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.

A Louisiana appellate court dealt with an interesting informed consent issue in Roberts v. Marx last week.

Plaintiff sues Defendant, a urologist, for complications from an elective vasectomy. Plaintiff alleged that he would not have had the procedure if he had been informed that the doctor just had eye surgery days before the operation.

The court said that this issue was not one of informed consent but one of negligence. This means that the eye surgery would need to, in some way, be linked to the plaintiff’s alleged injuries. Because there was no nexus, the court dismissed the case.

Slip and fall and other premises liability cases are often lucrative cases. Nationally, the average premises liability verdict is $643,099. That average is a good verdict, relatively speaking, in a personal injury case, far higher than, for example, a car crash.

Of course, these are verdicts where the plaintiff won their lawsuit. The challenge for a plaintiffs’ attorney is often getting a case to a jury in the first place and getting a finding of liability. One of the toughest premises liability cases is premises liability claims by tenants against landlords. Typically, the problem is that while the condition of the property is defective, the tenant knew about the defect and assumed the risk – and thus the responsibility – for the injuries.

The 5th Circuit dealt with the opposite problem last week in a Louisiana case: whether the tenant could prove there was a defect in the first place. Plaintiff fell downstairs in her home that she had been renting for 7 years – stairs she had climbed thousands of times. She filed a premises liability lawsuit against the owner, saying the stairs were defective, arguing that the stairs were unreasonably dangerous because they violated several building codes.

lowe's slip and fall case

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.

The average personal injury verdict in Louisiana $ 95,000. The national average is $45,000. Historically, the best verdicts in Louisiana come out of New Orleans.

Here are some recent verdicts in Louisiana.  These are taken largely at random.  Please don’t assume they are proof positive about the value of your claim.  But I think they are illustrative.

  • March 2020, Louisiana: $16,755 Verdict: A 30-year-old woman was pumping gas at a truck stop in Vinton. A truck backed into her vehicle as it was attempting to turn around. The impact pushed her into the gas pump. She suffered soft-tissue injuries and anxiety. The woman sought damages from the trucker and his employer. Both the defense counsel and the trucker disputed her injuries. The Lake Charles jury awarded her $16,755, comprising of $6,755 in medical expenses and $10,000 in physical pain and suffering.

On Friday, a Louisiana jury in West Carroll Parish awarded $4 million to the family of a man who died in a 2002 crash. According to the lawsuit, a faulty Teledyne Continental Motors engine was to blame for the accident that killed the plaintiffs’ decedent.

Louisiana lawyers Daniel Barks, Richard Fewell, Jr., and Dion Young represented the family in this defective products lawsuit.

State Farm has taken a lot of PR punches in Louisiana over Hurricane Katrina. But that does not mean Louisiana juries are not fair. Last week, a Hurricane Katrina case that went to the jury resulted in a defense verdict for State Farm, denying the claim of a Slidell couple seeking $625,000 from the insurer for the damage they allege was caused by a sewer backup into their home during the storm. The jury did not buy that a sewer backup caused the damage.

Interestingly, before trial, State Farm offered $10,000 to settle. The jury awarded the Plaintiffs $8,259 for wind damage from the hurricane. In this case, State Farm got it about right.

A study to appear soon in the Tulane Law Review concluded that campaign donations make a difference to the Louisiana Supreme Court. Justices on the Louisiana Supreme Court vote in favor of their own contributors’ position up to 80 percent and 90 percent of the time. The study also showed the more, the merrier. Larger contributions had greater benefits. Justice Catherine D. Kimball was 30 percent more likely to vote for a defendant with each additional $1,000 in campaign donations. For Justice John L. Weimer, the effect was 300%.

Perhaps these numbers are not a surprise because financial contributors throw more to judges apply whose those philosophies benefit them. This makes sense. I’m sure the NRA, for example, will not send Barack Obama or Hillary Clinton a ton of money. I’m sure Justice Weimer’s contributors knew where he stood on the issues. But judges are viewed differently that politicians and, accordingly, are viewed through a different prism. There is an appearance that something is helpful. Perceptions matter.

The lesson, as always: electing judges is just the wrong way to go.

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