Insurance Dispute Lawyer Blog

Summary Judgment Summarily Dismissed by Third Circuit in Vehicle Accident Case

Mon, 23 Apr 2012 09:41:03 -0600

A summary judgment is rendered when a trial court decides that there are no genuine issues of material fact that need to be determined. "Manifestly erroneous" is the high standard under which summary judgments are reversed on appeal. Summary judgments are cheaper and less time consuming than full blown trials; they are a means toward the end of judicial expediency, a goal that becomes increasingly important to our judicial system over time. Despite the importance of this procedural device, many cases do not call for summary judgment. Sometimes trial courts grant full or partial summary judgments in error and are reversed. That is what occurred in the case of Jagneux v. Frohn, which you can read here.

The defendants in this case convinced the trial court that no issues of fact existed that required litigating. Their legal journey was not over though due to the plaintiff's appeal. The court of appeals applied the standard promulgated by the Louisiana Supreme Court. This Louisiana Supreme Court's standard initially places the burden of proof on the party that is moving for a summary judgment. The moving party must prove that one or more elements of the adverse party's claim or defense lacks any factual support on the record so far. The opposing party is then granted an opportunity to prove that there have been facts alleged that support that party's position. At the time of summary judgment the record is sparse so a granting of summary judgment represents a finding by the court that no facts supporting a particular party's, in this case the plaintiff's, position.

The appellate court reversed the trial court's decision in this case because it found that the issue of whether Mrs. Kling, a defendant in this case, was the driver of the white SUV at the time that it, at least partially, caused the accident at issue in this case. Because there was conflicting evidence about where Mrs. Kling was and whether or not she was actually in control of the car at the time of the accident, summary judgment was not the right choice in this case. The trial court is not to weigh the merits of the case when addressing summary judgment. Summary judgment is only appropriate in cases where no potentially meritorious case is presented by one of the parties.

Judicial efficiency is a desirable goal at this point in history. America is an incredibly litigious society and with good reason. Science and technology move faster now than ever before and this leads to more pernicious injuries becoming increasingly common. Society functions better when injured people are compensated. This is even more true when injured people are compensated quickly and at minimal expense to society. However, as important as these goals are, the pursuit of the truth is the most important aim of our justice system. When the truth of a matter is in question, it falls to our trial courts with their judges and juries to put together an authoritative version of events. This version, when properly decided, becomes the truth for all intents and purposes. When there is no need to conduct an exhaustive search for truth, summary judgment becomes necessary and expedient.

Summary judgments take up less of a court's time than a trial. Because of this, summary judgments allow a court to hear more cases in less time. This benefits society as a whole. Frequently, American and Louisiana courts have a substantial backlog of cases. This prevents swift access to the justice that many people require. Summary judgment and other procedural and dispute resolution devices that avoid full trials aid in mitigating this abundant caseload. The case of Jagneux v. Frohn was not one in which summary judgment was appropriate but many cases are decided this way every day saving time, money and stress for our judges and juries.

For help navigating the legal system and potentially winning a summary judgment of your own, call the Berniard Law Firm toll-free at 1-866-574-8005.

Personal Injury Case Delves into Medical Malpractice Difficulties

Mon, 16 Apr 2012 06:37:28 -0600

The following very interesting and compelling question by plaintiffs, and the contingent commentary by the court, is articulated in this appeal to the Second Circuit Court of Appeals in Louisiana: "Does a diagnosis by a doctor rendering a second and correct opinion, equate to a per se reasonable belief that the previous treating physicians committed medical malpractice?"

This question arises in the context of the Second Circuit's consideration of the plaintiff's appeal of the trial courts "judgment of defendants, sustaining an exception of prescription as to the malpractice claim filed by Joseph Lee Amos prior to his death and granting summary judgment which dismissed their wrongful death claim." The purpose of this paper is to discuss the question posed by the plaintiff and the Second Circuit's response to that question.

On April 12, 1999, Joseph Lee Amos had his first appointment with Dr. Rebecca Crouch: he was experiencing "occasional rectal bleeding." Mr. Amos "repeatedly complained of similar symptoms in his subsequent visits to Dr. Crouch." Mr. Amos claims that "when he was under Dr. Crouch's care, he was continually ‘hurting a lot' and that the blood was ‘bright red'…The physicians report states that Mr. Amos said that Rebecca Crouch checked down there ‘and (Mr. Amos) was told everything was okay." His final appointment with Dr. Crouch was on January 3, 2000.

On January 11th, 2000 Mr. Amos went to another physician to seek a second opinion due to Mr. Amos's "questions about the quality (or lack thereof) of Dr. Crouch's medical treatment." This visit to another doctor resulted in a diagnosis of colorectal cancer and subsequent treatment for the condition. On April 6, 2001 Amos filed a medical malpractice complaint with the Patient's Compensation Fund against Dr. Crouch and her insurance company for her "failure to recommend and conduct the proper diagnostic testing called for by Mr. Amos's symptoms, which delayed an accurate diagnosis and treatment of his disease."

The medical review panel rendered a decision on February 3, 2003. In the decision the panel articulated the appropriate standard of care in Mr. Amos's circumstances. The panel determined that Dr. Crouch should have "recommended further evaluation and diagnostic tests, including but not limited to ordering a barium enema with proctoscopy or a complete colonoscopy". The panel deferred the issue of breach due to some contested issues of fact. One of the issues was Dr. Crouch's claim that she repeatedly recommended these tests; while Amos denied that she made those recommendations.

Mr. Amos filed a lawsuit on April 26 2003. The trial court granted summary judgment, but the decision was reversed and remanded by the Second Circuit. Upon remand the defendants filed an exception of prescription, claiming that "the filing of the initial medical review complaint was untimely."

The defendants claim that prescription began to run on January 11, when Amos visited another doctor for a second opinion. The plaintiff's claim that May 1, 2001 is the earliest date that prescription should begin to toll, since this is the date that Dr. Crouch terminated her doctor/patient relationship with Mr. Amos. Louisiana Revised Statute 9:5628(A) is as follows:

"No action for damages for injury or death against any physician, chiropractor, nurse, licensed midwife practitioner, dentist, psychologist, optometrist, hospital or nursing home duly licensed under the laws of this state, or community blood center or tissue bank as defined in R.S. 40:1299.41(A), whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect."

The question "does a diagnosis by a doctor rendering a second and correct opinion, equate to a per se reasonable belief that the previous treating physicians committed medical malpractice" can be interpreted in more than one way. The inquiry is directed towards the belief of the patient that is receiving the treatment. A clearer articulation of the question would be "does a diagnosis by a doctor rendering a second and correct opinion about a patient, equate to a per se reasonable belief on the part of the patient that the previous treating physicians committed medical malpractice?". The Second Circuit determined that the answer depends "on the particular circumstances of each case."

