September 2015 Law Update

SEPTEMBER 2015 LAW UPDATE

Courtesy of Louisiana Association of Defense Newsletter, September 2015.

CIVIL PROCEDURE

Where the plaintiff alleged the tortious conduct of defendant caused her injuries, but the petition specifically alleged negligence and did not mention the word “intentional,” the plaintiff is not precluded from recovery under a theory of intentional tort because she is entitled to any relief under the pleadings and the evidence so long as the facts constituting the claim are alleged. Here, the fact the petition alleged the defendant rammed plaintiff’s car three times lends itself to proving intent and clearly placed defendant on notice to defend against an intentional tort. Zimmerman v. Progressive Security Ins. Co., 49,983 (La. Ct. App. 2 Cir. 8/12/15), found at www.la2nd.org/archives/docs/28f57c.pdf .

Plaintiff filed a motion to appeal the trial court’s grant of a new trial, which is an interlocutory judgment not subject to immediate appeal. While a court of appeal can convert an appeal of an interlocutory judgment into a supervisory writ, the court of appeal declined to do so here because the motion for appeal was filed beyond the thirty day period applicable to supervisory writs; appeal dismissed for lack of jurisdiction. McGinn v. Crescent City Connection Bridge Authority, 15-0165 (La. Ct. App. 4 Cir.7/22/15), found at la4th.org/opinion/2015/382783.pdf

CLASS CERTIFICATION

Plaintiffs sought class certification regarding claims of fraud, intentional infliction of emotional distress, and negligent infliction of emotional distress relative to traffic camera citations to “persons who received a Delinquency Notice from the City of New Orleans, Photo Safety Program” and which Delinquency Notice contained the statement “possible jail time may be assessed against you.” Noting that potential class members must not only have received a notice with the above language but must also have read the grievous language, the court found that plaintiffs had not met the numerosity, commonality, or objectively definable class requirements for class certification. Albe v. City of New Orleans, Photo Safety Program, 14-1013 (La. Ct. App. 4 Cir. 7/29/15), found at http://www.la4th.org/opinion/2014/383229.pdf

DAMAGES

$5,000 for physical pain and suffering, $2,500 for mental anguish and distress, $2,000 for loss of enjoyment of life, and $3,000 for loss of consortium for neck injury causing headaches. Howard v. United Services Automobile Ass., 14-1429 (La. Ct. App. 1 Cir. 7/22/15), found at www.la-fcca.org/opiniongrid/opinionpdf/2014%20CA%201429%20Decision%20Appeal.pdf

Overturning an award of special damages for nondiagnostic expenses related to a seizure condition where the record did not support a causal connection between the seizure activity and the accident. However, finding that the plaintiff was entitled to hospital expenses incurred for diagnostic testing four days after the accident. This finding was based on Justice Lemmon’s concurrence in Wainwright v. Fontenot, 00-492 (La. 10/17/00), 774 So. 2d 70, 78 which states: “When a tortfeasor causes an occurrence which subjects the tort victim to the reasonable possibility of serious injury, the tortfeasor is liable for the reasonable expenses incurred by the tort victim in consulting appropriate medical personnel and in insuring that the adverse effects of the occurrence will be prevented or minimized.” Reed v. Lacombe, 15-120 (La. Ct. App. 3 Cir. 7/29/15) found at www.la3circuit.org/Opinions/2015/07/072915/15-0120opi.pdf

