December 14, 2014

Best Law Firms® Recognizes Baton Rouge law firm Due', Price, Guidry, Piedrahita & Andrews

Thumbnail image for 2015_BLF_Silver_Standard.jpgSince its inception, Best Lawyers® and U.S. News & World Report Best Law Firms® rankings have recognized the Baton Rouge, Louisiana law firm of Due', Price, Guidry, Piedrahita & Andrews. For 2015, Best Law Firms recognizes Due', Price, Guidry, Piedrahita & Andrews in the following four practice areas:

(1) Personal Injury Litigation - Plaintiffs
(2) Product Liability Litigation - Plaintiffs
(3) Medical Malpractice Law - Plaintiffs
(4) Admiralty & Maritime Law

Additionally, Paul H. Due' and Donald W. Price have been selected for inclusion in The Best Lawyers in America® 2015, and Paul H. Due' was selected by Best Lawyers® as the Personal Injury Litigation 2015 Lawyer of the Year for Baton Rouge, Louisiana.

December 6, 2014

Paul H. Due' Selected as 2015 Personal Injury Litigation "Lawyer of the Year" for Baton Rouge Louisiana



Due', Price, Guidry, Piedrahita & Andrews attorney Paul H. Due' was recently selected by his peers as 2015 "Lawyer of the Year" for Personal Injury Litigation - Plaintiffs in the Baton Rouge, Louisiana area. Paul H. Due' received this same honor in 2009.

Only a single lawyer in each practice area and designated metropolitan area is honored as the "Lawyer of the Year," making this accolade particularly significant. These lawyers are selected based on particularly impressive voting averages received during the peer-review assessments.

Receiving this designation reflects the high level of respect a lawyer has earned among other leading lawyers in the same communities and the same practice areas for their abilities, their professionalism, and their integrity.

In addition to the 2015 Lawyer of the Year award, Paul H. Due' was also listed in the 2015 Best Lawyers in America in the following practice areas:

Admiralty and Maritime Law
Product Liability Litigation - Plaintiffs
Personal Injury Litigation- Plaintiffs

Since it was first published in 1983, Best Lawyers has become universally regarded as the definitive guide to legal excellence. Paul H. Due' has been recognized by Best Lawyers every year since 1995.

Paul H. Due' began his legal career after finishing first in his law school class at the LSU Paul M. Hebert Law Center in 1966. His Baton Rouge, Louisiana personal injury law firm, Due', Price, Guidry, Piedrahita & Andrews, focuses on trial and appeals of complex personal injury, brain injury, burn injury, and wrongful death litigation, including car wrecks, truck accidents, and motorcycle accidents.

Paul H. Due', a past-president of LAJ, had previously been honored with the LAJ President's Award and the LAJ Stalwart Award. Paul is a Life Member of the Million Dollar Advocates Forum and has been selected for inclusion in Louisiana Super Lawyers since its inception.

Continue reading "Paul H. Due' Selected as 2015 Personal Injury Litigation "Lawyer of the Year" for Baton Rouge Louisiana" »

October 16, 2014

UM Coverage Can be Provided by Contract (in the Insurance Policy) or By Law (La.R.S. 22:1295)

Insurance.jpgAshanti Green v. Michael Johnson, 2014-0292 (La.10/15/14), with Justice Hughes writing for the Louisiana Supreme Court, held that since the Allstate auto policy at issue contractually included UM coverage, the express provisions of the policy (or contract) governed whether UM coverage existed for the accident, and statutory UM coverage under La. R.S. 22:1295 was not at issue.

Plaintiff co-owned a motorcycle with a friend. When plaintiff was killed by an underinsured motorist, his beneficiaries filed a claim for UM benefits against the co-owner's Allstate auto policy. The express terms of the Allstate auto policy did not provide for bodily injury liability coverage, but did provide for UM coverage.

