Articles Posted in Insurance Dispute

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The term wrongful death refers to cases in which the decedent’s death was the fault of another. The other “person” could be one individual, such as someone driving under the influence of drugs or alcohol; it could also be a group of people or a business, such as the decedent’s employers or the manufacturers of a product whose defect or malfunctioning resulted in the user’s death. Wrongful death lawsuits may be initiated by family members of the decedent in order to obtain monetary benefits, such as for wages the decedent would have earned if he were still alive. Before filing a lawsuit, it is important to establish whether the person bringing the case has standing to do so. Standing indicates that the moving party has a sufficient connection to or is substantially affected by the harm being alleged, in this case the wrongful death of the victim.

In order to bring a wrongful death lawsuit, the plaintiff must have standing as a close relative of the deceased. The first family members who would be favored to have standing would be the decedent’s spouse and children. Louisiana Civil Code states that the surviving mother or father of the deceased may only have standing if there is no spouse or child surviving the decedent. If the deceased had no surviving parents, spouse or child, then his or her brothers or sisters would have standing to bring a lawsuit. Finally, if the decedent had no surviving siblings, spouse, parents or children, then his or her grandparents would have standing to file a wrongful death claim. Note that a mother or father who abandoned the decedent while he or she was still a minor would not have standing.

Though children are the first to have standing in a wrongful death case, standing may be challenged when the parentage is called into question. A Louisiana court stated that “a filiation action inherently accompanies an illegitimate child’s wrongful death and survival action.” Thus, children born out of wedlock, that is, to parents who were not married at the time of birth, must be able to prove paternity in order to have standing. According to Louisiana law, a husband will be presumed to be the parent of a child when the child is born within 300 days of the termination of a marriage (300 being considered the maximum possible time of gestation). Outside of this exception, proceedings must be conducted to establish standing.

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Under Louisiana law, there are very specific rules about how to properly serve someone, and one of the important aspects of service that an attorney has to get right is the timing of it. Furthermore, not only does the service have to be carried out in a timely manner, but it also has to be perfected properly.

This particular Supreme Court of Louisiana case dealt with service on a state entity, and it is important for your attorney to be aware of any differences that exist with regard to service requirements depending on who the other party is. According to the applicable state law, La. R.S. 13:850, “perfecting” a service request requires that the appropriate filing fees and transmission fees have been received by the clerk of the court and that the original signed document has been received by the clerk. All of this must be received within the proper timeframe. As stated in La. R.S. 13:850, the proper timeframe for perfection in this case is seven days.

In this case, the service request was received within the required ninety-day timeframe (ninety days since the filing of the petition), and the service request was perfected five days later once the requisite documents and fee payments were received by the clerk of the court. The question then is whether or not this counts as proper request for service: Was the request for service properly received within ninety days even though perfection of the request was outside of that ninety-day timeframe?

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Recently, the Louisiana Third Circuit Court of Appeal considered the assertion that the Medical Malpractice Act’s limitation of recovery or the “cap” contained within La.R.S. 40:1299.42(B) is unconstitutional.

At trial, the court determined that the Louisiana statute La.R.S. 40:1299.47(B) was unconstitutional “as violative of the equal protection and adequate remedy guarantees of the Louisiana constitution.” Moreover, the trial court relied upon the opinion of the Louisiana Third Circuit Court of Appeal in a recent case that held that the cap of La.R.S. 40:1299.42(B) was unconstitutional “to the extent it includes nurse practitioners within its ambit, [and] violates the equal protection and adequate remedy guarantees of the Louisiana Constitution …” Subsequently, however, the Louisiana Supreme Court reversed that very aspect of the Court of Appeal’s ruling, finding the medical malpractice cap unconstitutional. Rather, the Louisiana Supreme Court declared “the MMA’s cap described in La.R.S. 40:1299.42(B) is constitutional as it applies to all qualified health care providers, including nurse practitioners.

As such, the subsequent ruling of the Louisiana Supreme Court vacated the prior judgment of the trial court and the trial court was then directed to reconsider its ruling in light of the changes in the recent case law precedent. Ultimately, the trial court found La.R.S. 40:1299.42(B) constitutional and plaintiffs appealed the trial court’s decision.

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In a recent case, Johnson v. University Medical Center in Lafayette, the Louisiana Court of Appeal for the Third Circuit reversed a trial court decision to dismiss a plaintiff’s case for abandonment due to her failure to timely pay the costs of appeal. The plaintiff in the case, Lela Johnson, originally filed a medical malpractice action against both the University Medical Center in Lafayette and the Medical Center of Louisiana in New Orleans. The case has proceeded through courts since the original petition for damages was filed on March 15, 2006.

