February 26, 2025

Degan, Blanchard & Nash

Casualty Litigation Updates

DBN obtains defense verdicts!

DBN’s trial team zeroed a Plaintiff in a federal civil jury trial in the United States District Court for the Western District of Louisiana – Lafayette Division.  The accident involved two 18-wheelers.  Our client, another truck driver, reportedly turned in front of the Plaintiff’s tractor allegedly causing a collision.  Plaintiff alleged serious, significant injuries, including the need for future neck and back surgeries.  The Defense called an Accident Reconstruction Expert/Biomechanical Engineer who testified that the forces involved in this minor parking lot accident would not have caused any injury and said forces were less than the forces exerted in a sneeze or simple walking.  The Defense also called a board certified orthopedic surgeon, who opposed a very experienced neurosurgeon from San Antonio, where the Plaintiff was treated. Ultimately, the jury did not believe that the Plaintiff was injured in the subject accident and rendered a zero verdict against the Plaintiff. DBN’s defense trial team included Sid Degan, Janna Campbell, and Steven Schilling.

Valuation Calculated at the Time of Loss is an Unambiguous and Enforceable Policy Provision.

After a three-day bench trial in a Hurricane Laura case, the trial court accepted the Plaintiff’s estimate and rendered a verdict based upon the estimate presented by the Plaintiff, which used a January 2023 price list.  The United States Fifth Circuit Court of Appeal reversed the Judgment insofar as it violated the valuation provision of the insurance policy, because “the policy is clear: the cost of repairing or replacing the damaged property is determined based upon prices ‘as of the time of loss or damage.’”  Accordingly, the case was remanded for recalculation using prices from the time of loss. First Baptist Church of Iowa, Louisiana v. Church Mutual Insurance Company, S.I., 105 F.4th 775 (5th Cir. 2024).  (Obtained by Degan, Blanchard & Nash).

No Solidary Obligation Exists Between an Insolvent Insurer and the Louisiana Insurance Guaranty Association.

DBN sought appellate review of a trial court’s denial of an exception of prescription and successfully had the trial court’s decision reversed and the Plaintiffs’ case dismissed in full.

Plaintiffs filed a Petition for Damages arising out of Hurricane Ida on August 28, 2023, against their homeowners’ insurer (“Insolvent Insurer”), one day before the two-year prescriptive period lapsed, but approximately eleven months after their homeowners’ insurer was declared insolvent.  Almost two months later, on November 21, 2023, Plaintiffs filed a First Amended Petition for Damages adding the Louisiana Insurance Guaranty Association (“LIGA”) as an additional Defendant.  LIGA was first named as a Defendant nearly two months after the lapse of prescription.

LIGA filed an exception of prescription, which was denied by the trial court.  Thereafter, LIGA filed an Application for Supervisory Writs to the Fifth Circuit Court of Appeal and raised the same arguments brought before the trial court, namely, that the claim against LIGA was prescribed on its face; that there was no interruption of prescription or acknowledgment; there was no legislative exception with regard to the prescriptive period against insolvent insurers and that no solidary obligation existed between the insolvent insurer and LIGA so as to interrupt prescription.

The Appellate Court agreed and determined there could be no solidary obligation between a non-existent entity and LIGA.  Because no solidary obligation exists, there was no interruption of prescription at the time the suit was initially filed.  When Plaintiffs filed their amended complaint naming LIGA, Plaintiffs’ claim against LIGA was prescribed on its face.  The Court of Appeal reversed the trial court and dismissed Plaintiffs’ case in full. Martha Green, et al v. Maison Insurance Company, et al, __ So.3d __, 2024 WL 4033561, 24-297 (La. App. 5 Cir.  9/4/24).  (Obtained by Degan, Blanchard & Nash).

The Louisiana Supreme Court reversed itself on rehearing ruling that the jury did not abuse its discretion in its award of general damages of $10,750,000.00. Facts specific to case as well as prior jury awards are to be considered.

