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Category: Insurance Dispute

  • What Happens When Uninsured Motorists Coverage Is From A Different State Than Where the Accident Occurred?

    When a loved one dies in a car accident, dealing with insurance is likely the last thing on your mind. Unfortunately, insurance policies can be complicated, with many details and exceptions. If you do not fully understand your insurance coverage, you might find yourself in a difficult situation when seeking compensation from your insurance company. This is especially important when your vehicles and insurance policies cover multiple states. 

    Cesar Medina was involved in a car accident in Lafayette Parish, Louisiana, that unfortunately resulted in his death. His wife filed a lawsuit against the driver of the other car, its insurer, and Medina’s insurer. The car Medina was driving at the time of the accident was owned by someone who lived in Georgia. 

    Medina’s insurer filed a summary judgment motion, arguing Medina’s insurance policy did not cover uninsured/underinsured motorists as of the date of the accident. In addition, the insurer argued the car had a Georgia insurance policy, and the vehicle’s owner had signed a waiver rejecting uninsured motorist coverage. The insurer provided the waiver as evidence. Medina’s wife did not oppose the motion. The trial court found Georgia law governed and granted Medina’s insurer’s summary judgment motion and denied Medina’s wife’s request for a new trial. Medina’s wife then appealed. 

    On appeal, Mr. Medina’s wife argued the trial court erred by not applying Louisiana law to the Georgia uninsured motorist waiver. La. R.S. 22:1295 requires all car liability insurance policies to include uninsured motorist coverage unless the insured rejects the coverage or selects a lower limit. This applies to all policies delivered or issued for delivery in Louisiana. 

    In considering whether the trial court should have applied Louisiana or Georgia law, the appellate court explained that Georgia was the state whose policies would be most impacted if its laws were not applied to the case. This analysis was required under the Louisiana statute governing choice of law decisions, La. C.C. art. 3537.  The appellate court explained the vehicle’s owner had obtained the insurance policy in Georgia and registered it to an address in Georgia. Therefore, the appellate court found Medina’s car insurer had provided sufficient evidence that the vehicle owner had waived uninsured motor coverage under Georgia law and affirmed the trial court’s grant of the summary judgment motion dismissing Medina’s insurer from the lawsuit. 

    So what are the implications when uninsured motorists’ coverage originates from a different state than where the accident occurred? In Louisiana, the courts will look to the state whose policies would be most impacted if its laws were not applied to the case. The facts relevant to which state’s policies may be most affected should be presented by a skilled lawyer to prosecute your side of the case best.

    This case serves as a reminder of the importance of understanding insurance policies and their implications in times of tragedy. Dealing with losing a loved one is an emotionally challenging experience, and the last thing one wants to encounter is a complicated insurance process. By being proactive and seeking legal guidance, individuals can ensure they are well informed about their coverage and rights. Consulting with a knowledgeable attorney can provide the necessary support to navigate insurance complexities and pursue rightful compensation. 

    Additional Sources: Oswalda Rangel, et al. v. Felipe Vega-Ortiz, et al.

    Additional Berniard Law Firm Article on Uninsured Motorist Coverage: Considering Uninsured motorist coverage in Louisiana, Be Careful What You Sign For

  • Seeking Liability for Water Damage: A Case Study on Responsibility and Legal Remedies

    Mardi Gras, a time of joyous celebration, took an unexpected turn for a store near a French Quarter hotel when a sprinkler head malfunctioned, resulting in significant water damage. Despite the storeowner’s insurance covering the damages, a lawsuit ensued to determine the hotel’s liability for the losses incurred. This case highlights the complexities of determining responsibility and legal remedies in property damage cases, emphasizing the importance of seeking legal counsel to navigate such situations effectively.

    Hotel Management of New Orleans (“HMNO”) owned and operated the French Market Inn. A sprinkler head located in the hotel was triggered during Mardi Gras, which caused a water leak and flooding in the store two floors below. The storeowner claimed water leaked into its store for approximately two hours. During that time, HMNO did not try to turn off the sprinkler but instead waited for the fire department to turn off the sprinkler. This caused damage to the store.

