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In the News

Firm Secures Summary Judgment Regarding LHWCA Immunity Issue

TWPD secured vital application of federal law in applying the immunity provisions of the  Longshore and Harbor Workers’ Compensation Act (“LHWCA”). In Hulin v. Huntington Ingalls, Inc., 2020 WL 307 2187,  plaintiff filed suit against Avondale Shipyards’ successor company and its executive officers seeking damages for contracting mesothelioma as a result of his alleged exposure to asbestos while employed at Avondale from 1956 to 1973. The plaintiff contended his exposures to asbestos occurred both while working on ships in the water and also while he worked on land.  Before 1972, a plaintiff was allowed to elect his remedy if he was injured on land and he could pursue a state tort claim against his employer in lieu of receiving workers’ compensation benefits.  Application of the LHWCA would bar the plaintiff’s tort claims, but plaintiff argued that state law and the law in effect at the time of the alleged exposure should apply, in which case the tort claim would be valid.  TWPD represented Lamorak Insurance, one of Avandale’s insurers, and joined in a Motion for Summary Judgment arguing the plaintiff’s claims were barred by LHWCA’s immunity provision. The federal court agreed, dismissing the plaintiff’s state law tort claims.  This ruling substantively changes 20 years of state court rulings allowing these matters to proceed in tort in state court. State courts can no longer apply state law to circumvent the immunity provisions of the LHWCA in cases where alleged exposure occurred prior to 1972.

TWPD Secures Defense Verdict in Louisiana Premise Liability Matter

During a bench trial in New Iberia, LA District Court in September of 2020, TWPD successfully defended an apartment complex against plaintiff’s claims of a slip-and-fall. Plaintiff claims she was walking along the property’s sidewalk with her boyfriend and their three young children when she encountered an obstruction of concrete bags on the sidewalk, forcing her to cut through the grass. While walking through the grass, she claims she stepped in a hole in the ground obscured by uncut grass that caused her to fall and injure her foot. 

 

During plaintiff’s presentation of her case at trial, TWPD’s lawyers impeached several points of her testimony that contradicted her pre-trial deposition: including the size of the hole, the location of the alleged concrete bags, and where she fell on the property. Plaintiff also contradicted her own trial testimony on several occasions relative to her injuries – first claiming she did not cut her foot in the hole, then claiming she did cut her foot after she was shown medical records noting lacerations and debris removal on her heel. This testimony was not logical since she was wearing shoes at the time of the alleged accident. Finally, plaintiff’s own physician testified he had no information indicating the plaintiff’s foot injuries were caused by a fall at the apartment complex. At the close of plaintiff’s presentation, TWPD’s lawyers convinced the presiding judge to dismiss plaintiff’s case in its entirety without any further defense evidence required. 

Mississippi Attorneys Secure Summary Judgment in UM Matter

The firm’s Mississippi attorneys secured summary judgment in favor of their client regarding a UM matter. In addition to suing the two commercial trucking companies for negligence arising from a collision, Plaintiffs sued their own carrier for benefits under the UM/UIM coverage of their personal auto policy. Under Mississippi’s UM law, in order to have a claim for UM/UIM benefits, the claimant must establish that the tortfeasor is either uninsured or underinsured. To be “uninsured” within the meaning of the statute requires a showing that the tortfeasor has no liability insurance coverage or that the liability carrier has legally denied coverage for the accident. The definition of uninsured also includes an unidentified motorist when there has been contact that caused an accident.  For a motorist to be “underinsured” requires a comparison of all the tortfeasors’ liability limits applicable to the accident,with to the limits of coverage under the plaintiff’s own UM/UIM policy.Mississippi law allows the limits for each insured vehicle under the plaintiffs’ policy to be aggregated or “stacked” for purposes of this limits-to-limits analysis. Thus, in order to trigger a claim for underinsured motorist coverage under Mississippi law, as the plaintiffs did in this case,the insured plaintiffs must have UM/UIM coverage with limits of liability greater than the tortfeasors’ combined coverage.  In this case, the tortfeasors each had $3,000,000 in liability limits, for an aggregate of $6,000,000 in liability limits. The plaintiffs had an aggregate of $300,000 in UM/UIM coverage and, therefore were unable to satisfy their burden of establishing that the tortfeasors were “underinsured.”

