Articles Posted in Property

by

Louisiana law, in providing for uninsured/underinsured motorist (“UM”) coverage, reflects the state’s strong public policy of providing full recovery to victims who suffer damages in car accidents. If an at-fault driver lacks sufficient insurance coverage, the UM provision of the victim’s own policy will operate to make up the shortfall. UM coverage will be read into an insurance policy by default unless the coverage is rejected, and rejection “shall be made only on a form prescribed by the commissioner of insurance,” where the “form shall be provided by the insurer and signed by the named insured or his legal representative.” The following requirements must be met in order to create a valid rejection: 1.initialing the rejection the UM coverage; 2. printing the name of the insured or legal representative; 3. signing the name of the insured or legal representative; 4. filling in the policy number; and 5. dating the form. In cases of dispute, the insurance company bears the burden of proving that the insured rejected UM coverage, but a properly completed form “creates a rebuttable presumption that the insured knowingly rejected UM coverage.” A dispute over the waiver of UM coverage formed the basis of a case that came before Louisiana’s Second Circuit Court of Appeal earlier this year.

On July 21, 2008, Richard Gunter, a Bossier Parish police jury employee, was injured when the parish-owned vehicle he was riding in as a passenger was struck by another vehicle. Gunter filed suit against the driver of the other vehicle and her insurer, Gunter’s own insurer, and St. Paul Fire and Marine Insurance Co. Gunter alleged that St. Paul provided UM coverage for the police jury. St. Paul filed a motion for summary judgment, stating that the police jury had rejected UM coverage under its policy. The trial court granted summary judgment on behalf of St. Paul; Gunter appealed on the grounds that material facts about whether the police jury knowingly and properly rejected UM coverage were in dispute.

St. Paul’s position that the police jury rejected UM coverage was based on the fact that the parish administrator had completed a UM waiver form on September 27, 2007. Yet, the parish president’s testimony via affidavit revealed uncertainty as to whether the administrator had the authority to reject UM coverage, or whether such an action required approval by the parish finance committee. The court noted that “the record does not show that [the parish administrator] acted with the agreement, knowledge, or approval of the police jury in rejecting UM coverage for the policy period at issue.” Thus, “considering the strong public policy favoring UM coverage,” the court concluded that there were “genuine issues of material fact as to whether [the parish administrator] was authorized … to reject UM coverage on behalf of the police jury as its legal representative and whether the police jury knowingly rejected UM coverage for the relevant policy period.” Accordingly, the court reversed the trial court’s granting of summary judgment.

 

by

A plaintiff from Acadia Parish had her award increased by over $10,000 by the Third Circuit Court of Appeals after slipping and falling on the curb of a dark parking lot at night.

In the case, Darbonne v. Bertrand Investments, Inc., No. 11-1224, the plaintiff had gone to pick up some friends from a bar after a night of drinking. The plaintiff, who was sober, led her friends out the back door of the bar toward her car. In the dark parking lot, the plaintiff tripped over a curb, breaking her foot. She later required two surgeries to repair the damage, and the foot was still swollen at the time of her trial.

The plaintiff brought a lawsuit against the owners of the convenience store next to the bar. She claimed that the owners’ failure to light their lot caused the darkness that led to her breaking her foot. She alleged that if the owners had kept their lot in a reasonably safe, lit condition, she would not have tripped over the curb.

Continue reading

by

A court granted a Louisiana woman’s motion to quash the criminal information against her granted in 2007. She was charged with theft after she removed some kitchen equipment from a premises on which she once operated a business. After this outcome she initiated a claim against various parties involved in the prosecution of this case for unlawful searches and seizures, unlawful arrest and malicious prosecution. Though her criminal case ended with a positive outcome for the woman, her civil action did not fare well.

When the criminal justice system does wrong by a criminal defendant, the civil justice system provides a few potential remedies. Unfortunately for this woman, she did not meet the standard for receiving such a remedy. Her case did not rise to a level where relief could be granted and had a summary judgment rendered against her. This judgment was upheld by the appellate court.