In the present case, the issue between the two parties is fundamentally whether Mr. Amos claim is permitted by the prescription statute. The disputed matter is when the statute begins to toll: did Mr. Amos file his claim "within one year from the date of discovery of the alleged act, omission, or neglect." "Prescription begins when a plaintiff obtains actual or constructive knowledge of facts indicative to a reasonable person that he or she is the victim of a tort… Constructive knowledge is notice enough to excite attention, to put the injured party on guard, and to call for inquiry."

Mr. Amos was a 61 year old man who was working for Dry Crouch as a custodian while he was seeing her as a patient. The plaintiffs claim that this personal relationship, Mr. Amos's age, and his relative unsophistication, all indicate that "Mr. Amos had a more personal trusting relationship with Dr. Crouch than he would have had with an unfamiliar physician." The plaintiff's argue that Mr. Amos had no reason to question Dry Crouch's opinion until she terminated her relationship with him after a phone call on May 1 2000… The ultimate issue is the reasonableness of the patient's action or inaction, in light of his education, intelligence, the severity of the symptoms, and the nature of the defendant's conduct."

The defendants argue that Mr. Amos had "constructive knowledge that he was the victim of a tort" when he procured the second opinion and was provided with the diagnosis of cancer. They argue that although Mr. Amos had a special and trusting relationship with Dr. Crouch, this "does not translate into being unaware that the medical care he received from his doctor/employer was substandard."

The Second Circuit considered the "circumstances" in the case, and affirmed the trial court's decision: "the conclusion of the trial court that Mr. Amos had notice enough to excite attention, to put him on guard and call for inquiry when his cancer was diagnosed on January 11, 2000 is not clearly in error or manifestly wrong". Ultimately, the decision confirms the statement made regarding the lack of a "bright line rule," and sets the precedent for future situations like this; that a determination of prescription in cases of second medical opinions will not automatically render the first per se evidence of malpractice.

Class Action Rules Difficult to Understand, Important for Successful Litigation

Tue, 10 Apr 2012 07:30:13 -0600

The Class Action Fairness Act of 2005 was passed in an effort to prevent class action lawsuit abuse. CAFA changed the practice of class action litigation in state and federal courts. This change was accomplished by CAFA's jurisdictional alterations in both the diversity and removal components of the traditional framework of class action practice, i.e. Rule 23 of the Federal Rules of Civil Procedure.

In Williams v Homeland Insurance, the Fifth Circuit applied the "local controversy" exception of CAFA to the facts of the case, determining that a class arbitration is not, nor does it preclude a class action. Williams provides a lesson in the application of the elements of CAFA and an understanding of CAFA's features. The decision also demonstrates yet another unique feature of Louisiana law that distinguishes it from the law of all of the other jurisdictions in the United States: the Louisiana Direct Action Statute.

CAFA changed the rules for federal diversity jurisdiction and removal. The Act enables large class action law suits to be filed in and/or removed to federal court. CAFA changed the numerosity requirement of Rule 23 from by raising the requirement from 40 class members to more than 100 class members; the citizenship requirement of Rule 23 by relaxing the diversity criteria, i.e. any class member must be diverse from any defendant; and the amount-in-controversy (from one named plaintiff having a claim of more than $75,000) to the total of $5 million. In addition, CAFA incorporated looser removal rules: in diversity cases any defendant can remove the case (including in-state defendants); any defendant can remove without the unanimous consent of the other defendants; there is no 1 year limit on the timing for removal of the case to another court's jurisdiction; and the decision to grant or deny a remand is subject to appellate review.

CAFA "essentially makes the resolution of large class actions with minimal diversity a federal court matter", while reserving "for the states certain types of large class actions arguably more local in nature. Four key exceptions to CAFA's jurisdictional expansion accomplish this reservation of state authority." The exception discussed in Williams is the "local controversy" exception.

The local controversy exception requires the district court to decline its jurisdiction under CAFA:
(A)(i) over a class action in which-
(I) greater than two-thirds of the members of all proposed plaintiff classes in the aggregate are citizens of the State in which the action was originally filed;
(II) at least 1 defendant is a defendant-
(aa) from whom significant relief is sought by members of the plaintiff class;
(bb) whose alleged conduct forms a significant basis for the claims asserted by the proposed plaintiff class; and
(cc) who is a citizen of the State in which the action was originally filed; and
(III) principal injuries resulting from the alleged conduct or any related conduct of each defendant were incurred in the State in which the action was originally filed; and
(ii) during the 3–year period preceding the filing of that class action, no other class action has been filed asserting the same or similar factual allegations against any of the defendants on behalf of the same or other persons.
When the Fifth Circuit looked at George Raymond Williams vs. Homeland Insurance Company of New York, Homeland Insurance was appealing the "district courts remand of a class action to Louisiana state court." George Williams had brought a class action in Louisiana state court, representing a class of medical providers against 3 Louisiana defendants: Med-Comp USA, Risk Management Services, and SIF Consultants of Louisiana. The plaintiffs contracted with Med-Comp (an operator of a PPO network) for "discounted rates" and SIF and RMS applied Med-Comp's discounts when administering worker's compensation claims for Louisiana employers. A year later, Williams joined 3 non- Louisiana defendants: "Corvel Corporation and its insurers Homeland Insurance Company and Executive Risk Specialty insurance."

Corvel and the plaintiffs agreed to settle their claims. However, before the settlement was approved in state court, Executive Risk removed the case to Federal court, claiming federal jurisdiction under CAFA. This action demonstrates the new removal rules of CAFA, e.g. that removal does not require unanimity amongst defendants as it does under the prior and traditional rules.

Williams and Corvel responded by moving that the case be remanded back to state court under the "local controversy" exception of CAFA. The district court found that Williams satisfied all of the elements of the "local controversy" exception and remanded the case to state court. Homeland appealed this decision to the Fifth Circuit and the Fifth Circuit reviewed the district court's remand under CAFA's "local controversy" exception: de novo. If any of the elements of the "local controversy" exception are not met, remand would be improper. Homeland disputed all of the elements of the exception.