INSURANCE COVERAGE

Homeowner’s policy provided: “If a claim or suit is brought against you or any covered person for the following; 1. Personal injury; 2. Bodily injury; or 3. Property damage. caused by an occurrence to which this coverage applies, we will: 1) pay on your behalf claims for which you or any covered person are legally liable . . . except as excluded by the provisions listed in the Liability Coverage – Losses We Do Not Cover . . .” The policy defined “personal injury” as an “injury arising out of one or more of the following offenses: libel, slander, . . . or defamation of character.” “Losses We Do Not Cover” included a provision that “personal injury does not apply to: (a) Injury caused by a violation of a law or by, or with the knowledge or the expressed or implied consent of the covered person . . . (c) civic or public activities performed for pay by any covered person; (d) injury arising out of: (1) oral or written publication of material, if done by or at the direction of any covered person with knowledge of its falsity. The insurer refused to cover a claim against its insured that as a member of the Dental Board, he falsely charged the plaintiff with defrauding his patients and that these claims were knowingly false. While a contract of insurance may extend to cover the insured’s negligent slander, libel or defamation of character, public policy forbids a person from insuring against his own intentional acts. Because the petition alleges intentional slander and defamation through a deliberate conspiracy among the defendants charged, the “personal injury” coverage therefore does not apply to such actions and likewise no duty to defend is owed by the insurer. Haygood v. Dies, 49,972 (La. Ct. App. 2 Cir. 8/12/15), found at www.la2nd.org/archives/docs/ddc6a6.pdf

The insurance policy included “temporary substitute automobile” as an “owned automobile” and defined it as “any private passenger, utility or farm automobile, not owned by the named insured or any resident of the same household, while temporarily used as a substitute for the owned automobile when the owned automobile is being serviced or repaired by a person engaged in the business of selling, repairing or servicing motor vehicles.” At the time of the accident in a borrowed vehicle, the defendant’s own vehicle was not “being serviced or repaired,” although it was experiencing mechanical difficulties. La. R.S. 22:1296 mandates that coverage be extended to “temporary substitute vehicles” and that “such coverage shall be primary.” The provision in the insurance policy impermissibly narrows or restricts insurance coverage required under La. R.S. 22:1296 by requiring that the owned vehicle be in the process of “being serviced or repaired.” Litton v. White and State Farm Mutual Automobile Insurance Co. and Safeway Insurance Co. of Louisiana, 49,958 (La. Ct. App. 2 Cir. 7/1/15), found at www.la2nd.org/archives/docs/8241d1.pdf

The doctrine of equitable estoppel applies to situations where an insurer’s custom of accepting overdue premiums reasonably led the insured to believe that his or her policy would remain in effect even though the premiums were not paid when due. In such a case, the following criteria apply: (1) there must be a habit or custom of accepting overdue premiums; and (2) the insured must reasonably believe that by reason of this custom the insurer will maintain the policy in effect without prompt payment of the premiums. Until 2011, the insurer repeatedly accepted payments that were paid up to ten days after the renewal notice due date and did not cancel the insured’s policy. The insureds were reasonable to rely on the past habit of accepting late payments, even though the policy language changed in 2011 to remove the grace period for policy renewals in order to comply with a state requirement that insurers report cancelled or expired policies within 15 days and the insured received notice of this new provision. The insurer’s custom of accepting late payments contradicted formal language in previous policies, so the insureds were reasonable in their belief that the informal policy of accepting late payments still existed despite new policy language. However, the insurer did not act in bad faith in terminating the insureds’ policy for late payment because it acted reasonably in terminating the grace period in order to prepare for changes in the law and even without the new law, the insurer had the right to terminate the grace period at any time. The insurer merely denied and litigated a claim that it honestly believed was invalid. Ambrose v. Automobile Club Inter-Insurance Exchange, 49,994 (La. Ct. App. 2 Cir. 8/12/15), found at www.la2nd.org/archives/docs/b5969e.pdf