    State Farm insured the storeowner and paid the storeowner approximately $41k under its policy. State Farm then filed a lawsuit against HMNO and its insurer, Companion Property, and Casualty Insurance Company, seeking repayment of the $41k it paid to the storeowner under its policy. The trial court found in favor of State Farm and ordered HMNO and Companion to pay the stipulated damages of $41k. HMNO and Companion appealed, arguing that the trial court erred in finding that HMNO knew or should have known the sprinkler was defective, HMNO employees were negligent, and denying HMNO’s motion for involuntary dismissal. 

    In civil cases such as this, an appellate court cannot set aside a factual finding unless the trial court’s finding is clearly wrong or manifestly erroneous. An appellate court also applies the manifest error standard in reviewing a motion for involuntary dismissal. Under La. C.C. art. 2316, a person is responsible for damage caused by their negligence. 

    Here, there was no dispute that the water that leaked from HMNO’s sprinkler damaged the store. The parties also agreed to damages of $42k. In Louisiana, a business does not have a duty to protect nearby buildings from water from a fire sprinkler system. However, there is a duty to use reasonable care to avoid injuring others. Here, the evidence showed that HMNO’s employees followed the appropriate procedure in requiring the fire department to turn off the activated sprinkler. State Farm did not present any evidence that requiring the fire department to turn off the sprinkler created an unreasonable risk of harm. Further, there was no evidence that the sprinkler was defective. Therefore, the appellate court found that State Farm did not establish HMNO was negligent. 

    HMNO and its insurer also argued that the trial court erred in denying their motion for involuntary dismissal. Under La. C.C.P art. 1672(B), a defendant can move for an involuntary dismissal following a bench trial where the plaintiff has not shown a right to relief. Because the appellate court found the trial court committed manifest error in finding in favor of State Farm, it was also not entitled to an involuntary dismissal. 

    In the case of State Farm v. Hotel Management of New Orleans, the appellate court reversed the trial court’s ruling and found that the hotel, HMNO, was not negligent for the water damage suffered by the store. While the hotel’s sprinkler malfunctioned during Mardi Gras, causing water leakage and subsequent damage, the evidence demonstrated that HMNO’s employees followed standard procedures by waiting for the fire department to handle the situation. 

    Moreover, there was no evidence of a defective sprinkler or any unreasonable risk of harm created by the hotel’s actions. As a result, the appellate court found in favor of HMNO and its insurer, Companion Property, and Casualty Insurance Company, denying the repayment of damages sought by State Farm. When faced with property damage, seeking the guidance of a knowledgeable attorney can help you understand your legal options and pursue appropriate remedies to recover for the losses you have suffered.

    Additional Sources: State Farm Fire and Casualty Co. v. Hotel Management of New Orleans, LLC

    Written by Berniard Law Firm

    Additional Berniard Law Firm Article on Liability for Water Leaks: Homeowners Recover Full Amount of Wood Floor Damages, and Home Insurance Company is Sanctioned for Delay

  • Louisiana Court Settles Insurance Contract Dispute Following Deadly Explosion

    Insurance claims can be tricky, especially when multiple parties and contracts are involved. What happens, for example, when one insurance company claims they are not responsible for payment after a catastrophic event resulting in lost lives? The following Terrebonne Parish case follows this exact scenario. 

     An explosion at the Transco facility in Gibson, Louisiana, resulted in the death of four individuals, including two employees of Danos and Curole Marine Contractors, LLC (hereinafter referred to as  “Danos”) and two employees of Furmanite America, Inc. (hereinafter referred to as “Furmanite”). The Danos employees were working under a request-for-service order issued by Transco under a General Service Agreement, and the Furmanite employees were working as a subcontractor to Danos under a request-for-service order under a Master Service Contract. Following the explosion, many lawsuits, including this one, were filed against Transco, Danos, and Furmanite.

    Transco then filed a third-party demand against The Gray Insurance Company (hereinafter referred to as “Gray”), maintaining that Gray must defend and indemnify Transco under a provision in an insurance contract issued to Danos for which Transco was named additionally insured under the General Service Agreement. Gray then filed multiple objections to Transco’s claim based on prematurity. The 32nd Judicial District Court for the Parish of Terrebonne then dismissed Transco’s claims. An appeal to the Louisiana First Circuit Court of Appeal by Transco followed.