First, Homeland disputed that less than 2/3 of the plaintiff class were citizens of the state of Louisiana, and thus did not meet that requirement of the local controversy. The total number of class members numbered 1,388, many of which were registered corporations in the state of Louisiana. In its argument in front of the district court, Williams argued persuasively that 1055 of these plaintiffs met the criteria for membership in the class, i.e. that they were citizens of Louisiana. In front of the Fifth Circuit, Homeland was claiming that the plaintiff class represented either 45.4% or 65.4% Louisiana citizenship. Homeland argued that in either circumstance, the percentage did not rise to the appropriate level required by CAFA. Homeland arrived at the 45.4% by identifying many of the business organizations that made up the plaintiff class as inactive corporations, and removing them from the total number of plaintiff members. This argument was denied because "inactive corporations remain citizens of their state of incorporation." The 65.4% was a number arrived at by Homeland though a mathematical error, and was dismissed appropriately

Williams' claims meet the second group of elements of the "local controversy" exception pretty simply because Med-Comp is a local defendant, and Williams seeks "thousands of discounts, including discounts applied by other defendants." The exception requires a "local defendant, from whom significant relief is sought, and whose conduct forms a significant basis for the claims asserted." Med Comp clearly fulfills these criteria.

The third element that the "principle injuries resulting from each defendant's alleged or related conduct must have occurred in Louisiana" was found to be fulfilled by the district court because, "the record showed that a supermajority of plaintiffs are Louisiana citizens, who rendered services in Louisiana and who allege that the defendants violated the Louisiana PPO act." The defendants are alleged to have "violated the Louisiana PPO Act" and the injuries occurred "by the failure to provide notice at the point of medical service in Louisiana."

It is this discussion of the fulfillment of the third element of the "local controversy" exception that provides the context and opportunity for the digression into a discussion of a unique feature of Louisiana law: the Louisiana Direct Action statute. "Louisiana is one of the few states in the country with a direct action statute. A direct action statute allows an injured person (the plaintiff) to sue the insurance company of the person or entity who caused their injury directly."

The direct action statute is mentioned in relation to the defendant Homeland and the fact that Homeland's conduct "must have occurred in Louisiana," the requirement of CAFA. "Although Homeland is an out-of-state defendant who insured the out-of-state Corvel, the CAFA exception is satisfied because Homeland's related conduct as insurer includes Corvel's failure to notify in Louisiana."

The claims asserted against Homeland are described by the Fifth Circuit as "unique" in nature because the "sole claims against Homeland are by virtue of the Louisiana Direct Action statute and based on the conduct of Homeland's insured." These claims would clearly not be possible in most states because most states do not have a direct action statute.

The Fifth Circuit does not elaborate on, or even mention the rarity of a direct action statute. However, the statute is important to take notice of out of the discussion of the Fifth Circuit because it plays a very important part in Louisiana insurance law. "There may be no other Louisiana statute which has so affected the development of an area of the law as has the Direct Action Statute. " The Direct Action statute is not of primary importance in the discussion in Williams v Homeland Insurance, but it is important exactly because it does permit claims to be made against Homeland that otherwise could not be made directly.

The last element of the "local controversy" exception provokes the most interesting feature of the Fifth Circuit's discussion, and provides the context for the major holding of the case: "a class arbitration is not a class action". The element of the exception is as follows: "during the 3–year period preceding the filing of that class action, no other class action has been filed asserting the same or similar factual allegations against any of the defendants on behalf of the same or other persons."
The parties disputed whether a class arbitration qualified as a class action. Consequently, the Fifth Circuit addressed the question. The district court had determined that the two were different because an arbitration involved out-of-court resolutions to disputes, while a class action involved in-court resolutions to disputes. The Fifth Circuit decided that "a class arbitration is not a class action, and consequently, a prior class arbitration does not frustrate the CAFA exception." The Court looked at the CAFA definition of "class action," i.e. "any civil action filed under rule 23 of the Federal Rules of Civil Procedure or similar State statute or rule of judicial procedure." Homeland argued for an "expansive reading" of the definition to "encompass arbitrations", but the Court determined that this expansive of a reading would "require district courts to exercise original jurisdiction over any arbitration that satisfies CAFA's threshold requirements. We hold that a class arbitration is not a class action, and consequently, a prior class arbitration does not frustrate the CAFA exception."

Williams v Homeland Insurance is an interesting case because of the important holding that makes the distinction between class arbitrations and class actions. This decision will not only provide precedent for Louisiana, but will provide persuasive law for other jurisdictions. This holding will probably be followed in other jurisdictions. The discussion reveals the features and dynamics of CAFA, which has made a significant impact upon class action jurisprudence in Louisiana and the nation as a whole. Lastly, the discussion in Williams reveals the unique and distinguishing feature of Louisiana insurance law: the Direct Action Statute.

Happy Holidays from the Berniard Law Firm

Sun, 08 Apr 2012 19:31:50 -0600

On behalf of the Berniard Law Firm, we hope that all of our friends and followers have had a relaxing and restful holiday. Posting will resume on Tuesday

Tort or Medical Malpractice? Insurance Companies Battle Over Coverage in Ouachita Parish Injury Case

Fri, 23 Mar 2012 08:36:42 -0600

On June 27, 2008, Betty Jean Russell went to see her eye doctor at Eye Associates of Northeast Louisiana. Russell, 78, who required a wheelchair to get around, was driven to the apppointment by her granddaughter, Ashley Dixon. While Dixon remained in the waiting room, an Eye Associates employee wheeled Russell back to an examination room. There, Russell was required to move to one of the facility's wheelchairs in order to access one of the examination machines. Then, in order for her to look into a different machine, Russell was required to return to her own wheelchair. In the process of moving back to her own wheelchair unassisted, Russell fell, injuring her shoulder and breaking her thighbone. The Eye Associates employees did not call an ambulance, but rather helped Russell off the floor and back into her wheelchair. Dixon immediately drove her grandmother to the ER where Russell underwent surgery to set her broken leg. Although Russell was able to walk from time to time prior to her injuries, she was no longer able to walk at all. Russell filed suit against Eye Associates and Hanover Insurance Co., its general liability insurer. She also filed a petition for a medical review panel under the Louisiana Medical Malpractice Act. The Louisiana Medical Mutual Insurance Company (LAMMICO), the professional liability insurer for Eye Associates, intervened in the action. Hanover filed a motion for summary judgment arguing that Russell was injured while Eye Associates employees were delivering professional services, and therefore Russell's claim was one of medical malpractice. LAMMICO, on the other hand, argued in its own motion for summary judgment that Russell's fall was "not treatment-related" or "caused by a dereliction of professional skill," which meant that LAMMICO was not liable for coverage for her injuries.

