LADC » Key Developments

LADC Legislative Alert: Pending Bill Would Prohibit Comp Credit to UM Carrier

Dane Ciolino — Fri, 21 May 2010 16:52:15 +0000

Senate Bill No. 155, by Senator Murray, would prohibit contractual credit to a UM carrier for workers’ compensation and medical paid. The current version of the bill can be viewed on the Louisiana Legislature website: Current Text of Louisiana Senate Bill 155

Louisiana Punitive Damages Bill

Dane Ciolino — Thu, 13 May 2010 14:49:00 +0000

A Louisiana Sentate bill has been called to our attention in which LADC members (and their clients) may have an interest. Senate Bill No. 547 would enact Civil Code Article 2315.8 to provide for exemplary damages upon proof of “willful and wanton misconduct.” If enacted into law, this bill would authorize punitive damages for tort claims. The bill has been assigned to Senate Judiciary A. The current version of the bill can be viewed on the Louisiana Legislature website: Current Text of Louisiana Senate Bill 547 re Punitive Damages.

Recent Development: Compromise and Releases

Dane Ciolino — Mon, 19 Apr 2010 14:51:54 +0000

In Silva v State Farm Mut. Auto. Ins. Co., the plaintiff sued defendant, defendant’s liability insurer, and plaintiff’s UM carrier. The UM carrier was not served and subsequently was dismissed without prejudice. The plaintiff then settled with the defendant and his insurer; the release dismissed all claims against the defendant, his insurer, and “any and all persons, firms or corporations” from claims “growing out of” the accident. Subsequently, plaintiff sued her UM carrier; however, the court dismisses, holding that the broad language of the release agreement operated as a dismissal of claims against the UM carrier. Fifth (La.) Circuit, No. 09-CA-686 (3/23/10) (Chehardy, J, dissenting).

Recent Development: Medical Liens

Dane Ciolino — Mon, 19 Apr 2010 14:50:30 +0000

A health care provider’s lien against settlement of insurance proceeds or payment of a judgment is invalid unless the lien is sent by certified mail and includes the location of the health care provider. Metcalf v Christus Health Southwestern Louisiana, Third Circuit, No. CA 09-869 (3/3/10) (Cooks, J, concurs)

UM Waivers and Non-English Speaking Insureds

Dane Ciolino — Mon, 08 Mar 2010 00:55:59 +0000

Although insured may not have been able to read the UM waiver form which was printed in English, the insurance agent spoke with insured in Spanish at all relevant times; thus nothing prevented insured from asking questions if he felt he did not understand what he was signing. Held, summary judgment upholding the waiver was proper. Rizzo v Ward, Fourth Circuit, No. 2009-CA-1325 (2/24/10)

Settlement Agreement Releases Defendant’s Employer if No Express Reservation of Rights

Dane Ciolino — Thu, 11 Feb 2010 13:08:06 +0000

A compromise settlement between the plaintiff and the driver, owner and insurer of the offending car provided that plaintiff released “all other persons, firms and corporations” and did not expressly reserve plaintiff’s rights against other defendants. Held, the settlement released the driver’s employer and the employer’s insurer, where there is no allegation that the plaintiff was aware that the tortfeasor was in the course and scope of his employment when the accident occurred. Palmer v Walker, Fifth (La.) Circuit, No. 09-CA-756 (1/12/10).

Summary Judgment Motion Can Rely on Exhibits Already in Record

Dane Ciolino — Thu, 11 Feb 2010 13:05:46 +0000

Deposition testimony filed in the record in connection with an earlier exception may be considered on a subsequent motion for summary judgment; Article 966B does not require that deposition testimony already filed in the record be introduced into evidence at the hearing on the motion for summary judgment. Gatlin v Guy A. Kleinheitz Wheels, Inc., First Circuit, No. 2009 CA 0828 (12/23/09) (Guidry, J, concurs)

UM Coverage and Government-Owned Vehicles

Dane Ciolino — Sun, 07 Feb 2010 16:33:49 +0000

The exclusion of government owned vehicles from uninsured/underinsured motorist coverage thwarts the expressed public policy of the UM statute and is unenforceable. Thus the trial court errs in using the policy language (coverage does not include a vehicle owned by any government or any of its political subdivisions or agencies) to deny coverage. Mednick v State Farm Mut. Auto. Ins. Co., Fifth (La.) Circuit, No. 09-CA-183 (1/26/10) (five judge court; Rothschild, J, dissenting)

Appeal

Dane Ciolino — Wed, 13 Jan 2010 03:50:27 +0000

The United States Supreme Court has ruled that disclosure orders adverse to the attorney-client privilege do not qualify for immediate appeal under the collateral order doctrine. Effective appellate review of such orders can be had by other means, including post-judgment review. An appellate court can remedy the improper disclosure of privileged materials by vacating an adverse judgment and remanding for a new trial in which the protected material and its fruits are excluded from evidence. In addition, a litigant confronted with a particularly injurious or novel privilege ruling also may ask the district court to certify an interlocutory appeal involving “a controlling question of law,” or may petition the court of appeals for a writ of mandamus, or may defy the disclosure order and then appeal from any contempt order. Mohawk Industries, Inc. v Carpenter, ___ U.S. ___ (2009) (Thomas, J, concurring in part)

Prescription; Interruption

Dane Ciolino — Wed, 23 Dec 2009 23:48:27 +0000

The Supreme Court concludes that no fault medical payment provision in an insurance policy is payable irrespective of the defendant’s liability in tort, and thus payment of the medical expenses only, without other acts by the insured, does not constitute an acknowledgment of general liability for damages. Titus v IHOP Restaurant, Inc., No. 09-CC-951 (12/1/09)