Insurance Dispute

May 14, 2019

Understanding the Concurrent-Cause Doctrine in Louisiana and How it Applies to Property Insurance

oil-platform-1336513-1024x683 The term concurrent-cause is a legal doctrine that may be vital to your commercial property. If loss or damage occurs as a result of two or more causes, one event may be covered while the other is not. It would not matter if the events happened at the same time, or if one event occurred before the other. That is why [i]t is essential that the insured produce evidence which will afford a reasonable basis for estimating . . . the proportionate part of damage caused by a risk covered by the insurance policy.” Travelers Indem. Co. v. McKillip, 469 S.W.2d 160, 163 (Tex. 1971).

The following case discusses the legal implications that a concurrent-clause can play in litigation in Louisiana.

Seahawk operated a drilling rig used in the Gulf of Mexico. In February 2010, the Rig became damaged, the legs were misaligned due to severe weather conditions.

May 13, 2019

Louisiana Plaintiff Denied Insurance Claim Due to the Definition of Resident

by Berniard Law Firm

sunset-dunes-1358916-1024x768 In the law, words matter greatly. How even one word is defined can make or break a lawsuit. However, courts do not allow words to be defined willy-nilly. There are certain methods courts will use to define words. In the case below, we will see how the plaintiff’s case was rendered moot due to the court’s interpretation of a word.

Michael Smith, Danielle Schelmety, and James Johnson were friends who decided to celebrate Michael’s birthday at his home in Ruston, Louisiana. Michael’s dad, Dr. William Smith, owned an off-road vehicle called a Rhino. James and Danielle wanted to go for a ride on the Rhino. With permission, James drove the Rhino with Danielle as his passenger. Unfortunately, James was a bit reckless and flipped the vehicle over onto the passenger side while making a turn. Danielle, who was sitting in the passenger seat, received severe injuries to her left arm. Danielle sued Safeco, Dr. Smith’s insurance company, arguing it was liable for the accident. However, Safeco argued that it could not be liable because James, the driver, was not covered by the insurance company’s contract because he was not a “resident” according to the contract. The District Court agreed and denied relief for Danielle.

In Louisiana, an insurance policy is interpreted by the rules of the Louisiana Civil Code that govern contract interpretation. Marshall v. Louisiana Farm Bureau Cas. Ins. Co., 182 So. 3d 214 (La. App. Ct. 2015). If an insurance policy contract contains clear terms, then a court interpreting the contract does not need to go through a thorough analysis. La. C.C. 2046. However, if the contract contains terms that are exclusionary and also ambiguous, then the terms are interpreted in a way that is favorable to the insurance holder. Byrnside v. Hutto, 110 So. 3d 603.

April 23, 2019

Baton Rouge Man Accuses District Court of Abusing Its Discretion and Denying Him Due Process

by Berniard Law Firm

roof-1171576-1024x768 The Louisiana Code of Civil Procedure provides that a court has wide discretion in granting a continuance (a postponement of the proceedings) in any case where appropriate. See La. C.C.P. art. 1601. But what constitutes appropriate grounds for a continuance? A court must take into account the specific facts of the situation in order to determine whether a continuance should be granted. A recent case in the Louisiana Court of Appeal explains this process.

The roof of Mr. and Mrs. Abington’s Baton Rouge home was damaged in Hurricane Isaac. The Abingtons contacted Mr. Spears of the Louisiana Roofing Company to replace the roof. The company not only failed to complete the roof repair, but subsequently caused more damage to the Abingtons’ home. After the Abingtons filed a lawsuit, the case was continued three times at the request of Mr. Spears. The first continuance was granted due to Spears’s failure to answer depositions and to answer discovery requests. The second continuance was granted so Spears could find a new attorney; Spears’s first attorney requested to withdraw from the case due to Spears’s volatile behavior, making her fear for her safety. The third continuance was granted to Spears’s new attorneys so they could get acquainted with the case.