The trial court held a hearing on the motions for summary judgment, during which it determined that this was not a medical malpractice case. The court granted summary judgment in favor of LAMMICO and denied Hanover's motion. Hanover appealed on the basis that "the undisputed facts
and evidence establish that the plaintiff’s injuries occurred as a result of a 'medical incident,' as defined by the LAMMICO policy." On appeal, the Second Circuit reviewed that "[w]hen determining whether a policy affords coverage for an incident, the insured bears the burden of proving that the incident falls within the policy’s terms." Furthermore, "summary judgment declaring a lack of coverage under an insurance policy may not be rendered unless there is no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence supporting the motion, under which coverage could be afforded." The court noted that the definition of malpractice under Louisiana law includes "unintentional torts by healthcare providers and their employees based on health care or professional services rendered." The LAMMICO policy maintained by Eye Associates provided professional liability coverage for "incidents arising out of the rendering or failure to render professional services." The policy defined professional services to include treatment, diagnosis, rendering medical opinions or advice, or performing management or administrative duties by Eye Associates employees. LAMMICO argued that no doctor (or other health care provider) was involved in the accident, as "no assessment of [Russell's] condition had taken place" at the time of her fall. However, the court noted that Russell testified that the Eye Associates employee involved in her accident had already used one type of machine to examine her eyes and was attempting to
position her in order to use another machine; this move from one wheelchari to another was necessary in order to continue Russell's eye examination. This point, in the court's view, created "a genuine issue of material fact as to whether the accident constitutes a medical incident which occurred in connection with the rendering of professional services, satisfying the statutory definition of malpractice and meeting the terms of the LAMMICO policy for coverage." Accordingly, the court found that the trial judge erred in granting summary judgment in favor of LAMMICO. It reversed the trial court's judgment an remanded the case for further proceedings.

This case shows how seemingly simple claims can turn complex in litigation. Much of the Second Circuit's decision rested on a review of the insurance policies themselves, as contracts, to determine the potential for coverage for Russell's claims. As with any personal injury case, it was essential for the plaintiff to retain experienced counsel to ensure that all potential defendants were brought into the litigation.

Fifth Circuit Court of Appeals Finds Missing Health Information Not a Bar to Life Insurance Recovery

Mon, 19 Mar 2012 07:59:19 -0600

When individuals apply for life insurance, several application forms must be submitted. Amongst these forms is a history of the applicant’s medical history. Based on this history, and a variety of other factors, insurance companies will either accept the application and set a premium that must be paid to obtain the insurance, or deny the application for pre-existing conditions. However, errors, omissions, and accidents occur during this application process and can cause several legal issues to arise when a life insurance policy needs to be paid out.

This situation arose in Foster v. United of Omaha. In that case, an individual sought to change her life insurer, but when the paperwork was arranged and sent to her, the medical history page was absent. The individual signed all of the paperwork and sent it back to the insurance company. Without any red flags regarding the individual’s medical history, United extended $1 million worth of life insurance to her. No physical health examination of the individual took place and the policy was extended based on the blank medical history paperwork.

The individual, after discovering that she was at high risk for cardiovascular disease, sought an addendum to the insurance policy to raise the payout to $2 million. To complete the policy change, the individual had to sign additional paperwork stating that her health condition had not changed since the issuance of the original policy. Because the individual never signed anything for the original policy claiming poor health, she signed the addendum stating that her health had not changed.

After some time, the individual passed away of lung cancer. United conducted an investigation and discovered that, prior to the issuance of the original coverage, the individual had been treated for heart disease, chest pain, and lung ailments. Based on these findings, coupled with the fact that the addendum stated that the individual’s health hadn’t changed, United refused to pay the policy out. The individual’s trustee brought suit against United, seeking payment of the policy.

Several insurance forms, including the one in Foster’s case, contain language that states “incorrect or misleading information may void this policy from its effective date.” Thus, courts have established that an insurance company, in order to rescind a policy on these grounds, must establish that statements made in the form were false, that those misrepresentations were made with an actual intent to deceive, and that the false statements materially affected the insurance company’s acceptance of risk. The most difficult of these elements to establish is the insured’s intent when making false statements. In these types of cases, courts often look to the attending circumstances to determine whether or not the insured had knowledge of the falsity.

In the Foster case, United failed to carry its burden of proof in establishing that the insured intended to deceive United. Though the individual did not claim her medical ailments in the policy application, the paperwork for the original policy was never made available to her. Thus, the insured could not be held responsible for claiming no change in her health when, in fact, it had not changed since the issuance of the original policy. The insured thought she was telling the truth, and therefore could not be held to have intended to deceive the insurer. This finding places responsibility on the insurer to ensure that all paperwork is provided and explained in a clear, reasonable manner. This avoids consumer confusion and creates an efficient market.

Many insurance companies claim that truthfulness is a condition precedent to policy coverage. This means that the policy will only extend its coverage upon the fulfillment of truthful statements required by the applicant. However, whether or not something is a condition precedent is a matter of contract interpretation. In the Foster case, for example, the court held that the language in the addendum that stated “incorrect or misleading information provided herein may void this policy from its effective date” was permissive. The use of “may” in this type of contract suggests that misleading information provided by the applicant might void the policy, but on the other hand, it might not. Such permissive language will never be held to be a condition precedent in insurance disputes.

With these rules at hand, the court in the Foster case found that United was not entitled to withhold the policy payment. Such a finding solidifies courts’ standing in placing responsibility on insurance companies to provide accurate assessment of insurance coverage and risk. Placing this burden on insurance applicants would carry market chilling potential. In addition, search costs could rise and those who were inexperienced with insurance applications would be prone to making mistakes that would stifle courts with insurance interpretation disputes.

Company's Insurance Fails to Cover Truck Driver In Off-Hours Accident

Thu, 15 Mar 2012 08:16:51 -0600

Whether someone is working at the time of an accident can be difficult to tell, and it affects which insurance coverage applies. Harry T. Kemp was an independent contractor driving a Peterbilt tractor pulling a 50-foot flatbed trailer when the truck collided with an automobile driven by Lewis Jurey in East Baton Rouge Parish. Kemp had picked up his trailer from Baker Metal Works, which had completed repairs on the trailer. The Louisiana Court of Appeal decided 2-1 in Jurey v. Kemp (La. Ct. App. 1 Cir. 9/20/11) that Kemp was not working when the accident occurred. That affected which insurance policy covered the injuries received by Jurey and his two passengers.

Independent contractors with trucking companies may be covered by the company's insurance when the driver is performing transportation services. When the independent contractor is not, non-trucking liability, or "bobtail," insurance is needed to fill a gap in coverage. Liberty Mutual Fire Insurance Co. insured Dallas & Mavis Specialized Carrier Co., LLC (D&M), which had hired Kemp as an independent contractor. The Nineteenth Judicial District Court agreed with Liberty Mutual that the policy did not cover Kemp because he was "on his own time." Instead, Kemp's bobtail coverage from Great American Insurance Co. should cover the accident.

