Louisiana Injury Lawyer BlogUsing the duty/risk analysis, it must be determined whether the insured’s conduct of which the plaintiff complains is a legal cause of the accident. If so, then it must be determined whether the insured’s conduct arose out of the “use” of an automobile. In order for the insured’s conduct to arise out of “use,” the automobile must be essential to the theory of liability being asserted against the insured. The specific duty breached by the insured must flow from “use” of the automobile. If the specific duty breached by the insured existed independently of the “use” of the automobile, then liability does not arise out of “use” even though the insured’s duty could have been performed by use of an automobile. In the final analysis, common sense must be utilized in making the determination of whether “use” of the automobile is an essential ingredient of the duty breached by the insured. McKenzie & Johnston, Louisiana Civil Law Treatise, Insurance (West).
Articles Posted in Louisiana Personal Injury Law
Permission of Owner v. Reasonable Belief by Operator
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.
What is Insurance?
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.
Interpretation of Insurance Policies
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.
Louisiana Supreme Court Accepting E-Filing of Documents
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.
Baton Rouge Personal Injury Lawyers Salute the State Police for Cracking Down on Insurance Fraud
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
“Reasonably Anticipated Use” as a Bar to Recovery Under the Louisiana Products Liability Act
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.
Louisiana Survival Action, La. C.C. art. 2315.1
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.
Louisiana Wrongful Death action, La. C.C. art. 2315.2
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.
Louisiana’s Pure Comparative Fault System, La. C.C. art. 2323, and Liability as Solidary or Joint and Divisible, La. C.C. art. 2324
In any action (or claim for recovery of damages for injury, death, or loss asserted under any law or legal doctrine or theory of liability, regardless of the basis of liability) for damages where a person suffers injury, death, or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss (including victim fault) shall be determined, regardless of whether the person is a party to the action or a nonparty, and regardless of the person’s insolvency, ability to pay, immunity by statute, including but not limited to the provisions of R.S. 23:1032 (employer Worker’s Compensation immunity), or that the other person’s identity is not known or reasonably ascertainable (phantom tortfeasors).
If a person suffers injury, death, or loss as a result partly of his own negligence and partly as a result of the fault of an intentional tortfeasor, his claim for recovery of damages shall not be reduced.
He who conspires with another person to commit an intentional or willful act is answerable, in solido, with that person, for the damage caused by such act. If liability is not solidary then liability for damages caused by two or more persons shall be a joint and divisible obligation. A joint tortfeasor shall not be liable for more than his degree of fault and shall not be solidarily liable with any other person for damages attributable to the fault of such other person, including the victim regardless of such other person’s insolvency, ability to pay, degree of fault, immunity by statute or otherwise, including but not limited to immunity as provided in R.S. 23:1032 (employer Worker’s Compensation immunity), or that the other person’s identity is not known or reasonably ascertainable (phantom tortfeasors).