Several days before trial, Spears filed a pro se motion for a continuance. (A pro se motion is one filed by the litigant himself, without the aid of an attorney.) The request was denied by the trial court. Two days before trial, he fired his second set of attorneys, and hired a new attorney who requested another continuance for trial preparation and to avoid a scheduling conflict. This request was also denied. At trial, no counsel appeared to represent Spears, so he once again asked the court for a continuance. The request was denied and the trial proceeded, resulting in a judgment in favor of the Abingtons.

April 19, 2019

Court Reverses Award of Damages for Failure to Comply with Flood Insurance Requirements

by Berniard Law Firm

ancient-ruins-flooded-by-water-1622023-1-1024x683 There are multiple requirements and policies that claimants must follow in order to be eligible to recover on a claim under a National Flood Insurance Program (“NFIP”) Standard Flood Insurance Policy (“SFIP”). See 44 C.F.R. pt. 61, app. A(1) art. VII sec J (2009). Failure to comply precisely with these requirements will prevent claimants from recovering for their claims. The following lawsuit reviews the “proof of loss” requirement and what can occur if one is not submitted with your flood claim.

Cummings’s home in LaPlace, Louisiana was damaged by Hurricane Isaac in August 2012. Cummings submitted a flood loss claim to Fidelity. Fidelity assigned an independent adjuster to inspect the flood damages. Cummings worked with the independent adjuster to file a signed proof of loss for approximately $42,000, as required by his SFIP. Fidelity subsequently paid Cummings for the $42,000 in building damage, as requested in his proof of loss. Cummings also submitted a four-page list of the contents he claimed were damaged in the flood. He claimed these had a total replacement value of over $104,000. However, Cummings never submitted a proof of loss for the claimed damages to his home’s contents. Cummings also failed to include the amount on the front page of his proof of loss. Fidelity denied Cumming’s claim for content loss, providing a letter that stated that Fidelity required additional proof to assist in proof of damage and ownership of the claimed contents. The letter instructed Cummings to review his insurance policy agreements and forms, but did not tell him to submit an additional signed and sworn proof of loss.

Cummings filed a lawsuit for the contents of his house that he claimed were damaged in the flood. The district court awarded Cummings $25,000 plus interest, holding that Cummings’ photographs, testimony, and written statement were sufficient proof of loss. Fidelity appealed.

April 18, 2019

Court Affirms Denial of Claim for Failure to Comply with Flood Insurance Requirements

by Berniard Law Firm

rain-rain-and-more-rain-1473187-1024x768 The National Flood Insurance Program (“NFIP”) is intended to provide affordable flood insurance on fair terms. The Federal Emergency Management Agency (“FEMA”) is responsible for administering and regulating NFIP. There are multiple requirements and policies that claimants must follow in order to be eligible to recover on their claim. The following lawsuit looks at the requirements necessary to prove flood damages under the terms of a Standard Flood Insurance Policies (“SFIP”).

Construction Funding owned a piece of property located in Mandeville, Louisiana that was insured under a SFIP issued by Fidelity Insurance Company. Construction Funding claimed that this property suffered flood damage from Hurricane Isaac in August 2012. Construction Funding submitted a claim to Fidelity for a loss of approximately $76,000.

Fidelity is a participant in the NFIP and issues SFIP to NFIP participants. Although FEMA sets the terms of the SFIP, Fidelity is responsible for handling all claims arising under its SFIPs. Fidelity denied the claim, stating that the damages were unsubstantiated and there was insufficient proof that the damage was caused by Hurricane Isaac rather than a prior flood. Thereafter, Construction Funding filed a lawsuit against Fidelity. Fidelity claimed that Construction Funding was not eligible to bring the lawsuit because it had not complied with the SFIP’s terms.

April 10, 2019

Pointe Coupee Parish Employee Denied Insurance Coverage in Work-Related Car Accident

by Berniard Law Firm

that-hurt-1450455-1024x739 Insurance policies can be varied, complex, and at times unintelligible. Policies are generally purchased for a time of need. Yet in many cases, the insurance company worsens a stressful event by denying coverage. Coverage can be denied for many reasons including when the claimant is an “uninsured motorist.” In a recent case out of Pointe Coupee Parish, an employee faced this label and a denial of coverage.

