Articles Posted in Louisiana Personal Injury Law

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Is it reasonably forseeable that the first permittee might allow others to operate the automobile?

Implied permission by the named insured can be found even in the face of a specific prohibition against allowing others to operate the automobile if there is evidence that the named insured was aware of subsequent breaches by the permittee and took no remedial action or made no protests. On the other hand, the named insured’s express prohibition and consistent conduct enforcing the prohibition will preclude the implication that permission extends beyond the first permittee.

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As long as initial use of an automobile is with the express or implied consent of the insured, the scope of permission granted the user will not preclude coverage unless the deviation from the permission consented to by the insured amounts to theft or other conduct displaying an utter disregard for the return or safe keeping of the vehicle.

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Many liability policies extend coverage to relatives of the named insured who are “residents” of the same household of the named insured. Whether a person is or is not a resident of a particular place is a question of law as well as fact, and is to be determined from all of the facts of each particular case.

Residence and domicile are not synonymous terms. While a person may have only one domicile, he or she may have several residences.

Temporary absence does not necessarily preclude a relative from being a resident of the same household of the named insured.

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After teaching Product Liability during the Spring 2011 semester at the Southern University Law Center (SULC), Baton Rouge, Louisiana personal injury and accident attorney, Scott Andrews, will be teaching Insurance Law at the Southern University Law Center during the Fall 2011 semester.

Scott Andrews is a 1996 Order of the Coif honors graduate of the LSU Paul M. Hebert Law Center, where he served on the Louisiana Law Review.

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The Louisiana Supreme Court in McGlothlin v Christus St. Patrick’s Hospital, 2010-2775 (La. 7/1/11), struck a powerful blow to the conspiracy of silence machine that dominates Louisiana medical malpractice litigation by holding that the Louisiana Medical Malpractice Act does NOT mandate the admission of a medical review panel opinion when the panel exceeds its statutory authority and renders an opinion based on its determination of the patient’s credibility, rather than on the appropriate medical standard. Prior to this holding, it was common practice for Louisiana medical review panel members, when faced with conflicting versions of the events, to accept as truth everything the doctor said and to disregard what the patient said.

In a recent case handled by Baton Rouge, Louisiana medical malpractice attorney, Scott Andrews, the Louisiana medical review panel totally disregarded (and did not even read) the affidavits of the widow and an eye witness and found that the doctor did not commit medical negligence based solely on his deposition testimony. Even though the Medial Review Panel Attorney Chairman agreed that an issue of fact existed that prevented the panel from rendering a valid opinion, he nevertheless allowed the medical review panel to rule in favor of the doctor, with the caveat that plaintiff could object to admissibility of the opinion later. It is time for Medical Review Panel Attorney Chairmen to stand up to the conspiracy of silence machine and follow the law as written by the Louisiana Legislature, as interpreted by the Louisiana Supreme Court, and give victims of medical malpractice their rightful day in court.

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In a case arising from a fire at an oil well site which left a worker severely burned, a deeply divided Louisiana Supreme Court held in a 4-3 decision that a timely filed lawsuit against a worker’s statutory employer who is immune from tort liability and who had not paid any benefits (because benefits were paid by the direct employer) can interrupt prescription against an alleged third-party tortfeasor because of the solidary liability that exists between them for medical expenses and lost wages. Glasgow v. PAR Minerals Corporation, 2010-2011 (La. 5/10/11), rehearing denied, (La.7/14/11). The Supreme Court concluded:

The Civil Code provides a two-part formula for interrupting prescription in this situation: 1) a timely lawsuit (and service, if in an incompetent court; see LSA-C.C. art. 3462); and 2) a solidary relationship between a party sued within the prescriptive period and a party not sued within the prescriptive period (see LSA-C.C. art. 1799 or art. 3503). The procedural posture here is comparable to that in Williams v. Sewerage & Water Bd. of New Orleans, 611 So.2d 1183 (La. 1993), except that in Williams, the suit in district court was for workers’ compensation and the suit was brought against a direct employer rather than a statutory employer. The procedural distinctions here are without a difference, because LSA-C.C. art. 1797 provides that the source of the solidary relationship is immaterial. For this reason, to the extent Keller v. McLeod, 2003-267 (La.App. 3 Cir. 2/11/04), 866 So.2d 388; Williams v. Holiday Inn Worldwide, 2002-0762 (La.App. 4 Cir. 5/15/02), 816 So.2d 998; and Layman v. City of New Orleans, 1998-0705 (La.App. 4 Cir. 12/9/98), 753 So.2d 254, are inconsistent with the conclusion that a timely lawsuit (and service, if in an incompetent court) against a principal or statutory employer interrupts prescription as to a third-party alleged tortfeasor, those cases are overruled. In the instant case, we find both parts of the formula provided by the Civil Code for interrupting prescription have been met; the lower courts erred in sustaining the alleged third party tortfeasor’s exception of prescription. Accordingly, we reverse the decisions of both lower courts and remand this matter to the district court for further proceedings consistent with this opinion.

