Legal Round Table

Act No. 1032 created LSA-R.S. 22:1892(B)(5)and is a provision concerning first party automobile claims. In the case of determinating the actual cash value or replacement value of the insured’s vehicle, a fair market value survey using qualified retail auto dealers in the local market or nearest market is to be used. The retail cost can be determined by utilization of guidebooks, on-line data bases, but two independent appraisals obtained by the insured showing that the vehicle would have a higher cash value in the local market than listed in the guidebooks or data bases will trump the guidebooks and data bases.

Act No. 210 modified LSA-R.S. 22:1295 uninsured motorist coverage to conform with the provisions of LSA-R.S. 32:851, et seq., specifically the levels of property damage insurance required as the actual cash value of the vehicle in question or the minimal amounts listed in LSA-R.S. 32:851 (specifically LSA-R.S. 32:861), whichever is less. The prior law provided for the lesser of the actual cash value or $10,000.00.

Act No. 1005 enacted LSA-R.S. 22:1338 which prohibits cancellation or failing to renew homeowners’ insurance merely because the property had or has Chinese drywall which was installed before December 31, 2009 or the insured made a claim based upon Chinese drywall installed before that date. An insurer who cancels or fails to renew after the insured has made a claim has thirty days to reinstate the policy else may be subject to penalties, attorney fees, and court costs.

Act No. 636 enacted LSA-R.S. 22:1284.1 which prohibits an increase in the premium rate, a surcharge, or other increase, solely based upon a “lapse in coverage” which occurred as a result of proper surrendering the vehicle’s license plate (after having had maintained liability insurance coverage on the vehicle) and thereafter cancels the policy but later attempts to obtain new insurance

Act No. 53 amended LSA-R.S. 23:1310.3 to do away with the required mandatory pretrial mediation as well as doing away with the initial pre-service mediation. It also established new filing procedures for initiation of claims. The new procedure requires as part of the initiation of the claim the payment of the filing fee within 5 days of the filing of the 1008 form. The new procedure also requires service by the Office of Workers’ Compensation of the 1008 form upon receipt against the defendants “in any manner provided by law or by certified mail.” A request for extension to answer the 1008 beyond the 15 days after service is limited to 10 days. Under the new mediation procedures, mediation will only occur upon joint request of the parties OR upon order of the presiding judge. The parties have a choice of selecting a Louisiana Workforce Commission mediator (with the mediation to be held where that mediator is assigned) or select a private mediator (to be held wherever the parties desire the mediation to be held). The parties, not the mediator, are required to notify the Court within five days of the mediation that the mediation had in fact been held and what were the results of the mediation. A party who fails to show at the mediation can be fined up to $500.00 and may also be assessed the costs of the mediation and the attorney fees of the parties who did appear.

Act No. 3 amended LSA-R.S. 23:1123 to allow a State Independent Medical Examination not only for disputes concerning the medical condition of the employee but also employee’s capacity to work and medical necessity of the current medical treatment. The Act also provides for payment of indemnity benefits via electronic transfer, debit card, and direct deposit, in addition to mailing the payments (amending LSA-R.S. 23:1201 and eliminating LSA-R.S. 23:1201.1).

Act No. 799 made some substantial changes to LSA-R.S. 23:1371.1 and LSA-R.S. 23:1378, provisions contained in the Second Injury Fund Act. The Act provided for a “Permanent Partial Disability Employee Registry” which is to be maintained by the Louisiana Workforce Commission. The listing on the registry, if and when the registry is created, can act as proof of employer’s knowledge of any preexisting permanent partial disability for purposes of a second injury fund claim. Permanent Partial Disability has been defined under LSA-R.S. 23:1371.1 as “any permanent condition, whether congenital or due to injury or disease, of such seriousness as to constitute a hindrance or obstacle in obtaining employment, to retention by an employer, or to obtaining re-employment, if the employee becomes unemployed.” A definition of “hire and fire authority” for purposes of second injury fund recovery has also been provided and has been defined as “the authority of the representative of the employer who plays an integral part in fulfilling the business of the employer with the responsibility to have closely controlled the injured employee regarding his physical conduct and time, as well as providing significant input into the hiring, retention, and firing decisions regarding that employee.” The reimbursement schedule and provisions under LSA-R.S. 23:1378 have been reworked to make it more easily understood

The 2011 1st Extraordinary Legislative Session
The current extraordinary session is concerned with the census and redistricting.