In a very important decision, the Louisiana Supreme Court reversed itself on December 19, 2024, on rehearing ruling that the jury did not abuse its discretion in its award of general damages in the amount of $10,750,000.00 to Frank Cushenberry, who sustained severe injuries, including a traumatic brain injury. Barber Brothers Contracting Company, LLC v. Capitol City Produce Company, LLC, et al. c/w Frank Cushenberry, et al. v. Johnny Scott, et al., No. 2023-C-00788.  On appeal, the Court found that the jury abused its discretion under the Pete analysis.  Under Pete, the Louisiana Supreme Court held that lower courts must consider past general damage awards for similar injuries to determine whether a jury abused its discretion in its damages award.  The Court reduced the award to Cushenberry to $5,000,000.00 as the “highest reasonable award for general damages.” On rehearing, the Court stated that it did not adequately account for the voluminous and unrebutted trial record demonstrating the detrimental effects of the injuries on Cushenberry.  After a thorough review of the record and prior jury awards, the Court found that the jury’s award does not “shock the conscience” and was not an abuse of discretion.  The Court reinstated the jury’s award of $10,750,000.00 in general damages.  The effect of the Court’s ruling is that in evaluating whether a jury abused its discretion, the appellate courts are to consider facts specific to each case in conjunction with a review of prior jury awards.  In essence, the Court’s ruling has opened the door for the appellate courts to maintain inflated jury verdicts.

LEGISLATIVE UPDATE

Limited circumstances when an injured person may file suit against an insurer under the revised direct action statute.

Louisiana Revised Statute 22:1269, known as the Louisiana Direct Action statute, was recently revised to provide limited circumstances when an injured person may file suit against an insurer.  Prior to the revision, an injured person had a direct action against an insurer.  The statute currently sets forth seven circumstances when an injured person may file suit against an insurer, including:  (1) the insured files for bankruptcy; (2) an insured is insolvent; (3) service of citation has been attempted on the insured or the insured refuses to answer or defend the action within 180 days of service; (4) the cause of action  is for damages as a result of an offense or quasi-offense between children and their parents or between married person; (5) the insurer is an uninsured motorist carrier; (6) the insured is deceased; and (7) the insurer is defending the lawsuit under a reservation of rights, or the insurer has denied coverage to the insured but only for the purpose of establishing coverage.  La. R.S. 22:1269(B)(1)(a)-(g).  This revision became effective August 1, 2024.  

New amendment requires an opportunity for adequate discovery before making an offer of judgment.

Louisiana Civil Code Procedure Article 970 was amended to require an opportunity for adequate discovery before making an offer of judgment to settle a claim.  The article sets forth the procedures to recover costs incurred after an offer of judgment is made.  If the final judgment obtained by the Plaintiff -offeree is at least twenty-five percent less than the amount of the offer of judgment made by the Defendant-offeror, or if the final judgment obtained against the Defendant-offeree is at least twenty-five percent greater than the amount of the offer of judgment made by the Plaintiff-offeror, or if the final judgment is in favor of the Defendant-offeror, the offeree must pay the offeror's costs, exclusive of attorney fees, incurred after the offer was made, as fixed by the court.  The amendment became effective August 1, 2024.

CASUALTY

Jury rejected Plaintiff’s claim that the accident caused her injuries.
 

Plaintiff sued Defendants to recover from personal injuries allegedly arising out of an automobile accident. At the district court trial, the jury found the Defendant driver to be at fault in causing the accident. However, the jury rejected Plaintiff’s claim that the Defendant driver’s negligence caused the injuries and damages of which she complained. The Louisiana Third Circuit Court of Appeal affirmed the judgment because Plaintiff had a prior accident that she did not disclose when she reported to the emergency room after the accident at issue. The Third Circuit also found that the record supported the jury’s determination that Plaintiff failed to carry her burden of proving causation. Lewis obo Lewis v. Nat'l Union Fire Ins. Co., 23-700 (La. App. 3 Cir. 4/3/24).

Summary judgment granted on causation of Plaintiff’s injuries was affirmed by the appellate court.

Plaintiff, who was allegedly injured in a car crash, and her spouse brought a personal injury action against an insurance company and other Defendants. The trial court, after having denied Plaintiff's motion for partial summary judgment seeking a ruling that the crash had caused Plaintiff's neck and shoulder injuries, granted Plaintiff's motion for partial summary judgment on causation and held that the crash was the medical cause of a torn rotator cuff in Plaintiff's right shoulder. Defendants appealed, and the Louisiana Fourth Circuit Court of Appeal affirmed the trial court’s judgment. In its holding, the Fourth Circuit found that the law-of-the-case doctrine did not bar the trial court from granting Plaintiff’s second motion for summary judgment on causation, and there was no evidence of an intervening cause that could relieve the Defendants of liability for Plaintiff’s right-shoulder injury.  Crain v. National Liability & Fire Ins. Co., et al., 2023-CA-0413 (La. App. 4 Cir. 11/21/23).

Summary judgment granted in favor of the driver of a forward vehicle in a rear-end collision.

