Insurance Dispute

April 10, 2012

Class Action Goes to Federal Court in Texas Plant Release Case

Class actions are a type of action that most people have heard of but that may not be well understood. In Klier v. Elf Atochem North America, Inc. a class action was initiated against the operator of an industrial plant in Bryan, Texas. The class was divided into three subclasses for the purposes of settlement. Members of each class were granted specific remedies for their disparate injuries.

Class actions are a useful tool when a large number of people have been harmed by a single defendant but none or few of them have suffered sufficient harm to warrant filing an independent claim. Class action proceedings have res judicata power over plaintiffs who do not opt out. That means that if a plaintiff does not opt out of a class action, the verdict or settlement that results will be binding on that person and prevent them from filing that same claim in the future. If a plaintiff feels that his or her injury warrants a separate claim, that person is free to do so only after opting out of the class action.

In order to certify a class for a class action under the Federal Rules of Civil Procedure in the first place, a court must find that the class is so numerous that joinder of all members is impracticable, that there are questions of law or fact common to the class, that the claims or defenses of the representative parties are typical of the claims and defenses of the class and that the representative parties will fairly and adequately protect the interests of the class. Each of these requirements must be met in order for an action to go forward as a class action.

April 8, 2012

Happy Holidays to all of our Friends

by Berniard Law Firm

Happy Holidays from the Berniard Law Firm! We will resume blog posting on Tuesday.

March 26, 2012

Lawsuit Over Jackson Parish Car Wreck Dismissed Due to Late Filing

by Berniard Law Firm

Under Louisiana law, the plaintiff in a personal injury lawsuit may file his complaint with the court by fax. However, the plaintiff must, within five days of transmitting the fax, forward to the clerk of court the original, signed complaint and any fees that are due. If the plaintiff fails to forward the original document, the faxed copy will “have no force or effect.” La. R.S. 13:580. The fax option can potentially help preserve an action that is facing the expiration of its prescriptive period. However, as we will see with the recent case of Taylor v. Broomfield, the courts do not take lightly the requirement that the original complaint must be submitted to the clerk within the time frame outlined in the statute.

On September 17, 2009, Jarred Taylor was involved in a serious car accident in Jackson Parish. The other party to the collision was Brandon Goss who was driving a Mack truck owned by Broomfield, Inc. Taylor suffered various injuries including two broken ribs, multiple contusions, and lacerations to his face. Taylor’s lawyer initiated a lawsuit against Broomfield and its insurer on September 17, 2010 (exactly one year after the accident and the last day of the prescriptive period) by transmitting a faxed complaint to the Jackson Parish Court. The faxed complaint was not notarized. Although Taylor’s counsel had, according to Louisiana statute, until September 24, 2010 to send the original complaint to the court’s clerk, the original document was not filed until October 5, 2010. The original complaint filed with the clerk on October 5 included a verification notarized by one Donna Kay Tucker on September 20, 2010.

On November 12, 2010, Broomfield filed an exception of prescription requesting that Taylor’s suit be dismissed because it was filed after the one-year prescriptive period had elapsed. A hearing was held on January 13, 2011. In opposition to Broomfield’s exception, Taylor’s attorney argued that when his office faxed the complaint on September 17, 2010, his staff immediately mailed the original complaint, along with the filing fees, to the clerk of court. Several staff members from the law firm testified to this effect, but none of them could explain who the notary, Donna Kay Tucker, was or why the complaint’s verification reflected a date after the day the firm put the document in the mail. Ultimately, the trial judge denied the exception of prescription and held that the notary date was “merely harmless error” and that the complaint had been timely forwarded by Taylor’s counsel per state law. Broomfield appealed.