Because uninsured motorist coverage is an “implied amendment of any automobile liability policy” issued in Louisiana, and will be read into the policy “even when not expressly addressed,” a plaintiff seeking to prove the presence of such coverage need only show that at the time of the loss he was insured by a policy of “automobile liability insurance delivered or issued for delivery in Louisiana and arising out of ownership, maintenance, or use of a motor vehicle registered in Louisiana and designed for use on public highways.” The insurer bears the burden of proving any insured named in the policy rejected in writing the coverage equal to bodily injury coverage or selected lower limits. A properly completed uninsured motorist coverage form where the signatory rejected coverage creates a rebuttable presumption that the insured knowingly rejected uninsured motorist coverage. The burden then shifts to the insured to present evidence that the uninsured motorist selection form was in fact not properly completed. Louisiana’s Uniform Electronic Transactions Act was crafted to prohibit the imposition of additional burdens upon the use of electronic signatures and the enforcement of electronic transactions. An electronically pre-filed and marked uninsured motorist rejection form meets the requirements under Louisiana law of a properly completed uninsured motorist coverage rejection. Rapalo-Alfaro v. Lee, 15-0209 (La. Ct. App. 4 Cir. 8/12/15), found at la4th.org/opinion/2015/383976.pdf

MEDICAL MALPRACTICE

Expert in cardiology and clinical electrophysiology not qualified to offer opinion on standard of care for a hospitalist or a general hospital. Penn v. Carepoint Partners of Louisiana, 14-1621 (La. Ct. App. 1 Cir. 7/30/15), found at www.la-fcca.org/opiniongrid/opinionpdf/2014%20CA%201621%20Decision%20Appeal.pdf

Plaintiff failed to prove the standard of care applicable to general surgeons performing laparoscopic gallbladder removal surgery. Defendant’s expert testified as to the applicable standard of care and that defendant complied with it, while plaintiff’s expert testified that an additional step was necessary in order to comply with the standard of care. However, plaintiff failed to prove that the applicable standard of care encompassed this additional step. Logan v. Schwab, 14-0591 (La. Ct. App. 1 Cir. 7/7/15), found at www.la-fcca.org/opiniongrid/opinionpdf/2014%20CA%200591%20Decision%20Appeal.pdf

NEGLIGENCE

Summary judgment affirmed in favor of wife of negligent driver where plaintiffs alleged that she knew her husband was prohibited from driving a vehicle without an ignition interlock device and that she knew or should have known that he on occasion operated one or more of their vehicles that was not equipped with an ignition interlock device. One who loans a car to another when the lender knows or has reason to know that the borrower is likely to use the car in a manner involving an unreasonable risk of physical harm, because of the borrower’s youth, inexperience, intoxication, or otherwise, can be held liable to third party for damage caused by the borrower. Here, summary judgment in favor of the wife was proper because the plaintiffs failed to produce factual support sufficient to establish that she entrusted the car to her husband or that she had any knowledge of his impairment on the day of the accident. Further, the wife did not owe a legal duty to police or supervise the activities of her husband or to install an ignition interlock device on the vehicles. Toups v. Dantin and Allstate Property and Casualty Ins. Co., 14-1754 (La. Ct. App. 1 Cir. 8/3/15), found at www.la-fcca.org/opiniongrid/opinionpdf/2014%20CA%201754%20Decision%20Appeal.pdf

The LSU Board of Supervisors is a state agency; therefore, La. R.S. 13:5106(B)(3)(c) applies to determine awards for future medical care and mandates that a claimant’s future medicals be placed in the Future Medical Care Fund. Pursuant to La. R.S. 39:1533.2, any interest specifically earned on the award for future medical care must be deposited in and credited to the FMCF. Furthermore, costs and attorney’s fees may not be paid out of the claimant’s damage award for her future medical care. The exclusion-of-liability waiver clause in an agreement signed by claimant before her fall from a rock climbing wall was inadmissible because La. C.C. art. 2004 provides that any clause is null that, in advance, excludes or limits the liability of one party for causing physical injury to the other party. Further, rock climbing involves substantial risk, and the duty of a gym operator when these types of sports are conducted is one of reasonable care under the circumstances-to provide a sound and secure environment for undertaking a clearly risky form of recreation and not that of removing every element of danger inherent in rock climbing. The LSU Board did not have a duty to warn plaintiff about the potential effect of gravity. However, the LSU employees failed to properly instruct, demonstrate, and certify that plaintiff understood the proper techniques for climbing the bouldering wall in accordance with their duties as described in the LSU UREC “Indoor Climbing Wall Manual” and the safety clinic document, particularly with regard to “spotting.” Loss of future earning capacity is subject to the $500,000 liability cap, while loss of future earnings is not. Because she was unemployed at the time of the accident, her award was for loss of future earning capacity and was subject to the $500,000 cap. Fecke v. Board of Supervisors of LSU, 15-0017 (La. Ct. App. 1 Cir. 7/7/15), found at www.la-fcca.org/opiniongrid/opinionpdf/2015%20CA%200017%20Decision%20Appeal.pdf

