Louisiana’s Fourth Circuit Court of Appeals affirmed judgment in favor of the firm’s client, a general liability insurer, in an insurance coverage dispute. The insured roofing contractor was sued after a fire started during a roof repair and caused damage to multiple buildings. The general liability policy at issue was subject to an endorsement that excluded coverage for damage caused during a “torch down” roofing operation. The trial court rejected the roofer’s claim that the exclusion was unambiguous and/or inapplicable and granted summary judgment. On appeal, the ruling was affirmed. The court held that, under a plain reading of the exclusion, “damages caused by the use of hot tools to perform roofing repairs, triggers the Torch Down Roofing Exclusion, and precludes coverage.”
TWPD is excited to announce the opening of its fourth office in Covington, Louisiana. Expanding our presence in St. Tammany and the surrounding parishes is part of our ongoing effort to better serve our clients and the local communities in which they do business.
The Firm’s New Orleans lawyers secured dismissal of a Pennsylvania credit union from a suit filed in Louisiana. The credit union was not registered to do business in Louisiana, did not employ anyone in Louisiana, did not advertise or solicit business in Louisiana, and did not maintain any branches in Louisiana. The credit union’s only connection to the Louisiana case was that it financed a loan to the Plaintiffs for remodeling their home after it was damaged during Hurricane Ida. Because the credit union did not have constitutionally sufficient contact with Louisiana, the firm filed an Exception of Lack of Personal Jurisdiction on the credit union’s behalf. Following oral argument and post-hearing briefs from the parties, the Court sustained the Exception and dismissed Plaintiffs’ claims against the credit union. The Plaintiffs filed a motion for new trial, which was quickly denied.
The firm’s Mississippi office battled a high stakes trucking case for the past six years. Central to the case was a fierce liability dispute. The plaintiffs’ vehicle was sitting in the right hand lane of a rural highway, without working lights and late at night. The dark color of the small sedan mixed with painted over taillights made it virtually impossible to be seen by following traffic. A truck driver was traveling down the same highway and only saw the disabled, unlit vehicle as a collision was imminent. Regrettably, the collision resulted in three fatalities and two injured plaintiffs. While most of the parties resolved their claims, the remaining plaintiff took a hardline stance on liability and trial was scheduled. The firm successfully excluded one of Plaintiff’s liability experts ahead of trial. This expert intended on testifying in the field of accident reconstruction, human factors, trucking and transportation and regulatory compliance. Plaintiff appealed the exclusion up to the Mississippi Supreme Court, which refused to overturn the trial judge’s ruling. The ruling significantly gutted Plaintiff’s liability theories and directly resulted in the ability to resolve the case ahead of trial.
We secured summary judgment in a premises liability case in Baton Rouge’s 19 Judicial District Court. The plaintiff alleged that she slipped and fell on a wet floor in a gas station, which caused a significant injury to her right knee requiring multiple surgeries. Surveillance footage showed that the plaintiff fell immediately next to a “wet floor” sign. The firm moved for summary judgment on the grounds the wet floor was open and obvious in light of the wet floor sign and the plaintiff failed to exercise reasonable care. Plaintiff argued that summary judgment was premature because she needed to take additional depositions of gas station employees. The Court rejected this argument and granted summary judgment on the basis of Plaintiff’s testimony and video footage of the accident alone.
The firm secured dismissal with prejudice at the outset of a construction contract dispute. A residential homeowner sued our client – a residential and commercial contractor who previously performed construction work on the home for the prior owner. Obtaining and analyzing the Act of Cash Sale, TWPD argued the plaintiff had no right of action against the contractor under the subsequent purchaser doctrine because the language in the Act of Cash Sale did not meet the specificity requirements under Louisiana law. TWPD’s client was dismissed with prejudice before discovery ever began.
The Firm’s Baton Rouge attorneys secured judgment in favor of an employer in a workers’ compensation matter before OWC District 6. While our client conceded the claimant had enough evidence to prove he broke his arm at work, our client still disputed the extent of his injuries and disability. Both parties also filed competing fraud claims against one another. The defense focused on whether claimant intentionally lied about two intervening motor vehicle accidents, his simultaneous treatment for multiple accidents and the timing of when he first returned to work.
The Court found Claimant proved an initial accident and injury but found he subsequently committed fraud, forfeited his rights to workers’ compensation benefits and he was fined $5,000. The court further found Claimant could not prove causation for any ongoing injury. Our client was only ordered to pay a single $153 medical bill.
