Louisiana Injury Lawyer Blog

As long as initial use of an automobile is with the express or implied consent of the insured, the scope of permission granted the user will not preclude coverage unless the deviation from the permission consented to by the insured amounts to theft or other conduct displaying an utter disregard for the return or safe keeping of the vehicle.

Liability insurance policy language requiring "permission" by the owner to use a vehicle imposes a different standard than a policy requiring only a "reasonable belief" by the operator that he or she had permission of the owner to use the vehicle.

When the insurance policy requires permission by the owner, coverage exists only when the operator has the express or implied permission of the owner. The operator's subjective reasonable belief will not suffice. This language is often applicable to users of covered vehicles under the policy.

When the insurance policy requires a "reasonable belief" by the operator that he or she had the permission of the owner to the use the vehicle, whether the owner actually granted express or implied permission is no longer an element. This language is often applicable to insureds under the policy using a non-owned vehicle.

Many liability policies extend coverage to relatives of the named insured who are "residents" of the same household of the named insured. Whether a person is or is not a resident of a particular place is a question of law as well as fact, and is to be determined from all of the facts of each particular case.

Residence and domicile are not synonymous terms. While a person may have only one domicile, he or she may have several residences.

Temporary absence does not necessarily preclude a relative from being a resident of the same household of the named insured.

As for a spouse, the emphasis is upon whether there remains membership in a group rather than an attachment to a building and it is a matter of intention and choice rather than one of location.

La. R.S. 22:1269 (formerly 22:655), provides for a direct action against a liability insurer in two instances:

1) where the policy or contract of liability insurance was issued (domestic insurer) or delivered (foreign insurer) in Louisiana; or

2) where the accident or injury occurred in Louisiana.

The injured person or his or her survivors or heirs, at their option, may bring the action against the insured or against the insured and the liability insurer. The action may be brought against the insurer alone only when:

a) the insurer has been adjudged a bankrupt by a court of competent jurisdiction or when proceedings to adjudge an insured a bankrupt have been commenced before a court of competent jurisdiction;

b) the insured is insolvent;

c) service of citation or other process can not be made on the insured;

d) when the cause of action is for damages as a result of an offense or quasi-offense between children and their parents or between married persons;

e) when the insurer is an uninsured motorist carrier; or

f) the insured is deceased.

The Louisiana Direct Action Statute, La. R.S. 1269 (formerly 22:655) confers substantive rights on third parties to contracts of public liability insurance, which become vested at the moment of the accident in which they are injured, subject only to such defenses as the tortfeasor himself may legally interpose.

Personal defenses, i.e. interspousal immunity, may not be asserted by an insurer in defense of the direct action, but general defenses, i.e. prescription, comparative fault, and worker's compensation immunity, may be asserted by the insurer.

The insurer's obligation to the injured person under the direct action statute cannot be prejudiced by the non-prejudicial action of the insured in breaching policy provisions, i.e. breach of a cooperation clause or failure to give timely notice of the accident or suit, in the absence of fraud, collusion or conspiracy.

Principles of Interpretation of Insurance Policies:

1) An insurance policy is a contract between the parties and is the law between the parties.

2) An insurance policy is construed using the general rules of interpretation of contracts set forth in the Civil Code. See La. C.C. art. 2045: Interpretation of a contract is the determination of the common intent of the parties.

3) Jurisprudential responsibility is to determine the parties' common intent as reflected by words in the policy to determine the extent of coverage. An insurance policy should not be interpreted in an unreasonable or a strained manner so as to enlarge or to restrict its provision beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion.

4) Absent a conflict with statutory provisions or public policy, insurers are entitled to limit their liability and to impose and to enforce reasonable conditions upon the policy obligations they contractually assume.

5) If policy wording is clear and unambiguously expresses the parties' intent, the insurance contract must be enforced as written. See La. C.C. art. 2046: When the words of a contract are clear, no further interpretation may be made to determine the parties' intent.

-Ambiguity in an insurance policy must be resolved by construing the policy as a whole; one policy provision is not to be construed separately at the expense of disregarding other policy provisions.

6) The courts should construe the policy to fulfill the reasonable expectations of the parties in light of the customs and usages of the industry.

