| by

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.

| by

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..
Continue reading

| by

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.

Continue reading

| by

Louisiana Revised Statute 9:5629 provides that actions for the recovery of damages sustained in motor vehicle accidents brought pursuant to UM provisions in motor vehicle insurance policies are prescribed by two years reckoning from the date of the accident in which the damage was sustained.

A timely filed suit against the tortfeasor interrupts prescription against the UM insurer because they are solidary obligors. Hoefly v. Government Employees Ins. Co., 418 So.2d 575 (La.1982).

A liability insurer and a UM insurer are not solidary obligors, so suit against the liability insurer does not interrupt prescription against the UM insurer. Rizer v. American Sur. & Fid. Ins. Co., 669 So.2d 387 (La.1996).
Continue reading

| by

Louisiana’s No Pay / No Play statute, provides that an owner or operator of a motor vehicle who fails to own or maintain compulsory motor vehicle liability security can not recover for the first $15,000 of bodily injury damages and for the first $25,000 of property damage caused by a motor vehicle accident, unless the driver of the other vehicle:

(i)  Is cited for a violation of R.S. 14:98 (DWI/DUI) as a result of the accident and is subsequently convicted of or pleads nolo contendere to such offense.

(ii)  Intentionally causes the accident.

(iii)  Flees from the scene of the accident.

(iv)  At the time of the accident, is in furtherance of the commission of a felony offense.
Continue reading

| by

Louisiana Revised Statute 32:900 provides for the minimum compulsory auto liability insurance limits:

$10,000 per person / $20,000 per accident regardless of the number of persons (prior to January 1, 2010)

$15,000 per person / $30,000 per accident (effective January 1, 2010)

$25,000 per person/ $50,000 per accident for intrastate motor carriers (except tow trucks, not for hire farm vehicles, and forestry vehicles) weighing 20,001 – 50,000 pounds
$300,000 combined single limit for all persons or 100/300 for intrastate motor carriers (except tow trucks, not for hire farm vehicles, and forestry vehicles) weighing more than 50,000 pounds
For interstate carriers, federal provides the following minimim limits:

Property–49 C.F.R. § 387.9– (1) Property/Dry Freight: $750,000; (2) Oil/Petroleum: $1,000,000; (3) Hazardous Materials: $5,000,000;

Passengers–49 C.F.R. § 387.33– (1) Seating for 15 or less: $1,500,000; (2) Seating for 16 or more: $5,000,000.
Continue reading

| by

Bodily Injury Liability (BI)
If an insured person is legally liable for an accident, BI coverage pays for injuries/death to people involved in the accident other than the insured driver. BI also pays for legal defense costs if you are sued.

Property Damage Liability (PD)
If an insured person is legally liable for an accident, PD coverage pays for damage to other persons’ property resulting from the accident. PD also pays for legal defense costs if you are sued.

Collision (optional)
When your insured vehicle overturns or collides with another object, collision coverage pays for the damage to your vehicle, regardless of who is at fault. Collision coverage also may extend to a non-owned vehicle or one rented for personal use that is in your custody or that you are operating.

Comprehensive (optional)
If your insured vehicle is damaged due to an event other than a collision, comprehensive coverage will pay for the damage. This includes damages from fire, theft, windstorm, flood and vandalism.

Roadside Assistance/Towing
Roadside Assistance provides services such as towing, flat tire change, locksmith service and battery jump-start.

Rental Reimbursement
Rental Reimbursement provides rental car coverage in the daily rental amount limit purchased.

Medical Payments (Med Pay)
Med Pay pays for medical and funeral expenses for covered persons, as a result of an auto accident.

Uninsured/Underinsured Motorist Liability (UM)
If a driver or owner of a vehicle does not have insurance, or does not have enough, and is legally liable for an accident, you can use UM coverage for injuries, including death, that an insured sustains, up to the limits you select.

Economic Only UM
Covers only economic loss, i.e. medical, funeral, and lost wages. Excludes noneconomic loss which is any loss other than economic loss and includes but is not limited to pain, suffering, inconvenience, mental anguish, and other noneconomic damages otherwise recoverable under the laws of Louisiana.

Uninsured/Underinsured Property Damage (UMPD)
If a driver or owner of a vehicle is legally liable for an accident but does not have insurance or does not have enough insurance, you can use UMPD to cover damage to your insured vehicle, up to the limits you select. UMPD is available as an alternative to collision coverage for PD caused by other persons’ fault.
Continue reading

| by

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.
Continue reading

| by

Last year before the November Presidential election, former Counsel for the Democratic Party and Executive Committee Member Randy Piedrahita quietly switched his voter registration to Republican. On June 11, 2013, at the Ronald Reagan Newsmaker Luncheon, Randy and two other former Democratic officials were formally welcomed into the GOP by East Baton Rouge Parish Republican Chairman Woody Jenkins and State GOP Chairman Roger Villere. Randy briefly spoke to thank the Republicans for their warm welcome and to note that, as the son of legal immigrants and a Lifetime NRA member, he was aligned with them on many issues ranging from gun control and entitlement abuse to fiscal reform and encouraging self versus governmental reliance. Randy fielded questions and discussed constitutional and historical roots of gun rights, and is looking forward to working with Republicans to better this State and these United States.

| by

In Louisiana State Police Troop G, 27 fatal crashes were investigated in 2012, with 22% of those Louisiana auto accidents involving impaired drivers.

Louisiana’s DUI or DWI laws apply to operators of motor vehicles, aircraft, watercraft, vessel, or other means of conveyance. Under Louisiana law, La.R.S. 13:98.1, an operator or driver under the age of 21 found to have a blood alcohol concentration (BAC) of .02 or more will be charged with DWI. Under La. R.S. 13:98, an operator or driver over the age of 21 found to have a BAC of .08 or more will be charged with DWI.

Under La. R.S. 9:2798.4, if an accident occurs, no person is liable for the injury, death, or loss of the operator or driver of a motor vehicle, aircraft, watercraft, or vessel if he/she is found to be in excess of 25% negligent as a result of his/her BAC being in excess of .08, and the negligence was a contributing factor causing the damage.

In order to combat drunk driving and with the support from the Louisiana Highway Safety Commission, the Louisiana State Police will conduct a DWI checkpoint in Bienville Parish, Louisiana, on June 19-20, 2013, at an undisclosed location. The DWI checkpoint will be conducted from approximately 10:30 p.m. to 12:30 a.m.
Continue reading