August 2015 Law Update

AUGUST 2015 LAW UPDATE

Case summaries courtesy of Frank Maraist, La. Civil Law and Procedure Newsletter, July 31, 2015 edition

APPEALS; WORKERS’ COMPENSATION

A judgment that disposes only of the issue of whether an employee was in the course and scope of his employment at the time of the accident but does not dispose of the issue of wage benefits and medical treatment authorization is a partial judgment that is not appealable absent a designation of the judgment as final by the trial judge pursuant to La. C.C.P. art. 1915(B). Dominguez v 4’M General Construction, 15-CA-277 ( La. App. 5 Cir. 6/30/15).

SUBJECT MATTER JURISDICTION; CITY COURTS

The Louisiana Supreme Court held that the settlement against one defendant does not count against a city court’s jurisdictional limit. The settlement amount no longer constitutes part of the “amount in dispute,” and thus the city court’s jurisdiction over the other claim (in this case, an uninsured motorist claim) is the full extent of the $30,000 jurisdictional limit. Swayze v State Farm Mutual Automobile Ins. Co.,. 2014-C-1899 (La. 6/30/15).

SUMMARY JUDGMENT

Where the plaintiff conducted no discovery during the nine months between filing of the suit and the hearing on the motion for summary judgment and did not request a continuance for the purposes of conducting discovery, the plaintiff failed to show a “probable injustice” so as to necessitate a delay in acting upon the defendant’s motion for summary judgment. Jordan v Thatcher Street, LLC, 49,820-CA (La. App. 2 Cir. 6/10/15).

CONTRACTS; BUILDING CONTRACTS

Under La. C.C. art. 2765, the owner of building has the right to cancel at pleasure the bargain he has made, even when the work has commenced, by paying the contractor for the expense and labor already incurred, and other damages as the case may require. Article 2765 applies to situations in which the owner wishes to cancel a construction contract before the work is substantially complete. Where there has been substantial compliance with the construction contract but the work is defective, the courts apply La. C.C. art. 2769, which allows the builder to recover the contract price less whatever damages the owner may prove attributable to the breach of contract. Transier v. Barnes Building, LLC., CA 14-1256 (La. App. 3 Cir. 6/10/15).

INSURANCE

A provision in an automobile insurance contract that extended coverage to a temporary or substitute vehicle only “when the owned automobile is being serviced or repaired by a person engaged in the business of selling, repairing or servicing motor vehicles” violates the mandatory provision set forth in La. R.S. 22:1296(A) (governing temporary borrowed vehicles and rental vehicles). Litton v White, 49,958-CA (La. App. 2 Cir. 7/1/15).

Where plaintiffs conceded that the available insurance was sufficient to cover their maximum recoverable damages, the plaintiffs acted in bad faith in naming their uninsured motorist carrier as a defendant. Huval v Chaisson, 2015-CC-0865 (La. 6/30/15).

NEGLIGENCE

The plaintiff climbed onto the roof of her grandmother’s house to remove limbs and debris. As she was descending, the ladder that she was using shifted, causing her to fall and injure herself. The plaintiff sued, claiming that her grandmother was negligent in failing to provide a suitable ladder and in failing to hold the ladder as the plaintiff descended. Held: Any hazards in the use of the ladder were open and apparent to the plaintiff, and thus the district court did not err in granting summary judgment in favor of the grandmother and her insurer. Lawrence v Sanders, 49,966-CA (La. App. 2 Cir. 6/24/15).

NEGLIGENCE; RES IPSA LOQUITUR

Property owner and its insurer sued the defendant church for water and fire damages sustained when the church caught fire; the suit alleged that the church was negligent in failing to maintain its property in a safe manner and to prevent the entry of vagrants, whom the plaintiffs maintained caused the fire. Held, the district court properly declined to instruct the jury on the applicability of the doctrine of res ipsa loquitur to the jury. It was uncontroverted that the case and origin of the fire were unknown, and the multiple possibilities of the origin of the fire precluded application of the doctrine. Show and Tell of New Orleans, L.L.C. v Fellowship Missionary Baptist Church, 2015-CA-0067 (La. App. 4 Cir. 6/24/15).

NEGLIGENCE; SPOLIATION OF EVIDENCE

The Supreme Court holds that there is no cause of action for negligent spoliation of evidence. Reynolds v Bordelon, 2014-C-2362 (La. 6/30/15).

WORKERS’ COMPENSATION

A general contractor was sued in tort for personal injuries sustained by the employee of a sub-subcontractor, with whom the general contractor had no contractual relationship. Held, the general contractor is a “principal” for purposes of the determining statutory employer status under La. R.S. 23:1032 and La. R.S. 23:1061 and is therefore immune from suit. Berard v The Lemoine Company, 15-152 (La. App. 3 Cir. 7/8/15).