Proving that a criminal case was investigated, filed or prosecuted improperly is a difficult task. The woman in this case failed to even raise genuine issues of fact in her case. The appellate court held that she did not raise a genuine issue of fact as to whether she abandoned the property from which she removed the items she was eventually accused of stealing. The Supreme Court of the United States has held that Fourth Amendment rights do not reside in places but in people. In order to be protected under that Amendment, a person must have a legitimate expectation of privacy in a given space. The Court of Appeals for the Fifth Circuit later held that an individual cannot claim any legitimate expectation of privacy in property once it has been abandoned. The woman’s first unlawful search and seizure claim was defeated by this finding by the appellate court.

Continue reading

by

A Louisiana Court of Appeals remanded a class action case back to the trial court for further determination on the size of a class of plaintiffs affected by a Livingston Parish hazardous waste dump. The case, while unfortunate in subject matter, is an excellent overview of the appeals process.

In this case, the trial court had decided to certify a class of all people living within 2.5 miles of a dump site of Combustion, Inc., that had released toxic chemicals into the air and water. Initially, over 14 lawsuits had been filed by 1200 people, but the trial judge had consolidated the cases to a single class action case. The defendants in the case appealed the trial judge’s decision on two grounds: first, that a class action lawsuit was not the appropriate means of deciding the matter because separate lawsuits would be better; and second, that the judge incorrectly set the eligible class of plaintiffs at all those people living within 2.5 miles of the site.

The Court of Appeals sided with the plaintiffs on the first issue. The Court noted that, under Louisiana civil procedure, a case is appropriately decided by class action if the plaintiffs are numerous enough, the named plaintiffs will adequately represent all plaintiffs in the class, and if there is a common character between the claims of all plaintiffs. The Court reasoned that, there being over 1200 plaintiffs in the initial class, there were clearly enough plaintiffs for the trial court to decide that a class action was fair. Also, the Court reasoned that the plaintiffs would likely all have similar damage from the toxic chemicals—namely, bodily injury and property damage—that would make the named plaintiffs adequate representatives of everyone in the class. Finally, the Court reasoned that the legal issues encountered by the plaintiffs were similar enough that there was a common character between them. For these reasons, the Court held that class action was appropriate to resolve the issues in the case.

Continue reading

by

Lake Charles casino slip-and-fall showcases negligence analysis

When New Orleans residents go into a business, they expect that the premises are safe. Most of the time businesses are. But when business owners and their employees fail to maintain safety, serious injuries can result. A recent case from the Court of Appeal for the Third Circuit shows how these instances play out in court.

The case arose from a slip-and-fall incident at a casino restaurant in Lake Charles. Butter was spilled on the floor near the buffet and, after being notified, an employee mopped the floor and put up a wet floor sign. Minutes later, a casino patron went to the buffet, slipped on the wet floor and wound up with a cracked patella and a torn meniscus. The trial court awarded the injured plaintiff over $20,000 in damages.

Continue reading

by

A mother in Alexandria, Louisiana (“Williams”) recently sued AT&T on behalf of her three-year old due to an unfortunate accident in one of the phone giant’s stores. Johnathan Davis, then two and a half years old, was playing on the floor of an AT&T store as his mother was shopping. While playing under and around a sandwich board sign in the corner of the store, he knocked it closed against a window. When the boy leaned over to pick up something he had dropped, the sign fell towards him, striking his head and sending him to the ground. Since the accident, Johnathan has suffered at least two seizures, causing his doctors to diagnose him with post-traumatic epilepsy and some serious cognitive issues.

The jury ruled in favor of AT&T, finding that Johnathan’s mother (the plaintiff) had not shown any negligence by AT&T. Williams appealed the decision, questioning whether certain instructions and interrogatories should have been given to the jury on negligence law. Jury interrogatories are sub-questions that the jury will need to decide in order to conclude on the issue at hand. In this case, in order to prove negligence, the jury had to decide whether the accident was caused by an unreasonably dangerous condition in order to conclude whether negligence was present. Jury instructions, on the other hand, are a set of legal instructions given to the jury to aid them in coming to a verdict, such as “If you believe A, B, and C occurred, then you must find D.”