An accident occurred while the Calcasieu sheriff’s department was using school buses to evacuate 1200 prisoners before Hurricane Rita and using some deputies to drive who did not possess the proper endorsement required by state law. Pursuant to La. R.S. 29:735, the State, and its agencies and political subdivisions, are afforded complete immunity for injury or death resulting from emergency preparedness activities, except when they have engaged in willful misconduct in the course of preparing for a disaster or emergency. To constitute “willful misconduct,” there must be some voluntary, intentional breach of duty, which may be unlawful, dishonest, or improper, or perhaps all three, that is committed with bad intent or, at best, with wanton disregard for the consequences. The use of these drivers did not amount to “willful misconduct” because in these less-than-ideal circumstances, the state agents made good faith, although perhaps imperfect, decisions about how to best evacuate numerous inmates from harm’s way in order to preserve their lives. Koonce v. St. Paul Fire & Marine Ins. Co., 15-31 (La. Ct. App. 3 Cir. 8/5/15), found at www.la3circuit.org/Opinions/2015/08/080515/15-0031opi.pdf

A guest at a Motel 6 filed suit against Motel 6, the national Motel 6 franchisor, and the franchisee after he was shot by an armed robber in the parking lot, contending that a missing section in the motel’s fence enabled the armed robber to enter the premises and shoot him. The court dismissed the strict liability claim against the franchisor finding it did not have custody or garde over the fence and the plaintiff failed to prove the missing section of fence created an unreasonably dangerous condition because the shooter could have entered the property through the open front gate or the pedestrian walkway. Further, regarding the negligence claims, the franchisor did not owe a duty to plaintiff to protect him from the criminal acts of a third party. The franchisor did not have actual authority over the franchisee, who was responsible for the safety and security of the motel’s patrons. Finally, the franchisor did not have apparent authority because the plaintiff did not prove that he relied on a representation of the Motel 6 franchise in making his decision to stay there. Espinosa v. Accor North America, Inc., 14-1276 (La. Ct. App. 4 Cir. 7/8/15), found at la4th.org/opinion/2014/382003.pdf

WORKERS’ COMPENSATION

A global settlement in which the plaintiff released the defendants from any future claims, damages, or injuries that might arise from a 1996 chemical exposure precluded him from asserting seeking workers’ compensation benefits based on newly discovered evidence that he has now developed a cancerous condition. Bracken v. Payne & Keller Co., Inc., 14-0637 (La. Ct. App. 1 Cir. 8/10/15), found at www.la-fcca.org/opiniongrid/opinionpdf/2014%20CA%200637%20Decision%20Appeal.pdf

The statutory employer doctrine through the two contract theory was established to protect the employee and applies when (1) the principal enters into a contract with a third party; (2) pursuant to that contract, work must be performed; and (3) in order for the principal to fulfill its contractual obligation to perform the work, the principal enters into a subcontract for all or part of the work performed. The statutory employer doctrine applies even where there are three or more intermediary contracts and where the general contractor/employer is the party who benefits because he will be immune from tort liability and workers compensation liability because the plaintiff’s direct employer is insured and paid the workers’ compensation benefits. Bernard v. The Lemoine Co., LLC, 15-152 (La. Ct. App. 3 Cir. 7/8/15), found at www.la3circuit.org/Opinions/2015/07/070815/15-0152opi.pdf