The Plaintiff, a passenger in the forward vehicle, sued the driver of his vehicle for negligence in failing to have operating brake lights on the trailer he was pulling.  The trial court granted the Defendant/driver’s motion for summary judgment alleging that the sole cause of the accident was the rear-ending driver.  The Court of Appeal affirmed.  Mitchell v. Chambers, State Farm Mutual Automobile Insurance Company, Horton, and Foremost Insurance Company Grand Rapids, Michigan, 55,949-CA (La. App. 2 Cir. 11/20/24).
 

In this intentional tort case, Plaintiff was found to be 40% at fault where he first pushed the Defendant.

The Plaintiff entered into a lease for an apartment owned by the Defendant, a longtime friend.  A hard freeze struck New Orleans, and the pipes under the Plaintiff’s apartment froze and burst.  The Defendant failed to timely repair the pipes and prohibited the Plaintiff from doing so.  After the Plaintiff hired a licensed plumber to repair the pipes, the Defendant and a friend arrived at the apartment to repair the pipes while Plaintiff was out of the apartment.  Upon the Plaintiff’s return, an altercation ensued. The Plaintiff pushed the Defendant, and in response, the Defendant punched the Plaintiff in the face, causing the Plaintiff to suffer a concussion with a loss of consciousness, facial injuries, and whiplash to his neck.  The trial court held that the Defendant was not at fault.  The Fourth Circuit Court of Appeal reversed finding the Defendant liable for the battery committed on the Plaintiff; however, the court assessed 40% of fault to the Plaintiff.  Irwin v. Brent, No. 2023-CA-0475 (La. App. 4 Cir. 7/19/24).

An insurer’s duty to defend is determined by the policy and the allegations in a Plaintiff’s petition.

After a motor vehicle accident at the Port of New Orleans involving a Port employee, the driver of the other vehicle filed suit against the Port, which then sought indemnification from its insurers.  The basis for these demands was the Tariff for Facilities in the Port of New Orleans.  The trial court granted summary judgment in favor of the third-party Defendants.  The Tariff simply stated that there was no indemnity for the Ports’ own negligence.  The Tariff contained no such requirement of fault or neglect on the part of the indemnitor, the lessee of the vehicle driven by Plaintiff, before an obligation to indemnify was triggered.  No judicial determination of Ports’ fault, if any, for the underlying tort claim had been made, as a trial on Plaintiff’s underlying tort claim had not yet been held.  Although it was not premature for the Port to file its third-party demands before such a judicial determination was made, it was premature for the trial court to rule on those demands.  Summary judgment in favor of the lessee of the vehicle and its insurer was reversed.  To resolve whether an insurer has a duty to defend, a court must consider not only the policy language, but also the allegations of the Plaintiff’s petition.  As there was no alleged liability on the part of the named insured (here, Defendant’s predecessor), additional insured coverage was not owed to the Port.  Summary judgment in favor of the insurer was affirmed.  Riggio v. Ports America Louisiana, LLC, Bridges, Board of Commissioners of the Port of New Orleans, and ABC Ins. Co., 2024-CA-0436 (La. App. 4 Cir. 12/5/24).

An owner is not relieved of liability if he fraudulently induces the buyers since a fraud vitiates consent and the “as is” clause; Court of Appeal reversed fining no evidence of fraudulent intent.

Under Civil Code Article 2548, an otherwise effective exclusion or limitation of the warranty against redhibitory defects is not effective if the seller commits fraud, as defined in the Civil Code, upon the buyer.  Although the warranty against redhibitory defects may be excluded or limited, a seller cannot contract against his own fraud and relieve himself of liability to fraudulently induced buyers.  The trial court found the sellers committed fraud which vitiated consent and the “as is” clause.  The Court of Appeal reversed.  A seller who makes a willful misrepresentation in a RPDA can be guilty of fraud.  While the seller may have misinterpreted some of the questions on the RPDA, the Court of Appeal found no evidence of fraudulent intent.  Lobur, Lobur, Harbison and Harbison v. Temple, Jr., individually and in his representative capacity as Trustee of the Candace Temple Adams Trust, the Candace Temple Adams Trust, and Adams, 2024-CA-0176 (La. App. 1 Cir. 12/9/24).

Defendants found solidarily liable in a case involving a petroleum coke facility.