The firm secured summary judgment in favor of its client, a large insurance carrier, on the grounds the client had no duty to defend plaintiff’s company. The plaintiff/company was sued in a large number of asbestos injury lawsuits and alleged it was entitled to recover significant defense costs under an insurance policy issued by TWPD’s client. The firm successfully argued that the plaintiff was not an insured under the policy, nor had it acquired any rights or interest in the policy from the named insured. Both the trial and appellate courts agreed there was no breach of the duty to defend, resolving the matter in favor of the insurer.
TWPD’s New Orleans Office secured a summary judgment dismissal for its clients in a trip and fall case. The plaintiff sued a Café and its insurer after she reportedly tripped and fell while exiting the Café, but when deposed could not identify what caused her to trip. She speculated it was either the mat in front of the door or the threshold – but did not know for sure. TWPD moved for summary judgment, arguing that plaintiff could not meet her burden of proof because she could not identify the defect or allegedly hazardous condition that caused her fall, and further could not prove the Café had notice of any such defect. The Fifth Circuit Court of Appeal agreed and reversed the lower court’s decision, thus dismissing plaintiff’s claims against the Café and its insurer, with prejudice.
The firm obtained a defense verdict in District 9 of the Office of Workers’ Compensation in Houma, Louisiana. The plaintiff claimed that she injured her back after being attacked by a dog during the course and scope of her employment. After discrediting the plaintiff on cross examination, the Court found that the evidence submitted at the trial did not support the plaintiff’s allegations of the occurrence of a work accident, and dismissed her claim.
The firm obtained a defense verdict in a Caddo Parish bench trial on behalf of a Shreveport credit union. The plaintiff maintained several accounts at the credit union that were being investigated for suspicious activity, including receipt of possible misappropriated funds. The credit union received a search warrant from a California court as part of that investigation. Following a consultation with its attorneys, the credit union placed an administrative freeze on the plaintiff’s accounts in an effort to protect the assets of the credit union. While the administrative freeze was lifted two weeks later, plaintiff asserted that the freeze caused her significant damage, including mental anguish, additional business expenses, and lost profits in excess of $1,000,000. At trial, TWPD pointed to the language in the membership agreement between the plaintiff and the credit union, which provided that the credit union would not be liable for failing to complete a transaction if the plaintiff’s account funds were subject to legal process or other claim. The court agreed and dismissed suit in favor of our client.
The firm obtained summary judgment on behalf of its retail client in federal court in Lake Charles. The plaintiff allegedly suffered a significant knee injury after tripping over a large wooden ramp that was put in place to cover a set of loose wires. During her deposition, plaintiff admitted she observed the wooden ramp prior to her fall, that she “kept looking at it” and she witnessed other customers safely walk across the ramp. TWPD also obtained surveillance video of the accident which showed the size of the wooden ramp and that it was not blocked from plaintiff’s view. In its motion, TWPD asserted that the ramp was an open and obvious condition. The Court agreed, granting summary judgment in favor of our client on the grounds plaintiff could not meet her burden of proof under the Louisiana Merchant Liability Statute.
TWPD attorneys secured a defense verdict from a Baton Rouge Jury. In this case two plaintiffs struck a deer one evening and then we were rear-ended by the firm’s client. The plaintiffs sued and the case went to trial where they argued that the firm’s client was 100% at fault for the collision. The jury found that the plaintiff was 51% at fault. The defendant was only assigned 29% at fault with the remaining 20% assigned to a third party. Turning to damages, one plaintiff sought $2.5 million but was only awarded $285,497.87 for sustaining fractured sacrum, fractured hip, lacerated kidney, and herniation in his spine. The second plaintiff sought $54,644.00 in past medical expenses plus $140,000 in future medicals. The jury disbelieved this plaintiff’s injury and only awarded medical expenses of $5,215.00. He was not awarded any amount for general damages. Ultimately, the verdict against our client was $90,000 less than what was offered in advance of trial.
TWPD’s Baton Rouge lawyers secured a favorable jury verdict in Rapides Parish. The case demonstrates the importance of hiring experienced trial lawyers. Damages were the only issue for trial, as the court had granted summary judgment before trial that our client was fault in causing the accident. Thus, Plaintiffs treated the entire process as a money grab. Plaintiffs rejected our client’s generous $450,000 offer; instead, opting to ask the jury for $2.3 million. The tactic did not sit well with the jury. While Plaintiff proved he initially sustained cervical fractures and a broken arm that required surgery, the jury did not find his complaints of ongoing pain and disability credible. In the end, only $330,000 was awarded: $120,000 LESS than our client offer prior to trial.