D&M's policy would insure the accident only if the semi-tractor, leased to D&M, was being used for business purposes when the accident occurred. The reason for Kemp's trip was decisive to determine coverage. Kemp's lease with D&M required Kemp to "maintain the Equipment in proper operating condition and in full compliance with applicable government regulations." On January 17, 2008, Kemp was picking up the trailer to make room at the Baker Metal Works. Kemp had requested the metal works replace some of the trailer's decking boards and weld a door to make it easier to reach the wiring for lights and air lines for brakes. D&M did not request this work and did not know about it. Kemp did not ask for reimbursement, and D&M did not pay him for the trip. Nor was Kemp performing any transportation services for D&M or on standby.

Previous cases have established the outlines for when an independent truck driver is working. Driving home after a delivery is personal because it is after work has ended. When the company asks its independent contractor to remain in an area to pick up a load, the driver is working. Similarly, driving to a distant motel at night for rest to be ready to haul a load is work related.

Whether Kemp was on business depended on whether the lease with D&M required these repairs. Neither D&M nor Department of Transportation regulations required the repairs on the decking boards or creation of a door accessing the trailer's wiring and air hoses. It would be different if regulations explicitly required these repairs. Instead, the repairs were for Kemp's convenience. Because D&M did not require the repairs, it was not work related and D&M's insurance policy did not cover him. Kemp's bobtail policy was the appropriate insurer for the accident.

Judge Jewel E. "Duke" Welch disagreed. By his reasoning, the lease gave D&M "exclusive possession, control, and use of the leased motor vehicle for the duration of the lease agreement." He interpreted "use 'for' D&M whenever that use furthered D&M's business interests and was not a purely personal use of the covered vehicle by Kemp." This may be a broader standard than previous cases allowed. The repairs may have made work easier for Kemp, but they also may have served D&M's business interests. Kemp was maintaining the leased equipment for trucking-related purposes. Under the lease, he was obligated to maintain the trailer and make sure it passed periodic safety inspections. Kemp did not get reimbursed by D&M for any maintenance work because maintenance was his responsibility. Judge Welch would have reversed the district court.

Independent contractors are common in today's flexible business world. In these business relationships, the line between work and free time is hazier than with traditional employment. More factors need to be taken into account. A lawyer skilled in determining potential liability will be able to distinguish the boundary between the individual's and the company's liability and which insurance policy should pay.

Longterm Treatment for Terminally Ill Patient Called into Question

Tue, 03 Jan 2012 07:47:42 -0600

Longterm treatment and care can oftentimes be difficult and emotionally taxing for all involved. What's more, when an already arduous process is muddled by improper actions by the medical staff, legal resolutions do exist but are unlikely to remedy the problems caused.

After what seemed like a never-ending nap, an individual who will not be named was transferred to Our Lady of Lourdes Regional Medical Center in Lafayette, Louisiana, where she spent the last nineteen days of her life. Her family, including her husband and three children, brought a medical malpractice case against her treating and diagnosing physicians as well as their insurance carrier. After a grant of summary judgment and a denied motion to continue, the decedent's family followed with an appeal against the treating neurologist, Dr. Steven Snatic, and his medical malpractice insurance provider, Louisiana Medical Mutual Insurance Company (hereinafter "LAMMICO"), claiming the denial of appropriate care, misdiagnosis and resultant death. Upon further analysis of the underlying issues, the court reversed the grant of summary judgment and the matter was remanded to the trial court.

An expert witness testified to the medical review panel that the decedent was properly diagnosed and treated, despite the fact that she was treated for a condition she did not have. The basis for this argument was that the treatment for the misdiagnosis of cryptococcal meningitis was supportive for her true condition, cerebritis. Simply stated, this is a bit like saying if you have a headache and take an aspirin, which happens to also cure the pain in your back, then you're covered. While this seems to be a difficult legal argument, the expert explained that because the decedent had lupus, it was difficult to make an accurate diagnosis.

The appellate court reviews appeals of summary judgments de novo, basically starting from scratch, with an eye toward determining three issues: (1) whether the decision of the lower court was appropriate; (2) whether there was a genuine issue of material fact; and (3) whether the appellant was entitled to judgment as a matter of law. Verbatim, the Louisiana Code of Civil Procedure Article 966(C)(2) states: "the movant's burden on the motion [for summary judgment] does not require him to negate all essential elements of the adverse party's claim, action or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense." Additionally, in a medical malpractice case, a plaintiff is required under Louisiana Revised Statutes 9:2794(A) to prove the three following elements: "(1) the standard of care applicable to the defendant; (2) that the defendant breached the standard of care; and (3) that there was a causal connection between the breach and the resulting injury."

The real questions that remained included if there a genuine issue as to material fact and is the family entitled to judgment as a matter of law? It is safe to speculate that a person without an advanced degree in medicine can see a problem with a patient being misdiagnosed and treated for an ailment she did not have. Under these details, it is probably safe to go one step further and conclude that summary judgment was not rightfully granted. Doubt and questions as to material fact are dripping all over this case.

So, why was the summary judgment motion granted? In this case the decedent's family had the burden to prove that there was a breach in the standard of care administered by the physician. In order to accomplish this task, it was necessary to present an affidavit from an expert. It turns out the decedent's family was not able to obtain an expert neurologist in time to draft an opinion. After two failed attempts with motions to continue, the decedents engaged a cardiologist, who was also a board certified internist, for a supporting affidavit. However, the court looked right through the substance of the documents, or lack thereof, and granted the summary judgment motion, which brings us to the present.

Basically, by the structure of law, the defendants had to show that factual evidence exists to adequately establish there is no genuine issue of material fact in order to be successful with the motion. Here, it is not readily apparent that the healthcare and insurance providers were able to complete such a weighty task. The defendants argued that the expert's opinion failed to identity his training or experience, as required under the statute, since he did not specialize in the desired field of neurology. However, Hebert v. Podiatry Ins. Co. of America determined that the particular field of specialty is not the crucial point, but instead the knowledge of the subject matter, such that the individual possesses the capacity to testify as to the matter at hand in satisfying the plaintiff's burdens. Due to the fact that the cardiologist was not a neurologist, the lower court determined that he was not credible. However, it was strictly stated in the doctor's opinion that "the standards of care 'are common to both the specialties and are equivalent and known' to him." The doctor also discussed how it was obvious that the misdiagnosis combined with the complications of lupus dramatically reduced the decedent's chance of survival.