In granting summary judgment in favor of Allstate, the lower courts relied on jurisprudential language holding that, "it is well-settled that a person who does not qualify as a liability insured under a policy of insurance is not entitled to UM coverage under the policy" as a basis for finding that there was no UM coverage for the accident at issue under the co-owner's Allstate policy. The Louisiana Supreme Court reversed, holding that this jurisprudential language is limited to the provision of "statutory" UM as required by La.R.S. 22:1295, and does not apply to UM that is actually provided for in the insurance policy (or contract). Thus, the Louisiana Supreme Court concluded that even when an insurer is not required by law to provide UM coverage because the policy does not provide liability coverage, the insurer is nevertheless free to contract to provide UM coverage.

After analyzing the Louisiana Supreme Court jurisprudence, the Supreme Court articulated that when the existence of UM coverage under a policy of automobile insurance is at issue, Magnon v. Collins, Succession of Fannaly v. Lafayette Insurance Company, Filipski v. Imperial Fire & Casualty Insurance Company, and Cadwallader v. Allstate Insurance Company demonstrate a two-step analysis:

(1) the automobile insurance policy is first examined to determine whether UM coverage is contractually provided under the express provisions of the policy; and

(2) if no UM coverage is found under the policy provisions, then the UM statute (La.R.S. 22:1295) is applied to determine whether statutory UM coverage is mandated.

See also Bernard v. Ellis, 11-2377 (La. 7/2/12), 111 So.3d 995, 1000 (recognizing that an automobile insurance policy must first be examined for contractual UM coverage, and if contractual coverage is absent, "if a plaintiff is insured under the auto liability coverage, he is entitled to UM coverage" (citing Magnon v. Collins and Filipski v. Imperial Fire & Casualty Insurance Company)). If there is express contractual UM coverage in the policy, it is unnecessary to apply the UM statute to determine whether UM coverage is statutorily mandated.

In this case, the Allstate auto policy provided UM coverage to the plaintiff because he met the definition of an "insured person" since he was a "person while in, on, getting into or out of an `insured auto' with [the policyholder's] express or implied permission." The co-owned motorcycle qualified as an "insured auto" for purposes of UM coverage since it was an after-acquired "land motor vehicle" as set forth in the policy.

The motorcycle did not qualify as an "insured auto" for purposes of liability coverage since it was not an after-acquired "four wheel" auto as set forth in the policy.

Thus, the distinction between the UM provisions and the liability provisions vis-à-vis coverage was that the UM provisions included within the definition of "insured auto," for coverage as an after-acquired vehicle, a "land motor vehicle," which would encompass a motorcycle, while the liability provisions included within the definition of "insured auto," for coverage as an after-acquired vehicle, only a "four wheel" auto, which would exclude liability coverage for a motorcycle.

The Louisiana Supreme Court found no ambiguity in this Allstate policy; the parties clearly intended to extend greater UM coverage to after-acquired vehicles, by defining an "insured auto" to encompass any "land motor vehicle" (with only three listed exceptions), than for liability coverage, which was limited to "four wheel" autos. The inclusion in the policy of differing definitions for "insured auto" in differing coverage sections produced no absurd consequences, and the policy was applied as written.

Continue reading "UM Coverage Can be Provided by Contract (in the Insurance Policy) or By Law (La.R.S. 22:1295)" »

October 16, 2014

No Duty To Warn Against Dangerous or Defective Conditions that are Obvious and Apparent to All

Thumbnail image for Thumbnail image for Slip Trip and Fall and Premises Liability.jpgBufkin v. Felipe's Louisiana, LLC, 2014-0288 (La.10/15/14), with Justice Hughes writing for the Louisiana Supreme Court, granted summary judgment in favor of a contractor because the contractor owed no duty to warn of the obstruction presented to pedestrians by a pick-up sized dumpster, a large inanimate object visible to all, placed on the sidewalk. The allegedly dangerous or defective condition was obvious and apparent, or stated differently, was open and obvious to everyone who may potentially encounter it.

The plaintiff was walking down the sidewalk when he encountered a dumpster obstructing the sidewalk that the plaintiff had known was present for more than four months. Before crossing the one-way street, the plaintiff looked in the direction of oncoming traffic, but failed to look in the opposite direction past the dumpster. While crossing the street, the plaintiff was hit by a bicycle traveling in the wrong direction on the one-way street.