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In Whitley v. State of Louisiana, through the Board of Supervisors of Louisiana State University Agricultural Mechanical College, 2011-0040 (La. 7/1/11) and Burnett v. James Construction Group, 2010-2608 (La. 7/1/11), the Louisiana Supreme Court preserved a tort victim’s rightful day in court. According to Baton Rouge, Louisiana personal injury and accident lawyer, Scott Andrews, the Louisiana Legislature at the urging of attorneys for the State has created numerous procedural traps for the unwary in an attempt to deprive personal injury victims of their day in court through deception and trickery. Once such trap is the requirement that suits are to be dismissed without prejudice if service of process is not requested within 90 days of filing. If a suit is dismissed for insufficiency of service of process after the prescriptive period has run, the suit is forever time barred. A companion trap is that service of process of lawsuits against the State of Louisiana and its agencies must be made on the Governor, the head of the state agency being sued, the Attorney General, AND on the director of the office of risk management. This duplicative service requirement serves no legitimate purpose other than to try and deprive a victim of their day in court upon failure to request service of process on any one of the four required persons, thus leading to dismissal. As would be expected, the State of Louisiana in both cases tried to dismiss a lawsuit that was served on less than all four of the required persons. The Supreme Court held that dismissal was not warranted and that the plaintiff was allowed additional time beyond the 90 day requirement to correct the insufficiency of service of process.

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Retired Louisiana First Circuit Court of Appeal Judge, Bob Downing, now of counsel with the Baton Rouge, Louisiana law firm of Dué Guidry Piedrahita Andrews Courrege L.C., has joined the panel of neutrals of MAPS – Mediation Arbitration Professional Systems, Inc. – with offices in Baton Rouge, New Orleans, and Jackson, Mississippi. Created in 1987, MAPS provides mediators and arbitrators for alternative dispute resolution.

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In Brooks. v. State of Louisiana, Department of Transportation and Development, 2010-1908 (La.7/1/11), the Louisiana Supreme Court held that the scope of duty of the Louisiana Department of Transportation and Development (DOTD) to maintain the shoulder of a Louisiana state highway does not encompass the risk that a driver of an inherently unstable and top-heavy backhoe not authorized for highway use will drive on the shoulder and attempt a sharp turn into a driveway at a relatively high rate of speed, hit a 2-4 inch depression in the asphalt that would have not caused any problem for a vehicle, tip over, and be crushed by the backhoe. DOTD’s duty was summarized by the Supreme Court as follows:

DOTD’s duty is to maintain the public roadways in a condition that is reasonably safe and does not present an unreasonable risk of harm to the motoring public exercising ordinary care and reasonable prudence. This duty extends to the shoulders of highways as well. DOTD’s duty to maintain safe shoulders encompasses the foreseeable risk that for any number of reasons a motorist might find himself on, or partially on, the shoulder. This duty extends not only to prudent and attentive drivers, but also to motorists who are slightly exceeding the speed limit or momentarily inattentive. Nonetheless, DOTD is not a guarantor of the safety of all the motoring public under every circumstance. Nor is DOTD the insurer for all injuries or damages resulting from any risk posed by obstructions on or defects in the roadway. Id. In other words, we will not impose liability for every imperfection or irregularity, but only a condition that could reasonably be expected to cause injury to a prudent person using ordinary care under the circumstances. Whether the DOTD breached its duty, that is, whether the shoulder was in an unreasonably dangerous condition, is a question of fact and will depend on the facts and circumstances of each case. If the shoulder did not present an unreasonable risk of harm then DOTD, by definition, did not owe a duty to [the plaintiff] and cannot be held liable for the damages he sustained. As a question of fact, we will review the jury’s determination that the shoulder presented an unreasonable risk of harm under the manifest error standard. Under the manifest error standard, an appellate court may not disturb a jury’s finding of fact unless the record establishes that a factual, reasonable basis does not exist and the finding is clearly wrong or manifestly erroneous. This Court has described the unreasonable risk of harm criterion as a guide in balancing the likelihood and magnitude of harm against the social utility of the thing, all the while considering a broad range of social and economic factors, including the cost to the defendant of avoiding the harm, as well as the risk and social utility of the party’s conduct at the time of the accident. In every determination, all the circumstances surrounding the particular accident under review must be considered to determine whether DOTD’s legal duty encompassed the risk which caused the plaintiff’s damages.

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The Louisiana Supreme Court in Fulmer v. State of Louisiana, Department of Wildlife and Fisheries, 2010-2779 (La.7/1/11), clarified that seamen employed by the State of Louisiana may assert a claim for damages against the State of Louisiana under the Jones Act. The Supreme Court held that because the State of Louisiana has consented through Article XII, Section 10 of the Louisiana Constitution to suits for personal injury, claims against the State of Louisiana under the Jones Act brought by state-employed seamen are not prohibited under the Louisiana Worker’s Compensation Act or the Louisiana Constitution.

According to Baton Rouge, Louisiana admiralty and maritime attorney, Scott Andrews, the most common Jones Act and maritime claims against the State of Louisiana arise out of ferry accidents, primarily on the Mississippi River. Claims are brought by employed seamen injured while working on state run ferries and by passengers injured in ferry accidents, such as once such case handled by Scott Andrews when a New Orleans ferry collided with the dock causing a passenger to fall from the stairs on the ferry.