Three Defendants were found solidarily liable and assessed damages to over 50 Plaintiffs for medical issues, property damage, and nuisance caused by the three Defendants’ operation of a petroleum coke facility in the Plaintiffs’ neighborhood.  Two of the Defendants argued that the Plaintiffs failed to prove they conspired with one another and caused the pet coke to be disbursed in the neighborhood as required by La. Civil Code Article 2324.  Cases interpreting La. Civil Code Article 667 have held the landlord and tenant solidarily liable where the landowner knew or should have known of its lessee/employee’s negligent activity taking place on its property and where the landowner failed to exercise reasonable care to prevent the resulting damages.  The Court of Appeal affirmed the finding of solidary liability and affirmed all but one of the trial court’s damage awards.  Landry, et al. v. Guzzino Commercial, LLC, et al., 23-648 c/w Bartie, et al. v. Guzzino Commercial, LLC, et al., 23-649 c/w Anderson, et al. v. Guzzino Commercial, LLC, et al., 23-650 (La. App. 3 Cir. 11/20/24).

No personal jurisdiction over a Florida corporation who sold a fishing vessel in Florida to a Louisiana company who then sold to another Louisiana company.

Contender, a Florida corporation with its principal place of business in Florida, designs and manufactures fishing vessels solely in the State of Florida.  Contender built a fishing vessel for Intensity, a Louisiana limited liability company.  The vessel was subsequently purchased by Kel-Sea, also a Louisiana limited liability company.  After Kel-Sea found manufacturing defects, it filed suit against Contender in a Louisiana court.  The trial court held that it lacked personal jurisdiction over Contender.  The First Circuit Court of Appeal affirmed.   Contender did not direct any activities regarding the vessel into Louisiana.  The vessel arrived in Louisiana as the result of the unilateral activity of Intensity, the original purchaser.  Kel-Sea Adventures, LLC v. Contender Boats, Inc., No. 2024 CA 0208 (La. App. 1 Cir. 9/26/24).

Suit to recover unpaid insurance premiums is a suit for breach of contract with a 10-year prescriptive period.

A suit to recover unpaid insurance premiums is a suit for breach of contract, not a suit on an open account. A suit for breach of contract is subject to the 10-year prescriptive period. Diamond Services Corp., Allen & Hall of Louisiana, Inc., No. 2024 CA 0085 (La. App. 1 Cir. 9/27/24).

Plaintiff waived right to proceed to litigation where it failed to pursue mediation after the arbitration.

The trial court erred in granting Defendant’s Motion to Confirm an Arbitration Award where the contract set forth a clear choice between arbitration and litigation as the third and final step in the dispute resolution process.  In determining the Plaintiff’s rights to proceed with litigation, the Court of Appeal had to determine whether a party may be allowed to skip the second step of the process, mediation, in favor of litigation.  The contract provided that the parties proceed to mediation if one or both were dissatisfied with the initial decision.  By failing to pursue mediation, the Plaintiff waived its right to proceed with the litigation.  Mary John Family, LLC v. Stevens Construction & Design, LLC and Stevens, 24-CA-32 (La. App. 5 Cir. 10/30/24).

No invasion of privacy where a nurse was found to be more credible than Plaintiff where the nurse denied stating Plaintiff’s condition in front of others in a waiting room.

A tort for invasion of privacy can occur in four ways: (1) by appropriating an individual’s name or likeness; (2) by unreasonably intruding on physical solitude or seclusion; (3) by giving publicity which unreasonably places a person in a false light before the public; and (4) by unreasonable public disclosure of embarrassing private facts.  In this case, the Plaintiff claimed that Defendant nurse breached her privacy interest when she blurted out the Plaintiff’s medical condition in the waiting room where other people were present.  The Second Circuit Court of Appeal held that the trial court did not manifestly err in finding the nurse’s testimony to be more credible than Plaintiff’s.  In addition, the Plaintiff failed to show that she suffered any damages as a result of the alleged disclosure of her medical information.  Cameron v. St. Francis Medical Center, Inc., No. 55,804-CA (La. App. 2 Cir. 7/17/24).

Award of severance damages was affirmed in expropriation case.

The trial court awarded severance damages in this transmission line servitude case. Severance damages represent the diminution in market value of the remaining property caused by a taking.  There was conflicting expert testimony.  One expert testified that severance damages virtually never result from the installation of eight-story utility poles almost two feet in diameter and another testified that this type of taking can result in severance damages.  The trial court’s determination could not be found manifestly erroneous, therefore, the trial court decision was affirmed.   Lafayette City-Parish Consolidated Government v. Clause, 24-273 c/w 24-274, 24-275, 24-276, 24-277 (La. App. 3 Cir. 11/20/24).

PREMISES LIABILITY CASES

The Louisiana Supreme Court clarified that the “Open and Obvious” defense is an issue of breach, rather than an issue of duty.

