Articles Posted in Louisiana Personal Injury Law

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In two recent per curiam decisions, the Louisiana Supreme Court protected employers who exposed their workers to high probability of harm from known unsafe working conditions by applying the “inevitability” test for determining whether a work place injury caused by an employer was intentional. In both cases, the Supreme Court found that the injuries were not “inevitable”, thus immunizing the employer from the tort claim under the Louisiana Worker’s Compensation Act.

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.
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In a 4-3 per curiam decision, the Louisiana Supreme Court in Ramanda Houston v. PNK (Bossier City), Inc., d/b/a Boomtown Casino and Hotel and Boomtown Casino, 2013-CC-1991 (La. 1/27/14), granted a summary judgment dismissing the accident victim’s slip and fall case. The victim slipped on a walkway as she exited a bus at the Boomtown Casino parking lot in Bossier City, Louisiana.

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.
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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.

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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).

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The intentional injury exclusion for injuries of a “a different kind or degree” or sustained by a “different person or property, than intended or expected” in personal liability insurance policies is enforceable and excludes coverage even if the seriousness of the injury is not intended expected or if a different person is injured than intended or expected. See Simpson v. Angel, 598 So.2d 584 (La.App. 4th Cir.), writ denied, 605 So.2d 1091 (La.1992).

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When determining whether the intentional injury exclusion — “willful and malicious acts of any insured” — will preclude coverage in a personal liability insurance policy, it is immaterial whether the insured intended the actual resulting injuries.

The act is “willful” if the actor has intentionally done an act of unreasonable character in reckless disregard of the risk known to him, or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow. It is usually accompanied by a conscious indifference to consequences, amounting almost to a willingness that harm should follow.

“Malicious” is characterized by, or involving, malice; having, or done with, wicked or mischievous intentions or motives; wrongful and done intentionally without just cause or excuse.

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When determining whether the intentional injury exclusion — “expected or intended from the standpoint of the insured” — will preclude personal liability insurance coverage, the subjective intent of the insured, as well as his reasonable expectations as to the scope of his insurance coverage, will determine whether an act is intentional. An act is intended if the perpetrator desires the results of his action or he believes that the results are substantially certain to occur. The insured’s subjective intent or expectation must be determined not only from the insured’s words before, at the time of, and after the pertinent conduct, but from all the facts and circumstances bearing on such intent or expectation. Breland v. Schilling, 550 So.2d 609 (La.1989). See also, Great American Ins. Co. v. Gaspard, 608 So.2d 981 (La.1992). In Breland, the Louisiana Supreme Court held:

We hold, therefore, that when minor bodily injury is intended, and such results, the injury is barred from coverage. When serious bodily injury is intended, and such results, the injury is also barred from coverage. When a severe injury of a given sort is intended, and a severe injury of any sort occurs, then coverage is also barred. But when minor injury is intended, and a substantially greater or more severe injury results, whether by chance, coincidence, accident, or whatever, coverage for the more severe injury is not barred. Whether a given resulting bodily injury was intended “from the standpoint of the insured” within these parameters is a question of fact. Such factual determinations are the particular province of the trier of fact, in this instance the trial jury. Breland, 550 So.2d at 614.

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In McBride v. Estis Well Service, 12-30714 (5th Cir. 10/2/13), the United States Fifth Circuit Court of Appeals held that Jones Act Seamen may recover punitive damages for their employer’s willful and wanton breach of the general maritime law duty to provide a seaworthy vessel. Such breach reflects a reckless disregard for the safety of the crew, who remain “wards of admiralty” deserving special protection under maritime law.

The general maritime law cause of action (unseaworthiness) and remedy (punitive damages) were established before passage of the Jones Act, and the Jones Act did not address that cause of action or remedy. Thus, the Fifth Circuit held that the punitive damages remedy remains available under that unseaworthiness cause of action unless and until Congress intercedes.