February 19, 2012

The Third Part of Our Discussion Regarding the Anatomy of a Class Action Certification

by Berniard Law Firm

Following the prior discussion of numerosity and commonality, we will now examine the court’s analysis of typicality under Louisiana Code of Civil Procedure Article 591(A)(3). This prerequisite obligates the court to examine whether the claims or defenses of the representative parties are typical of the entire class. The requirement is met if the claims of the class representatives arise out of the same “event, practice, or course of conduct that gives rise to the claims of other class members and those claims are based on the same legal theory.” See Gudo v. Admins. of Tulane Educ. Fund.

The court reviewed the three putative class members presented by Plaintiffs. Ramona Alexander lived in Hahnville on the day of the chemical release. She testified that she smelled a strong odor in her home on the morning of July 7, 2009 which caused her to become sick and vomit. The odor also caused burning in her eyes, throat irritation, and shortness of breath. Vanessa Wilson lived in Waggaman on the day of the chemical release. She awoke to an odor that caused eye irritation, nausea, coughing, and a sore throat. Wilson testified that she traveled to Avondale that morning where the odor persisted; her symptoms worsened. She also received a panicked phone call from her mother who was being ordered to evacuate her home in St. Charles Parish. Upon arriving at her mother’s house, Wilson observed her mother vomiting and suffering from burning in her eyes. Melissa Berniard, who is a licensed attorney in Louisiana, testified that she was in her home in Orleans Parish on the morning of July 7. She awoke to a foul odor that suggested to her that something may have been burning; she soon experienced eye irritation, headache, nausea, and feelings of anxiety. Berniard traveled to Jefferson Parish later in the day and spoke with others who experienced similar symptoms. The court found that Wilson, Alexander, and Berniard all offered “typical complaints of the constituency of the class” that were corroborated by Dr. Williams’s analysis of numerous class members’ intake forms which captured their symptoms. Accordingly, the court concluded that the “issue of whether or not a release of ethyl acrylate can cause the damage alleged by the class representatives is common to all class members and is adequately represented.”

The court next considered whether the proposed class representatives are adequate under the Louisiana Code by referencing a definition adopted by the Fourth Circuit Court of Appeal. In essence, the Fourth Circuit’s analysis of adequacy concerns whether the proposed representatives’ claims are “typical of” the claims of all class members and whether the damages asserted by the representatives are of the same type as the class as a whole. See Dupree v. Lafayette Ins. Co. The court noted that Wilson, Alexander, and Berniard all testified to being present in the defined geographical area on July 7, 2009, suffering from the type of symptoms that were common to the class, and being willing to serve as class representatives. Thus, the court held that the adequacy requirement was met with respect to the plaintiff representatives. The court also made a finding on a related matter that Plaintiffs’ counsel are “highly skilled attorneys with experience in class action litigation” and well qualified to serve as class counsel. The court expressed that it was “particularly impressed” with the attorneys’ presentation at the certification hearing, and felt that “there is no dispute as to the competency and the zealousness of class counsel.”

February 17, 2012

Second Part in Understanding the Anatomy of a Class Action Certification

by Berniard Law Firm

In our previous post, we began a discussion of the Union Carbide/Dow Chemical Taft plant chemical leak litigation filed by the Berniard Law Firm. This post continues with a review of the court’s analysis of numerosity in certifying a class. Under this requirement, the class must be so large that joinder of all members is impracticable. La. Code Civ. P. Art. 591(A)(1). Generally, a class action is favored when there are so many plaintiffs that individual suits would unduly burden the court, and so the class action would be more judicially expedient than other available procedures. See Cotton v. Gaylord Container. There is no distinct number of plaintiffs needed to fulfill the numerosity requirement. In this case, the proposed class included all the residents of St. Charles Parish as well as certain residents of Jefferson and Orleans Parishes–clearly a large number. The court found persuasive the fact that “the size of the individual claims of class members is small enough that individual lawsuits are impracticable,” but that that “separate suits would unduly burden the courts.” In the court’s view, a class action would “be more useful and judicially expedient.” Thus, the court concluded that “numerosity exists,” but that “the class is not too numerous to manage effectively.”