The Firm's Louisiana Attorneys Prevail in Claim against School Board

TWPD’s Baton Rouge office succeeded in having a suit against a Louisiana school board dismissed on summary judgment. The plaintiffs alleged the school board was vicariously liable for a teacher’s secretive, bizarre, and inappropriate communications and interactions with a minor student. We presented undisputed evidence that the school board’s pre-employment background check on the teacher revealed no prior criminal history or complaints. It was further undisputed that the student’s mother never reported the communications to the school board nor did she report the teacher visiting with the minor student after school hours, which occurred with the mother’s permission. With this evidence, TWPD convinced the court that plaintiffs could not prove the school board breached its duty of reasonable supervision or that the teacher’s intentional acts occurred in the course and scope of his employment. Therefore, the court granted summary judgment in favor of the School Board, dismissing the suit in its entirety.   

The Firm Succeeds in Summary Dismissal of a Louisiana Slip and Fall Case

The firm’s Baton Rouge attorneys recently won a Motion for Summary Judgment that resulted in the complete dismissal of a plaintiff’s suit against a national hardware and home improvement store. The plaintiff alleged he slipped and fell in a puddle of water that was near the store’s entrance. He allegedly did not see the water before his fall, and he could not say how long the water had been on the ground. TWPD obtained sworn affidavits from store employees, testifying they did not see any water on the ground prior to the subject accident. We argued the plaintiff could not meet his burden of proof under the Louisiana Merchant Liability Act, because he could not establish the defendant store created the complained-of condition, had actual notice of the water on the ground, or the water had been on the ground for a period of time sufficient to establish the store should have known it was there. The federal court was persuaded by these arguments, and granted summary judgment in favor of our client, resulting in dismissal of the case with prejudice.

TWPD Secures Summary Judgment

TWPD’s Mississippi office recently secured a favorable summary judgment in a premise liability matter. Our client was a retail home improvement and hardware store.The plaintiff was in the store shopping for paint, and  tripped and fell on a large blue lowboy cart that was in the aisle. The cart was one of several used by employees for restocking shelves. During discovery, the plaintiff admitted he observed the cart while speaking to a store employee. As he walked away from the conversation, he backed into the cart, tripped and fell.

 

TWPD argued the lowboy cart was not an unreasonably dangerous condition and thus the plaintiff could not meet his burden in proving the store was negligent. The U.S. District Court for the Southern District of Mississippi agreed with this position, reasoning that lowboy carts were the type of objects customers should reasonably expect to encounter in a similar retail business.As a result, the Court granted summary judgment, dismissing the case against our client with prejudice.  

Mississippi attorneys secure summary dismissal in favor of car dealership

TWPD’s Mississippi attorneys won summary judgment for a BMW dealership in a case alleging negligent repairs and service. After the owner had put more than 430 miles on the vehicle after the repair shop’s service, the car’s engine “jumped time.” The affidavit of a BMW master technician established that there was no fault code, audible noise, or any visual inspection that indicated any issue with the timing components when the car was in the repair shop.  The Lauderdale County Court found a lack of evidence to establish that the repair shop had breached any duty or that there was any causal connection between the work the repair shop performed and the timing component failure that occurred weeks later.  TWPD’s attorneys identified the causation issue early in the litigation and pursued summary judgment even before discovery got underway, minimizing the litigation expenses and ending the risk of exposure for the client.