Accordingly, it was determined that the lower court got it wrong. The cardiologist was in fact capable of testifying as to the standard of care that should have been given to the decedent. This leads to the conclusion that an expert witness need not have the exact same training or specialty in order to testify as to the burdens a plaintiff must meet in a medical malpractice case, so long as they are equipped with the knowledge and experience to competently answer the questions. The grant of summary judgment in favor of Dr. Snatic and LAMMICO was reversed.

A Happy Holidays to All Friends of the Berniard Law Firm

Sun, 25 Dec 2011 10:45:19 -0600

The Berniard Law Firm would like to wish everyone a Happy Holiday.

Regular posting will resume in 2012! Have a happy, and SAFE, holiday season!

Exploring the Standard for Recovering Penalties From an "Arbitrary and Capricious" Insurer

Mon, 19 Dec 2011 08:56:14 -0600

Uninsured/Underinsured Motorist (UM) coverage is designed to protect a policyholder against injury or loss inflicted by another driver who has inadequate insurance or no insurance coverage at all. Louisiana statute provides that "an insurer owes to his insured a duty of good faith and fair dealing," which includes fairly and promptly settling claims with the insured. La. R.S. 22:1220. An insurer who breaches this duty is liable for damages that result from the breach. In order to establish a cause of action for penalties and or attorney fees, a plaintiff must show that (1) the insurer received sufficient proof the of loss; (2) the insurer failed to tender payment within 30 days; and (3) the insurer's failure to pay is "arbitrary, capricious, or without probable cause." La. R.S. 22:658. Louisiana courts have held that “arbitrary, capricious, or without probable cause" is "synonymous with 'vexatious,'” and that a “vexatious refusal to pay” means it is “unjustified, without reasonable or probable cause or excuse.” The courts impose penalties on an insurer when the facts of the situation “negate probable cause for nonpayment," but tend to avoid them when an insurer can point to "a reasonable basis to defend the claim and acts in good-faith reliance on that defense.” Pointedly, it is well settled that "bad faith should not be inferred from an insurer's failure to pay within the statutory time limits when ... reasonable doubt exists." Instead, penalties are appropriate when the insurer refuses to tender a reasonable payment in an amount over which "reasonable minds could not differ."

Louisiana's Third Circuit Court of Appeal recently applied this jurisprudence in the case of Mitte v. Progressive Security Insurance Co.. On April 20, 2004, Dyna Mitte was severely injured when her vehicle was hit by an underinsured driver in Lafayette Parish. Mitte had UM coverage through Progressive and filed a claim after receiving only $32,000 from the other driver's insurance company. Progressive made pre-trial tenders to Mitte that amounted to $393,624. Mitte then filed suit seeking penalties and attorney fees on the basis of those tenders that she alleged were "inadequate and untimely." A jury found that the tenders made by Progressive were not adequate and awarded Mitte $1.6 million. However, the jury declined to award her penalties and attorney fees. Mitte appealed, arguing that the jury erred in failing to find that Progressive was arbitrary or capricious.

Mitte's assignment of error was based in part on her argument that because the jury awarded a large sum compared to the tenders made by Progressive, Progressive was necessarily arbitrary or capricious. The court rejected this argument, stating that Progressive was not required to "meet some percentage of the total claim awarded [Mitte] to avoid penalties and attorney fees." Rather, Progressive "needed to tender only a figure over which reasonable minds could not differ." Further, the record included several factual disputes described by Progressive's adjuster at trial. For instance, there was uncertainty over whether Mitte made a claim for lost earning capacity and also as to whether a gastric bypass surgery was related to the auto accident. Thus, although the jury ultimately concluded that Progressive undervalued Mitte's general damages "by a fairly large extent," there was a reasonable factual basis for the jury's finding that Progressive was neither arbitrary nor capricious. Because the court could not find that the jury's determination was manifestly erroneous, it affirmed the trial court's judgment.

Calcasieu Parish May Be Liable For Damages Resulting from Failure to Ensure Drainage After Hurricane

Thu, 17 Nov 2011 07:10:17 -0600

Governments traditionally were immune from lawsuit. That has changed. In certain circumstances, governments may be held liable for the damage they cause. A coulee flooded homes in Lake Charles after Hurricane Rita, although the area is protected by a drainage district that operates pumps and pipes to ensure drainage. The Louisiana Court of Appeal affirmed a jury award against the drainage district in Bordelon v. Gravity Drainage District No. 4 of Ward 3 of Calcasieu Parish, No. 10-1318 (La. Ct. App. 3 Cir. 10/5/11).

Drainage district employees typically stayed in pump houses during hurricanes, but in July 2005, Louisiana state officials determined that no evacuation site in Calcasieu Parish could withstand a category 4 or 5 hurricane. The drainage district has automated pumps run by electricity, but if the power went out, the diesel-fueled backup pumps required human operation. Hurricane Rita was expected to hit land as a category 4 or 5 hurricane. The district decided to allow its employees to evacuate with their families to Opelousas, Ville Platte, and Lafayette. The whole area south of Interstate 10 in Lake Charles was a part of the evacuation.

Rita unexpectedly weakened to category 3 when it made landfall on Friday, September 24, 2005. Electrical power was wiped out across a wide area. The drainage district's electric pumps at Pithon Coulee stopped at 9 p.m. No one was in the pump house to start the diesel pumps. When residents returned the next morning, their homes were fine, but the coulee waters were rising. Drainage district employees had yet to be recalled. The houses began flooding from the rising coulee waters after 3 p.m. Saturday. Early on Sunday, the district workers returned. They turned on the pumps at 8:30 a.m. By noon, the coulee was below flood stage.

Twenty-four homeowners sought damages from the district because it failed to plan a way to automate the diesel pumps and because its decisions during Hurricane Rita resulted in flooding. The district argued it was protected by governmental immunity under Louisiana Revised Statutes. A jury awarded the homeowners $1,570,219.60, although it recognized that the liability of the district's insurer, American Alternative Insurance Corporation, was limited to $1 million. The drainage district and its insurer appealed.

Courts strictly interpret immunity statutes to limit their reach. Two statutes may protect the district. The Louisiana Homeland Security and Emergency Assistance and Disaster Act provides immunity when a government is "engaged in any homeland security and emergency preparedness activities" as a part of complying with the Act. An unpublished court of appeal decision persuasively limits immunity to actions taken during an emergency, but not before. Based on that decision, the jury decided against the drainage district because it failed to have a plan in place before the hurricane's forecasted arrival. The court of appeal agreed. "A failure to plan for an emergency is not an emergency preparedness activity under the statutes conferring immunity for such activities." The district was not immune for not having a plan to keep pumps running when the pump houses were not staffed and power was out.