The court next examined the issue of commonality, or whether there were questions of law or fact common to the class. To satisfy the commonality requirement, there must exist “as to the totality of the issues a common nucleus of operative facts.” McCastle v. Rollins Environmental Services. of La., Inc. A common question is one that, when resolved for one class member, is resolved for all members. This issue is closely related to the predominance requirement, where the common questions predominate over any individual issues not shared among the class members. The Louisiana Supreme Court has indicated that predominance “entails identifying the substantive issues that will control the outcome, assessing which issues will predominate, and then determining whether the issues are common to the class.” The goal is to “prevent[] the class from degenerating into a series of individual trials. Brooks v. Union Pacific R. Co. The same court has also held that a mass tort can only be brought as class action if it arose from one single cause or disaster; however, this requirement does not mean that the amount or extent of damages must be identical for all class members. “[V]arying degrees of damages … does not preclude class certification.” In order to meet the common cause requirement, each member of the class must be able to show individual causation based on the same set of facts and law that any other class member would use. See Bartlett v. Browning-Ferris Indus. Chem. Services, Inc.

With these considerations in mind, the court analyzed the common threads identified by the Plaintiffs as to their claims. First, all class members were physically located in the identified parishes on the date and time of the chemical release. They all suffered various (but similar) physical injuries and financial losses as a result of the release. Also, common questions of law and fact surrounded the Defendants’ negligence in failing to maintain its plant and prevent the chemical release. The court concluded that it was “satisfied … from the evidence presented that common factual issues predominate with regard to whether Defendants took reasonable steps to prevent the release of [ethyl acrylate] that occurred on July 7, 2009 and whether or not the release could cause the harm as alleged by the Plaintiffs to the members of the class.” The court’s reasoning was based in part on the testimony offered at the hearing by Dr. Patricia Williams, a toxicology expert. Dr. Williams concluded that the symptoms described by the class were consistent with the type of exposure to ethyl acrylate that resulted from the release at the Taft plant. Although the Defendants offered its own expert witness to rebut Dr. Williams’s testimony, the court nevertheless found that “a method of assessing general causation for the whole of the class exist[ed].” This permitted the court to reach the conclusion that common factual issues were present. The court thus identified a “common nucleus of operative facts” that permitted a finding that “uniform allegations of complaints of harm amongst the large number of class members that stem from one central release event” involved common legal issues among all members that superseded any individual concerns.

January 25, 2012

“Law of the Case” Doctrine, Part 2

by Berniard Law Firm

In our most recent post, we began a review of the Third Circuit Court of Appeal’s application of the law of the case doctrine in a lawsuit that followed an auto accident in Vernon Parish. The plaintiffs, in opposing UUT’s motion for summary judgment, argued that UUT’s no-coverage arguments had previously been heard in a “peremptory exception of no right of action” filed by UUT which the trial court had denied. Both the Third Circuit and the Louisiana Supreme Court denied writs of appeal in that ruling; thus, the plaintiffs argued that the law of the case doctrine should “preclude UUT from re-litigating those same arguments” in the instant case. The plaintiffs also argued that the federal case cited by UUT offered “no precedential value in this state court action.” UUT’s reply asserted that the exceptions previously heard by the trial court “dealt with procedural, rather than substantive, matters,” and were not properly before the trial court at the exceptions hearing. In sum, UUT argued that the trial court’s rulings on the exceptions were interlocutory and therefore “subject to revision by the trial court at any time prior to rendition of final judgment.” The trial court granted UUT’s motion for summary judgment and dismissed all of the plaintiffs’ claims based on the finding that there was no coverage under the UUT policy. The plaintiffs appealed, arguing that UUT’s arguments had previously been heard and rejected in an earlier action (the peremptory exception) and therefore “the law of the case doctrine should have been applied because no new argument or evidence was produced by UUT.”