    During the appeal, Gray argued that Transco was required to seek a defense and utilize the proceeds available from Furmanite’s insurance before seeking compensation from Gray, as they maintained that the Furmanite insurers were the primary insurers.  

    Under Louisiana law, the prematurity objection asks whether the judicial right of action has come into existence or if some prerequisite condition had not yet been fulfilled. Additionally, prematurity is found by the facts existing when the suit was filed. See It’s Golden, LLC v. Watercolors Unit 6, LLC. The Court of Appeal found the resolution of the current issues depended on a determination of the nature and effect of the agreements executed by the parties. See Montz v. Theard.  

    After reviewing the General Service Agreement, the Court of Appeal found Danos was required to obtain insurance and that insurance was contractually deemed primary to any other available insurance. The Court of Appeal also found Danos could not unilaterally alter the terms in the General Service Agreement after contracting with Furmanite under the Master Service Contract. Thus, the Court of Appeal found Transco’s intent was for Danos to procure insurance for which Transco would be named as additionally insured. 

    The Court of Appeal found, under the plain language of the General Service Agreement, Danos was required to obtain insurance from Gray, Transco was named as an additional insured under the insurance contract, Gray was the primary to any other insurance, and Transco’s third-party demand seeking a declaration that Gray was obligated to defend and indemnify Transco was not premature. The Court of Appeal then reversed the Trial Court’s judgment dismissing Transco’s demand.   

    This case highlights the importance of contracting in clear, unambiguous writing, as your agreements with other individuals, entities, or insurance companies may be brought to question by a court. A knowledgeable attorney may be necessary to review these policies and fight for your legal rights if a dispute occurs. 

    Additional Sources: SHARON DUPRE AND WILSON DUPRE, JR. VERSUS TRANSCONTINENTAL GAS PIPE  LINE, LLC, FURMANITE AMERICA, INC., E S & H, INC., AND DANOS AND CUROLE MARINE CONTRACTORS, LLC

    Written by Berniard Law Firm Blog Writer: Samantha Calhoun

    Additional Berniard Law Firm Articles on Complex Insurance Disputes: Insurance Contract Confusion Leads to Louisiana Lawsuit — Louisiana Personal Injury Lawyer Blog — January 17, 2023

  • Louisiana Court excludes coverage for a woman severely injured by an elderly caregiver’s negligent loading of her wheelchair.

    Most adults fear the day that they will need to rely on the care of another to function. Unfortunately, the rampant negligence and mistreatment only exasperate this fear throughout the nursing home and hospice industry. Small mistakes by caregivers are normal and almost expected, yet, Shirley Marzell faced severe injuries after her caregivers improperly secured her to a wheelchair lift.

    Marzell was a resident at Charlyn Rehabilitation Center in Tallulah, Louisiana, at the time of her accident. In 2010, Marzell was loaded onto a wheelchair lift for the lift van operated by Charlyn. During this process, Marzell and her wheelchair rolled off the platform. This mistake caused Marzell to strike her head on the pavement, causing severe injuries. This case reached the Second Circuit Court of Appeals after Marzell and her daughters appealed the summary judgment ruling of the trial court. 

    During the trial, the Marzells argued that Charlyn’s insurance carrier should pay for Shirley’s injuries. The insurance policy held by Charlyn, however, included an automobile exclusion. This provision shielded the insurance company from liability whenever Charlyn owned or operated an automobile. Operation was defined to include “loading and unloading”. The summary judgment ruling made by the trial court hinged on whether or not “loading or unloading” encompassed the loading of human cargo. The trial court held that it did, dismissing the case in favor of Charlyn and their insurance company.

    Due to the exclusion, Marzells argued the care rendered by Charlyn was negligent, constituting medical malpractice. After hearing arguments, the trial court applied the “substantial factor” and “flow from use” test laid out in Carter v. City Parish Gov’t of E. Baton Rouge, 423 So. 2d 1080 (La. 1982) and Edwards v. Horstman, 96-1403 (La. 1997), 687 So. 2d 1007. The Court utilizes these tests in cases of claimed negligent supervision or entrustment to absolve homeowners or insurance carriers of liability. Ultimately, the trial court held that loading or unloading a patient into the van was a “common and essential element in each theory of liability,” constituting “use” of the automobile. 

