Articles Posted in Strict Liability

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In 1996, a group of plaintiffs filed a petition for damages against the city of Baton Rouge/Parish of East Baton Rouge alleging that the operation and maintenance of the North Wastewater Treatment Facility caused personal inconvenience, mental suffering, embarrassment, and personal injuries, threatening their health and safety, as well as damaged their land and property. The trial court awarded monetary damages to nineteen plaintiffs for stigma damages and added plaintiffs back who had been dismissed for no property interested, awarding damages for discomfort and inconvenience. However, in a 2009 decision (that can be found here: 2009CA1076), the Louisiana Court of Appeals reversed many of the damage awards based on errors of law.

On appeal, the Louisiana Court of Appeals considered whether the trial court erred because the prescriptive period had expired, erred in awarding damages out of the 1997 expansion of the plant, or erred calculating damage amounts. Under La.R.S.9:5624, the prescriptive period for public property damage claims like this one is two years. The court agreed with plaintiffs that the period did not lapse because the latest expansion of the sewage plant can be viewed as a new public work event – thus plaintiffs were only responsible to file suit within two years of the 1998 expansion, not within two years of the plant’s original opening in 1960.

The trial court awarded damages under Article I Section 4 of the Louisiana Constitution, which provides that “property shall not be taken or damages by the state or its political subdivisions except for public purposes and with just compensation paid to the owner.” The Louisiana Supreme Court has addressed inverse condemnations like this one in the past (where the state is not taking other’s property, but rather damaging it through their own property) and noted that “Despite the legislative failure to provide a procedure to seek redress when property is damaged or taken without the proper exercise of eminent domain this Court has held that a cause of action must arise out of the self-executing nature of the constitutional command to pay just compensation.” As such, individuals whose land is damaged by the government have constitutional redress.

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Previously on this blog, we examined the concept of a “substitute vehicle” for purposes of extending insurance coverage for an auto that is used only temporarily and in place of a policyholder’s usual car. In this situation, the insurer is required by state law to extend the same coverage to the substitute car as was in place for the regular vehicle. This requirement, however, does not necessarily apply to a vehicle that a driver simply borrows from another ownerin addition to the vehicle covered by his policy. A vehicle under this arrangement is known as a “non-owned” auto and, as the plaintiff in Burns v. Couvillionlearned, coverage is determined by the language of the owner’s policy.

On October 12, 2005, Linda Burns was driving on Highway 1 in Simmesport when she was rear-ended by a bean harvester farm vehicle operated by Burton Dupuis. At the time of the accident, Dupuis was engaged in work for his employer, Victor Lachney. The bean harvester was owned by Ted and Don Couvillion and had been loaned to Lachney for use by Dupuis that day. Burns filed a lawsuit for damages against the parties and also Progressive Insurance, alleging that Progressive had issued a policy to Lachney which applied to the bean harvester. Progressive admitted that it had issued a policy to Lachney that provided coverage on a different vehicle but denied that coverage extended to the bean harvester. The parties filed cross-motions for summary judgment and the trial court granted judgment in favor of Progressive.

On appeal, Burns argued that coverage should apply to the bean harvester because the Progressive policy included an “Employer’s Non-Ownership Liability Endorsement,” which stated that “[t]he definition of insured auto is modified to include a non-owned auto when you or any of your employees use the non-owned auto in your business.” Progressive countered that the policy had not been modified by the Endorsement because, although it was among the various endorsements and other forms that accompanied the policy, it was not listed on the policy’s Declarations Page which specifically identified the forms that modified the policy. In fact, the policy contained the following language:

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Under Louisiana law, an issuer of a property insurance policy is required to follow certain procedures when renewing the policy. Essentially, an insurance company must give a property owner 30 days’ notice of either 1) its decision not to renew a policy, or 2) the homeowner’s option to renew when it expires. La. R.S. 22:887(G). Case law adds the stipulation that, in most cases, an insurer’s failure to provide this notice will result in an automatic renewal of the policy. If there is a dispute, the insurer faces an initial burden to prove that it mailed the required notice, which creates a presumption the insured received the notice. The property owner may rebut this presumption by offering evidence that the notice was never delivered. The ultimate factual determination must be made by the trial court.