Chris Loudermilk was driving a vehicle owned by his employer, Environmental Safety and Health Consulting Services Inc. (“ES&H”), when he was injured in an accident. Mr. Loudermilk filed a lawsuit against his employer and their insurance company, XL Speciality Insurance Company (“XL”). As Mr. Loudermilk was not the policyholder, XL filed a motion for summary judgment to dismiss the claim entirely. Prior to the accident, ES&H had executed a form expressly rejecting uninsured motorist coverage. This essentially meant that because of the rejection form, no lawsuit could go forward against XL. ES&H had in fact executed a valid form rejecting coverage for uninsured motorists, but when ES&H renewed their policy with XL for the time period covering the accident, two entities owned by ES&H were added to the named insured section of the policy. The question before the Louisiana First Circuit Court of Appeal was whether this slight change to the policy caused the uninsured motorist coverage rejection to become invalid resulting in a proper grant of XL’s motion for summary judgment and dismissal of the lawsuit.

Summary judgment renders a judgment in favor of one party when there are no material facts in dispute and judgment is proper as a matter of law. Summary judgment for lack of coverage can be granted if there is no reasonable interpretation of the policy which would result in coverage. See Reynolds v. Select Properties, Ltd., 634 So.2d.1180, 1183 (La. 1994). An insurance company can have a case dismissed at summary judgment if it can prove there is a policy provision which excludes coverage. See Simmons v. Weiymann, 943 So.2d 423, 425. (La. Ct. App. 2006). Louisiana Law allows an insured’s rejection of uninsured motorist coverage to remain valid for the life of the policy with no new rejection form needing to be executed unless there are changes to liability limits. See La. R.S.22:1295. The language of the statute also states however that the uninsured motorist rejection remains valid when a renewal is issued to the same named insured.

April 9, 2019

Court Upholds Denial of Collision Coverage to an Insured, but Unlicensed, Marrero Driver

by Berniard Law Firm

crashed-car-1444299-768x1024 Collision insurance covers car damages caused by driving-related accidents. For example, colliding into an object or another car, whether the insured driver caused this accident or not, are covered damages. Due to this breadth of possibilities, insurance companies write strict requirements into their policies, including the need to have a valid driver’s license on hand during an accident. A recent case in Louisiana involved Affirmative Insurance Company (“Affirmative”) denying collision coverage to an insured driver who did not have his license on him during a car accident on the intersection of Lapalco Blvd. and Ames Blvd. in Marrero, Louisiana.

Darryl Parker bought an Affirmative auto insurance policy for his 2001 BMW in 2013 with a $500 collision coverage deductible. At the time, Mr. Parker told the Affirmative agent that he had no valid driver’s license; however, the agent assured Mr. Parker that he could still purchase the policy without one. Mr. Parker was subsequently involved in a collision. Affirmative denied covering Mr. Parker due to his not having a license at the time of the accident, and Mr. Parker filed a lawsuit against Affirmative. Affirmative argued that a clause in the insurance contract barred coverage, while Mr. Parker argued that this provision should be void because Affirmative sold him insurance knowing that he was unlicensed at the time.

The Louisiana trial court granted Affirmative’s motion to dismiss the case; Mr. Parker appealed, and the issue before the Louisiana Fifth Circuit Court of Appeal (“the Court”) was whether the “barring” clause in the insurance policy was enforceable.

March 26, 2019

Driving the Company Car: Limits to Excess and Umbrella Insurance Policy Liability

by Berniard Law Firm

umbrella-1240650-1024x768 When an employee is in an accident while driving the company’s car, is the company’s insurer liable? Generally, an employer is liable for employee accidents when driving a company car for employment duties. This can be difficult to determine in situations such as when an employee is on call and operating a company car, when the employee drives the company car at night, or when the employee drives the car on a personal errand with passengers. An accident involving St. Tammany Parish helped shed light on these issues.

On May 26, 2010, Gary Michael Brown, an employee of J&J Diving Corporation, was involved in a car accident with a St. Tammany Parish Sheriff’s department vehicle driven by Deputy Scott Jarred. Mr. Brown was driving a company car at the time of the accident with his girlfriend as a passenger. While Mr. Brown was not legally intoxicated, a field sobriety test indicated that he had been drinking before the accident. Before the accident, Mr. Brown had gone to retrieve his driver’s license from Gulfport, Mississippi after a company drag race event.

