Archives -

4
Aug

Court Announces New Rule of Liability for Unsafe Truck Cargo

A Louisiana appellate court recently decided a case of first impression regarding the duties owed between a trucker and the shipper for the safe handling of cargo. The court ruled that the trucker bears the primary burden for safely handling the cargo, except for latent or concealed defects in the cargo. The Louisiana Third Circuit …

4
Jul

Insurer Not Waive Defenses by Payment of Prior Claim, Says Supreme Court

The Louisiana Supreme Court recently held that an insurer’s waiver of its defenses in a prior claim does not waive the insurer’s defenses in a subsequent claim. Years ago, the Louisiana Supreme Court ruled that an insurer waives its right to assert coverage defenses by assuming and continuing its insured’s defense after the insurer has …

15
Jun

The Pitfalls of Fax Filing

Courts in Louisiana will scrupulously review fax-filed pleadings to ensure that the exact same pleadings are submitted both for the fax-filing and the “original” filing.  As one recent case demonstrated, simply correcting a typographical error in the original-filed copy could result in dismissal of the pleading and the dismissal of the entire case. The Louisiana …

5
May

Facebook: A Multi-Purpose Tool in Litigation

The majority of cases involving the discoverability of Facebook posts relate to damages or impeachment evidence in personal injury cases, as we have outlined in a previous post.  However, in a unique situation, a Facebook post served as an important piece of evidence that the plaintiff’s cause of action for damages from a defective medical …

4
May

Policy Exclusion Cannot Be Raised in an Exception of No Right of Action

An insurer defendant cannot assert an exclusion of its insurance policy in an exception of no right of action, according to a recent decision by the Louisiana Third Circuit Court of Appeal. The court explained that an exclusion in an insurance policy generally is an affirmative defense, which the court determined cannot be raised in …

24
Apr

Social Media Continues to Impact Litigation

Social media continues to influence not just the news, but litigation as well.  Courts recently have been forced to address the discovery and use of social media posts for impeachment purposes and in other substantive contexts. Since the firm posted Heather Reznik’s article “Discovery of Social Media Sites Explained” in September 2015, all three United …

23
Feb

Economic Losses May Be Recovered As Property Damages Under CGL Policy, Says State Court

Damage to business reputation and “delay” damages may be recoverable as “property damage” under a commercial general liability insurance policy, ruled the Louisiana Fourth Circuit Court of Appeal. This decision arose out of property damage to the Rice Mill Lofts Apartments in New Orleans. The apartments suffered water damage during heavy thunderstorms and during Tropical …

21
Feb

A “Tug” May Be a “Tow,” Says U.S. Fifth Circuit

A “tugboat” may be a “tow” if it receives extra motive power from another vessel, according to the U.S. Fifth Circuit Court of Appeals. The Fifth Circuit announced this rule in the context of interpreting an insurance policy, although the court actually determined that an assisting tug was not the tow of a lead tug. …

19
Jan

Firm Offers Educational Programs

Adams Hoefer Holwadel, LLC offers educational presentations on a number of topics of interest to adjusters, risk managers, and other insurance professionals.  The firm has already made presentations to many clients and interested groups on “Louisiana Marine and Energy Issues,” “The Pitfalls of the Adjusting Process,” “The Jones Act versus the Longshore Act,” and “How …

16
Jan

Indemnity Agreement Not Inferred in Oilfield Contract

Indemnity agreements will not be easily inferred in the absence of a written contract, the First Circuit Court of Appeal recently reminded. In Walton v. Guidry, 2017-0784 (La. App. 1 Cir. 1/4/18), responsibility for payment of benefits under the Longshore and Harbor Workers’ Compensation Act hinged on whether an indemnification agreement existed between the nominal …