TWPD secured dismissal of Louisiana premises liability suit

The firm’s Baton Rouge attorneys secured summary dismissal of a plaintiff’s premise liability suit filed in Lafayette, Louisiana. The defendant was a local supermarket. Plaintiff tripped over a piece of plastic that the supermarket used to display its price tags.  The Judge agreed that plaintiff did not present any evidence that the supermarket caused the plastic piece to fall or how long the plastic piece had been on the ground before plaintiff tripped on it.  The Judge also believed the plastic piece was “open and obvious” to all because it was approximately 3 – 3 ½ feet long, had multiple price tags stuck onto it, and because plaintiff had walked up and down the aisle on several occasions before he tripped on it. 

Louisiana Tort Reform Bill Signed into Law

After a lengthy negotiation process, the Louisiana Legislature passed a new tort reform bill on June 30, 2020.   Governor Edwards then signed House Bill 57, the Civil Justice Reform Act of 2020 into law. Although the bill’s proponents did not get all the reform measures initially proposed, supporters believe it is a step in the right direction for trying to lower Louisiana’s high insurance rates. The bill:

  • Reduces  the jury threshold from $50,000 to $10,000. It requires the party requesting trial by jury to timely post a cash bond within 60 days of requesting a jury trial. To be entitled to a bench trial, a plaintiff must stipulate or otherwise judicially admit their cause of action does not exceed $10,000 exclusive of interest and costs;
  • Limits recovery of medical expenses to the amount paid, instead of the amount billed. However, the bill gives some discretion to judges to adjust the     award under certain circumstances;
  • Repeals the seat belt gag order, thus allowing jurors to hear whether a plaintiff was wearing a seat belt at the time of a collision; and
  • Forbids the existence of insurance coverage from being communicated to the jury unless one of the following applies: 1) there is a factual dispute related to coverage that the jury will decide; 2) the existence of coverage would be admissible to attack the credibility of a witness; or 3) there is a cause of action brought against the insurer pursuant to La. R.S. 22:1973 or Section 1269(B)(1)(a) through (f);
  • Precludes the identity of the insurer from being communicated to the jury unless the identity would be admissible to attack the credibility of a witness; and
  • The new provisions will apply to all causes of action arising on or after January 1, 2021.

 

       

Combatting the Reptile Revolution

David Ball and Don Keenan’s website boasts $7.7 billion in “Reptile Verdicts and Settlements” since the publishing of their book, Reptile: the 2009 Manual of the Plaintiff’s Revolution. The manual touts research and methods to exploit a jury’s most primitive instincts of safety and self-preservation to maximize injury verdicts. The strategy is to engender a certain fear in jurors,such that the response is a desire to attack the defendant, rather than the desire to assess the true cause of an accident and the fair value of plaintiff’s damages. Especially in cases in which large companies are made defendants because they employed the person who allegedly caused the accident,the strategy is to paint the company as bad actor, one that places profits over the safety of the jury’s community, who should be punished.

A common Reptilian approach in Louisiana is an attempt to show that a company was negligent in its hiring, training,and supervision of its employees.  To support these allegations, plaintiffs will conduct costly and extensive discovery into a company’s internal policies and safety procedures. Even if some deficiencies could be found on those issues, in most cases it will have no relation whatsoever to the employee’s conduct in the subject accident. But plaintiffs will nevertheless portray these policies and procedures as insufficient and hazardous,hoping to convinces the jury that an accident was bound to happen, thus justifying punishing the company for conduct wholly unrelated to the facts of the accident at issue.

To combat this approach, defendant companies must show at the earliest stages of the litigation that there is no such viable separate claim against the company for conduct not related to the cause of the accident at issue.  Our firm has been successful in this regard.  Unless the facts show otherwise, we admit that the allegedly negligent employee was“in the course and scope” of his/her employment when the accident occurred.  Thus, our client admits that it will be responsible if in fact the employee’s negligent conduct is found to be the cause of the accident.  We then move to dismiss any separate negligence claims against the company, so that the employee’s conduct is the only conduct for the jury to address.  Getting these separate claims dismissed not only circumvents a plaintiff’s ability to paint the employer as a “bad, dangerous company,” but also narrows the scope of discovery and evidence that may be admitted at trial.