Both defendants, whose principal places of business correspond with the last word of their names, are operated by the State of Louisiana. After a dismissal of her original suit by the Supreme Court of Louisiana due to her failure to properly notify the defendants of the action because she had requested service of process on individuals who had not been individuals who were authorized to accept such information on behalf of the defendants, Ms. Johnson’s decided to re-file the original suit in trial court. Once again, Ms. Johnson’s service of process was held insufficient by the trial court and she moved to appeal that judgment.

Service of process is a legal term of art which essentially describes the process in which plaintiffs notify defendants of a pending suit. When the plaintiff files a complaint with a court, any defendant in the case must be given notice of the pending case and an opportunity to be heard and defend themselves against the complaint. This requirement is a basic constitutional right conferred upon everyone who has been accused of some wrongdoing and it is the accuser’s responsibility to ensure that the constitutional right of the accused is protected. The importance of service of process to our legal system and the rights of defendants makes it necessary for trial courts to dismiss actions, without regard to the merits of the plaintiff’s claims, if service of process is deficient in some way or another.

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Appealing turned out to be a beneficial move for U-Haul International, Inc., and U-Haul Company of Georgia, who were sued when Mr. Omar Erazo’s truck came off his rented U-Haul van while he was moving back to Louisiana from Georgia. Unfortunately, when the truck detached from the van on I-10 in eastern New Orleans, it collided with Mr. James Gaunt’s vehicle, resulting in serious injuries to Mr. Gaunt.

On appeal of the trial court’s findings against them, U-Haul raised a number of issues. The first issue was whether the trial court erred by conducting improper research, considering outside evidence that should not have been admitted. The appellate court sided against U-Haul on this issue, stating that a judge may conduct legal research on a site such as Westlaw and see the number of hits that “U-Haul” and “auto transport” returns.

Another issue was whether the trial court erred by assessing 90% of the fault to U-Haul and only 10% to the driver, Mr. Erazo. Here the appellate court agreed with U-Haul that 90% was too much liability considering that U-Haul employees largely followed protocol based upon the information Mr. Erazo provided them. When Mr. Erazo noticed that his truck was coming unhinged and called U-Haul, he did not convey that he felt it was unsafe to continue towing the truck. However, his subsequent conduct – driving slowly with lights blinking while making sure his wife kept a safe distance away – showed he did believe continuing to tow the truck was unsafe. If he had informed U-Haul of this belief, they would have sent someone out to help him.

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Hospital’s Claims Dismissed for Lack of Personal Jurisdiction

The plaintiff hospital in Northshore Regional Medical Center, L.L.C., d/b/a Northshore Regional Medical Center v. Edith and Brian Dill, et al. recently appealed a judgment from the Parish of St. Tammany, dismissing their claims against one of the defendants in the case, White Horse Insurance Ireland, LTD, for lack of personal jurisdiction. Of all the choices facing someone that decides to resort to a court to settle a claim, choosing where to seek relief can prove to be the most important. Because a court will not hear a claim when it does not have jurisdiction, the wrong choice will lead to wasted time and money.In anticipation of upcoming travel, an English couple acquired a travel insurance policy that was underwritten by an Irish corporation, White Horse Insurance Ireland, LTD, (White Horse) and purchased through an English corporation, Atlas Travel Insurance Services Limited, d/b/a/ Atlas Direct (Atlas). The policy included coverage for travel in the United States, and as part of their travel, the couple, Mr. and Mrs. Dill were visiting Louisiana in November 2006. While in Louisiana, Mrs. Dill was stricken with a serious illness and was admitted to NorthShore Regional Medical Center, L.L.C., in Slidell, Louisiana. An extensive stay in the facility, coupled with emergency surgery brought NorthShore’s charges for her care to a final total of $1,256,229.08.

NorthShore’s payment requests to White Horse were handled administratively through Global Excel Management, Inc., (Global Excel) a Canadian corporation. Global Excel facilitated one $309,498.31 payment from White Horse to NorthShore in February, 2007. After requesting and failing to receive further payments, NorthShore resorted to filing claims against Mr. and Mrs. Dill, Atlas, and Global Excel in 2009, and adding its claims against White Horse in 2010.

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Many people in New Orleans rent property. Whether a house, a duplex, or an apartment, these residents typically rely on property owners to make necessary repairs to the premises. Proper maintenance ensures that residents are safe and their well-being will be protected. Unfortunately, all too often property owners fail to remedy dangerous situations, which can lead to serious injuries. Wynn v. Luck, a recently decided lawsuit by the Court of Appeal for the Second Circuit, illustrates how a negligence claim can help victims of these situations obtain the compensation they deserve.