    On appeal to the Second Circuit, the Marzells maintained their position that Charlyn was negligent, constituting malpractice. The Marzells also urged, as a matter of public policy, the court should read insurance policies to extend coverage rather than deny it. Unfortunately, the Second Circuit continued to maintain the loading of Shirley into the van via the wheelchair lift was normal use of the automobile. Since the accident arose out of automobile use and the Marzells introduced no summary judgment evidence, the Second Circuit ruled in favor of Charlyn, dismissing the case. 

    Finding an excellent elderly caregiver is never easy and requires lots of trial and error. If you or your loved one ends up injured through trial and error, you should contact an attorney immediately. Quick action could be the difference between a favorable verdict or dismissal of your case. 

    Additional Sources: Shirley Ann Marzell, Jacqueline R. Marzell, and Monique P. Marzell v. Charlyn Enterprises, LLC, d/b/a Charlyn Rehabilitation & Nursing Center and The Hanover American Insurance Company 

    Written by Berniard Law Firm Writer Riley Calouette

    Additional Berniard Law Firm Article on Wheelchair Accidents: Passenger Injured on St. Bernard Urban Rapid Transit Bus in His Wheelchair Seeks Increased Award from Louisiana Appeals Court

  • Insurance Provider Fails to Cancel Customer’s Coverage after NonPayment, Must Pay Damages

    Complex insurance issues can add more hassle to the damage from a car accident. What happens if you’re in an automobile accident after failing to pay your insurance premium? Can you still get coverage for your claims? The following case out of Baton Rouge shows why insurance companies must follow proper procedure and offer evidence of cancellation or suffer consequences.

    On July 27, 2010, Beverly Smith and Darlene Shelmire were involved in a vehicle collision in Baton Rouge when Shelmire entered an intersection without yielding. Smith sustained injuries due to the accident and filed a claim against Shelmire and her insurer, Gramercy Insurance Company. The insurance company asked the court for summary judgment, claiming that Shelmire did not have insurance coverage at the time of the accident due to the cancellation of her policy for nonpayment. The court held a hearing on the motion and denied it.

    The legal entity representing Gramercy Insurance Company, GoAuto, filed a new motion for summary judgment, asserting the same claim that Shelmire’s policy had been canceled before the accident. The trial court again denied this motion. In a bench trial, GoAuto filed a motion for involuntary dismissal, which the court denied. During the trial, the court heard evidence that Shelmire had paid her insurance premium on the afternoon of the accident and reported the accident a few hours later. GoAuto paid Shelmire for the damage to her vehicle the next day, despite their claim at trial that her insurance policy had been canceled by that point. Therefore, the trial ordered GoAuto to pay $15,000 in damages to Smith. GoAuto appealed this judgment. 

    GoAuto alleged that the trial court erred on two grounds: 1. In dismissing its motion for involuntary dismissal and 2, in determining that Shelmire had insurance coverage at the time of the accident. 

    On the second allegation of error, GoAuto claimed that Shelmire’s insurance policy had been canceled at the time of the accident. In Louisiana, the insurer has the burden of proof when claiming that a customer’s policy was canceled for nonpayment before an accident occurred. Direct General Insurance Company of Louisiana v. Mongrue, 04-248, p. 6 (La. App. 5th Cir. 8/31/04), 882 So. 2d 620, 623. 

    Under La. R.S. 9:3550(G)(3)(b)(i), an insurer must affirmatively act to cancel a customer’s policy even after an insurance premium financing company has asked them to do so after a customer’s nonpayment. GoAuto presented the testimony of an employee in their claim that they affirmatively canceled the policy. However, the employee’s testimony was not backed up by any other evidence in the record. This absence of evidence, coupled with evidence that GoAuto paid Shelmire’s filed claim after the accident, led the trial court to conclude that GoAuto never canceled Shelmire’s coverage. The appellate court affirmed this finding and dismissed GoAuto’s appeal. 

    Even when a plaintiff has a viable claim for damages, insurance issues can stand in the way of a successful claim. This case displays the importance of hiring a personal injury lawyer who knows how to fight insurance companies who refuse to pay. 