The Court concluded as follows: “Like maintenance and cure, unseaworthiness was established as a general maritime claim before the passage of the Jones Act, punitive damages were available under general maritime law, and the Jones Act does not address unseaworthiness or limit its remedies. We conclude, therefore, that punitive damages remain available to seamen as a remedy for the general maritime law claim of unseaworthiness.”

The Fifth Circuit cited as authority three law review and journal articles authored by University of Texas School of Law Distinguished Teaching Professor and W. Page Keeton Chair in Tort Law, David W. Robertson. Professor Robertson is one of the nation’s leading experts in admiralty law and serves of counsel to the Baton Rouge, Louisiana admiralty and maritime law firm of Dué Guidry Piedrahita Andrews Courrege L.C..
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BATON ROUGE–Eleven neighbors of the Monolyte Labs Inc. chemical facility in Slaughter, Louisiana filed a lawsuit in the 19th Judicial District Court in Baton Rouge on September 24, 2013 for injuries and damages that resulted from the November 9, 2012, explosion and fire that destroyed the facility and required a middle-of-the-night evacuation of residents from their homes.

The residents, represented by the Baton Rouge, Louisiana personal injury law firm of Dué Guidry Piedrahita Andrews Courrege L.C. are experiencing a range of symptoms resulting from the blaze and subsequent protracted and continuing cleanup of the site. The fire destroyed the facility, which blended various toxic chemicals for use in the water treatment industry. The Louisiana Department of Environmental Quality had to repeatedly issue orders to owners of the facility to clean up the extensive chemical release and spill that resulted from the fire. Extremely strong chemical odors permeated blocks around the plant site for months following the explosion and fire.

Plaintiffs have experienced respiratory and other ailments since the incident. The five-year-old daughter of a couple whose home was near the Monolyte facility has required more than 20 trips to doctors and hospitals–some by ambulance–for treatment of respiratory problems since the Nov. 9 fire and release of chemicals. The lawsuit also claims losses other than physical injuries, such as diminished property values.

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Sitting en banc, the Louisiana Third Circuit Court of Appeal recently affirmed the highest general damage award to a minor child for the wrongful death of a parent in Louisiana. The jury awarded $2.5 million in general damages to the minor boy for the devastating loss of his non-custodial mother, with whom he had a close relationship. The Louisiana Third Circuit Court of Appeal approved the following separate elements of wrongful death general damages and explained how each was different from the other:

1) Past, present and future mental anguish, grief and anxiety
2) Past, present and future loss of love and affection
3) Past, present and future loss of society, services and consortium

Mental anguish and grief refers to the pain, discomfort, inconvenience, anguish, and emotional trauma that accompany the injury. This includes the initial shock, anxiety, and distress that a minor child experiences as a result of the loss of a parent. Put another way, grief is the presence of an emotion as a result of a loved one’s death.

Loss of love and affection, on the other hand, goes beyond the initial grief and emotional trauma. These damages compensate the minor child for the enduring and irreversible loss of his parent. While grief and anguish will wane over time, the minor child will always feel the absence of the traditional characteristics of the parent-child relationship. Loss of love and affection is the absence of an experience; specifically, the absence of a love previously bestowed.

The factors for loss of consortium include loss of society and companionship, loss of support and family income, and loss of performance of material services, including educational and household help for children.

Rachel v. Brouillette, 12-794 (La.App. 3 Cir. 3/13/13), 111 So.3d 1137, 1142-43, writ denied, 2013-0690 (La.5/3/13), 113 So.3d 217 (Affirming the jury’s general damage award of $1 million for past, present and future mental anguish, grief and anxiety; $1 million for past, present, and future loss of love and affection; and $500,000 for loss of society, services and consortium. An additional $300,000 award for loss of support was also affirmed.).

Prior to Rachel, $750,000 was the highest general damage award ever affirmed by a Louisiana court for the wrongful death of a minor child’s parent. See Raymond v. Gov’t Employees Ins. Co., 09-1327 (La.App. 3 Cir. 6/2/10), 40 So.3d 1179, writ denied, 10-1569 (La.10/8/10), 46 So.3d 1268.
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