Jarred settled his claims with Brown, J&J Diving and Progressive, the company’s primary insurer. However, Mr. Jarred later added XL Special Insurance Company and Valiant Insurance (“Underwriters”) who insured J&J Corporation with a Marines Excess Liability Policy (“excess commercial insurance policy”) as defendants. The trial court granted Mr. Jarred’s motion for summary judgment and found the Underwriters were liable for the accident under J&J Diving Corporation’s excess commercial insurance policy. The Underwriters appealed, arguing that their insurance policy did not cover Mr. Jarred’s accident.

March 24, 2019

Failure to Double Check Insurance Policy Does Not Constitute Fraud in Jefferson Parish

by Berniard Law Firm

72-Email-03-03-19-1024x512 While many steps may be taken to prevent accidents, most are, unfortunately, unpredictable. For many people, automobile insurance is the silver lining to unforeseeable car accidents. However, the type of insurance policy you have can determine how much of the accident is covered, if it is covered at all, so it is important to understand exactly what you sign up for and always double check for changes. This issue was explored in a case brought to the Twenty-Fourth Judicial District Court for the Parish of Jefferson.

Through an independent insurance agent, Agent C, Mr. B. had car insurance from Allstate Insurance Company. For this plan, Mr. B signed an underinsured/uninsured motorist (“UM”) waiver, which declined all UM coverage. Mr. B married Bridget B in January of 2007 and the following month, Mrs. B went to Agent C’s office to change the insurance policy. She did not meet with Agent C and instead requested the office staff add UM coverage to the policy. No documents were signed and when Mr. B called Agent C to confirm the policy’s changes, there was no mention of UM coverage. In July, the Bs received correspondence from Allstate with the alterations to their insurance and included a declarations page disclosing the coverage included in the plan. Both Mr. and Mrs. B retained their insurance documents and renewed it bi-annually, but did not review the declarations page in detail.

In March of 2012, the B family got into a car wreck. When they filed an insurance claim against Allstate, they were surprised to hear that UM coverage was not part of the policy. The Bs filed a lawsuit against Agent C and Allstate, for not adding UM coverage to the policy. Agent C filed a motion for summary judgment, stating that based on the facts of the case the Bs would not be able to prove their allegations. See La. C.C.P. art. 966 (2017). In his motion, Agent C argued that the Bs’ claim was barred by the peremptive period, which requires all causes of action against insurance agents to be brought within one to three years. See La. R.S.9:5606 (2011).

March 22, 2019

Summary Judgement Reversed for Insurance Company in Wrongful Death Case

by Berniard Law Firm

61-Email-03-03-19-1024x680 The loss of loved ones is never easy, especially when they are taken away in sudden, unexpected ways. Though there is no dollar value that can replace human beings, monetary damages are a form of recovery in cases of wrongful death. Sometimes the steps to that recovery can be difficult, especially when insurance is involved. This issue was explored in a wrongful death action brought to the Twenty-Ninth Judicial District Court in St. Charles Parish.

On May 26, 2013, a head-on collision with another vehicle killed Esther Centeno and her unborn fetus. On behalf of Esther’s minor daughter, Laylonie Polanco, Carlos Polanco—Laylonie’s father—filed a wrongful action against the driver of the other vehicle in the collision: Jennifer Englade. The action was also brought against Ms. Englade’s insurer, National Automotive Insurance Company (“National”).

National filed a motion for summary judgment, a motion for judgment as a matter of law when there is no genuine issue of material fact. La. C.C.P. art. 966 (2017). In the motion, National argued that Ms. Englade was not covered by National at the time of the accident because her automobile insurance policy was canceled on March 30, 2013, due to failure to pay for a premium. In support of the motion, National provided a declarations page of Ms. Englade’s policy, the notice of cancellation, and affidavits of “Preparation of Cancellation Notice” and “Mailing” dated March 18, 2013. The trial court granted the motion for summary judgment and Mr. Polanco appealed.