The specific issue before the Louisiana Supreme Court was whether the sidewalk condition, created by the contractor's allegedly insufficient posted warnings and the placement of the large curbside dumpster, produced a vision obstruction for pedestrians crossing the street at that location that was unreasonably dangerous, and, if so, whether the contractor owed a duty to place additional warnings on its signage and/or to construct a buffer zone that would mitigate against any vision obstruction created.

The Louisiana Supreme Court held that the evidence presented by the contractor on motion for summary judgment established that any vision obstruction caused by the dumpster to a pedestrian crossing the street was obvious and apparent and reasonably safe for persons exercising ordinary care and prudence. The Court further reasoned that the size of the dumpster was comparable to a pick-up truck and was the type of situation any pedestrian might encounter on a regular basis.

Once the contractor demonstrated that the plaintiff would be unable to prove that a duty was owed to him by the contractor, the burden shifted to the plaintiff to demonstrate that he would be able to meet that burden at trial. The plaintiff failed to produce any affidavit, deposition, or other evidence admissible on motion for summary judgment to show that the contractor did have a duty to warn pedestrians of the obstruction or take extra measures to aid pedestrians to see around the obstruction.

Continue reading "No Duty To Warn Against Dangerous or Defective Conditions that are Obvious and Apparent to All" »

October 7, 2014

Best Lawyers in America® Recognizes Baton Rouge Lawyers Paul H. Due' and Donald W. Price

BestLawyers.png
2 lawyers from Due', Price, Guidry, Piedrahita & Andrews are listed in The Best Lawyers in America© 2015.

Paul H. Due' was selected by his peers for inclusion in The Best Lawyers in America© 2015 in the fields of Admiralty and Maritime Law, Personal Injury Litigation-Plaintiffs; and Product Liability Litigation-Plaintiffs.

Donald W. Price was selected by his peers for inclusion in The Best Lawyers in America© 2015 in the fields of Medical Malpractice Law-Plaintiffs; and Personal Injury Litigation-Plaintiffs.

Best Lawyers has published their list for over thirty years and has earned the respect of the profession, the media, and the public as one of the most reliable, unbiased sources of legal referrals.

"Best Lawyers is the most effective tool in identifying critical legal expertise," said President and Co-Founder Steven Naifeh. "Inclusion on this list shows that an attorney is respected by his or her peers for professional success."

Lawyers on the Best Lawyers in America list are divided by geographic region and practice areas. They are reviewed by their peers on the basis of professional expertise, and undergo an authentication process to make sure they are in current practice and in good standing.

Continue reading "Best Lawyers in America® Recognizes Baton Rouge Lawyers Paul H. Due' and Donald W. Price" »

September 28, 2014

John deGravelles Sworn in as United States District Judge for the Middle District of Louisiana

Judge John deGravelles.jpgCongratulations to Judge John W. deGravelles. Judge deGravelles was recently sworn in as United States District Judge for the Middle District of Louisiana. Judge deGravelles is a judge we can all be proud of!

Judge deGravelles graduated in 1974 from the LSU Paul M. Hebert Law School as a member of the Order of the Coif (graduating in the top 10% of his class). Judge deGravelles was a partner at deGravelles, Palmintier, Holthaus & Frugé LLP (and its predecessor firms) for more than 25 years. He was a solo practitioner from 1986 to 1987, and from 1974 to 1986, Judge deGravelles worked at the law firm of Due', Dodson, deGravelles, Robinson & Caskey (and its predecessor firms), where he became a partner in 1976.

Paul H. Due' of the Baton Rouge, Louisiana personal injury law firm of Due', Price, Guidry, Piedrahita & Andrews proudly served on Judge deGravelles's investiture committee.