The Louisiana Supreme Court’s decision in Farrell v. Circle K Stores, Inc. and the City of Pineville, 2022-00849 (La. 3/17/23), 359 So. 3d 467, expounded the “open and obvious” defense and its application within the duty/risk analysis in negligence or premises liability cases.  The defense has been used over the years to defeat liability on the grounds that if the condition was open and obvious and a reasonable person would have avoided it, then there is no duty owed by the property owner.  However, in Farrell, the Court acknowledged the prior inconsistent application of the open and obvious defense and rectified the conflicting application.  According to the Court, “open and obvious is embraced within the breach of the duty element of the duty/risk analysis and is not a jurisprudential doctrine barring recovery, but only a factor of the risk/utility balancing test. Specifically, it falls within the ambit of the second factor of the risk/utility balancing test, which considers the likelihood and magnitude of the harm [whether there is an unreasonable risk of harm], and it is not a consideration for determining the legal question of the existence of a duty.”  Therefore, the analysis for evaluating an unreasonable risk of harm is an issue whether the duty was breached and not whether a duty existed.  The Court noted that while the issue of whether there is a breach of duty is a mixed question of law and fact, summary judgment is not precluded.  However, in order for a court to grant summary judgment, there must be a finding that “reasonable minds could only agree that the condition was not unreasonably dangerous; therefore, the Defendant did not breach a duty owed.”  Upon such a finding, a plaintiff would not be able to prove the breach element at trial.  The Court found that summary judgment was mandated, reversing the trial court’s denial of summary judgment.  

Summary judgment was improper where there was an issue of fact whether the open basin was “open and obvious.”

In a wrongful death and personal injury suit, a worker at a refinery suffered a fatal injury when he fell from the upper level of the refinery plant walk and into a basin where the grating had been removed.  Another worker/Plaintiff witnessed the accident and injured his arm.  The Court of Appeal found it was undisputed that the grating was removed and the issue of whether the open basin was classified an open and obvious condition, accompanied by Defendants’ concession that the walkway adjacent to the open pump basin was a slippery surface, was a fact specific issue which precluded it from summary judgment.  The Fourth Circuit Court of Appeal found that the trial court committed legal error by dismissing Plaintiffs’ spoliation claim as the judgment did not reflect that it considered the issue and Defendants did not raise the issue on summary judgment.  In addition, the trial court erred in granting summary judgment to Defendants on the injured Plaintiff’s personal injury claim.  Matthews and Barber v. Phillips 66 Company, Turner Industries Group, LLC, Bransafway Services LLC, and Oil Mop, LLC d/b/a Omi Environmental Solutions LLC, 2024-CA-0227 (La. App. 4 Cir. 11/3/24).

A genuine issue of material fact existed as to whether the sinkhole was “open and obvious.”

This action arose after a hunter and his minor child were injured after driving into a sinkhole in a wildlife area. The trial court granted summary judgment in favor of Defendant, which the Plaintiffs appealed. The Louisiana First Circuit Court of Appeal reversed the trial court judgment, holding that a genuine issue of material fact existed as to whether there was a reasonable expectation that a motorist would attempt to drive the area where the sinkhole was located. The First Circuit further held that a genuine issue of material fact existed as to whether the sinkhole was “open and obvious.”  Lacassin v. State of Louisiana, Dep’t of Wildlife and Fisheries, 2023 CA 1052 (La. App. 1 Cir. 6/4/24).

Summary judgment upheld where Plaintiff disregarded the posted warnings and visible barriers.

Plaintiff contended he was lawfully on Defendant’s premises to inquire about a job opening when his head came in close contact with the high voltage electrical distribution line owned by Entergy.  Entergy’s roof-top facilities were gated and usually locked and the distribution line was located 10 feet above the ground.  Danger signs were on the gate warning of the line. The Court found that  operators of power lines are not required to anticipate every possible accident that may occur and operators are not the insurers of safety of persons moving around power lines in the course of everyday living (and the Plaintiff was not Entergy’s invitee.)  There was undisputed evidence establishing the location and nature of Entergy’s facilities.  It, therefore, could not be reasonably anticipated that someone would disregard the posted warnings and the visible barriers to access Entergy’s isolated electrical facilities.  Summary judgment in favor of Entergy was affirmed.  Cunningham v. Borden Dairy Company of Texas, LLC, Dairy Farmers of America, Inc., Entergy Louisiana, LLC and Chubb Custom Insurance Company, 2024 CA 0105 (La. App. 1 Cir. 11/20/24).