Johnathan’s mother first argued that the jury verdict form should have included an interrogatory on general negligence. She believed that the verdict form was too narrow, essentially turning her claim into a premises liability case (“Was there an unreasonably dangerous condition without which the accident would not have occurred?”). On this issue, the appellate court affirmed the trial court decision, finding that the case was indeed a premises liability case since the plaintiff had not shown any negligence by the AT&T employees. Without any evidence of negligent conduct by the employees, the trial court was not required to put questions of general negligence on the verdict form. While his mother argued that none of the employees stopped the sign from falling on the child, the court found no evidence that the employees had even seen the sign falling. The appellate court upheld the trial court’s ruling.

Continue reading

by

Recently, the Vermillion Parish School Board sued various oil, gas, and mineral companies based on mineral leases that were established over a period of nearly 70 years. The companies included Union Oil Company of California, The Pure Oil Corporation, and ConocoPhillips Company. After the school’s argument was rejected at the lower level in separate lawsuits, the school filed to appeal the trial court’s decision. The State of Louisiana Court of Appeal for the Third Circuit reversed the lower court’s findings and its justification for doing so is quite interesting. That court addressed the mineral leases generally, the use of Section 16 lands, and the school’s role in the use of Section 16 lands.

This case involved several unique concepts under the law. First, the dispute centered around mineral leases, which are an curious concept themselves. Basically, mineral leases allow another person or company the ability to mine or take the minerals that are on or underneath a portion of land. In order to take those minerals, the person or company has to pay for their use as if they are renting the entire property. The land above ground might also be used for another purpose that is completely unrelated to mining of minerals, oil, or gas underneath the surface. In addition to a specified rent, many times the person or company who owns the land may also require that they receive a portion of the profits that the land produces. This profit portion is commonly referred to as royalties. These royalties are the topic of discussion in the Vermillion Parish School Board case.

In this case, a school owned lands that they had leased to various oil, gas, and mineral companies. The school was situated on Section 16 land. This concept is also unique and deserves some historical explanation. The State of Louisiana Court of Appeals for the Third Circuit provides some background on the status of this land. It explains that in 1806, the United States government set aside some land for the use of public education. Therefore, when Louisiana joined the Union in 1812, the land that was set aside was passed to the State to establish public education. These lands are separate from other public lands because they are completely under the control of the state school authorities; therefore, they are held in trust for the benefit of Louisiana school children. The court further explains that although the school authorities control the use of the land, the land is actually owned by the State of Louisiana.

Continue reading

by

Four workers who were employed by the Prairieville-based Proserve Hydro Co. were working on at a Honeywell International facility when a hose carrying chlorine gas ruptured, causing them injury. The workers sued Triplex, Inc., the company that had sold the hose to Honeywell, under the theory that it was liable for their injuries as the manufacturer of the hose. The U.S. District Court for the Middle District of Louisiana, applying the Louisiana Products Liability Act (LPLA), granted summary judgment in favor of Triplex, and the workers appealed.

In its review, the U.S. Court of Appeals for the Fifth Circuit noted that The Louisiana Supreme Court has identified four elements that a plaintiff must establish in a products liability suit under the LPLA. It focused particualrly on the requirement that the defendant must be the “manufacturer” of the product according to the state’s definition. The lower court’s summary judgment was based on Triplex’s position that it was not a manufacturer of the hose within the meaning of the LPLA. The hose in question was a “Resistoflex Chlorine Hose Part # HB30HB30HB-1560.” It consisted of a Teflon inner-core surrounded by a braided material jacket. The core and jacket were assembled by the Crane Resistoflex Company and shipped in bulk to Triplex for distribution. Upon receipt of an order from Honeywell, Triplex cut the hose to the requested length, installed Resistoflex-approved fittings to either end, and pressure-tested the hose. Triplex recorded the specifications of this work on an assembly test certificate which listed “Resistoflex” as the manufacturer of the hose.

The court looked to the LPLA to determine whether, based on its cutting the Resistoflex hose and installing the end fittings, Triplex fit the definition of “manufacturer.” It noted that the workers’ expert conceded that the hose rupture occured a significant distance away from any end fitting and did not appear to result from the modifications Triplex performed. It also affirmed the point that “the simple act of testing a product after modifications,” as Triplex did, “does not transform a seller into a statutory ‘manufacturer.’” The court was not persuaded that Triplex exercised any “control over… a characteristic of the design, construction or quality of the product,” given that Honeywell specified the exact Resistoflex part number and the end fittings it required. Accordingly, the court concluded that Triplex was not a manufacturer under the state law definition, and therefore could not be found liable for the workers’ injuries under the LPLA.

