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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."
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.
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.
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).
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."
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.
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.
Uninsured Coverage - A guest passenger falls within the definition of "insured person" for purposes of liability coverage and thus is entitled to UM/UIM coverage. Reaching this conclusion en banc on remand from the Supreme Court, the Fourth Circuit declines to follow Batiste v Dunn, ___ So 3d ___ (1st Cir. 2011). Bernard v Ellis, No. 2010-1495 (La. 4 Cir. 9/27/11).Future Pain and Suffering - If the trial judge accepts as fact the plaintiff will require future surgery by awarding future medical expenses for that surgery, the judge errs in not awarding him damages for future pain and suffering. Thibodeaux v Trahan, No. CA 11-328 (La. 3rd Cir. 10/5/11)Wrongful Death - The father of decedent does not have a cause of action for decedent's wrongful death where he fails to file a petition to establish paternity within the peremptive period provided by La. C.C. art. 198. Udomeh v Joseph, No. CA 11-342 (La. 3rd Cir. 10/5/11)
Medicare Liens - The Centers for Medicare & Medicaid Services (CMS) published a memorandum on September 29, 2011 addressing proposed Liability Medicare Set-Aside Arrangement (LMSA) related to liability insurance settlements, judgments, awards, or other payments.According to the memorandum, Medicare considers its interest, with respect to future medicals for a particular settlement, satisfied where the beneficiary's treating physician certifies in writing that treatment for the alleged injury related to the settlement has been completed as of the date of the settlement. If the beneficiary received additional settlements related to the underlying injury or illness, he/she must obtain a separate physician certification for those additional settlements.When the treating physician makes a certification, the CMS memo also reports that there is no need for the beneficiary to submit the certification or a proposed LMSA amount for review. However, CMS indicates that it will not provide the settling parties with confirmation that Medicare's interest with respect to future medicals for that settlement has been satisfied. Instead, CMS encourages the parties to maintain the physician's certification. Therefore, if the doctor's "certification" is not fully clear, parties may still choose to seek a formal LMSA for approval by Medicare.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.CLASS ACTIONS & PRESCRIPTION. 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 ofBernard 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.
Criminal Acts of Third Parties - In the recent decision of Irwin v. Rubens, -- So. 3d ----, 2011 WL 396451 (La. App. 4 Cir. 2011), summary judgment was upheld where an individual was shot and killed by a worker allegedly in the course and scope of employment. The defendant asserted that, as a matter of law, he owed no duty. Specifically, the defendant averred that plaintiffs could not prove that he was the employer of the shooter, who was alleged to be an independent contractor.The court restated the law that there is no duty to protect against the acts of a third party unless the defendant has a "special relationship" with the victim. The court did not find the act of violence sufficiently connected to any employment. Further, the court held than an employer is not vicariously liable as a matter of course merely because his employee commits an intentional tort on the business premises during working hours. Instead, liability will attach only if the employee is acting within the ambit of his assigned duties and in furtherance of his employer's objective.Premises Liability - In the recent decision of Jancan v. East Baton Rouge Parish School Bd., --- So. 3d ----, 2011 WL 3627707, the First Circuit upheld summary judgment where a contract worker entered the back of a school's dark auditorium and, while looking for a light switch, proceeded across the stage and fell into an orchestra pit, which was approximately five to six feet deep. The plaintiff contended that the school possessed a duty to have a light switch at each door to the auditorium.Through a de novo review of the evidence, the court found that the school possessed no duty to warn. The court reasoned that failure to take every precaution against all foreseeable injuries does not necessarily constitute negligence. According to the court, the School Board could not have anticipated that a reasonably prudent individual would proceed onward into a dark auditorium without lighting his path. In addition, the court confirmed the there is no duty to warn of an "open and obvious" risk.This case could be analogized by defendants in other premises defect cases because the risk was considered "obvious" only after considering how the plaintiff should have acted. Therefore, the risk was obvious even though the plaintiff had no ability to actually see the hazard."Duty Risk" - The First Circuit decision in Rainey v. Steele, --- So. 3d ----, 2011 WL 3629360 gives a clear recitation of Louisiana's "duty-risk" form of negligence.The proper methodology for analysis of a negligence claims begins with answering the following questions:
In Rainey, the plaintiff was a contract worker who alleged that loose carpeting in a doctor's office caused her fall from a ladder while painting. Comparing the experience of a professional painter to that of a doctor, the court found that the plaintiff was in the better position to gauge whether the carpet was a safe platform for the work. Therefore, the doctor owed no duty to the plaintiff.