In that case, two women were injured when a large section of the kitchen ceiling in a rented house collapsed on them. Though the property owner claimed he did not know of the condition and therefore was not negligent for failing to repair it, the court found the record full of evidence to the contrary. First, an inspection of the property days after the incident found that almost all of the ceilings in the house were in dangerous disrepair and would have been noticeable during any visit by the property owner. Second, a maintenance man hired by the property owner provided services to the house on several occasions and, according to the court, he should have noticed the conditions and conveyed that information to the property owner. Finding the property owner constructively knew of the dangerous condition, the court held the property owner liable for negligence and the victims’ injuries.

According to Louisiana law, an owner or lessor of a property is responsible for the condition of his premises when leased to another. Therefore, the owner is liable for any damage or injuries caused by a defect in the property that he knew of or should have known of through the exercise of reasonable care, provided the dangerous condition could have been prevented through the exercise of reasonable care and the owner failed to exercise that care.

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General damages are defined as those that involve mental or physical pain, inconvenience, loss of intellectual gratification or physical enjoyment, or other losses that can not be measured in monetary terms. In determining an award of general damages, the Louisiana Supreme Court advocates deference to the lower court, and intervention by an appellate court only in the case of clear abuse of discretion. In a recent case, a plaintiff filed a personal injury claim when she was struck in her car by another driver (the issue of sole liability was not appealed by that driver or her insurance company).

The trial court awarded $25,000 in general damages for injuries sustained by the plaintiff to her knees as a result of the accident. Although she also suffered a back and shoulder injury, she only sought damages for her knee injury, and the court considered evidence accordingly. The plaintiff argued the court erred in awarding too small a sum for general damages for her knee injuries, and for not awarding general damages for her back injury. The trial court’s decision was subsequently affirmed.

The primary medical information in this case was found in the testimony of the plaintiff’s long-time physician. He noted that although she was referred to therapy and diagnosed with a back sprain, she had other problems that did not relate to the accident. She was discharged from therapy because she did not attend sessions with any regularity, and had inconsistently reported that her knee pain was “bearable.” He further testified that the accident had aggravated arthritis in her knee and back, but that this was a pre-existing condition. Additionally, she had been on prescription medication for back pain long before the accident, had filed for Social Security Disability 13 years prior, and had even been involved in other automobile accidents both before and after the accident in question.

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In general, owners are responsible for any damage caused by the things that they own. Animals are no exception. For example, if you own a cow and it wanders into the road and a car hits it, then you are likely responsible for the damages related to that accident. Damages caused by household animals, such as dogs, are similar. Louisiana Code art. 2317.1 provides that “the owner or custodian of a thing is answerable for damage.” While owner is a relatively simple concept, custodian may not be.

The classic example of a custodian is someone who is watching a household pet while you are away. It is likely that if your dog bites someone while a caretaker is walking him, both you and the caretaker may be liable for the damage caused by the bite. In a recent case arising from the Parish of Jefferson involving a dog bite, the court explained the caretaker concept in a little more depth.

In that case, a family was visiting their father in a hospice and their dog accompanied them. The dog bit another visitor when the visitor attempted to pet him. The bitten individual has a permanent scar and lost feeling in his finger. All of the parties admitted that it did seem odd that the dog bit because he had never bitten anyone before and was not acting aggressive. In fact, the dog was sitting in the owner’s lap at the time of the incident. The dog had no history of aggressiveness, and all of its shots were up to date.

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It is well established that an appeal court gives deference to a trial court’s finding of fact (ruling) unless the court was clearly wrong or acted in extreme error. In other words, even if the appellate court is convinced that they would have decided upon the evidence differently, the trial court’s findings cannot be reversed if it was reasonable that it could rule in the manner it did. Moreover, if there are two permissible rulings that could be determined, the trial court’s choice between the two cannot be found manifestly erroneous or clearly wrong.

On March 29, 2009, plaintiff Franklin Scott (“Mr. Scott”) was driving his tractor/trailer rig carrying saltwater west on Keatchie-Marshall Road in Caddo Parish (“Caddo”) where he failed to observe and avoid a fallen tree blocking the road. Mr. Scott’s truck slid 350 feet after the collision and hit several other trees before stopping. Among other injuries resulting in the crash, Mr. Scott suffered a “serious injury” to his neck.

Mr. Scott filed a personal injury suit in District Court against Caddo, property owners Roger and Marilyn Connell (“property owners”) and State Farm Fire and Casualty Company (“State Farm”) for failure to maintain the road from potentially hazardous conditions. After weighing the oral testimony of several witnesses, the District Court found in favor of Caddo. Mr. Scott appealed.

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