12
Jan

U.S. Fifth Circuit Refines Test for Maritime Contract Determination

The U.S. Fifth Circuit recently announced a new, simpler test for determining whether a contract is maritime. Since 1990, the U.S. Fifth Circuit Court of Appeals has applied the multi-factor test found in Davis & Sons, Inc. v. Gulf Oil Corp., 919 F.2d 316 (5th Cir. 1990), in determining whether a contract is maritime and …

2
Nov

Eye Infection Not an Accident Under Dismemberment Policy

A fungal infection that led to the loss of an eye is not compensable under an accidental death and dismemberment policy, according to the U.S. Fifth Circuit. In Ramirez v. United of Omaha Life Ins. Co., 16-11660 (5th Cir. 10/6/17), the plaintiff traveled to west Texas for his employer, MS International, Inc. On one of …

15
Apr

Payment of State Settlement Extends Time for Filing Occupational Disease Claim Under LHWCA

In a case of first impression, the Benefits Review Board determined that payment of settlement proceeds under a state compensation act extends the time for filing a claim for occupational disease benefits under the Longshore and Harbor Workers’ Compensation Act. The claimant worked as a welder in the 1970s for the employer, and then worked …

9
Dec

Firm Welcomes New Intern From Mandeville High

Adams Hoefer Holwadel, LLC is again proud to participate in the internship program at Mandeville High School.  Interning with the firm this year is Sofia Opel.  Sofia is a senior at Mandeville High, and will attend Rice University next year on a full scholarship.  She is a member of the National Honor Society, the Key …

4
Dec

Negligence Action Against an Employee and a Negligent Supervision Action Against the Employer are Mutually Exclusive

  A plaintiff cannot simultaneously pursue a negligence cause of action against an employee and a direct negligent training and supervision cause of action against the employer, if the employee was in the course and scope of employment, according to a Louisiana federal district court. The plaintiff was injured when the driver of a Greyhound …

28
Nov

Fourth Circuit Gives First Ever Louisiana Interpretation of Aviation Policy Endorsement

The Fourth Circuit Court of Appeal recently provided the first ever Louisiana interpretation of certain provisions of an aircraft liability policy.  In King v. Old Republic Ins. Co., 2016-0170 (La. App. 1 Cir. 9/7/16); 200 So. 3d 989, the plaintiff’s minor child was killed in the crash of a gyrocopter, an experimental amateur-built aircraft.  The …

14
Sep

Insured May Be Responsible for Pro Rata Share of Defense Costs in Long-Latency Cases

Defense costs may be prorated among insurers and the insured in long-latency disease cases, according to a recent decision by the Louisiana Supreme Court.  This rule only applies in long-latency disease cases, the Court instructed, and was grounded in the language of the particular insurance policy at issue. The case arose in the long-running Arceneaux …

29
Aug

Offshore Floating Tension Leg Platform Not a Vessel

An offshore floating tension leg platform is not a vessel, according to the U.S. Fifth Circuit’s recent decision in Baker v. Director, OWCP, 15-60634 (5th Cir. 8/19/16). The issue in Baker involved whether a worker injured during the construction of an offshore platform was entitled to benefits under the Longshore and Harbor Workers’ Compensation Act.  …

5
Jun

Seepage of Water “Over a Period of Time” Exclusion is not Ambiguous

A provision in a homeowner’s policy excluding coverage for “continuous or repeated seepage or leakage of water … which occurs over a period of time” is not ambiguous, according to a recent decision by a Louisiana appellate court. The state Fifth Circuit Court of Appeal interpreted this policy language in a May 26, 2016 decision, …

23
May

Plaintiff Cannot Be Compensated for Help Managing His Damage Award

A Louisiana federal judge recently rebuffed a plaintiff’s attempt to extend the range of available damages to include an award for “financial management” damages in a Jones Act claim.  The opinion contains little factual information, but the plaintiff apparently was 27 years old at the time of the injury and had reached maximum medical improvement …

4
May

Louisiana Third Circuit Awards Attorney’s Fees Even After Maintenance and Cure Paid

