Louisiana Personal Injury Lawyer Blog
Louisiana, like many other jurisdictions, has adopted the doctrine of comparative fault. Prior to comparative fault, many plaintiffs were denied recovery from a negligent wrongdoer if they also were negligently at fault (according to the doctrine of contributory negligence). Comparative fault alleviated this harsh rule of contributory negligence and, for some time now, Louisiana Law has provided relief for an injured plaintiff, even if said plaintiff was negligent as well. For instance, if an injured plaintiff filed suit and the jury decided that the defendant was responsible for 15% of your injuries, that defendant would be liable for 15% of the damages. Such a rule promotes a fairness, but how does this rule comport with legal fees?
Trial itself isn’t free, and in many cases expert testimony is crucial. The general rule is that the percentage of fault assigned applies to court costs as well.
In a recent case, Davis v. State of Louisiana, there was an automobile accident where the jury found DOTD 25% at fault but the judge, rather than assigning DOTD 25% of the costs, assigned them 100% of expert fees and clerk’s costs.
Although the defendant was only assigned 25% of the fault, the plaintiffs were assigned 0%. The Davises were the parents of a passenger while the other plaintiffs were the surviving children of the driver. The court, seeing that none of these plaintiffs had any “blood on their hands,” held that fairness could not allow them to pay. In other words, the interest that a wrongdoer only pay what is proportional to his fault is trumped by the policy that a party with no fault be forced to pay out of pocket.
Of course the defendants posed an argument, and although their motion to have plaintiffs pay their fair share (75%) failed, they appealed. Although the appellate court affirmed the trial court’s decision (and assigned costs of appeal to defendant as well), the appeal was useful in giving us a better idea of when the courts might veer from the general rule that a party only pay his or her proportional share.
The Court of Appeals reasoned that the trial court does not abuse its discretion by assigning all costs to the defendant if the defendant is the only guilty party in the room. The appellate court synthesized this rule from reviewing prior cases.
In Starr, a driver negligently crashed while taking a sharp turn. The passengers sued the deceased driver’s estate. The representatives of that estate, however, sued DOTD for negligently failing to place a warning sign for such a dangerous turn. When the jury found DOTD 24% and the driver 76% at fault, the judge granted the driver’s heirs’ motion that DOTD pay all costs. However, in that case, the only living “wrongdoer” was in the courtroom, and the case concerned a single car accident. Therefore, the court found the two car accident of Davis more applicable.
In Davis, the Plaintiff settled with the oncoming driver but DOTD remained in trial until judgment was entered. Even after the jury found that the other driver was 60% of fault, leaving only 40% of fault to DOTD, the trial court assessed all of the costs to DOTD. Upon appeal, the Court of Appeals found this acceptable, given that DOTD was the only remaining defendant. Thus, the trial courts are within the bounds of their equitable discretion when granting motions to assign a lone defendant all costs, rather than the percentage equal to its apportioned to fault.
What does this mean to you?
If you have been injured in an accident and are not personally negligent, costs as a general rule are assigned to the party at fault. However, when multiple parties are at fault each party only pays for its share of the damages. Cases with more parties require more litigation, involving cross-claims and experts, and as a result parties incur more costs. However, these cases provide that the faultless party can be protected from having to pay.
A trial court’s decision to assign costs inconsistent with apportioned fault is discretionary, but with proper legal advocacy, the courts seem to favor the innocent plaintiff. Although no defendant is required to pay for more of a plaintiff’s damages than that proportional to his apportioned fault, the courts will allow for a well-pleaded motion that pay the total cost. After all, the case is before the court because the defendant required the plaintiff use the court’s authority to make them write the check.
It requires experienced legal representation to properly and effectively avail you to every measure of relief available. If you have a claim but are deterred by the costs of comparative fault litigation, contact the Berniard Law Firm.
Our law firm is fully capable of meeting your litigation needs. Call the Berniard Law Firm at Toll-Free at 504-521-6000 and an attorney specializing in automobile accidents and/or comparative fault will be more than happy to help you get you the remedy deserve.