July 6, 2014

Private Cause of Action Exists in Louisiana for Prohibited Balance Billing by Medical Providers

The Louisiana Supreme Court held that a patient has (1) an implied private right of action for damages against a health care provider under the Health Care and Consumer Billing and Disclosure Protection Act, La. R.S. 22:1871, et seq., "Balance Billing Act"); and (2) an express direct right of action under La. R.S. 22:1874(B) based on the assertion of a statutory medical lien in accordance with La. R.S. 9:4752. Yana Anderson v. Ochsner Health System and Ochsner Clinic Foundation, 2013-2970 (La. 7/1/14).

La.R.S. 22:1874, in pertinent part, prohibits a health care provider from collecting or attempting to collect amounts from an insured patient in excess of the contracted reimbursement rate. The title of the Act, La. R.S. 22:1871, et seq., is the "Health Care Consumer Billing and Disclosure Protection Act." While it is silent as to a private cause of action for violations of the Balance Billing Act, this language makes clear that the legislature enacted this statutory scheme with protection of the consumer in mind. The Louisiana Supreme Court reasoned that it is difficult to envision a law denying recourse to individuals when that law's principle aim is individual protection. Further, the Supreme Court found that when taken as a whole, the Balance Billing Act reveals an intent to make the burden on the violator more onerous, not less. The Supreme Court concluded that: "it would be incongruent to rule that a law intended to punish violators and protect consumers would operate in a manner that prohibits an individual's access to the courts to redress the very violation that is proscribed."

The Supreme Court also held that the La.R.S. 22:1874 provides an express direct right of action against a healthcare provider who attempts to balance bill by assertion of a medical lien on a patient tort recovery in accordance with La. R.S. 9:4752, which allows for a "medical lien" in favor of health care providers who provide services to an "injured person."

In Anderson, a personal injury automobile accident victim who was insured by UnitedHealthcare, received medical treatment at an Ochsner facility. Pursuant to a member provider agreement, UnitedHealthcare contracted with Ochsner to secure discounted charges or healthcare rates for its insureds. Despite its contractual agreement with UnitedHealthcare, Ochsner refused to file a claim with the patient's health insurer. Instead, Ochsner sent a letter to the patient's personal injury attorney, asserting a statutory medical lien for the full amount of undiscounted charges on any tort recovery the patient received for the underlying automobile accident. The patient filed a putative class action suit against Ochsner for its statutorily prohibited conduct.

Continue reading "Private Cause of Action Exists in Louisiana for Prohibited Balance Billing by Medical Providers" »

July 6, 2014

Claims-Made-And-Reported Insurance Policy Reporting Requirement Does Not Violate Louisiana Public Policy

While insurance policies are executed for the benefit of all injured persons, such protection is limited by the terms and limits of the policy. On July 1, 2014, the Louisiana Supreme Court in a 4-3 decision, held that the reporting provision in a claims-made-and-reported policy is a permissible "term and limit" on the insurer's liability as to third parties and does not violate the Louisiana Direct Action Statute, La.R.S. 22:1269, which affords a victim the right to sue the insurer directly when a liability policy covers a certain risk. Joyce Gorman v. City of Opelousas, 2013-1734 (La.7/1/14). Under a claims-made-and-reported policy, the event and peril insured against is based on making and reporting of the claim within the period specified by the policy.

In Gorman, a personal injury and wrongful death lawsuit arising out of a wrongful act that occurred in September 2009 was timely filed against the City of Opelousas in September 2010. After discovering the identity of the City's liability insurer in discovery, the plaintiff filed an amended petition for damages in September 2011, naming Lexington Insurance Company as a defendant pursuant to the Louisiana Direct Action Statute. The Lexington liability insurance policy at issue was effective from April 17, 2010 - April 17, 2011, and had a retroactive date of April 17, 2005. The pertinent terms of the policy obligated Lexington to pay claims on behalf of the City if three conditions occur:

1) the wrongful act occurs on or after the retroactive date of the policy, but before the end of the policy period - (this condition was met);
2) the claim for the wrongful act is first made against the City during the policy period - (this condition was met); and
3) the claim is reported to Lexington in writing during the policy period (this condition was not met because the CIty failed to notify Lexington of the claim).

