Articles Posted in Louisiana Personal Injury Law

| by

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.

| by

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.

Continue reading

| by

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.

| by

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.

| by

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.

Continue reading

| by

As of August 1, 2012, the Louisiana Supreme Court is accepting electronic or e-filing of documents from Louisiana attorneys in good standing. Attorneys interested in this voluntary program must first participate in a 30-minute online training session provided on the Louisiana Supreme Court website in order to obtain a password to begin filing documents. In addition to the regular filing fees accessed by the Court, the cost for e-filing is $100 for writ applications and $50 for other court documents such as oppositions, replies, and amicus curiae briefs. More information can be obtained by contacting the Louisiana Supreme Court Clerk of Court Office at 504.310.2300.

| by

The Baton Rouge, Louisiana personal injury lawyers at Dué Guidry Piedrahita Andrews Courrege L.C. salute the Louisiana State Police Insurance Fraud Unit for cracking down on insurance fraud. Insurance fraud investigators made three arrests in July 2012 arising out of the submission of fraudulent insurance claims. The first involved a couple who allegedly set fire to their vehicle and then submitted a theft claim to State Farm; the second involved a fraudulent lost wage claim; and the the third involved the submission of false income information to obtain food stamps.

Anyone wishing to report criminal or suspicious activity to the Louisiana State Police Bureau of Investigations is urged to contact Louisiana State Police detectives at 225-925-3682.

People who are seriously injured in accidents by the fault of another person deserve fair and just compensation for their injuries. People who submit false insurance claims deserve “three hots and a cot”.
Continue reading

| by

The Louisiana Supreme Court struck another blow to victims of allegedly defective products on February 18, 2011, when it issued the per curiam decision of Payne v. Gardner, 2010-2627 (La. 2/18/11). A child was injured after climbing onto and then attempting to ride the moving pendulum of an oil well pump. The Rapides Parish, Louisiana, District Judge granted the oil well pump manufacturer’s motion for summary judgment. The Third Circuit Court of Appeal reversed. The Louisiana Supreme Court never addressed the factual issue of whether the allegedly defective product was unreasonably dangerous because the Supreme Court found that riding the oil well pump was not a reasonably anticipated use of the product at the time it was manufactured in 1952, although the manufacturer had actual knowledge of many similar accidents after the oil well pump left its control.

The Supreme Court opinion does not discuss the nature of the alleged defect in the oil well pump, nor the cause of action alleged. Under the Louisiana Products Liability Act, La. R.S. 9:2800.51, et seq., a product can be unreasonably dangerous in one of four ways: 1) construction or composition; 2) design; 3) inadequate warning; and 4) express warranty. Whether a product is unreasonably dangerous in design or because of an inadequate warning is determined at the time the product left the manufacturer’s control. However, if the manufacturer later obtains actual knowledge or is imputed with constructive knowledge of a dangerous characteristic of the product, then the manufacturer must use reasonable care to provide a post-sale warning to users and handlers about the dangerous characteristic.

So, this commentator believes that if a manufacturer becomes aware (or should become aware) that its product is being used in an unsafe manner or is being misused, then the use becomes not only foreseeable, but forseen, and therefore is reasonably anticipated from the standpoint of the manufacturer. Once this knowledge is actually known or imputed to the manufacturer, then it must use reasonable care to provide post-sale adequate warnings. So, reasonably anticipate use is not a complete bar to recovery in a warnings claim, but rather must be determined based on the post-sale use and knowledge of the manufacturer.

| by

There is a one year prescriptive period for survival action claims in Louisiana. The right to recover survival action damages for injuries sustained by a deceased person prior to their death may be brought only by the following exclusive class of beneficiary (including by adoption):

(1) The surviving spouse and child or children of the deceased, or either the spouse or the child or children.

(2) The surviving father and mother of the deceased, or either of them if he left no spouse or child surviving. However, a father or mother who has abandoned the deceased during his minority is deemed not to have survived him.

Continue reading

| by

There is a one year prescriptive period for wrongful death claims in Louisiana. If a person dies due to the fault of another, suit may be brought only by the following exclusive class of beneficiary (including by adoption) to recover wrongful death damages which they sustained as a result of the death:

(1) The surviving spouse and child or children of the deceased, or either the spouse or the child or children.

(2) The surviving father and mother of the deceased, or either of them if he left no spouse or child surviving. However, a father or mother who has abandoned the deceased during his minority is deemed not to have survived him.

Continue reading