-See La. C.C. art. 2047 - Words of a contract must be given their generally prevailing meaning. Words of art and technical terms must be given their technical meaning when the contract involves a technical matter.

7) If, after applying the general rules of construction, an ambiguity remains, the ambiguous contractual provision is to be construed against the drafter, or in the insurance context, in favor of the insured.

See La. C.C. art. 2056: In case of doubt that cannot be otherwise resolved, a provision in a contract must be interpreted against the party who furnished its text. A contract executed in a standard form of one party must be interpreted in case of doubt in favor of the other party.

-Rule of strict construction requires that an ambiguous policy provision be construed against the insurer who issued the policy and in favor of coverage to the insured.

See McKenzie & Johnson, 15 Louisiana Civil Law Treatise, Insurance Law and Practice (West).

Black's Law Dictionary defines INSURANCE as:

A contract by which one party (the insurer) undertakes to indemnify another party (the insured) against risk of loss, damage, or liability arising from the occurrence of some specified contingency, and to defend the insured or to pay for a defense regardless of whether the insured is ultimately found liable.

An insured party pays a premium to the insurer in exchange for the insurer's assumption of the insured's risk.

Louisiana State Police Troop E investigated 2011's forty-third fatal crash on August 8, 2011 in Natchitoches Parish, Louisiana. This crash occurred around 3:39 p.m. on Campti Bayou Road and claimed the life of a sixteen year old passenger of a Chevrolet truck that lost control at a high rate of speed, crossed the center line of the highway, overcorrected, and started spinning and then rolled over into the ditch. According to the LSP news release, the teenage driver will be charged with negligent homicide.

LSP further informs us that "traffic crashes are the leading cause of death for children over the age of four. While not all crashes are survivable, your best chance of surviving a serious crash is to properly wear a seat belt or to be correctly restrained in an age and size appropriate child seat."

Baton Rouge, Louisiana car crash attorney, Scott Andrews, reminds all young drivers to be careful, stay alert, observe the posted speed limit, keep a look out, and always, always, always make sure all occupants are wearing a seat belt. Even a momentary inattentiveness can result in disastrous consequences and ruin the lives of all involved.

Continue reading "Natchitoches Louisiana Car Crash Claims Life of Teenage Girl" »

A twenty-three year old motorcycle operator was killed on August 7, 2011, when his improperly secured DOT approved helmet came off during a motorcycle accident on LA 111 in Vernon Parish, Louisiana. According to Baton Rouge, Louisiana motorcycle accident lawyer, Scott Andrews, Louisiana requires all motorcycle riders and occupants to wear a DOT approved helmet. But it doesn't offer much protection if the helmet isn't properly fitted and secured. The best practice is to purchase your DOT approved helmet from a respectable dealer who understands a proper fit and will work with you to find the helmet that best fits your head and will provide the most protection. For example, tighter is not always better because a helmet that is too tight may restrict blood flow. Andrews also warns purchasers to carefully inspect the helmet for the DOT certification as it has become all too common for people to place DOT stickers on novelty helmets that do not comply with the U.S. Department of Transportation (DOT) Federal Motor Vehicle Safety standards. Buyer, beware.

Continue reading "Louisiana Motorcycle Rider Killed After Improperly Secured Helmet Comes Off" »

A sixty-two year old motorcycle operator riding a 2011 Harley Davidson was seriously injured on U.S. Highway 171 near Anacoco, Louisiana when his motorcycle ran off the left side of the road and impacted some dirt.

The cause of the accident is unknown at this time, but Baton Rouge, Louisiana motorcycle accident attorney, Scott Andrews, suggests that the fact that the operator was wearing a properly secured DOT approved helmet probably saved his life.

Continue reading "Motorcycle Helmets Save Lives" »

After teaching Product Liability during the Spring 2011 semester at the Southern University Law Center (SULC), Baton Rouge, Louisiana personal injury and accident attorney, Scott Andrews, will be teaching Insurance Law at the Southern University Law Center during the Fall 2011 semester.

Scott Andrews is a 1996 Order of the Coif honors graduate of the LSU Paul M. Hebert Law Center, where he served on the Louisiana Law Review.