The majority held that the City's Lexington insurance policy was not effective because the claim had not been reported to Lexington within the applicable policy period. Brushing aside the harsh penalty faced by the City's personal injury and wrongful death victim due to the City's blatant failure to timely notify its insurer of the pending claim, the majority reasoned as follows:

We recognize that an injured third party rarely has knowledge of the identity of the insurer of the party responsible for an injury, making it nearly impossible for an injured third party to give notice to the insurer. Rather, the injured third party generally has to rely on the insured, which has an interest in ensuring the availability of the coverage it purchased, to comply with the reporting provision in its policy. Although we can contemplate no logical reason why the City would not report a claim for which it apparently purchased insurance coverage, we decline, under the facts of this case, to hold the insurer liable for the City's failure to report the claim as required by the Lexington policy. A contrary finding would, where there is no evidence of fraud or collusion, punish the insurer for the inactions of its insured.
The three dissenters did not believe that a claims-made insurer should be able to raise, in an action by the victim of the insured's tort, the defense of a non-prejudicial failure of the timely notified insured to give notice to the insurer during the policy period. The dissenters believed that the notice provision was not a "term and limit" of the policy and believed that a third party victim, who is denied coverage under a claims-made policy because the timely notified insured failed to notify the insurer timely, should be able to resort to the public policy provisions of the Direct Action statute to obtain coverage. The notice requirement conflicts with the public policy and intent of the Direct Action statute and effectively restricts the vested rights of injured parties by allowing coverage to be defeated in an otherwise timely and valid claim when an insured without good cause blatantly fails to give notice to its insurer:
The provision in the Direct Action statute prohibiting compliance with terms and limits "in violation of the laws of this State" likewise restricts the ability of the contracting parties to limit the tort victim's right of action against the insurer. Here, the notice requirement coupled with the insured's blatant and unjustified failure to provide notice would not only limit, but effectively destroy the tort victim's right of action in an otherwise timely filed suit, and as such, it should be void as against the public policy provisions of our Direct Action statute.

Continue reading "Claims-Made-And-Reported Insurance Policy Reporting Requirement Does Not Violate Louisiana Public Policy" »

July 6, 2014

Suspension of Prescription for Putative Class Members in Louisiana

The Louisiana Supreme Court in a 4-3 decision held that La. Code Civ. P. art. 596A(3) continues to suspend prescription for putative class members when a class action filed in a Louisiana state court is removed to federal court. Tenesha Smith v. Transport Services Company of Illinois, 2013-2788 (La. 7/1/14). In Smith, a class action was filed in Louisiana state court and then removed to federal court where class certification was denied on June 1, 2004. Notice of the denial of class certification was mailed to the putative class members on September 7, 2004. Another state court suit was filed and around 500 putative class members joined the state court suit on October 4, 2004, less than thirty days from the mailing of notice of the denial of class certification.

The Louisiana Supreme Court held that removal has no effect on the suspension of prescription provided by La. Code Civ. P. art. 596. The filing of a class action petition in a Louisiana state court suspends prescription by operation of Article 596. Even if the case is removed to federal court, prescription cannot recommence until one of Article 596's exclusive statutory triggering events for re-commencing prescription has occurred: (1) the submission of an election form; (2) notice of the restriction or redefinition of the class to exclude an individual; or (3) notice of the dismissal of the action, of a judgment striking the demand for class relief, or of a judgment denying the motion for class certification or vacating a previous order certifying the class.

Under the facts of the case, the Louisiana Supreme Court held that prescription did not recommence until "thirty days after mailing or other delivery or publication of a notice to the class that the action has been dismissed." The Smith plaintiffs filed their amended petition within this thirty day period.

The majority found Quinn v. Louisiana Citizens Property Insurance Corp., 12-0152 (La. 11/2/12), 118 So.3d 1011, 1019, inapposite. In Quinn, the Louisiana Supreme Court held that La. Code Civ. P. art. 596 applied to putative class actions filed in Louisiana state court and did not provide cross-jurisdictional tolling in the context of a putative class action "filed in federal court." The Smith dissenters found no logical basis in which to distinguish Quinn and believed that Quinn's rationale applied equally to suits filed in federal court and to suits removed to federal court.