The Louisiana Supreme Court reversed the denial of summary judgment finding the Defendant had no duty to protect the decedent against the consequences of his own intentional criminal acts.

This case arose from a shooting in a convenience store parking lot, with Plaintiff filing suit for wrongful death on behalf of the decedent’s four minor children. The Defendant/store owner filed a Motion for Summary Judgment seeking dismissal of the action against it, asserting it had no duty to protect patrons like the decedent from the criminal actions of third parties on its premises. Defendant argued that the shooting was not foreseeable and that the decedent was not an innocent bystander, as he was engaged in a verbal altercation with the shooter and struck him with his hand before being shot. The trial court denied Defendant’s Motion for Summary Judgment, and the appellate court denied Defendant’s Application for Supervisory Writ, finding no error in the trial court’s ruling. However, the Louisiana Supreme Court reversed the trial court’s ruling, finding that the Defendant had no duty to protect the decedent against the consequences of his own intentional criminal actions.  Evans v. Abubaker, Inc., 2023-00955 (La. 5/10/24).

Summary judgment affirmed in favor of the school where a student tripped and fell on a football field during a flag football game.

Plaintiff filed a claim for negligence against a school after her son tripped and fell on a football field.  The trial court granted summary judgment in favor of the school, reasoning that an injury occurring during a game of flag football, which is an ordinary, school-sanctioned activity, could not have been prevented by the coach exercising any further supervision than what he provided on the day of the accident.  The Court of Appeal affirmed and found that a school and its teachers are generally liable for damages caused by students under their supervision when the school board, the teacher, or other authorities might have prevented the act which caused the damages and have not done so.  In this case, even if the coach had been staring directly at the child, he would not have been able to stop the child from tripping.  Further, while the child was restricted from attending the field trip due to disciplinary issues, the record was devoid of any evidence that the other students had behavioral dispositions, which would have triggered a heightened level of supervision by the coach.  Sims v. Samuel J. Green Charter School Field, First Line Schools Network, Inc., Alternative Service Concepts New Orleans Recovery School District and XYZ Inc. Co., 2024-CA-0277 (La. App. 4 Cir. 12/2/24).

Summary judgment affirmed in favor of the City of Lafayette where the recreational use immunity applied.

Plaintiff stepped into a hole on a track in a park owned by the City of Lafayette and fell. The track was made up of a red cinder material and the park had a full-time foreman and maintenance crew.  Recreational use immunity applied.  Simply stating that “they have plenty of holes in that track” was woefully insufficient to establish a genuine issue of material fact.  Further, there was no evidence of an intentional or grossly negligent act by Defendant’s employees.  Summary judgment in favor of Defendant was affirmed. Celestine v. Lafayette City-Parish Consolidated Government and ABC Insurance Company, 24-227 (La. App. 3 Cir. 11/20/24).

Summary judgment was affirmed in favor of Entergy where Plaintiff failed to show a breach of duty and that the open receptacle was an unreasonably dangerous condition.

Plaintiff fell into an open garbage receptacle at the St. Mary Parish West End Pick-Up Station and was injured as a result. The Parish filed a Motion for Summary Judgment, asserting that the Plaintiff could not establish any “defect” or unreasonably dangerous condition at the Pick-Up Station that caused or contributed to Plaintiff's injuries. The Louisiana First Circuit Court of Appeal did a duty/risk analysis of harm caused by the garbage receptacle and found that the Plaintiff failed to show both that the Parish breached the duty of care owed and that the open receptacle was an unreasonably dangerous condition. The First Circuit affirmed summary judgment granted by the trial court.  Hebert v. St. Mary Par., 2023-1099 (La. App. 1 Cir. 4/19/24).

Surveillance video was important evidence on summary judgment in favor of Plaintiff.

This case was brought by a pedestrian against a hotel owner, seeking damages for injuries sustained when she tripped and fell on a doormat near the hotel entrance. The Louisiana Fourth Circuit Court of Appeal reversed the trial court’s granting of summary judgment in favor of the hotel owner. In its reasoning, the Fourth Circuit found that video surveillance tape and the relevant depositions raised several questions regarding whether the doormat at issue presented an unreasonable risk of harm.  Ausbon v. Omni Hotels Mgmt. Corp., 2023-0589 (La. App. 4 Cir. 4/2/24).

Placement of “wet floor” warning cones was proper and reasonable to warn patrons of an alleged unreasonably dangerous condition.