Let us put these defensive tactics to work for your company.

June 3, 2020 – Louisiana Supreme Court victory for TWPD

        Our firm’s Baton Rouge attorneys recently convinced the Louisiana Supreme Court to dismiss a personal injury suit against our client.  The  plaintiff in this automobile accident case filed suit in Louisiana almost two years after the accident.  The statute of limitations in Louisiana is one year. Thus, TWPD immediately sought dismissal of the suit on the grounds that it was filed too late. However, because the accident at issue occurred in Texas rendering Texas’ substantive law applicable to the case, the plaintiff argued that Texas’ two-year statute of limitations also applied.  The trial court and court of appeals agreed with the plaintiff and held that the suit was timely filed.  TWPD took the case to the Supreme Court and won.  The Supreme Court agreed with TWPD’s position that Louisiana’s one-year statute of limitation was controlling, and dismissed the suit.     

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Louisiana Workers' Compensation Resources

Mileage Rates

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Form 1010A

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When used properly, the Form 1010A can ensure doctors are providing all necessary information and complying with the MTG.

Judicial Interest Calculator

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If you have any questions about how to calculate judicial interest, please give us a call.

Second Injury Fund Questionnaire

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Using SIF Questionnaires can be a pivotal part of the employment and workers’ compensation process. Call us with any questions.

Second Injury Fund

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Second Injury Fund, when pursued properly, can help offset costs of expensive claims involving workers with pre-existing conditions and also serve as the basis of a 1208.1 fraud claim.

OWC Districts Directory

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New 2020 Pain Management Guidelines

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These guidelines contained some marked changes in the area of pain management.

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Seminars

Our lawyers frequently present seminars before risk and management teams for insurance companies and other corporations across the country on a variety of legal topics. These seminars are regularly approved for CE/CLE credits by several states. Here is a list of our most recent seminars:

Trends in LA - Brain Injury and Punitive Damage Claims

State Approved Adjusters:

AZ, GA, TX, NH, CT, FL

Recent Updates in Handling Transportation Claims

State Approved Adjusters:

LA, TX, OH

XL Catlin General Liability and Auto Lunch and Learn

State Approved Adjusters:

LA, TX, NC

Fighting the Trends in Personal Injury Litigation

State Approved Adjusters:

LA, TX, NC, DE, FL

Recent Developments in Claims Handling

State Approved Adjusters:

LA, TX

Every T Crossed and Every I Dotted

State Approved Adjusters:

MS

The Definitive Accident

State Approved Adjusters:

LA

Defending General Liability and Workers' Compensation Claims

State Approved Adjusters:

LA, TX, NC

Auto Claims: Know the Law and Avoid the Traps

State Approved Adjusters:

LA, TX, MS

General Liability and Auto Lunch and Learn

State Approved Adjusters:

LA

Use of OWC Form 1002 and The Safe Harbor

State Approved Adjusters:

LA, TX, MS

Traumatic Brain Injury

State Approved Adjusters:

AZ, GA, NH, NJ, LA, TX, CT, PA

How to Handle Auto Third-Party and UM/UIM Claims in Louisiana

State Approved Adjusters:

LA, TX, NC

How to Successfully Mediate a Case

State Approved Adjusters:

NC

Updates in Louisiana Law

State Approved Adjusters:

LA, TX, CT, NC

Recent Developments in Louisiana General Liability Law

State Approved Adjusters:

NC

Workers' Compensation in Louisiana

State Approved Adjusters:

LA

Recent Developments in Louisiana General Liability Law and in Medicare Reporting Guidelines

State Approved Adjusters:

NC

Updates in Trucking Law and Investigating an Accident 101

State Approved Adjusters:

LA