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.
Congratulations to Baton Rouge, Louisiana trial lawyer, Scott Andrews, of the law firm of Dué Guidry Piedrahita Andrews Courrege L.C., for being recognized as one of America’s top young trial lawyers. Scott Andrews has been invited to join the invitation only professional organization, The National Trial Lawyers: Top 40 under 40. No more than 40 attorneys per state are asked to join and invitations are extended exclusively to those individuals who meet stringent qualifications, who demonstrate superior leadership skills, and who exert passion and personal conviction as a young trial attorney.
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.
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”.
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Click here for a link to news footage involving Randy Piedrahita in his SWAT role. See if you can spot Randy in the footage of the manhunt for an attempted carjacker in Baton Rouge.
ELEMENTS OF AN INADEQUATE WARNING CLAIM UNDER THE LPLA
I. claimant sustains damages caused by a characteristic of a product
AND
I. claimant sustains damages caused by a characteristic of a product
AND
II. damages arose from a reasonably anticipated use of the product
–use or handling of a product that the product’s manufacturer should reasonably expect of an ordinary person in the same or similar circumstances
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.
In Louisiana medical malpractice actions the jury shall be instructed that the plaintiff has the burden of proving, by a preponderance of the evidence (more probable than not), the negligence of the physician, dentist, optometrist, or chiropractic physician.
The jury shall be further instructed that injury alone does not raise a presumption of the physician’s, dentist’s, optometrist’s, or chiropractic physician’s negligence.
These instructions are not to be given if the doctrine of res ipsa loquitur is found by the court to be applicable. La.R.S. 9:2794(C).
In Louisiana medical malpractice actions, the plaintiff has the burden of proving:
(1) the degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians, dentists, optometrists, or chiropractic physicians licensed to practice in the state of Louisiana and actively practicing in a similar community or locale (the locality rule) and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians, dentists, optometrists, or chiropractic physicians within the involved medical specialty (locality rule is inapplicable to specialists); and
(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill; and
Louisiana Injury Lawyer Blog
