Articles Posted in Insurance Dispute

Car accidents oftentimes are not simple, clear-cut events that lend a clear idea of who was right and who was wrong. Instead, many times it is left to a court to decide what the circumstances were that led to the collision and the amount of responsibility each party had for it occurring. As a result, because no court is perfect, individuals who have been harmed due to another party’s acts are left out in the cold because they could not prove their case. However, each year new technology comes out that provides a better opportunity for plaintiffs, and their attorneys, to prove their case and receive the compensation they deserve.

One firm, Advanced Research and Technology (ART) Corporation, works with the very technology required to prove cases. Utilizing Finite Element Analysis (FEA), commonly referred to as computer simulations, the company provides compelling engineering evidence to explain the cause of a crash-related case. FEA’s due this by calculating the kinematics of the investigated accident (speeds, relative motion, different parts of accident) and structural analysis (where the cars collided and relevant stresses, strains, failures, energy displacements, etc.). By analyzing this information, FEA can help plaintiffs win cases related to auto and motorcycle crashes, airbag and seatbelt related problems, structural analysis relating to accidents or blasts, slip and fall cases, fuel tank and pipeline pressure analysis and a variety of others.

FEA simulations are widely recognized by the engineering community as a reliable and advanced tool for solving structural dynamics, crash, blast and impact-related matters. Automotive companies often use FEA for car testing in the same way that highway safety systems are designed using the technology. The reliability of FEA comes down to the simulator being able to develop accurate formulations or equations to explain how the millions of small elements involved in a collision react when variables are at a certain set. Because of its ability to determine how a car will behave in a collision and the effects of a collision, technology experts are able to move backwards and determine what variables were in place to lead to the results suffered.

In June 2007, Chadwick Dukes and his daughter, Skylah, were driving on La. Hwy. 983 in West Baton Rouge Parish. Their car was struck by a vehicle driven by Paul Declouette and owned by Sheryl Rogers. The following May, Dukes filed a lawsuit on behalf of Skylah seeking to recover damages for the injuries she sustained in the crash. Dukes named as defendants Declouette, and the Imperial Fire and Casualty Insurance Company, which was Declouette’s as-then unknown insurance carrier.

Shortly thereafter, Imperial Fire was identifed and admitted that it had issued an auto liability policy to Declouette that was in effect at the time of the accident. Dukes added Imperial Fire as a named defendant and then signed an agreement to release Declouette and Rogers from the suit. As a result, on November 20, 2008, the trial court entered a judgment to dismiss Dukes’s claims against Declouette. Imperial Fire immediately filed a motion for summary judgment, asserting that it could not be found liable because Dukes released its insured customer (Declouette) by agreement without a reservation of rights. Imperial Fire relied on the language of the insurance policy, which obligated the company to pay damages for any injuries for which

An insured person becomes legally responsible because of an accident arising out of the ownership, maintenance, or use of a covered vehicle.

On May 7, 2010, the Donaldsonville community was saddened when 20 year-old Ryan Johnson was killed in a car accident when his car flipped after he collided with a semi-truck on LA 70. While this loss is tragic, it is also a reminder that accidents involving semi trucks should be treated differently that regular car accidents and usually require assistance from an attorney who has experience resolving these cases.

In a typical fender bender with another car, an attorney may not be required. After the collision, both drivers make sure they don’t have any injuries, call the paramedics if needed, exchange contact and insurance information, have the police make a report if necessary, and they settle the cost of damages through their insurance companies. Often in these situations, especially in small communities, the drivers know each other and can easily call the other if they need any additional information that they didn’t get immediately after the accident. It is a fairly straight-forward process.

Accidents between a car and a semi truck are different and require the driver of the car to be informed and consult an attorney soon after the accident. Truck drivers haul cargo across the country for a living. When they are involved in an accident, you are not just dealing with the other driver, but the company they work for. Trucking companies have similar liability insurance as the average driver; however, these companies are better equipped to handle accidents because they have already prepared for this situation. Trucking companies also have attorneys working to protect their assets that may only work on these types of cases. Trucking companies and their insurance providers are both business and have the goal of giving you the least amount of money for your settlement. It is important that you have someone fighting equally as hard on your side.

Amber Bridges was driving her parents’ 2002 Hyundai Sonata without their permission when she was involved in an accident with a 1992 GMC pickup truck owned by Tommy McClain at the intersection of Millhaven Road and Highway 594. She was attempting to turn left onto Millhaven road and was issued a citation and later found by the trial court to be solely responsible for the accident. Amber had received her official driver’s license just two weeks before. The car she was driving was owned by her father, Terry, and insured by American through Advanced Planning Insurance Company.