The Louisiana Supreme Court recently reaffirmed this approach in the case of Nolan v. Mabray. On June 18, 2005, Wilson Mabray and Marsh Nolan were shooting off fireworks at Mabray’s family farm in Union Parish. Wilson shot a bottle rocket which struck and severely injured Marsh. Wilson’s father (“Mabray”) maintained a farm-owner’s policy issued by Shelter Insurance Company. When March sued for his injuries, Shelter disputed that the policy was in effect at the time of the accident, arguing that the policy had lapsed: Shelter asserted that it mailed Mabray a renewal notice on April 28, 2005 which stated the premium was due on June 2, 2005. However, the company did not receive payment until nearly a month late, on June 29, 2005. At trial, a Shelter employee offered testimony about the company’s computer-generated renewal notices and automated mailing process. The employee produced records of the company’s April 28 letter and also a separate “lapse letter” mailed on June 20 that warned Mabray his policy had been cancelled. Mabray’s local agent, who was copied on the lapse letter, personally contacted Mabray on June 29 and collected payment the same day. On the issue of whether he ever received the renewal notice, Mabray testified by way of deposition that he did not remember receiving it, and that if he had, he would have paid the premium right away. However, Mabray testified it was possible he overlooked the notice as April through June were especially busy months on the farm during which he “might have stuff sit on [his] desk for a couple of weeks before it gets opened.” Mabray further stated that “[he] could certainly not swear that it did not come to [his] mailbox and actually get on [his] desk.” He also admitted that several other insurance policies with Shelter had lapsed in the past because he did not pay the premium on time. Based on this evidence, the trial court found that Shelter did mail the renewal notice to Mabray on April 28, 2005 and, therefore, the policy was not in effect at the time of the bottle rocket incident because it had lapsed.

The Second Circuit reversed, finding that there was insufficient evidence to support the trial court’s conclusion that the renewal notice had been mailed. This decision was based primarily on the fact that Shelter did not introduce evidence of any person’s actual knowledge that the notice was mailed. The Louisiana Supreme court disagreed. Applying the manifest error standard of review, the Court held that

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In Louisiana, a general tort claim has a prescriptive period of one year. This means that the plaintiff must file a claim within one year of the injury bringing about the claim. The prescriptive period has been implemented by the Louisiana legislature in LSA-C.C. art 3492 and a brief summary gives us the following guidelines:

These actions must be filed within one year. The year mark starts on the day that the injury or damage occurs on however, there are some exceptions to this rule of one year. The exceptions would be in the individual is a minor or actions involving individuals with permanent disability, brought under the Louisiana Products Liability Act or the law of the state which governs actions of product liability at the time the injury or damage has occurred.

Thus, no one except a child or interdict can complain of the prescriptive period because it is clearly established by law. All attorneys are aware of this period and any action, in order to be timely, must be filed within the one year period. However, Louisiana law also states that this period can be altered by legislation. This means that article 3492 is a fall back provision for cases where the legislature has not created another sort of prescriptive period. Different prescriptive periods are implemented due to the nature of the injury or damage. For example, medical malpractice claims also have a general one year prescriptive period, but the legislation creates leeway to bring a claim past the one year prescriptive period. The prescriptive period for a survival claim based on medical malpractice is implemented by LSA-R.S.9:5828 as follows:

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On June 23rd in Hammond, Louisiana, there was a fatal vehicle crash in the southbound lanes of Interstate 55. A Mercedes SUV, driven by Gwendolyn Jackson, was heading the wrong way and collided with a Hyundai driven by 18 year-old Caleb Perricone. The vehicles collided head on and both Jackson and Perricone were transported to Northoaks Hospital, where Jackson was treated for moderate injuries but Perricone was pronounced dead.

Jackson is suspected of drug impairment and the results of her toxicology test should be soon forthcoming. After she was released from the hospital, she was charged with Vehicular Homicide, Traveling the Wrong Way on a One Way Roadway, and 1st offense Driving While Intoxicated. She was booked at the Tangipahoa Parish Jail in Amite. Though Jackson will have to answer to the State of Louisiana for her allegedly criminal conduct, the result of those proceedings will hardly address the harm and grief inflicted on Perricone and his family.

In order to compensate the people in Perricone’s life for the loss of his love, affection, companionship, support, and funeral expenses, the Perricone family might want to consider filing a lawsuit against Jackson and her insurance policy under the theories of Wrongful Death and Survival.