The Louisiana Third Circuit Court of Appeal recently decided an apparently novel issue under maritime law.  The Third Circuit held that an employer that arbitrarily delays paying maintenance and cure is liable for the plaintiff’s attorney’s fees, even those incurred after the payment of maintenance and cure, if the employer pays the benefits conditionally and …

6
Apr

P&I Policy Requires a Vessel, the Fifth Circuit Reminds

A P&I policy generally requires a causal connection between a vessel and a resulting injury for coverage, according to a recent decision from the U.S. Fifth Circuit. On March 22, 2016, the Fifth Circuit handed down another decision in the Naquin v. Elevating Boats litigation, which arises out of an accident in 2009.  In 2014, …

18
Mar

Bobtail Policy Provides UM Coverage When Tractor Not Bobtailing

In the trucking industry, “Bobtailing” means that a tractor is being operated without a trailer attached.  According to the Louisiana Third Circuit Court of Appeal, a Bobtail liability policy provides the insured with uninsured/underinsured motorist coverage, even when the tractor is not bobtailing, that is, attached to a trailer. In Castille v. Blum, handed down …

15
Mar

Contract to Salvage a Platform Covered Under LOIA

A contract for salvaging a fixed oil and gas platform in the Gulf of Mexico on the Outer Continental Shelf that supported a decommissioned well requires the application of the Louisiana Oilfield Indemnity Act (“LOIA”), according to a recent U.S. Fifth Circuit decision.  In the same decision, the Fifth Circuit found a maritime employment exclusion …

12
Feb

Trucking Company’s Bad Safety Scores Not Proof of Irresponsibility

The U.S. Fifth Circuit recently upheld the dismissal of a personal injury lawsuit against a trucking company that contracted with another trucking company with high BASIC scores in unsafe driving, fatigued driving and maintenance. The plaintiffs in the lawsuit were injured in a collision with a truck operated by A&Z Transportation in November 2011. The …

7
Feb

Property Loss Provision Interpretation Under Texas Law

The U.S. Fifth Circuit recently faced some atypical language in a homeowner’s policy written in Texas, providing guidance in interpreting property loss provisions under Texas law. In its January 28, 2016, opinion, the court first had to determine whether the insureds or the insurer bore the burden of proving depreciation to the property at issue. …

14
Jan

Ordinance or Law Provision Requires Renovations to Undamaged Building, according to Fifth Circuit

The U.S. Fifth Circuit recently interpreted an “Ordinance or Law” provision of an insurance policy under Louisiana law, holding that the provision required an insurer to pay for renovations to buildings at a property site that were not damaged in a fire in one of the other buildings at the site. Houston Specialty Insurance Company …

7
Jan

OCSLA Covers Auto Accident, Says Benefits Review Board

The Benefits Review Board, the appellate arm overseeing the administration of the Longshore Act and its extensions, recently examined an important U.S. Supreme Court decision involving injuries related to offshore oil and gas production. The Board found coverage under the Outer Continental Shelf Lands Act (“OCSLA”) for an offshore worker injured in an accident while …

15
Oct

Medical Expense Write-Offs Not Recoverable, Says Louisiana High Court

The Louisiana Supreme Court recently announced a “bright-line” rule that a write-off from a medical provider, negotiated by the plaintiff’s attorney, is not covered by the collateral source rule and cannot be recovered by the plaintiff. In Hoffman v. 21st Century North America Ins. Co., 2014-2279 (10/2/2015), the Court considered a case with clear evidence …

29
Sep

Bruce Hoefer Speaks at Attorney General’s Seminar

Bruce Hoefer delivered a presentation to 200 attorneys at the Louisiana Attorney General’s Annual Continuing Legal Education Seminar in September. The program was “How to Avoid the Highlight Reel,” an interactive seminar focusing on deposition techniques, particularly in preparing a witness for deposition. The distinguishing feature of the presentation was actual video clips from depositions …