Louisiana state and local governments also are not liable "based upon the exercise or performance or the failure to exercise or perform their policymaking or discretionary acts when such acts are within the course and scope of their lawful powers and duties." Immunity exists for policymaking or acts for which a choice is acceptable within the government's delegated powers. If the act is "not reasonably related to the legitimate governmental objective for which the policymaking or discretionary power exists," or was done criminally or in some way intentionally, immunity does not apply.

The Louisiana statute is patterned after the Federal Tort Claims Act. A two-part test determines if immunity applies. Did the government employee have discretion, a choice, or did law require the employee to follow a certain course of conduct? If a specific action is mandatory, no immunity applies. If the employee has a choice, was that discretion "grounded in social, economic or political policy"? If not, the government may be liable. Louisiana has adopted the federal test for the state governmental immunity statute.

The court of appeal recognized that planning is an act of discretion, and ensuring employee safety above concerns to protect property "is clearly within the discretion of the district." But, automating the diesel pumps had never been considered, although it would cost only $40,000 and the money was available. By statute, "the drainage district shall make adequate provision for the drainage of all lands and property affected thereby." The district was required to provide adequate drainage of all property. The failure to consider a feasible alternative to ensure compliance with a statutory mandate prevented immunity for the effects of not automating the pumps. The court of appeal affirmed the district court jury verdict.

If you believe you have been harmed by a government, it is hard to know what to do. Government duties come from statutes and regulations, and governments may be protected from lawsuits. But not always. A lawyer will be able to review your claim and determine the government's authority and potential liability.

No Attorney's Fees for Derry Man After Insurance Dispute

Fri, 11 Nov 2011 08:54:49 -0600

When one is successful on a claim against an insurance company the payment of the claim is expected to be prompt. Any delay in payment could result in the court imposing a penalty against the insurance company. In most, if not all, cases this penalty takes the form of court costs and attorney's fees. But if an insurance company challenges a policy claim in court, and then loses, does that time when payment was refused constitute delay? The answer to this question is 'it depends.'

In Louisiana Bag Co. v. Audubon Indemnity Co., the court held that if an insurer errs in interpreting its own insurance contract, then the insurance company will be held liable for the delay in payment resulting from the trial. This delay justifies the incurrence of penalties for attorney's fees. If, however, the policy dispute revolves around facts rather than contract interpretation, then the "timely payment" provision is stayed during the trial. This was the situation of Maxley v. Universal Casualty Co. where Maxley's car insurance policy through Casualty covered loss from both theft and fire. When Maxley's car was stolen and set on fire, he filed for his claim. However, Maxley had left his car unlocked with the key in it. The policy through Casualty had an exception that nullified any claim if there was no evidence of forcible entry. The issue went to court with Casualty claiming it owed nothing under the policy because the theft was not through a forcible entry, and Maxley contesting payment was due under the fire provision of the policy rather than the theft. Maxley, in essence, argued that the exclusion provision for no evidence of forced entry was irrelevant because his car would have been recovered if it had not been for the fire.

The court found for Maxley, who then sought attorney's fees for Casualty's failure to make timely payment. The Third Court of Appeal upheld the denial of Maxley's claim, stating that Maxley's reliance on Louisiana Bag was misplaced. While Louisiana Bag relied on policy interpretation, Maxley's case relied on a true disputation of the facts. It would be senseless to require the insurance company to pay the claim only to the have the claim payment rescinded if the facts were found in favor of the insurance company. This finding upholds efficiency in the industry as it is easier to withhold payment until truly due than it is to always make payment, then try to recoup it if made erroneously.

When going to court over a contested policy claim, it is important read through your policy contract. If, according to the policy, it is unambiguous that you are entitled to payment, then attorney's fees may also be charged against the insurance company for failing to pay in a timely manner. However, most insurance claims that wind up in court do so because there are questions of material fact relating to the policy. So ask yourself: is the insurance company contesting what happened to the item covered, or how the policy covers it?

The above question is simply a starting point in determining whether or not payment has been erroneously withheld. Insurance claims are complicated and require the expertise of a licensed, practicing attorney. If you have any questions regarding your insurance claim, contact the Berniard Law Firm.

Insurance Company Taken to Task for Poor Handling Claims

Thu, 03 Nov 2011 07:16:45 -0600

It is well settled under Louisiana law that insurers owe a duty of "good faith and fair dealing" to their customers. Each insurance company is required to adjust claims in a fair and prompt manner and to make reasonable efforts to settle claims when possible. La. R.S. 22:1973 establishes that damages may be awarded against an insurance company that fails to meet this duty. One category of wrongdoing includes:

"Failing to pay the amount of any claim due any person insured by the contract within sixty days after receipt of satisfactory proof of loss from the claimant when such failure is arbitrary, capricious, or without probable cause."

The statute also permits a wronged insured to collect penalties from the insurer "in an amount not to exceed two times the damages sustained or five thousand dollars, whichever is greater." The purpose of this law is to discourage insurers from failing to live up to the promises they make to their customers in their insurance policies and for which the customers pay premiums.

On October 27, 2004, Carl Guidry and his granddaughter were driving in Guidry's pickup truck. They were rear-ended by Amber Guidry (no relation) and Guidry's truck was knocked forward. Guidry suffered from neck and back pain following the accident. Two weeks later, on November 11, 2004, Guidry and his granddaughter were again rear-ended while driving in Guidry's truck, this time by an SUV driven by Evelyn Smith. Guidry experienced further neck and back pain, as well as shoulder pain, after the second collision. Guidry sued both Amber Guidry and Evelyn Smith, and also sued his own uninsured/underinsured motorist (UM) carrier, Progressive. Guidry settled with Amber Guidry's insurance carrier in the first accident for the policy limits of $10,000. At trial, the jury found that Guidry did not suffer damages in the first accident, but found that he did suffer damages in the second accident; they jury awarded Guidry medical expenses in the amount of $19,860 and general damages of $10,000. The jury also found that Progressive had been "arbitrary and capricious" in handling Guidry's claims for general damages and medical expenses from both accidents; specifically, Progressive never tendered any money to Guidry for either claim. Accordingly, it awarded Guidry $50,000 for Progressive's breach of duty and $10,000 in attorney fees. Then the trial judge awarded Guidry $100,000 in statutory penalties against Progressive.

