(1) Personal Injury Litigation – Plaintiffs
(2) Product Liability Litigation – Plaintiffs
(1) Personal Injury Litigation – Plaintiffs
(2) Product Liability Litigation – Plaintiffs
Bufkin 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.
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.
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.
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.
The 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.
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.
In order to prevail in a non-merchant slip and fall accident in Louisiana, the victim must establish that the defendant knew or should have known of the defect which caused the damage, that the damage could have been prevented by the use of reasonable care, and that the defendant failed to exercise such care. La. Civ. Code art. 2317.1.
The defendant produced evidence establishing that the walkway was designed to promote a non-skid surface and to prevent water from pooling in the area. The defendant also showed that no other similar accidents had occurred in the area. The victim came forward with no contrary evidence, but only her own affidavit that stated the pavement was wet and slippery and “may” have been muddy because the ground was muddy on either side of the walkway.
The Supreme Court held that the victim’s failure to produce any evidence of a material fact in dispute mandated the granting of the motion for summary judgment dismissing her case.
The Louisiana Record reports that the Civil Rights Division of the United States Department of Justice (DOJ) is investigating the Louisiana Supreme Court Committee on Bar Admissions over alleged violations of the Americans with Disabilities Act (ADA). Specifically, the DOJ has found that the Committee on Bar Admissions requires disclosure of bar applicant’s mental health status and access to applicant’s mental health records. Admission for certain applicants with mental health issues are conditional despite the lack of any misconduct.
In a February 5, 2014 letter sent to the Chief Justice of the Louisiana Supreme Court, the executive director of the Louisiana Supreme Court Committee on Bar Admissions and the chief disciplinary counsel for the Louisiana Attorney Disciplinary Board, the DOJ states that: “Questions based on an applicant’s status as a person with a mental health diagnosis do not serve the Court’s worthy goal of identifying unfit applicants, are in fact counterproductive to ensuring that attorneys are fit to practice, and violate the standards of applicable civil rights laws.”
The full article can be found here at The Louisiana Record.
No person can insure against his own intentional acts. Public policy forbids it. But public policy does not forbid one to insure against the intentional acts of another for which he may be vicariously liable.
If the exclusionary language in the personal liability insurance policy applies to the intent of “the” insured, then only the intent of “the” person for whom coverage is sought for his/her vicarious liability under the policy will be dispositive, rather than the intent of the intentional actor for whom the person for whom coverage is sought is vicariously liable, and coverage will not be excluded. However, if the exclusionary language in the policy applies to “an” or “any” or “one or more” insureds, then the intent of the intentional actor will be dispositive and coverage will be excluded.
See McBride v. Lyles, 303 So. 2d 795 (La.App. 3d Cir. 1974) (“the” insured); Lamkin v. Brooks, 498 So.2d 1068 (La. 1986) (“any” insured); Travelers Ins. Co. v. Blanchard, 431 So.2d 913 (La.App. 2d Cir.1983) (“an” insured); and Leslie v. Andrews, 905 So.2d 368 (La.App. 4th Cir. 2005), writ denied, 901 So.2d 1077 (La.2005) (“one or more” insureds).