    Other Sources: BEVERLY SMITH VERSUS GRAMERCY INSURANCE COMPANY, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, AND DARLENE SHELMIRE

    Article Written by Berniard Law Firm

    Other Berniard Law Firm Articles on Automobile Accidents: Insurance Company Gets Off the Hook In Auto Accident Case Because Driver Never Actually Insured

  • Louisiana Court Holds that Medical Records Can Counter Expert Testimony and Bar Summary Judgement

    Courts often rely on motions for summary judgments to avoid the costly and time-consuming reality of going to trial and presenting a case in front of a jury. Motions for summary judgment are when one party asks the court to decide the case based on the current facts alleged in their favor. Courts should grant these motions when there are no facts in dispute for the jury to resolve. But how much evidence does a party have to present to survive one of these motions? A case out of New Orleans shows that, in some cases, just having medical records could be enough to deny a motion for summary judgment. 

    Emmanuel Bridgewater was lounging on a median at the intersection of Washington Avenue and South Dorgenois Street when a Regional Transit Authority (RTA) bus made a left-hand turn off of Toledano street and an immediate right turn onto Washington Avenue. The bus cut the corner too closely and drove onto the median, hitting Bridgewater. As a result of the accident, Bridgewater’s right arm broke, his right leg was injured, and he said that the accident left him permanently disabled. Bridgewater alleged that the bus did not stop after he was hit and instead fled the scene. A bystander who did not witness the accident heard Bridgewater calling for help and called 911 emergency services. An ambulance and New Orleans Police Officer Roger Smith arrived at the scene. Bridgewater alleged that Smith did not question him about the accident before he was taken to the hospital.

    Bridgewater filed a lawsuit against the RTA and the City of New Orleans and added the Transit Management of Southeast Louisiana, Inc. (TMSL) as a defendant. Bridgewater accused the defendants of being jointly liable for his injuries and argued that the NOPD officer assigned to the RTA acted to protect the RTA from liability. Bridgewater also asserted that the City was at fault because it failed to place signs in the accident area to warn pedestrians that buses may run onto the median and hit them. The City filed for summary judgment, and the court granted the City’s motion. Next, Bridgewater filed a motion for rehearing, contesting the court’s decision. Then, RTA also filed a motion for summary judgment, and the judge denied Bridgewater’s rehearing and granted RTA’s motion. Bridgewater eventually appealed, and RTA responded, seeking attorney fees and costs against Bridgewater for filing a frivolous claim, which means that the lawsuit lacked any basis. 

    Summary judgment under La. C.C.P. art. 966 will apply if there is no genuine issue of fact presented in the evidence that the jury would have to decide. The appeals court explained that the evidence should be viewed favorably to the non-moving party. When determining whether to grant a motion for summary judgment, the judge is not supposed to evaluate the evidence or find out the truth; instead, the judge just has to determine whether a genuine issue of fact where a reasonable person can disagree exists. If the judge finds a genuine issue of fact, then summary judgment will be denied, and the case will proceed to a jury. 

    Upon review, the appeals court agreed that the City’s motion for summary judgment should have been granted because the City did not have control over the RTA bus. The appeals court further held the NOPD Officer at the scene prepared a satisfactory report based on the information he was given at the scene, and the City was not required to place signs near the median to warn pedestrians of buses. Those facts allowed the City to escape liability for Bridgewaters claims.

    However, the court determined that RTA’s motion for summary judgment should not have been granted. The lower court justified its decision to grant the motion by citing a previous Louisiana Supreme Court opinion which determined that summary judgment is appropriate when the plaintiff only provides conclusory statements and leaves contradictory physical evidence uncontested. Jones v. Estate of Santiago. 

    In this case, the RTA presented expert testimony that supported the conclusion that it would have been impossible for Bridgewater to have been hit by a bus, and he did not offer any expert testimony to argue the opposite. However, the court said this should not hurt Bridgewater’s claim because his medical records from the day of the accident contradicted the RTA’s evidence. 

    The appeals court reasoned the fact that Bridgewater had medical records that contradicted RTA’s expert testimony was enough to create a genuine issue of fact. Further, this genuine issue of fact should have prohibited the lower court from granting RTA’s motion for summary judgment. The appeals court overruled the trial court’s decision dismissing the case against the RTA. Therefore, the case was sent back to the trial court for further proceedings.