A fast-food restaurant customer brought a personal injury action against the restaurant operator seeking damages for injuries Plaintiff sustained after slipping and falling on the restaurant's recently mopped floor. Before the Court was Plaintiff’s appeal of the trial court’s granting of summary judgment in favor of the Defendant. The Louisiana Fifth Circuit Court of Appeal held that the placement of “wet floor” warning cones in areas that were recently mopped was proper and reasonable to warn restaurant patrons of the alleged unreasonably dangerous condition.  Migliore v. Ambassador P’ship, LLC, et al., 22-CA-599 (La. App. 5 Cir. 12/1/23).

QUANTUM

Orleans Parish jury awards $421 Million to physicians when defrauded by Blue Cross.

Doctors at the Center for Restorative Breast Surgery (“Breast Center”) and St. Charles Surgical Hospital (“Hospital”) in New Orleans, sued Blue Cross Blue Sheild, claiming the insurer tried to coerce the doctors into their network and defraud them. According to the evidence presented at trial, Blue Cross authorized more than 7,000 procedures and paid roughly 9% of the costs for those procedures.  After a 3-week trial in Orleans Parish Civil District Court, the jury deliberated for less than two hours and returned a verdict of $421 million.  Blue Cross plans to appeal. St. Charles Surgical Hospital, LLC and Center for Restorative Breast Surgery v. Louisiana Health Service & Indemnity D/B/A Blue Cross/Blue Shield of Louisiana, Blue Cross Blue Shield of Louisiana, Inc. and HMO Louisiana, Civil District Court for the Parish of Orleans, No. 2017-1095, Div. C. (9/23/24).

St. Landry Parish jury awarded $219,190,110.00 to a paramedic who sustained severe injuries when a truck pulled into the path of the ambulance.

A St. Landry Parish jury awarded $219,190,110.00 to a paramedic who sustained severe injuries when a truck pulled into the path of the ambulance.  The paramedic was unrestrained in the back of the ambulance tending to a person in transport.  She was thrown in the rear of the ambulance sustaining severe injuries, including a subdural bleed, large laceration to the head, traumatic brain injury with permanent speech and cognition deficits, skull fractures to the eye socket, cheek and nose, and a C-7 spine fracture.  Plaintiff was unconscious at the scene.  She required 24 hour, 7 days a week care.  The jury deliberated only 75 minutes finding the driver of the truck 100% at fault.  Of the total verdict, $61,443,984.00 was awarded for the life care plan and $155,500,000.00 was awarded in general damages.  Tramble v. LineTec Services, St. Landry Parish, No. 22-10939, Div. B (9/23/24).

Orleans Parish jury awarded $3,405,525.00 in a minor side-swipe accident.

An Orleans Parish jury awarded $3,405,525.00 to a Plaintiff who sustained a C5-6 disc herniation that would require future fusion surgery.  The minor side-swipe accident occurred on Canal Street at Camp Street in New Orleans when a box truck struck Plaintiff’s vehicle.  Plaintiff did not complain of any injury at the accident scene.  Of the total verdict, $2,775,000.00 was awarded in general damages.  Rue v. Ace American Insurance Company, Civil District Court for the Parish of Orleans, No. 19-3654, Div. L (9/19/24).

East Baton Rouge jury awarded $1,512,000.00 in a rear-end collision.

In October 2024, an East Baton Rouge jury awarded $1,512,000.00 in a rear-end collision to Plaintiff, who treated for chronic back pain and had a spinal cord stimulator installed.  The Defendant driver was found 100% at fault in the accident.  No fault was assigned to Plaintiff.  $850,000.00 was awarded for non-economic damages and $662,000.00 was awarded for past and future medical expenses.  Rende v. Matt Bowers Chrysler Dodge Jeep Ram, No. 712258, 19th Judicial District Court (10/4/24).  

Jury’s award of $1,520,000.00 in general damages was not excessive.
 
Plaintiff was traveling west on I-10 from Breaux Bridge to Lafayette with her four-year-old son, who was sitting in his car seat on the passenger side of her truck. She noticed an eighteen-wheeler entering I-10 from the weigh station located between Breaux Bridge and Lafayette. Seconds later, Plaintiff was hit from behind by a six-wheel box truck. Plaintiff was able to exit the vehicle, which was on fire, and a passerby helped her rescue her son just before the vehicle exploded. The Louisiana Third Circuit Court of Appeal affirmed the jury’s general damage awards of $1,520,000.00 in favor of Plaintiff, representing $230,000.00 for past and future mental and emotional anguish; $760,000.00 for past and future physical pain and suffering; and $530,000.00 for past and future loss of enjoyment of life, and $125,000.00 in favor of her son, finding these awards were not excessive given that they both barely escaped the car before it exploded.  Boyance v. United Fire & Cas. Co., 2023-442 (La. App. 3 Cir. 4/3/24).