The Third Circuit concluded that UUT showed that “the policy it issued to Olympic did not provide coverage for the plaintiffs’ claims.” The truck Coronado wrecked was a vehicle leased from Olympic, and the UUT policy by its language excluded coverage for leased vehicles. Rather than refute UUT’s position on the merits, the plaintiffs simply “argued that the issue had already been litigated and that the trial court was bound to follow its earlier ruling.” The court rejected that the law of the case doctrine applied. It noted that UUT did not raise coverage issues when it filed its exceptions in the trial court. Instead, “the plaintiffs brought up the issue of coverage in their opposition to UUT’s exceptions.” In fact, UUT was not even made aware of the plaintiffs’ position on coverage until the day of the hearing. “Clearly,” the court concluded, “the issue of coverage under the UUT policy was not squarely before the trial court at the hearing on the exceptions.” In the view of the court, “[t]he issues raised in the motion for summary judgment filed by UUT … did not cause indefinite re-litigation of the same issue[s] as were raised in its [exceptions motion].” Accordingly, the court affirmed the trial court’s grant of summary judgment in favor of UUT.

The Willis case is a stark reminder to litigants that the rules of civil procedure in Louisiana can be extremely complex. Even when the disputed issue in a case (such as whether an auto insurance policy covers a particular driver) is fairly straightforward, a plaintiff can face a complicated path to a resolution without the counsel of an experienced attorney.

January 23, 2012

Exploring the “Law of the Case” Doctrine in Vernon Parish Car Accident Litigation

by Berniard Law Firm

Under the Louisiana Code of Civil Procedure, judgments are either interlocutory or final. A judgment that “determines the merits [of an issue] in whole or in part” is a final judgment, while a judgment that determines “only preliminary matters” is an interlocutory judgment. Generally speaking, final judgments can be appealed, but interlocutory judgments cannot unless there is a statutory exception that permits the appeal. See La.Code Civ.P. art. 2083. If a court renders a judgment that addresses fewer than all of the claims or that concerns fewer than all litigants in a case, that judgment is not final and may be revised by the court at any time prior to a final judgment. See La.Code Civ.P. art. 1915(B). With parallel reasoning, if a court of appeal denies a writ of appeal, thereby declining to exercise its supervisory oversight of a trial court, the court of appeal cannot affirm, reverse, or modify the judgment of the trial court. This means that “any language in the court of appeal’s … writ denial purporting to find no error in the trial court’s … ruling is without effect.” See Bulot v. Intracoastal Tubular Services, Inc..

Related is the “law of the case doctrine.” This principle pertains to:

“(a) the binding force of trial court rulings during later stages of the trial, (b) the conclusive effects of appellate rulings at the trial on remand, and (c) the rule that an appellate court will ordinarily not reconsider its own rulings of law on a subsequent appeal in the same case.” Petition of Sewerage & Water Bd. of New Orleans.

January 9, 2012

Real Estate Agent Not Liable for Defect in Alexandria Case

by Berniard Law Firm

Paul and Anna Moreau thought they were buying a house with a 10-year-old roof. After they moved in, they learned that the roofing tiles were so old that they were no longer made. Their claim against the real estate agent, who represented both sides in the sale, failed at the trial court. In Moreau v. McKenzie, No. CA 11-197 (La. Ct. App. 3 Cir. 10/5/11), the court of appeal agreed with the trial court’s dismissal of claims against Kelly Ducote, stating the real estate agent was not liable for failure to disclose defect in sale of house in Alexandria because the agent did not know the seller’s statement was misleading.

The Moreaus purchased the home in Alexandria, La., from Mary McKenzie and Priscilla Goudeau. Ducote was agent for both buyer and seller. The property disclosure form that the Moreaus received said that the house’s roof had leaked in the past, but it was replaced in 1998-99 with “all new decking & felt replaced with 70 yr. clay tile.” A home inspection indicated that the roof was six to ten years old. The inspector found nothing serious. The sale closed. Sales documents warned that the sale was “as is” and without warranty, and Ducote made no warranty on the house or its condition.