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July 6, 2014

Forum Selection Clauses are Not Per Se Violative of Louisiana Law

hurricane.jpgThe Louisiana Supreme Court held that forum selection clauses are not per se violative of public policy in Louisiana. Shelter Mutual Insurance Company v. Rimkus Consulting Group, Inc. of Louisiana, 2013-1977 (La. 7/1/14). Specifically, a plurality of the Louisiana Supreme Court (three Justices agreeing with the opinion and one Justice concurring in the result), enforced a forum selection clause found in the written "Terms and Conditions" of a tacit agreement between Shelter Mutual Insurance Company and Rimkus Consulting Group that required litigation arising out of Rimkus's engineering evaluation and expert witness services in connection with Shelter's defense of litigation resulting from a claim for hurricane damages brought by a corporation insured by Shelter be brought in Texas.

The Louisiana Supreme Court held that only specific forum selection clauses declared unenforceable and against public policy by the Louisiana Legislature are invalid and unenforceable. The Louisiana Supreme Court distinguished the specific legislative limitations on forum selection clauses found in La. R.S. 9:2779(A), La. R.S. 51:1407(A) and La. R.S. 23:921(A)(2). The Louisiana Supreme Court rejected a blanket application of the public policy stated in these statutes to every contractual forum selection clause.

La. R.S. 9:2779(A) expressly declares out-of-state forum selection clauses against public policy in a small subset of construction contracts for "public and private works projects, when one of the parties is domiciled in Louisiana, and the work to be done and the equipment and materials to be supplied involve construction projects in this state" and states that "provisions in such agreements requiring disputes arising thereunder to be resolved in a forum outside of this state...are inequitable and against the public policy of this state."

La. R.S. 51:1407(A) of The Louisiana Unfair Trade Practices Act invalidates contractual selections of venue or jurisdictions involving transactions or interactions between out-of-state, professional telephone solicitors and Louisiana residents.

La. R.S. 23:921(A)(2) prohibits forum selection clauses in employment contracts unless the choice of forum clause "is expressly, knowingly, and voluntarily agreed to and ratified by the employee after the occurrence of the incident which is subject to the civil or administrative action."

The three dissenters opined that all forum selection clauses are unenforceable because such clauses (1) are prohibited by La.Code Civ. P. art. 44(A), which states: "[a]n objection to the venue may not be waived prior to the institution of the action," (2) contravene a strong public policy of Louisiana, and (3) are contrary to Louisiana's comprehensive venue scheme and Louisiana law on forum non conveniens.

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June 28, 2014

Louisiana Attorney General Files Consumer Protection Lawsuit Regarding Recalled Dialysis Drugs - GranuFlo and NaturaLyte

Seal_of_Louisiana_2010.pngLouisiana Attorney General James "Buddy" Caldwell filed a lawsuit on June 27, 2014 with the 19th Judicial District Court for the Parish of East Baton Rouge against Fresenius Medical Care North America and its Louisiana dialysis clinics over the use of dialysis drugs, GranuFlo and NaturaLyte. The FDA issued a Class I recall on these drugs after it was found that the products could put patients at risk for cardiac arrest when not prescribed appropriately.

The Attorney General's lawsuit seeks a return of profit made by Fresenius on the sale of these drug in Louisiana and seeks civil penalties of up to $5,000 per violation under Louisiana's Unfair Trade Practices and Consumer Protection Law, La. R.S. 51:1401, et seq.

A number of class-action lawsuits have also been filed against Fresenius. The federal lawsuits have been consolidated into Multi District Litigation (MDL) 2428: In Re: Fresenius Granuflo/Naturalyte Dialysate Products Liability Litigation in the United States District Court for the District of Massachusetts.

