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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.
Mr. Jones was honored to participate on a panel of well respected Louisiana attorneys and judges to discuss "Overcoming the Obstacles to Attorney Pro Bono Participation."
Products Liability - PLIVA, Inc. v. Mensing, ––– U.S. –––– , 2011 WL 2472790 (June 23, 2011). The U.S. Supreme Court ruled that generic drug manufacturers may not be sued under state law for failing to warn consumers about potential risks associated with their products. The basis of this ruling is that a generic drug manufacturer must use the same warning labels the brand name drug manufacturer used. Therefore, Federal law pre-empted state laws which could impose a duty upon generic drug manufacturers to change drug labeling.Workers’ Compensation - Becker v. Murphy Oil Corporation, 2010-1519 (La.App. 4 Cir. 6/2/11), --- So.3d ----, 2011 WL 2164151. The Louisiana Fourth Circuit Court of Appeal upheld an award of tort damages to employees who suffered gradual hearing loss because of long-term occupational noise exposure. The court found that the exposure was not an "accident" and therefore was not compensable under the Louisiana Workers’ Compensation Act as an occupational disease. Because there was no workers' compensation exposure to the employer, the employer could not benefit from the immunity to tort provided through the workers' compensation laws.LeBlanc v Excel Auto Parts, 2011-58 (La.App. 3 Cir. 6/1/11), --- So.3d ----, 2011 WL 2135515. Under LSA-R.S. 23:1201, an insurer’s failure to adhere to mandatory notice provisions when converting a claimant’s longtime disability benefits from temporary total disability (TTD) benefits to supplemental earnings benefits (SEB) may merit the imposition of fees and penalties.Discovery - The recent decision of Lee v. Max Intern., LLC, 638 F.3d 1318 (10th Cir. 2011) shows the discretion given to the district judge in federal court in discovery matters. In Lee, the U. S. Tenth Circuit ruled that a district court has discretion to impose dismissal as a sanction upon a plaintiff who failed to respond to discovery and two court orders to produce documents. The court stated, "[T]hree strikes are more than enough to allow a district court to call a litigant out."
Insurance – The Louisiana Supreme Court recently held that an anti-assignment clause in a homeowner’s policy is not against Louisiana public policy. An anti-assignment clause will be valid in Louisiana if it clearly and unambiguously expresses that it applies to post-loss assignments. However, the issue must be evaluated on a "policy by policy" basis. In re Katrina Canal Breaches Litigation, 2010-1823 (La. 5/10/11), 2011 WL 1774330.Prescription – The Louisiana Supreme Court ruled that a timely lawsuit filed against a principal or statutory employer interrupts prescription against a third party alleged tortfeasor when the parties have a solidary relationship. Glasgow v. PAR Minerals Corp., 2010-2011 (La. 5/10/11), 2011 WL 1759845.Workers Compensation – The Louisiana Third Circuit found that an employer must show "good cause" to change his choice of vocational rehabilitation counselor in a worker's compensation setting. Carmouche v. Kraft Foods, Inc., 10-401 (La. App. 3rd Cir. 4/13/11), 2011 WL 1376146.
Mr. LeBlanc, Board President, also served this year as the marketing director for Big Buddy's largest fundraiser "Dancing for Big Buddy." This event has been dubbed the "premiere social event" for Baton Rouge and took place in April of this year.
Employment Discrimination - The U.S. Supreme Court recently ruled that retaliation against the fiancé of a party who made a claim for sex discrimination gives rise to a cause of action in favor of the fiancé.In Thompson v. North American Stainless, LP, 131 S. Ct. 863 (2011) an employer allegedly fired an employee's fiancé in response to the employee's filing of a sex discrimination claim against the employer. The U.S. Supreme Court ruled that the employer's actions would violate the anti-retaliation provisions of the Civil Rights Act of 1964 and provide a cause of action for the fiancé against the employer.Premises Liability - The Louisiana Third Circuit Court of Appeals confirmed that a premises owner is not liable for an open and obvious condition that should have been observed by a patron.In Chambers v. Village of Moreauville, Louisiana Third Circuit Court of Appeals, No. CA 10-1368 (4/6/11), the Court held that because a pedestrian is obligated to observe his path mindful that every sidewalk contains irregularities, a condition that is obvious and easily avoidable cannot be considered to present an unreasonable risk of harm.Insurance - The Louisiana Fifth Circuit Court of Appeals recently outlined the scope of an insurance agent's duty to procure coverage for an insured.In JSB Interests, LLC v. Hanover Insurance Company, Louisiana Fifth Circuit Court of Appeals, No. 10-CA-487 (3/9/11), the Court held that an insurance agent's duty to procure insurance coverage requested by an insured does not include a duty to spontaneously identify the insured's needs and advise him regarding additional coverage.
Mr. Golden serves as counsel for Capital Area Legal Services Corp, a nonprofit organization that provides indigent legal service in twelve Louisiana parishes. Mr. Golden served as a spokesperson for the organization in recent articles in The Advocate of Baton Rouge, Louisiana.
Judicial Confessions - In Bennett v. Porter, 2010-1088 (La. App. 3 Cir. 3/9/11), --- So.3d ---, the Third Circuit Court of Appeals addressed the impact of a judicial confession (i.e., any declaration made by a party in a judicial proceeding) in a subsequent legal proceeding. The Court concluded that, under Civil Code Article 1848, an earlier judicial admission does not bind a party in a later proceeding. Although the judicial confession is admissible into evidence in a subsequent proceeding and may be used for purposes of impeachment, it is not conclusive. Furthermore, it does not create a presumption and does not estop the party making the confession, absent a showing of deception or prejudice.Premises Liability - In Nicholson v. Horseshoe Entertainment, Louisiana Partnership, 46-081 (La. App. 2 Cir. 3/2/11), --- So.3d ---, the plaintiff alleged that an escalator "jerked" and caused her fall and injury. In affirming summary judgment, the Louisiana Second Circuit faithfully applied Article 2317.1 (concerning defects in things) and found that the plaintiff's two affidavits which confirmed her version of events were insufficient to create a "material issue of fact." On appeal, the plaintiff accused the Trial Judge of improperly "weighing" the evidence. However, the Appellate Court found the discussion of a defect irrelevant because the plaintiff possessed no evidence that the defendant knew or should have known of the alleged defect.Products Liability - In Payne v. Gardner, 2010-2627 (La. 2/18/11), --- So.3d ---, the Louisiana Supreme Court upheld summary judgment where the plaintiff failed to demonstrate that the alleged injury resulted from a reasonably anticipated use of the manufacturer's product under La. R.S. 9:2800.54(A). The suit involved the ill-conceived, but apparently established practice of attempting to "ride" an oil well pump. The case presented serious injuries. In this setting, the Court ruled that a manufacturer's "knowledge of the potential and actual intentional abuse of its product does not create a question of fact on the question of reasonably anticipated use." The defendant showed that its pumping unit was manufactured solely for the purpose of extracting oil from the ground. The plaintiff possessed no evidence to the contrary. As such, the Court found that no reasonable person could find that the plaintiff's use was reasonably anticipated.