When the Moreaus tried to repair a few broken roof tiles, “they learned that the tiles on the roof had not been manufactured for several decades, meaning the entire roof had not been ten years old as they had previously thought.” Only the underlying deck and felt had been completely replaced. The old tiles had been reinstalled over the new deck and felt.

December 11, 2011

Inadequate Medical Care and the Legal Ramifications Capable of Causing Life-Changing Problems

by Berniard Law Firm

Everyone expects adequate, timely, and complete care from medical professionals in hospitals. However, unfortunately, times come when the expected level of care fails to come to fruition, and an action for medical malpractice arises. In March of 1993, a Tallulah, Louisiana, resident began a series of trips to doctors in hospitals in which his continued back, shoulder, and neck pain eventually led to lung cancer. The Tallulah, Louisiana resident, Mr. Kerry Scarborough, died 2 years later in March of 1995.

For a malpractice claim against a hospital, plaintiffs like Mr. Scarborough’s mother, suing in her son’s name, must prove by a preponderance of the evidence first, that the defendant owed the plaintiff a duty to protect against the risk involved, essentially providing a standard of care that the plaintiff was owed, second, that the defendant breached that duty or standard of care, and third, that the injury was caused by that breach. A hospital can be sued for its own negligence (such as failure to keep its facilities clean), or under a theory of vicarious liability, in which a plaintiff alleges that the hospital is liable for the negligence of one of its doctors. Of course, a medical malpractice action can be extended to any health care provider, including dentists, nurses, hospital workers, physical therapists, radiologists, and more.

Louisiana revised statute 9:2794 provides the statutory language laying out the plaintiff’s burden for a general malpractice action. The plaintiff must prove how much knowledge or skill or how much care that physicians licensed in Louisiana normally exercise in similar locations and situations. Furthermore, the plaintiff must prove that if the defendant physician specializes in a particular field, and if the allegedly negligent acts within that specialty raise unique issues, then the plaintiff must prove how much care that physicians in that specialty normally exercise. Additionally, the plaintiff must prove that the defendant did not have the knowledge or skill, or did not exercise reasonable care, diligence and best judgment in using his or her skill. Moreover, the plaintiff must prove that the plaintiff suffered injuries that were the proximate result of the defendant’s absence of the knowledge and skill, or the absence of reasonable care.

December 7, 2011

Court Explores Standard of Review in Baton Rouge Car Wreck Case

by Berniard Law Firm

On August 7, 2002, James Wilson was driving his car southbound on Essen Lane in Baton Rouge. When he attempted to make a left turn onto the on-ramp for I-10, Wilson pulled into the path of an oncoming car driven by Barbara White northbound on Essen. The crash left Wilson with serious injuries. Following the incident, Wilson filed suit against the Louisiana Department of Transportation and Development (“DOTD”). His complaint alleged that the DOTD negligently installed lane delineators on Essen Lane at the intersection with I-10; Wilson’s negligence theory was based on his assertion that the lane delineators blocked drivers’ view of oncoming traffic. Wilson asserted that the DOTD’s negligence caused his accident because he couldn’t see White’s car when he attempted to turn onto I-10. After a trial the jury returned a verdict in favor of the DOTD. It found that the DOTD was not negligent and that its installation of lane delineators did not cause the accident. Wilson filed a motion requesting a JNOV which was denied by the trial court. Wilson then appealed on the basis that the jury’s verdict was not supported by the evidence.

The First Circuit began it analysis with a recitation of the standard of review for a challenge based on the jury’s alleged manifest error. Because the determination of negligence is a factual one, an appellate court must apply a two part test to reverse the jury’s finding. Part one involves the appellate court’s deciding that a “reasonable factual basis” does not exist in the record for the jury’s finding; part two requires the appellate court to determine that the record establishes that the jury’s finding is “clearly wrong.” Additionally, when

factual findings are based upon the jury’s weighing of witness credibility, “great deference” must be given its decision. The rule of thumb is that where there are two or more permissible views of the evidence, the jury’s choice between them cannot be manifestly erroneous.