Continue reading "Louisiana Attorney General Files Consumer Protection Lawsuit Regarding Recalled Dialysis Drugs - GranuFlo and NaturaLyte" »

May 28, 2014

Jury Dispenses Justice in West Baton Rouge Parish for Randy Piedrahita's Client

Randy P head shot.jpgOn May 15, 2014, a West Baton Rouge Parish jury awarded $825,751 to a woman whose vehicle was rear-ended by an Entergy bucket truck.

Baton Rouge attorneys, Randy Piedrahita and Don Cazayoux, argued the Entergy Bucket truck totaled forty-one year-old Lana Averette's car, causing her significant injuries. "Two-thirds of the award was for Lana's medical bills, the rest being for her lost wages and other damages," said Randy Piedrahita, lead counsel. The 11-1 jury verdict came after four of Lana's doctors testified her injuries required $500,000 of future medical care so she could return to the workforce. No award for future losses from the date of trial forward besides medical expenses was requested by Lana Averette's attorney, as her doctors said so long as the medical procedures were done, she would be able to return to work. "We couldn't ask the jury to believe these treatments would work and then in the same breath ask them to make an award just in case they didn't," Piedrahita said. "We're glad the jury came back with a quick verdict that vindicated everything Lana and her doctors were saying." It is unknown whether Entergy will be appealing this jury verdict.

Randy Piedrahita is an attorney with the firm of Due', Price, Guidry, Piedrahita & Andrews and is a candidate for 19th JDC District Judge for the Parish of East Baton Rouge. Don Cazayoux is an attorney with the firm of Cazayoux Ewing and is a former Congressman, State Representative, and United States Attorney.

May 17, 2014

GM Diluted its Safety Message -- Look at these Judgment Words that GM Employees Were Told to Avoid!

Pages from May-16-2014-TQ14-001-Consent-Order.jpgNHTSA and GM entered into a consent order on Friday, May 16, 2014, under which GM will pay the statutory maximum civil penalty of $35 million for its failure to comply with the notification requirements of the Safety Act -- National Traffic and Motor Vehicle Safety Act of 1966 as amended and recodified, 49 U.S.C. § 30101, et seq. -- for its failure to provide timely notice to NHTSA of the safety related defect in the GM ignition switch. During the investigation into GM's conduct, a 2008 Technical Learning Symposium presentation for GM employees was uncovered that revealed a shocking list of Judgment Words for GM employees to avoid using in reports and presentations. Included on the list are:Pages from May-16-2014-TQ14-001-Consent-Order-2.jpgPer the terms of the consent order, GM has initiated efforts to improve employee training, and will expressly disavow such statements diluting the safety message.

The civil penalty does not relieve GM from civil liability for injuries caused by the defective ignition switch. GM's liability for injuries will be governed by state law. According to Baton Rouge, Louisiana auto defect lawyer and Products Liability law professor, Scott Andrews, in Louisiana, the manufacturer-friendly Louisiana Products Liability Act (LPLA), La. R.S. 9:2800.51, et seq., provides the exclusive theories of liability against manufacturers whose products have caused injuries. The Act does not include the word "defect" anywhere within the four corners of the statutes. Rather, in Louisiana, the manufacturer of a product shall be liable to a claimant for damage proximately caused by a characteristic of the product that renders the product unreasonably dangerous when such damage arose from a reasonably anticipated use of the product by the claimant or another person or entity.

Continue reading "GM Diluted its Safety Message -- Look at these Judgment Words that GM Employees Were Told to Avoid!" »

February 16, 2014

Top 100 Trial Lawyers Recognizes Baton Rouge, Louisiana Lawyers

top100triallawyers.jpgLouisiana trial lawyers, Paul H. Due', Donald W. Price, and B. Scott Andrews, of the Baton Rouge, Louisiana personal injury law firm of Due', Price, Guidry, Piedrahita & Andrews have been selected for 2014 membership in The National Trial Lawyers Top 100 Trial Lawyers.

The National Trial Lawyers is a member-driven organization composed of premier trial lawyers from across the country who meet stringent qualifications. Only top trial lawyers from Louisiana who are actively practicing in civil plaintiff and/or criminal defense law are eligible for invitation. Invitees must demonstrate superior qualifications, leadership skills, and trial results as a legal professional. The selection process for this elite honor is based on a multi-phase process which includes peer nominations combined with third party research.