Lafayette jury awarded only $103,237.00 in non-economic damages where $139,425.00 was awarded for past and future medical expenses. 

A federal court jury awarded only $103,237.00 in non-economic damages where $139,425.00 was awarded for past and future medical expenses for injuries sustained in a rear-end collision.  Plaintiff treated at the emergency room on the day of the accident for soft tissue injuries and followed up with his primary care physician.  Plaintiff claimed injuries to the cervical spine and shoulder, which required surgery, and a minor brain injury with symptoms of brain fog, memory loss and confusion.  In addition, Plaintiff’s orthopedic surgeon recommended a future two-level fusion surgery.  Plaintiff’s treatment also included trigger point injections and nerve blocks.  Fucich v. RPF Emergency Services, U.S.D.C., Western District of Louisiana, No. 6:20-978 (10/11/24).

St. Bernard Parish jury refused to find that the Plaintiff needed surgery - award of $150,000.00.

In a rear-end accident caused by a commercial vehicle, a St. Bernard Parish jury rendered a favorable defense verdict by awarding a total of $150,000.00 instead of $2.1 million, as requested by Plaintiff’s counsel. The Plaintiff claimed a herniated disc at C5-6 and a bulging disc at L3-5. She was treated by Dr. Donald Deitze who suggested she needed several cervical disc surgeries, including a fusion.  The defense called a single witness, Dr. Kevin Watson, who performed an IME on the Plaintiff and believed the Plaintiff suffered a soft-tissue strain that likely resolved in six to eight weeks. Additionally, Dr. Watson could not identify any acute injury on the MRI scans and opined that the Plaintiff’s condition was consistent with the pre-existing degenerative process. While the jury awarded past pain and suffering in the amount of $109,880.00 ($40,120.00 was awarded for medical expenses) the jury did not award Plaintiff for future pain and suffering or past and future mental anguish. Crifasi v. DMJ Expedited, et al., 23-1138, 34th Judicial District Court (11/14/24).

Jury refuses to award general damages in side-swipe – award of $280,000.00.

The Plaintiff was awarded $280,000.00 in special damages, including past and future medical expenses (less 30% comparative fault), but obtained a “0” defense verdict for physical pain and suffering, mental suffering, loss of enjoyment of life, and disability when a commercial flatbed trailer veered side-swiping the passenger side of the Plaintiff’s sedan on I- 20 in Bossier City. The Plaintiff, Stacey Melerine, a member of the State Board of Education, complained of neck and back pain and had radiofrequency ablation (“RFA”) treatments and steroid injections. 

The jury credited the testimony of Dr. Thomas Bertuccini, a neurosurgeon, who performed an IME of Melerine, found no “objective abnormality” and opined that the ongoing RFA treatments were risky and likely ineffective. The jury assessed 70% fault to the trucker, 30% fault to Melerine. Melerine v. Ty & Tan Express, U.S.D.C. Western District of Louisiana, 522-6127 (11/6/24).

Jefferson Parish jury accepts defense expert’s opinion that Plaintiff was conditioned to believe she suffered a brain injury – award of  $700,000.00.

A Jefferson Parish jury awarded a total of $700,000.00 to a Plaintiff ($31,643.00 in medicals, $368,357.00 for future care, $100,000.00 for past suffering, $100,000.00 for mental anguish, $100,000.00 for loss of enjoyment of life) when she made an uninsured motorist claim resulting from a minor rear-end collision.  After GEICO paid its primary policy limits of $20,000.00, State Farm asserted various defenses based upon causation. The Defendant’s expert, a neurologist, determined the Plaintiff did not have a mild traumatic brain injury (TBI), despite the claims of the Plaintiff’s experts. Specifically, Dr. Archibald Melcher performed a neurological IME on Plaintiff and determined the Plaintiff was conditioned to believe she suffered a mild brain injury, but his objective findings demonstrated she did not suffer a TBI. State Farm’s second expert, Dr. Curtis Partington, a radiologist, determined that Plaintiff’s disc injuries were degenerative and, therefore, were not caused by the accident. Jamie D’Amico v. State Farm Insurance Company, 788316, 24th Judicial District Court (10/10/24).

Sidney W. Degan, III

Managing Partner 
E-Mail: sdegan@degan.com

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