22
Sep

Firm Offers Internship at Mandeville High

The firm is pleased to work with Mandeville High School to offer an internship to a well-qualified student, Tatiana Gonzalez Quiroga. Tatiana is President of the Mandeville High Student Council, and a recipient of the school’s Best Student Council Undergraduate Award and the School Spirit Award. Tatiana is on the Honor Roll at the school, …

17
Sep

No Firm Settlement Offer Needed to Trigger Insurer’s Duty to Settle

An insurer in Louisiana potentially faces damages for bad faith failure to settle a claim, even if it does not receive a firm offer to settle the claim. Louisiana Revised Statute 22:1973(A) provides: “An insurer … owes to his insured a duty of good faith and fair dealing. The insurer has an affirmative duty to …

3
Aug

“Insured versus Insured” Exclusion Interpreted by Fifth Circuit

The U.S. Fifth Circuit recently interpreted an insurance policy exclusion prohibiting one insured from suing another party insured under the same policy.  In finding the exclusion inapplicable, the Fifth Circuit determined that a claim for indemnity differed from a claim for “property damage” as required by the language of the exclusion. In Kinsale Insurance Company …

16
Jul

Fifth Circuit Affirms Fraud Verdict Against Katrina Insurer

Ten years later, the courts are still handling cases related to Hurricane Katrina. The United State Fifth Circuit Court of Appeals recently issued a decision arising from fraudulent classification of claims submitted by insurers. This decision issued by the Fifth Circuit on July 13, 2015 did not directly address insurance coverage questions, but involved other …

16
Jul

Firm Hosts Clients Planning Major Project

Adams Hoefer Holwadel, LLC recently hosted representatives from one of the world’s largest construction companies and one of the largest domestic insurers to discuss plans for an upcoming petrochemical project along the Gulf Coast. Adams Hoefer Holwadel advised the group of about 20 regarding various maritime risks associated with the project. Adams Hoefer Holwadel frequently …

16
Jul

No Negligent Spoliation in Louisiana

The Louisiana Supreme Court recently reigned in the remedies available against a party that inadvertently loses or destroys evidence.  In Reynolds v. Bordelon, 2014–C–2362, issued on June 30, 2015, the Court held that Louisiana does not recognize the tort of negligent spoliation of evidence. In Reynolds, the plaintiff alleged that the defendant auto insurer and …

16
Jul

Longshore Divisions Moving into the Future

The Longshore divisions of the United States Department of Labor have updated their procedures to incorporate current technology and law.  A few months ago, the Division of Longshore and Harbor Workers’ Compensation, the agency that administers the Longshore Act, implemented a procedure for online filing of almost all required documents.  Forms and other documents may …

14
Nov

Mardi Gras dates for the next ten years

How do you know when Mardi Gras is each year? It’s all about Easter. Easter can fall on any Sunday from March 23 to April 25, with the exact date to coincide with the first Sunday after the full moon following a spring equinox. Ash Wednesday is always 46 days before Easter, and Fat Tuesday …

14
Nov

What is Lagniappe?

The word entered English from the Louisiana French adapting a Quechua word brought in to New Orleans by the Spanish creoles. It derived from the South American Spanish phrase la yapa or ñapa (referring to a free extra item, usually a very cheap one). The term has been traced back to the Quechua word yapay …

25
Aug

ALJ Cannot Alter an LHWCA Settlement Agreement

An ALJ cannot vary the terms of an agreed settlement application submitted by the parties, the Benefits Review Board held.  “Section 8(i) of the Act and its implementing regulations do not give an administrative law judge the authority to alter a complete Section 8(i) settlement submitted by the parties.  Rather, the administrative law judge’s options …

16
Aug

Benefits Review Board Decides New Second Injury Fund Issue

The Benefits Review Board recently determined an employer’s liability under Section 8(f) in cases in which a claimant sustains successive aggravating injuries to the same body part.  Initially, the Board upheld the ALJ’s determination that the claimant sustained three distinct work injuries, all to his back.  The claimant initially injured his back in 1999.  After …