Prospective members of The National Trial Lawyers are carefully screened prior to receiving an invitation for membership. Membership is not automatically renewed; attorneys are reevaluated annually to determine whether their activities and accomplishments qualify them for continued membership.

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February 15, 2014

Louisiana Employers Allowed to Ignore Unsafe Work Practices That are Highly Probable to Cause Injury to Innocent Employee Victims

Safety Matters.jpgIn two recent per curiam decisions, the Louisiana Supreme Court protected employers who exposed their workers to high probability of harm from known unsafe working conditions by applying the "inevitability" test for determining whether a work place injury caused by an employer was intentional. In both cases, the Supreme Court found that the injuries were not "inevitable", thus immunizing the employer from the tort claim under the Louisiana Worker's Compensation Act.

To recover in tort against an employer under La.R.S. 23:1032(B), the employee victim must prove an intentional tort, which the Louisiana Supreme Court defines as: (1) the employer consciously desired the physical result of its act, whatever the likelihood of that result happening from its conduct, or (2) the employer knew that the result is substantially certain to follow from its conduct, whatever its desire may be as to that result. Moreau v. Moreau's Material Yard, 12-1096 (La. 9/21/12), 98 So.2d 297.

The "substantial certainty" test was described by the Louisiana Supreme Court in Reeves v. Structural Preservation Systems, 98-1795 (La. 3/12/99), 731 So.2d 208, 213, as follows:

-Believing that someone may, or even probably will, eventually get hurt if a workplace practice is continued does not rise to the level of an intentional act, but instead falls within the range of negligent acts that are covered by workers' compensation.

-"Substantially certain to follow" requires more than a reasonable probability that an injury will occur and "certain" has been defined to mean "inevitable" or "incapable of failing."

-An employer's mere knowledge that a machine is dangerous and that its use creates a high probability that someone will eventually be injured is not sufficient to meet the substantial certainty requirement.

-Mere knowledge and appreciation of a risk does not constitute intent, nor does reckless or wanton conduct by an employer constitute intentional wrongdoing.

The Louisiana Supreme Court in Simoneaux v. Excel Group, LLC, 06-1050 (La. 9/1/06), 936 So.2d 1246, 1248, further clarified that the employer's actions in providing poor working conditions "may have been negligent or even grossly negligent, but they were not intentional."

In each of the two recent cases before the Louisiana Supreme Court, the Court found that the injuries sustained were not "inevitable." In Ashton Miller, Jr. v. Sattler Supply Co., 13-2558 (La. 1/27/14), the employee died after a large engine block he was cleaning fell on him. The employer had been repeatedly informed about frayed straps, rusted chains, and lack of a safety latch on the engine hoisting equipment. Nevertheless, the Court held that the injury was not "inevitable" and that the, "mere knowledge that a machine is dangerous, and that its use creates a high probability that someone will eventually be injured, is not sufficient to meet the substantial certainty requirement."

In Rhonda Danos v. Boh Bros. Construction Co., 13-2605 (La. 2/7/14), the employee was directed to use a saw to cut a pipe which was laying flat on the ground without support. The pipe caved inward at the cut, pinching the blades of the saw. The saw then kicked back and struck the employee in the head and neck. Boh Bros. presented testimony that no one intended for the employee to be harmed in any way, and presented evidence establishing that a similar accident had never occurred in Boh Bros.' history of operation. In opposition, the plaintiffs submitted expert evidence indicating that Boh Bros. should have known that using the cutting saw in this manner would cause injury. Even accepting the plaintiffs' expert evidence, the Supreme Court found that the injury was not "inevitable." The Court found that, in hindsight, Boh Bros. may have been negligent in directing employees to use unsafe cutting procedures, but its actions were not intentional.

Continue reading "Louisiana Employers Allowed to Ignore Unsafe Work Practices That are Highly Probable to Cause Injury to Innocent Employee Victims" »