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Medical Malpractice Claims Against Public Sector Health Providers Must Be Submitted to a Medical Review Panel

The State of Louisiana Division of Administration, headquartered in Baton Rouge, requires that that medical malpractice claims against public sector health care providers must be processed through its administrative procedure, starting with the submission of the claim to the Commissioner of Administration.

A request for a Medical Review Panel must be in writing and contain:

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In the Parish of Acadia, the Third Circuit Court of Appeal decided a case that clarifies how punitive damage awards are to be applied to vicarious liability cases. In Bonnie Romero v. Clarendon America, Bonnie Romero (plaintiff) was hit by an 18 wheeler truck. The truck was driven by an employee of Stanford Trucking (Stanford). In their filing, the plaintiff argues that the truck was being driven within the scope of the truck driver’s employment. Plaintiff also alleges that the driver was intoxicated at the time of the accident. Stanford asked the driver to submit to a drug and alcohol test following the accident. The driver refused to submit to the test and was subsequently fired. Plaintiff filed for summary judgment asking the court to award punitive damages against Stanford because it was vicariously liable for the driver’s actions. Plaintiff also filed a motion to compel Stanford to submit to requests for discovery. Stanford cross-filed for summary judgment stating that it was not vicariously liable for punitive damages as a matter of law. The trial court granted Stanford’s summary judgment and denied both of plaintiff’s motions.

The Court started its discussion by stating that in Louisiana there is a strong public policy against punitive damages. Thus, in order for an award for punitive damages, the right must be clearly signified in a statute. Even if a statute created a right for punitive damages, it would be strictly construed by a court. As such, it is a matter of how Louisiana statutes are worded in order to determine whether a right for punitive damages exists in a vicarious liability case. Louisiana Civil Code Article 2315.4 states in pertinent part,

exemplary damages may be awarded upon proof that injuries on which the action is based were caused by wanton or reckless disregard for the rights and safety of others by a defendant whose intoxication while operating a motor vehicle was a cause in fact of the resulting injuries.

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The appellate process in the American judicial system is an important aspect of rights afforded to parties in a litigation. The determinations made at the trial court level are usually left unchanged. The factual analysis of the trial court is left unchanged except under extreme circumstances. It would take a fundamental error on the part of the trial judge to be reversed on a factual matter. Even more protected is the credibility determinations made by the trial judge. The reason for this is that trial judges are usually the only ones who are present to view the body language and tone of voice of any witness on the stand. Further, the trial judge is usually the one who is the best equipped to make appropriate credibility determinations due to experience. An appellate court would have to find the factual and credibility determinations made by a trial judge to be wholly unsupported by the evidence in order to overturn a trial court determination. Louisiana law states that a court of appeal may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Regarding credibility determinations, the law in Louisiana states that where testimony conflicts, an appellate court should not disturb the factual findings of the trial court because it feels that its evaluations and inferences are more reasonable.

Shakeya Johnson v. The City of Shreveport, is a recent case that outlines the process by which an appellate court can review a trial court’s determination. On July 4th, 2007, in the city of Shreveport, Shakeya Johnson (plaintiff) was driving down Creswell avenue. As she approached the intersection with Marshall street, where the intersection on her road was regulated by a red traffic light, a police officer was headed towards the same intersection from Marshall street, where his road was regulated by a yellow traffic light. This meant that, at the intersectio,n Shakeya was supposed to make a complete stop as if she were at a stop sign. Instead of doing this, she ran the into the intersection and into the passenger side of the police officer’s vehicle. After the accident, she filed suit claiming that the police officer was at fault for the accident and was liable for lost wages and medical expenses incurred due to the accident. Further, Shakeya’s mother, Shirley, was also a plaintiff because she was the owner of the vehicle and claimed that the officer was liable for damage to her property. The trial court found, based on the evidence at hand, that the evidence available indicated that Shakeya was at fault for the accident.

The facts used by the trial court were based on photos that showed that Shakeya’s side of the intersection was regulated by a red light. Thus, she had the responsibility to stop at the intersection. Further, photos showed that the officer’s passenger side was hit, which indicated that the officer was well in the intersection by the time Shakeya got there. At trial, there was contradiction from the plaintiff’s witnesses as to whether there was a fifth passenger in the vehicle that Shakeya was driving that night. This led the judge to make a credibility determination of plaintiff’s witnesses that was also used in the trial judge’s ultimate determination. The issue on appeal is whether the trial court’s findings were reasonable under the evidence presented at trial. It was clear to the appellate court that the factual and credibility determinations made by the trial court were reasonable. Thus, the appellate court upheld the trial court’s determination.