TWPD’s Baton Rouge lawyers obtained summary judgment in favor of their client, and an award of court costs, in the 16th Judicial District Court. The plaintiff alleged she was injured in our client’s store when a roll of flooring fell off of a shelf and struck her. However, a store employee testified that she observed the plaintiff “digging through” the rolls of flooring just prior to the accident. The plaintiff knocked over one roll, which caused a second roll to fall off the shelf. The parties subsequently filed cross-motions for summary judgment. Plaintiff first attempted to argue the merchandise was arranged hazardously despite evidence to the contrary. Plaintiff also convinced a former disgruntled store employee to conduct an unauthorized site inspection of our client’s premises and attempted to introduce inadmissible evidence of subsequent remedial measures in defense of summary judgment. The plaintiff alleged our client destroyed material evidence of prior complaints regarding the arrangement of flooring rolls. Ultimately, the plaintiff’s strategy failed, summary judgment was granted in favor of our client dismissing suit and awarding our client court costs.
The Firm secured summary judgment in the 19th JDC involving a slip and fall. The plaintiff alleged to have slipped in greasy oil in our client’s parking lot. Plaintiff relied on photographs of the parking lot showing multiple stained areas and argued that, had our client properly inspected their grounds, they would have seen the greasy oil spot. Surveillance footage showed Plaintiff slipped over a dark colored area, but he was also attempting to pivot back at the time to hold open the door for another customer. The Judge granted summary judgment, dismissing suit, on the grounds that the plaintiff could not establish our client had actual or constructive notice or that the dark stained area contained greasy oil that caused him to fall.
The Louisiana Supreme Court recently invalidated an employer’s UM coverage rejection in favor of an injured employee in Harvard v Ricky Jeanlouis. The opinion stresses the importance of ensuring all proper procedures are followed when executing these UM rejection forms. In Harvard, the corporate representative verbally authorized his administrative assistant to stamp his signature onto the rejection form and sign his initials. The Court held that in cases where a corporate representative directs a subordinate to execute a UM waiver form in the corporate representative’s capacity, then the corporate representative must confer that authority in writing.
The Louisiana Supreme Court, in Martin v. Greer Logging, et al., finally resolved the disputed issue of whether a plaintiff can simultaneously maintain claims of negligence against an employee for which an employer is vicariously liable and claims of direct negligence against an employer for negligent hiring, retention, training etc. In ruling plaintiffs can maintain these separate causes of actions, the Court examined the Louisiana Civil Code and basic tort law grounded in the premise that all potential tortfeasors can be assigned fault. In cases of disputed liability, the jury can attribute a percentage of fault to the plaintiff, a percentage of fault to an employee/tortfeasor for which the employer is vicariously liable AND an additional percentage of fault against the employer if the evidence shows that the employer’s negligent hiring, training or retention of an employee contributed to the cause of an accident. In the short term, we expect to see an influx of discovery against defendants into an employer’s internal policies and procedures as plaintiffs pursue these separate claims. In cases wherein the defendant stipulates to 100% fault, an employer’s internal policies and procedures should remain irrelevant.
TWPD’s New Orleans office secured dismissal of suit at the Louisiana Supreme Court in Shantell Jenkins, et al VS. Arbors on the Lake Apartments. The issue was whether the plaintiff could prove causation for her injuries at trial. The plaintiff, who was pregnant at the time of her slip and fall, experienced a complicated delivery of her child, which led to developmental delays. Plaintiff claimed that the premature birth was caused by the slip and fall incident and the defendants’ apartment complex. TWPD, representing the complex, moved for summary judgment, arguing there was insufficient medical expert testimony linking the premature birth to the incident. The LASC agreed and reversed the lower’s court’s decision denying summary judgment. In dismiss the complex, the LASC reaffirmed the long standing principle that circumstantial evidence is insufficient to prove a complex medical causation question. Instead, medical testimony is mandated under Louisiana law. As Plaintiff submitted no medical testimony in support of causation, summary judgment was warranted.
TWPD’s New Orleans office secured dismissal of a suit at the Louisiana Supreme Court in Rhonda Lacour, et al v. Phillis M. Sino, et al, No. 2021-CC-00953. An elderly man drive his vehicle into a commercial building, injuring the plaintiffs inside. The plaintiffs sued the property owner and lessee of the building, claiming bollards should have been erected in front of the building to prevent this incident. Lessee, represented by TWPD, moved for summary judgment asserting:(1) it was a lessee of the premises and it had no custody or control over the building’s exterior, sidewalk, or parking lot pursuant to its lease agreement with the owner of the strip mall; and (2) in the alternative, it was not liable because the accident was not reasonably foreseeable. After a hearing, the 3JDC denied the motion for summary judgment. On de novo review, the Louisiana Supreme Court reversed the lower courts and granted summary judgment in favor of the lessee. The judgment recognized that the duty of reasonable care requires store owners to protect against the probability of injuries foreseeable in law, which has been defined as “those risks that are probable and foreseeable, not those risks which are merely foreseeable in fact as possible.”