Progressive appealed the penalty award to the Third Circuit. The court upheld the award after a review of Progressive's handling of Guidry's claims. Progressive admitted receiving proper notice of Guidry's accidents in September, 2006 but disputed that Guidry could establish the amount of his damages. The general rule for UM carriers is that if the insured can show that "he was not at fault, that the other driver was uninsured or underinsured, and that he was in fact damaged," the UM insurer cannot avoid liability just because the insured is unable to prove the exact extent of his general damages. Instead, the insurer "must tender the reasonable amount due as a sign of its good faith and its willingness to comply with the duties imposed upon it under the insurance policy." See McDill v. Utica Mut. Ins. Co. The tendered amount would not be to settle the case, but to show good faith. Once the good-faith tender is made, the insurer must take "substantive and affirmative steps" evaluate the claim. In this case, Progressive opened its claim file in September, 2006 but did not depose Guidry's treating physician and orthopedist until June, 2008--nearly two years later. It failed to pay Guidy any money towards the $3,500 in costs to repair his truck. Also, Progressive failed to tender any of the medical payment coverage ($5,000 per accident) included in Guidry's policy, even though it ample evidence that injuries had resulted from the second accident. Guidry finally had shoulder surgery some four years after the second accident to relieve his debilitating pain, which was paid for by Medicare. Thus, the court concluded that "the jury was not unreasonable in finding that Progressive breached its duty to Mr. Guidry by failing to pay the amount of any claim within sixty days and by failing in its duty to timely investigate the accidents."

What should have been a simple resolution for Mr. Guidry turned into a four-year-long nightmare of shoulder pain because his insurance carrier mishandled and delayed the payment he was entitled to receive under his policy. This case shows the value of an experienced accident attorney who can advocate on behalf of an injured victim.

Berniard Law Firm Files Class Action Lawsuit Against New Orleans Hotel

Tue, 01 Nov 2011 09:34:59 -0600

Louisiana's Unfair Trade Practices and Consumer Protection Act seeks to prevent businesses in the state from engaging in "unfair or deceptive acts and practices" or "unfair methods of competition" when doing business with customers. The law allows anyone who falls victim to such practices to file a civil action against the perpetrator and recover treble damages (three times the amount of the actual loss) and attorney's fees. Many types of undesirable conduct on the part of businesses can fall under the Act, including misrepresenting the features of a product or service, suggesting that a good or service has been approved or endorsed by a third party when no such sponsorship exists, or passing off used or refurbished items as new. Price misrepresentation is another area where violations of the Act are common.

On September 22, 2011, Jeffrey P. Berniard of the Berniard Law Firm, on behalf of its client, Bayou Internet, filed a class-action lawsuit suit in federal court against the Royal St. Charles Hotel in New Orleans. The suit alleges that the hotel routinely hid a $7.95-per-day "resort fee" from guests, which it failed to disclose until customers received their bills at the time of check-out. This practice of under-representing the true cost of a room at the Royal St. Charles makes it impossible for would-be customers to accurately compare prices when shopping for a place to stay in the French Quarter. Bayou Internet believes that it is among possibly thousands of customers who have paid for accommodations at the Royal St. Charles Hotel and fallen victim to the pricing misrepresentation. Bayou Internet has asked U.S. District Judge Helen G. Berrigan to issue an injunction ordering the Royal St. Charles Hotel to immediately end their practice of omitting the resort fee in advertised room rates. The complaint seeks an award for the plaintiffs of treble damages as provided for in the Unfair Trade Practices and Consumer Protection Act, as well as interest, court costs, and attorney's fees.

This type of claim under the Unfair Trade Practices and Consumer Protection Act is representative of the wide variety of issues that the Berniard Law Firm stands at the ready to help consumers resolve. If you feel you have been a victim of fraud, misrepresentation, or other unfair business practice, don't feel like you are powerless against "big business."

Appeal Violates Louisiana Statute, Policy for Judicial Effectiveness

Mon, 17 Oct 2011 09:10:21 -0600

"Judgment" may sound very final but not every judgment has such gravitas. Only final judgments are appealable under Louisiana law. When Doug Selman Builders, LLC. appealed the judgment against it in Webster v. Doug Selman Builders, LLC., it violated the legislature's restriction on appeals.

The defendant was accused of defectively constructing the home that the plaintiffs purchased. At the trial level, the defendant sought and obtained an exception as to consequential damages. The defendant was less successful in responding to the plaintiffs' claim for mental anguish and mental distress. The parties could not agree whether or not to make the judgment immediately appealable. If they had, the trial court could have certified it as such, though apparently not without incident. In the instant case, defense counsel submitted two versions of the proposed judgment: one with the certification and one without. The judge signed the one with the certification. It would seem that the judgment would have become appealable at this time. This was not the case.

The appellate court ordered the defendant to show why this appeal was not taken from an interlocutory appeal. The defendant's argument that he was only appealing the ruling on the denial of his exception for mental anguish and non-pecuniary damages. However, the law in this area is clear: a denial of an exception is interlocutory by nature and cannot be designated as immediately appealable. When confronted with this seemingly bizarre result, it behooves us to ask why the incentive structure is set up to obtain it.

Though it may not always be readily apparent, judicial efficiency is an important goal in Louisiana and the United States. The court system does not enjoy hearing repetitive litigation if it can be avoided. The Louisiana statute that barred the defendant's action in this case serves to make sure that a defendant has actually lost his or her case before taking it before the higher court. The denial of an exception simply causes the defendant to actually have to defend himself on the merits of his case.

Under the scheme set up under this statute the litigation would progress in a logical manner. The plaintiff will file a suit, the defendant will file his answer with his proposed exceptions, he will either win or lose on these, the case will proceed through discovery and to trial, the defendant will either win or lose. Then the defendant will decide whether or not to appeal the final judgment. If the defendant's argument were to be adopted as the law, litigation would have needlessly circuitous steps. The plaintiff files a complaint, the defendant answers asserting several exceptions, the defendant appeals any denied exceptions, the defendant wins his appeal and the case is remanded for a judgment reflecting this or the defendant loses his appeal and appeals again or lets the case be remanded to the trial court so he can defend himself, win or lose and maybe appeal again. This system is untenable to say the least. If denials of exceptions are appealable, then why not make any lost motion or evidentiary objection appealable? This would make litigation more complicated than it has to be and waste a significant amount of time.

Appeals are only able to be taken from final judgments because final judgments incorporate the compilation of all pre-trial motions and filings as well as the record at trial. This allows appellate courts to have a better picture of the controversy before passing judgment. It also allows the parties to complain about everything they think the trial court did wrong all at once. This system may not be perfect but it is certainly better than the one that the defendant proposes with his argument in the instant case.