Although both cars were insured, American denied coverage for the liability of Amber.

When Terry obtained the automobile insurance in 2006, Amber was 16 years old and had a driver’s permit. However, Terry failed to disclose that Amber was a resident of the household over the age of 14. State Farm, the insurer of McClain’s car, paid the fair market value of the totaled pickup truck. State Farm and McClain then brought a civil suit for damages against Terry, Amber, and American.

Imagine the following scenario: you are involved in a fender-bender in the parking lot of the grocery store. Your car is taken to the body shop for repairs. Since you need transportation to get to work and other places in the mean time, you rent a car from the local agency. When picking up the car, you’ll no doubt be offered liability insurance through the agency–at an additional cost, of course. There may also be coverage available through the credit card you use to pay for the rental. And then there is the policy you maintain on your regular car. Does it extend coverage to the rental?

Louisiana law recognizes a “temporary substitute vehicle,” which is commonly defined by insurance companies as a short-term substitute for a car that is out of service due to breakdown, repair, servicing, theft, or destruction. State statute requires automobile insurance companies to “extend to temporary substitute motor vehicles … any and all such insurance coverage in effect in the original policy.” La. R.S. 22:681. In other words, the auto insurer must provide the same coverage to the rental car as was already in place on the regular vehicle.

The recent case of Smith v. Louisiana Farm Bureau Casualty Insurance Company, No. 45,013, Ct. of App. of La., 2d Cir. (2010), explored the definition of “temporary substitute vehicle” in detail. On the morning of May 28, 2005, Brian Smith was driving a 2003 Nissan Altima on U.S. Highway 425 in Morehouse Parish. At the same time, Joshua Pruett was driving a 1998 Dodge Ram pickup truck on the highway in the opposite direction. Pruett’s truck was pulling a utility trailer containing crawfish and ice that had been loaded in Crowley. The ball on the truck’s trailer hitch was too small for the trailer and Pruett did not use any safety chains to ensure that the trailer remained attached to the truck. The trailer eventually disconnected from the truck, at which point it crossed the highway’s center line and collided with Smith’s Altima. Smith died at the scene from the severe trauma he sustained in the accident.

As research has revealed more about the dangers of asbestos and the mechanics of how it causes certain types of lung disease and cancer, medical and social opinion of asbestos has changed. Likewise, the law of asbestos-related injuries has changed in the last half century. For example, one of our blog posts recently discussed how workplace asbestos cases are now typically addressed through workers compensation proceedings rather than traditional personal injury tort law. A decision issued by the Louisiana Supreme Court in 1992 illustrates another change in the law related to asbestos injuries.

Background

The background and procedural history of Cole v. Celotex Corp, 599 So.2d 1058 (1992), is complicated. However, knowing the case is important when trying to understand the significance of asbestos litigation. The plaintiffs in the case suffered asbestos exposure in the course of their work duties and filed suit against twenty individual defendants. The defendants included manufacturers of the asbestos materials the plaintiffs encountered on the job as well as officers of their former employers. Additionally, the plaintiffs added as a defendant Insurance Company of North America (“INA”), the primary liability insurance provider for the officers.

While a plaintiff may have the best case possible, things do not always work out the way they should. Lawsuits don’t just fail on their merits. Sometimes not following procedural deadlines or simply not taking action at all can spell doom as well. In an April 2010 decision, the First Circuit Louisiana Court of Appeals affirmed the dismissal of Shirley W. Fleischmann of Baton Rouge’s claim against Keith Henderson and his insurance company. They did this because three years had gone by with no action taken to move the claim forward, thus bringing into play the Louisiana Abandonment Statute.

The claim arose when Henderson’s car (driven by Jennifer Parker) struck and killed Thomas E. Fleischmann while he was walking along the roadway. Ms. Fleischmann was the victim’s widow and included Henderson and his insurance company as parties in her wrongful death lawsuit filed in April 2002. The State of Louisiana (Department of Transportation) was named as a party as well but was dismissed in 2005 because effective request for service was not made within 90 days of commencement of the action.

