Articles Posted in Louisiana

Some commercial insurance policies are written so that defense costs come out of coverage limits.  It’s called declining limits (or wasting asset)  because as the case is proceeding the coverage limits are declining.  So the amount of liability coverage decreases, dollar for dollar, with every billable hour or cost in the case.  

For defendants, this is a real issue.  The policy limits that protect them against a judgment are being whittled away by the very people that stand between them and a verdict that starts digging in their pockets.   In really large cases, this does not have a huge impact.  But with smaller policies,  a declining limits policy can be a real game changer. 

My Declining Limits Case

My first case like this was a boiler accident where I sued the designer of the boiler.  The company didn’t really have two nickels to rub together so while we might have hit them with a bad faith verdict if they offered the policy limits there was not much we could do.   This policy had another goofy clause.  They could get out of a $15,000 deductible if the case settled in mediation.  Their lawyer asked me for mediation.  I said no, just offer the policy.  He told me of the language and we agreed to the mediation.  They tried to get me to bend when I got to the mediation.  I didn’t, they put up the money, and was that.  But if I had known about the declining policy limits… I have no idea what I would have done… I guess push for settlement harder earlier.  Ultimately, the difference would have been very little.   It was pretty fun to see all the defense lawyer’s bills, which we rarely never have the opportunity to see.

It is hard, under these circumstances, to even make a demand beyond “give me all of your money.”   There is not an accountant that gives an updated total on a daily basis.  So it is impossible for plaintiffs to make a demand that they know to be within policy limits, which is critical for a bad faith claim after an excessive verdict.

Policies like this make me glad I’m not an insurance defense lawyer.   The conflict issues this kind of policy creates are through the roof.   The insurance company may want to go all out to protect against a policy hit.  But maybe the insured just wants that policy offered early and wants the lawyer to do less to make sure there is enough to satisfy a judgment.

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So many lawyers are caught up on which judge they draw when they try a case. I’m more worried about the jury than I am the judge. But if you have a case with a lot of close calls on evidence, the judge you draw really matters. Trial courts generally have wide discretion over evidentiary rulings. So many of the decisions are based on what the judge wants to do, even if 9 out of 10 judges might disagree. Trial judges know in cases where there is an appeal of evidentiary rulings that were made by the trial court, the appeals court will usually not disturb the trial court’s ruling unless the ruling was entirely wrong or the evidence would have changed the outcome. Sometimes, this wide discretion shows in the rulings they make.

A Louisiana appellate court decided last week a case, Kendrick v. North Shore Medical Center, that underscores this discretion. Kendrick is a medical malpractice wrongful death case. The patient’s family was suing the hospital where the patient died.

What happened was the patient gets a procedure to remove his gallbladder but later complains of abdominal pain. A CT scan of the abdomen reveals that the patient had an abdominal mass and hematoma. He gets a diagnostic colonoscopy and an operation to remove the malignant tumor from his colon. However, four days later, the patient died from cardiac arrest. There was no autopsy performed. The patient’s family sued the hospital, claiming that the hospital failed to treat the patient for deep vein thrombosis despite signs and symptoms of the condition, ultimately resulting in a pulmonary embolism and the patient’s death. During the trial, the trial court allowed evidence from an expert who testified that the patient did not die from a pulmonary embolism. The jury found that the hospital was not at fault. The patient’s family appealed this, claiming that the expert’s evidence should not have been allowed because he relied not on hearsay, not double hearsay, but triple hearsay. That, my friends, is a lot of hearsay.

Slip and fall case does not make it to trial

The 5th Circuit affirmed summary judgment last week for Lowe’s Home Centers in a Louisiana case that points out some interesting issues that arise in many slip and fall cases.

Plaintiff was walking down an aisle at a Lowe’s and slipped and fell after passing a merchandise pallet filled with light bulbs. Plaintiff had a friend with her who was following close behind her. Plaintiff’s lawsuit claimed that the fall was caused by a board that was coming out from the bottom of this light bulb pallet. Yet neither Plaintiff or her friend actually saw the board she tripped over. Instead, her friend says that he noticed the board only after plaintiff fell and he just put 2 and 2 together. Lowe’s claims, naturally, nothing was out of the ordinary after the fall.