upon La. R.S. 9:3921 and Civil Code art. 2320. Because Louisiana law renders the employer primarily answerable for all damages occasioned by their employees while in scope of employment, the co-employee was effectively released when the employer was released. In reaching its ruling, the Court disregarded an express reservation of rights against the co-employee in the release documents with the employer.Attorneys' Fees - Courts examine a number of factors when attorneys' fees are awarded. This examination should occur regardless of statutory authorization for an award of attorneys' fees. These factors include: the ultimate result; the responsibility assumed; the importance of the litigation; the amount of money involved; the extent and character of the work performed; the legal knowledge, attainment and skill of the attorney; the number of appearances involved; the intricacies of the facts involved; the diligence and skill of counsel; and the Court's own knowledge.If there is no indication that the Trial Court took the above-listed factors into account when it made an award of attorneys' fees, the matter should be remanded for a determination of the proper amount of attorneys' fees to be awarded. Sicard v. Sicard, 11-423 (La. App. 5 Cir. 12/28/11).
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DECEMBER 2011 LEGAL UPDATE
Legal Interest - The legal/judicial interest rate for the 2012 calendar year will be 4.0%.Abandonment - In Department of Transportation & Development v. Oil Field Heavy Haulers, LLC, 2011-C-0912 (12/06/11), the Louisiana Supreme Court held that correspondence scheduling a discovery conference, as provided for in Uniform District Court Rule 10.1, is "a step in the prosecution or defense of the action" so as to avoid dismissal of a lawsuit based on 3 year abandonment under LA C.C.P. Art. 561. This ruling weakens the protection offered to defendants under Article 561.Class Actions - In Price v. Martin, 2011-C-0853 (12/06/11), the Louisiana Supreme Court held that class certification was not available. The proposed class was made up of 4,600 property owners claiming damages from the emission of toxic chemicals from a wood treatment facility from 1944 to the present. Over that time, the plant was operated by multiple different owners.In denying class certification, the Court noted that over 500 putative class members had already brought individual claims. The Court reasoned that certification would therefore prove unfair to those who had claims stronger than the named class representatives. Further, the Court held that certification under the facts of the case would be inconsistent with the general rule that "only mass torts arising from a common cause or disaster are appropriate for class certification."
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News
December 2011 Firm News
Mary Anne Wolf presented a seminar entitled Understanding and Minimizing Professional Negligence Actions on January 19, 2012, in Baton Rouge. The continuing education seminar was for engineers and covers liability topics. For more information go to www.halfmoonseminars.com.
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NOVEMBER 2011 LEGAL UPDATE
Comparative Fault - In Le v. Nitetown, Inc., 2010-1239 (La. App. 3 Cir. 7/20/11), 2011 WL 2848152, the Trial court was precluded from reducing a nightclub patron's recovery for his contributory negligence. The plaintiff's damages were caused by the intentional acts of the nightclub's employees and by the negligent actions of the nightclub. In refusing to uphold any fault allocation to the negligent plaintiff, the Appellate court applied Louisiana Civil Code art. 2323 which provides that "if a person suffers injury, death, or loss as a result of the fault of an intentional tortfeasor, his claim for recovery of damages shall not be reduced." Plaintiff's contributory fault was found to be irrelevant when he suffered damage because of an intentional tort even if he was also injured by a negligent defendant.Workers Compensation; Penalties - A workers' compensation claimant filed a motion for penalties and attorneys fees for untimely payments of amounts awarded in a consent judgment. Specifically, because of adjuster oversight, the check issued to the claimant was short by $.90. Five days later, the insurer issued a $.90 check to cover the shortage. The trial court denied the motion for attorneys fees and penalties. The appellate court disagreed. It found that the penalty assessed in La. R.S. 23:1201(G) is mandatory and the statute does not exempt small mistakes or inadvertent actions where the employer fails to pay the full amount of a judgment. Claimant was awarded penalties and attorneys fees in the amount of $3,000.00 for the underpayment of the judgement. Richard v. Coastal Culvert and Supply, Inc., 11-232 (La. App. 3 Cir. 10/5/11), 2011 WL 4578593.Workers Compensation; State IME's - In Gaylord Chemical Corporation v. Short, 10-07170 (La. App. 1st Cir. 11/9/11), --- So. 3d ---, the court of appeal, reversing the Workers Compensation Judge, found that a request for the appointment of an independent medical examiner is not required to be made to the Director of the Office of Workers Compensation but may also be made directly to the WC Judge under the continuing jurisdiction of the WC tribunal afforded by La. R. S. 23:1310.8 even if there is no longer any pending suit between an employee and his employer.
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