In September 2008 Ms. Fleischmann filed a motion for a status conference to declare she intended to move forward against Henderson and his insurance company. In December of that year both parties filed a motion and order to be dismissed from the lawsuit as well because pursuant to LSA-C.C.P. art. 561 no action had been taken for three years. The trial court granted the order. Ms. Fleischmann filed a Motion to Reconsider the Ruling and the matter was heard in court in February 2009. The district court affirmed the dismissal and Ms. Fleischmann appealed claiming that the hearing previously held on the Department of Transportation’s Motion to Dismiss was a step in the prosecution or defense that interrupted tolling on the abandonment of her lawsuit against the other defendants. The Court of Appeals disagreed.

In Mallett v. McNeal, 939 SO.2d 1254, 2005-2289 (La. 10/17/06), the Supreme Court of Louisiana held that an unconditional payment of a property damage claim constitutes an acknowledgement sufficient to interrupt prescription. Thus, for example, an insurance company’s tender of an unconditional payment to an injured third-party claimant is an acknowledgement, and this acknowledgment interrupts prescription. In appropriate cases, Mallett may be of assistance to plaintiffs’ attorneys, who file actions to help injury-victims recover against tortfeasors and insurance companies after the victim’s case has prescribed on its face.

The Court’s holding in Mallett was based upon two consolidated cases. In the first case, plaintiff Jason Mallett (“Mallett”) suffered injuries on January 8, 2004, when his vehicle was struck from behind by defendant Paola McNeal (“McNeal”). McNeal carried an automobile liability policy issued by defendant United States Automobile Association (“USAA”). In November 2004, USAA issued two checks to Mallett: the first for payment of property damage, and the second for additional repairs. On February, 2005, more than a year after the accident, Mallett filed suit against McNeal and USAA, claiming damages for injuries. Because the one year prescription period had run on its face, Mallett’s claim would have been barred, unless USAA’s November 2004 payments interrupted the prescriptive period.

In the second case, plaintiff Charles Richey (“Richey”) was involved in an automobile collision with defendant Kameron Dixon, who was driving a car owned by Keith Dixon (“Dixon”). Dixon was insured by defendant Infinity Insurance Company (“Infinity”). Following the collision, Infinity issued a check to Richey and stated that the check represented payment for the total loss of Richey’s vehicle. Before the end of the prescriptive period, Richey filed suit in an improper venue. Under Louisiana law, if an action is commenced in an improper venue, prescription is interrupted only as to defendants served with process within the prescriptive period. Unfortunately for Richey, no defendants were served before the end of the prescriptive period. Therefore, Richey’s claim would have been barred, unless Infinity’s issuance of checks had interrupted the prescriptive period.

Louisiana law requires motorists to carry liability insurance on any automobile they own. This coverage pays for property damages or personal injury for which you may be legally responsible. Unfortunately, not everyone on the road has insurance. However, insurance companies have built in protection for drivers that are injured by an uninsured/underinsured motorist.

In 1999, Carol Tedeton was injured during her employment with an automobile service station. She was hit by a minor without adequate car insurance. To recover for her injuries, Carol argued that she was covered under the garage’s uninsured/underinsured motorist (“UM”) policy.

Under La. R.S. 22:1406(d), any person who enjoys the status of insured under a Louisiana motor vehicle liability policy which includes uninsured/underinsured motorist coverage enjoys coverage protection simply by reason of having sustained injury by an uninsured/underinsured motorist.

In 2005, Dale Spires of DeRidder was in a car accident that was caused by April Roberts. He sued Ms. Roberts and her insurance company paid out $10,000, which was the limit under her insurance policy. The suit was dismissed in 2006.

In 2007, Spires filed an additional lawsuit against his uninsured motorist carrier, State Farm, and alleged that Ms. Roberts was underinsured and as such he was entitled to additional recovery for the damages he sustained in the accident as well as for his emotional distress. State Farm argued that under Louisiana law, Spires had to assert all causes of action in the first suit against Ms. Roberts and was precluded from collection additional damages from state farm since the action arises from the same accident. As such, Stare Farm argued, because Spires did not bring the claim against State Farm when he sued Ms. Roberts he could no longer do so. The trial court agreed and dismissed the claim, leading to the Spires appeal.

In a 2008 decision, the Court of Appeals reversed the trial court judgment and found that the Spires were entitled to pursue a claim against State Farm for additional damages. The case hinged on the court’s interpretation of La.Code Civ.p. art 425 which states, “A party shall assert all causes of action arising out of the transaction or occurrence that is the subject matter of the litigation.” According to the Court, art. 425 is merely a reference to the broader principle of res judicata.

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