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In a recent unpublished opinion, a panel of the Louisiana 1st Circuit Court of Appeal affirmed a trial court’s award of additur in a personal injury lawsuit stemming from a low-speed rear-end automobile accident occurring in Terrebonne Parish in October 2005. The plaintiff sued for damages for personal injuries, medical expenses, and loss of wages, as well as loss of consortium for his wife and their two minor children. The jury returned a unanimous verdict allocating 70% of the fault to defendants, a towing company, its driver, and the truck’s insurer. They awarded damages to plaintiff and his family for the following: past physical pain and suffering, physical disability, impairment, and inconvenience, the effect of plaintiff’s injuries and inconvenience on the normal pursuits and pleasures of life, loss of past income, impairment of future earning capacity, past medical expenses, and loss of consortium.

In this matter, plaintiffs filed a motion for judgment notwithstanding the verdict (JNOV) or Alternatively for a New Trial and/or Additur as to both the allocation of fault and the amount of damages. After a hearing, the trial court granted plaintiffs’ motion for additur and increased the general damages award (which includes past physical pain and suffering, physical disability and impairment, the effect of the injuries and inconvenience, mental anguish, and future pain and suffering) from $28,000 to $100,000 and otherwise denied the motion. The defendants in the case appealed the decision, asserting that the jury did not abuse its discretion in awarding $28,000 (which was determined to be the case when the award was increased) in general damages and that the trial court abused its discretion by increasing the general damages award to $100,000. Plaintiffs, on the other hand, asserted that the additur was improperly low, the jury erred in its allocation of fault and damages, the trial court should have granted JNOV, and that the jury’s decision was a “compromise” or “quotient jury” verdict. Other procedural deficiencies were noted and eventually corrected.

The main issues upon appeal were: 1) whether the jury was unreasonable in allocating fault 70%-30% between the defendants and plaintiff, 2) whether a general damages award of $28,000 was unreasonably low and whether the trial court’s resulting additur to $100,000 was improper, 3) whether the trial court erred in refusing to grant JNOV, and 4) whether the jury compromised its damage awards and did not fully deliberate on all of the issues.

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During litigation, competent legal counsel must make efforts to concentrate on two things. First, legal counsel must make sure that all of the most recent cases, statutes, and regulations are being used for litigation. It is embarrassing for legal counsel and risky for a client to proceed before court with expired or outdated law. The impact of such a scenario could mean the prolonging of litigation and a negative overall perception towards the case from the judge. Second, competent legal counsel must pay very close attention to procedural steps needed for successful litigation. This means that all motions and requests for evidence must be made in a timely manner. The art of litigation requires a very structural approach with one step occurring before the next. If one step within the process is missed, misconstrued, or untimely, the result could spell the end of litigation and the client’s claim.

The reason for such strict adherence to procedural steps is due to an effort to expedite an already heavily time-burdened legal system. The procedural steps facilitate quick and systematic approaches to litigation. In a recent case, Percival Franklin v. Allstate Insurance Co., the plaintiff was dealt a blow by the implications of untimely filing.

The case began as many other vehicle-based legal issues do. There was an accident, which was followed by an injury to one of the passengers. The plaintiff in the case sued the driver of the other vehicle and that driver’s auto insurance. During the litigation process, the defendants filed certain exceptions with the trial court. After review, the trial court agreed to the exceptions and the trial was deemed over at that point. The exceptions were sustained on March 29, 2010. The notice of judgment was mailed on April 7, 2010. On May 24, 2010, plaintiff filed for a new trial which was denied on June 2, 2010. The notice of judgment of this decision was mailed on June 7, 2010. On August 13, 2010, plaintiff filed a motion for appeal. The trial court granted this motion on August 17, 2010. The Appellate court asked the plaintiff why it should not dismiss the appeal as being untimely. Plaintiff stated that under LA.CodeCiv.P.art 2087, the appeal was timely because it was filed within 58 days of the trial court’s denial of a new trial. Before reaching its judgment, the Appellate Court described errors in the way the plaintiff viewed the applicable dates. Plaintiff cites that the new trial was denied on June 7, 2010 and that the motion for appeal was filed on August 5. The Court stated that, based on the record, the new trial was denied on June 7 and the appeal was filed on August 13.

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