Continue reading

by

In 1960, Hunt Petroleum Corporation (“Hunt”) entered into a surfaces lease with the Reynolds family. In 1997, Kinder Gas Processing Corporation (“Kinder Gas”), one of Hunt’s successors in interest, notified the Reynolds of an environmental study “that showed a few things [Kinder Gas] wanted to clean up,” and that it was “in the process of cleaning them up.” Over several years, Kinder Gas discussed with the Reynolds the possibility of buying part of the property and cancelling the entire lease. On January 14, 2008, the Reynolds (through a real estate appraiser) offered to sell the entire property to Kinder Gas. The offer referred to environmental problems on the property caused by Kinder Gas or its predecessors.

In 2010, Kinder Gas brought suit for a declaratory judgment against the Reynolds to avoid liability for damage to the Reynolds’ property. In turn, the Reynolds sought damages against Kinder Gas and other successors (“the Gas Companies”) in connection with toxic wastes that were spilled or disposed on the property. The Reynolds relied on theories of strict liability, nuisance, continuing trespass, and breach of contract. They asserted that the lease was cancelled as a result of the Gas Companies’ breach of contract. The Gas Companies countered that the tort claims had prescribed, and that the breach of contract claim was premature.

The Kinder Gas v. Reynolds trial court agreed with the Gas Companies, finding that the Reynolds’ had constructive knowledge of possible contamination prior to the real estate agent’s January 14, 2008 offer. Citing Marin v. Exxon Mobil Corp. and Hogg v. Chevron USA, the court held that the Reynolds’ failure to file their tort claims within a year from this date resulted in prescription. The court also found that the lease was still in effect. Relying on Dore Energy Company v. Carter-Langham, Inc., the court held that the Reynolds’ contract claim for restoration of land on which operations were ongoing was premature.

Continue reading

by

In Louisiana v. Louisiana Land and Exploration, the State of Louisiana and the Vermilion Parish School Board brought suit against Union Oil Company of California (“Unocal”) and other oil companies for remediation of polluted state property in Vermilion Parish. Unocal admitted that it was responsible for environmental damage on the property and filed a motion to refer the case to the Louisiana Department of Natural Resources (LDNR) pursuant to Act 312 of 2006, La.R.S. 30:29. Plaintiffs objected, arguing that such a referral could not take place until all Defendants admitted responsibility and the private claims were tried to the jury. The trial court agreed with Plaintiffs.

Unocal filed a motion for partial summary judgment limiting Plaintiffs’ remediation damage claims to the amount determined by LDNR to be “the most feasible plan to evaluate or remediate the environmental damage” under La.R.S. 30:29(c)(3). Unocal argued that this language served as a cap on remediation damages resulting from a tort or the implied restoration obligation of a mineral lease. The trial court agreed.Plaintiffs appealed to the Louisiana Third Circuit Court of Appeals, which issued a decision on the case on February 1, 2012.

In considering whether La.R.S. 30:29 limited Plaintiff’s recoverable remediation damages to the cost of a “feasible plan,” the appeals court first looked to the language of the statute. The court quoted the first sentence of La.R.S. 32:29(H): “This section shall not preclude an owner of land from pursuing a judicial remedy or receiving a judicial award for private claims suffered as a result of environmental damage, except as otherwise provided in this Section.” The court found that this language clearly contemplated the landowner receiving an award in addition to that provided by the feasible plan.

Continue reading
Contact Information
1140 St Charles Ave
New Orleans, LA 70130
Phone: (504) 521-6000
Fax: (504) 617-6300

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

Please do not include any confidential or sensitive information in a contact form, text message, or voicemail. The contact form sends information by non-encrypted email, which is not secure. Submitting a contact form, sending a text message, making a phone call, or leaving a voicemail does not create an attorney-client relationship.

Copyright © 2016 – 2024, Berniard Law Firm
JUSTIA Law Firm Blog Design