    Bridgewaters lawsuit against the RTA was allowed to continue on to another day. If not for his attorney, Bridgewater may have seen the end of his lawsuit before it got off the ground. It is important to remember that an experienced personal injury lawyer will ensure your case survives such perilous motions. 

    Additional Sources: EMANUEL BRIDGEWATER VERSUS NEW ORLEANS REGIONALmTRANSIT AUTHORITY, ET AL.

    Written by Berniard Law Firm

    Other Berniard Law Firm Articles on Expert Testimony and Medical Records: Medical Malpractice Case Dismissal Affirmed for Lack of Expert Testimony in Split Decision

  • Persistent Lawyering Stops Insurance Company From “Second Bite at the Apple” in Mississippi Car Wreck

    Nothing is more tragic than the loss of life. However, that loss can be tempered somewhat if insurance is in place that provides some financial compensation. While money cannot substitute for the loss of love and companionship that a spouse gives, it can at least provide some help with the bills and, therefore, one less thing to worry about when grieving. But what happens when the insurance company refuses to pay your claim? The following lawsuit in Tangipahoa, Louisiana, discusses these issues in the context of a car accident, uninsured motorist coverage, and the refusal of State Farm to pay the claim. 

    As Jerry and his wife Lois Draayer drove down Interstate 55 in Pike County, Mississippi, a motorist struck the couple. Unfortunately, that driver had both crossed the median and lacked sufficient insurance. The underinsured motorist was Russel Allen, and Lois Draayer tragically died from the collision. 

    Lois’s family brought a lawsuit against Allen, his automobile liability insurer (Progressive Insurance Company), and named their insurer, State Farm, which they claimed provided Lois with UM coverage. The Draayers added State Farm to the suit to ensure financial recovery for Lois’s death. 

    State Farm successfully asked the trial court to dismiss itself from the case because it claimed it did not provide UM coverage to Lois since she had waived UM coverage by signing a form in 2009. The trial court agreed with State Farm’s position. The Draayers appealed, asserting there were disputed facts concerning the rejection of the UM form. For there to be a lawful and valid rejection, Lois must have knowingly made an informed and meaningful rejection of the coverage. La. R.S. 22:1295(1)(a)(ii) If an insurer has a form with the insured’s signature of waiver, then the general rule is that it creates a rebuttable presumption. Duncan v. U.S.A.A. Insurance Company, Thus, the “ball was in Draayer’s court” to convince the court otherwise. 

    The facts showed  State Farm forced Lois to resign the 2009 UM waiver. Additionally, it was proven Lois only completed 2 of the six steps of the 2009 form. Lois signed her name and initials while the insurance agent did the rest. Thus, since State Farm did not comply with the statute, it owed the family coverage. The appeals court agreed with the Draayers and welcomed State Farm back into the picture. However, State Farm sought another shot at removing themselves from the lawsuit. Hence, another bite at the apple.

    As the trial court reinstated State Farm, it sought a motion for summary judgment, arguing that Lois signed a valid UM selection form in 2004. The trial court agreed and dismissed State Farm from the case. However, Draayer appealed to bring State Farm back into the lawsuit. 

    In the appeals court, State Farm relied heavily on case law that suggested a subsequent invalid UM form does not supersede the validity of prior forms. Hughes v. Zurich American Ins. Co. The appeals court reasoned State Farm previously sought to enforce the 2009 UM selection form on the basis that it had legal consequences, and those legal consequences now bind it. Those consequences included the court’s decision that there were issues of fact as to its validity. The appeals court held State Farm is not entitled to ” a second bite at the apple” by resurrecting the earlier 2004 UM form when a subsequent UM selection form was executed during the policy period. Therefore, once again, State Farm was required to provide UM coverage to the Draayers.

    Regardless of the outcome of this case, it stresses the importance of knowing your rights in insurance disputes. Insurance companies want to avoid paying hefty sums out-of-pocket and will find any technicality they can to ensure they save some cash. Therefore, it is up to you to be meticulous before carelessly waiving rights. Before you sign and “initial” access to compensation and protection, ensure you understand the potential implications of such a waiver. 

    Additional Sources: Draayer, et al., v. State Farm Fire and Casualty, et al.

    Written by Berniard Law Firm

    Additional Berniard Law Firm Articles on UM insurance disputes: Considering Uninsured motorist coverage in Louisiana, Be Careful What You Sign