Jill Miller joined a panelist of three other female industry leaders, including Commissioner Beth Harkins of the Mississippi Workers’ Compensation Commission in a discussion to explore the challenges and emerging trends of executive presence in the workers’ compensation world at the annual MWCEA conference. The discussion was moderated by Jennifer Ryon, Board Vice President for the Alliance of Women in Workers’ Compensation. Jill provided lessons learned and explained how her executive presence has transformed throughout her career. Jill will be joining the Ambassador program for Alliance of Women in Workers’ Compensation to assist in starting a chapter in Mississippi.
The Louisiana Supreme Court handed down its highly anticipated opinion on the standard for ordering an Additional Medical Examination under LA C.C.P. art. 1464 and issued a ruling that benefits personal injury defendants across the state. TWPD was tasked with taking a writ and presenting oral argument on Hicks v. USAA General Indemnity Co. for a decision on what constitutes “good cause” for an AME. This issue has been plaguing the defense bar for a number of years by allowing personal injury plaintiffs to present unopposed physician testimony at trial while barring defendants from retaining their own experts to physically examine the plaintiff. Ruling in favor of TWPD, the Supreme Court held that a moving party satisfies the "good cause" standard merely by showing a reasonable nexus between the requested examination and the condition in controversy. The Court further reversed the trial court’s decision—which previously resulted in a $1.5 million verdict at trial—and remanded the matter for a new trial in accordance with its findings.
TWPD Attorneys, Mike Thompson and Claire Sauls, secured a defense verdict in a bad faith UIM claim. The plaintiff alleged lumbar injuries and sought in excess of $375,000 in damages. Additionally, the plaintiff claimed that TWPD’s client violated the provisions of La. R.S. 22:1892 and 22:1973, seeking penalties and attorneys’ fees for the violation. During trial, the defense presented testimony and evidence that the plaintiff’s alleged injury was caused by other events and that plaintiff was otherwise not credible. The jury returned a verdict finding that the plaintiff failed to prove that he sustained the alleged injuries in the accident. By extension, the jury found that our client did not violate the provisions of La. R.S. 22:1892 and 22:1973. The jury thus returned a verdict of $0.00.
TWPD’s Baton Rouge lawyers secured exclusion of costly life care plan leading to settlement substantially below the demanded damages. In this personal injury suit in St. Martin Parish, the plaintiff demanded more than $3 million in damages related to a traumatic brain injury. The plaintiff’s neurologist opined she required Botox injections to treat TBI related headaches for her 43 year remaining life expectancy. The firm moved to exclude the testimony on the grounds the neurologist’s clinical experience and the studies he relied on did not support 43 continuous years of treatment. The judge agreed, and the case settled for a fraction of the $3 million demand.
TWPD’s Baton Rouge lawyers successfully defended a personal injury action in the 19th JDC leading the jury to award substantially less damages than the defendant demanded in pre-trial settlement negotiations. During the course of trial, TWPD’s defense team twice sought and obtained favorable evidentiary rulings from the court of appeal that impacted the outcome. Despite the plaintiff alleging severe injuries and need for surgery, the defense presented the jury with evidence, including testimony from plaintiff’s ex-wife, that plaintiff was performing high levels of physical activity following the accident that were completely inconsistent with his claims of injury. The plaintiff sought $7.5 million from the jury. The jury awarded $450,000.
TWPD’s Baton Rouge attorneys secured dismissal of a trip and fall suit against a national home improvement store. The plaintiff allegedly tripped and fell over a piece of lumber that extended from another customer’s cart. The incident was captured on the store’s video surveillance cameras. The video of the incident showed the plaintiff walking directly into the piece of lumber extending from the cart. The other customer was waiting in line to check out and the plaintiff was walking with her phone in her hand just before she fell. Plaintiff alleged that she did not see the piece of lumber. We argued that our client owed no duty to protect an inattentive plaintiff from tripping over a piece of lumber that extended from another customer’s cart. Our client also had no notice or control over the allegedly dangerous condition. The Western District of Louisiana agreed and granted summary judgment dismissing the suit.
When used properly, the Form 1010A can ensure doctors are providing all necessary information and complying with the MTG.
If you have any questions about how to calculate judicial interest, please give us a call.
Using SIF Questionnaires can be a pivotal part of the employment and workers’ compensation process. Call us with any questions.
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.
These guidelines contained some marked changes in the area of pain management.
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:
AZ, GA, TX, NH, CT, FL
LA, TX, OH
LA, TX, NC
LA, TX, NC, DE, FL
LA, TX, NC
LA, TX, MS
LA, TX, MS
AZ, GA, NH, NJ, LA, TX, CT, PA
LA, TX, NC
LA, TX, CT, NC