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September 27, 2019 Newsflash



CDC Jury Defense Judgment
Gressett v. Gibson
2016-01014 (Civil District Court 08/30/19)

A CDC jury verdict assigned fault for a motor vehicle accident to the defendant, but no damages to the plaintiffs.

One plaintiff alleged cervical and lumbar disc injuries treated with ESIs and recommended surgery deferred for health reasons. The other alleged 3-6 months neck and back soft-tissue injury. Plaintiffs filed a JNOV motion on September 19, 2019, alleging juror misconduct, "untruthful" defendant testimony, uncontroverted damages evidence, defense counsel taint of the jury with reference to plaintiff's support for President Trump and unfair denial of plaintiff's ability to respond to attacks on his "personal integrity."

UM Tender
Thomas v. GEICO Ind. Co.
2018-10262 (22nd JDC 09/20/19)

Citing vague and inconsistent testimony, the trial court found that plaintiff failed to establish satisfactory proof of loss exceeding liability coverage prior to tender of UM limits.

Soft Tissue
Mouledoux v. Blunt
779,389 (24th JDC 09/20/19)

Bench trial general damage award of approximately $3,000 per month for neck and back soft tissue injuries.

Borden v. Laudun
2015-2948 (Civil District Court 09/13/19)

The driver of plaintiffs' vehicle, an excluded driver, was denied recovery by operation of the no-play/no-pay statute(La. R.S. § 32:866) and the passenger was awarded general damages of $13,000 - approximately $1,500 per month - for neck and back soft-tissue injuries.


Bad Faith


On UM Coverage, See
Handy v. State Farm Mut. Auto. Ins. Co.
52,905 (La.App. 2 Cir. 09/25/19)

in which Judge Cox exercises restraint.

1st Party Property - Hurricane
Dudenhefer v. Louisiana Citizens Prop. Ins. Corp.
2019-0387 (La.App. 4 Cir. 09/25/19)

Plaintiff's judgment awarding covered losses supported by the expert testimony of civil engineer Robert Harris and contractor Roy J. Gross, III was affirmed by the 4th Circuit. So too was the trial court's finding that the defendant's claim handling was arbitrary and capricious.

General damages, penalties and attorney fees under La. R.S. 22:1973 were corrected to comply with the holding of Durio v. Horace Mann Ins. Co., 2011-0084 (La. 10/25/11), 74 So.3d 1159:

[P]enalties are calculated by doubling the amount of damages attributable to the insurer's breach of duties imposed under the statute. (Emphasis added.)

"Damages attributable to," refers to consequential damages. The 200% penalty is assessed only on extra-contractual damages incurred by the insured as a result of the insurer's breach of duty. The trial court calculated penalties by doubling covered losses in excess of the policy deductible.

Louisiana Citizens' relevant policy language, did not exclude coverage. The "insured does not have to prove that the wind created a hole in the structure for the water to enter. [Best v. State Farm Fire & Cas. Co., 2007-0573, p.5 (La. App. 4 Cir. 10/10/07), 969 So.2d 671, 675]. Rather, the insured just needs to demonstrate that the wind created an opening that allowed the water to enter. Id." The trial court's finding of covered loss was not "clearly erroneous" on the record of plaintiff's expert testimony.


CompQuantum Trial Reports on Appeal


The trial court bad faith judgment in Dudenhefer (above) was reported last year at CompQuantum. See Dudenhefer v. Louisiana Citizens Prop. Ins. Corp., 13-0977 (34th JDC 11/19/18).


Med Mal - Explained and Affirmed
Lewis v. Cornerstone Hospital of Bossier City, LLC
53,056 (La.App. 2 Cir. 09/25/19)

Affirming a Bossier Parish jury verdict finding no breach of the standard of care and no damages arising out of a privacy violation, the Second Circuit panel delivers a detailed opinion. See Lewis v. Cornerstone Hospital of Bossier City, L.L.C., 151,867 (26th JDC 08/06/18).

Perhaps out of caution in reaction to its explicit curiosity over the defendant's physicians being unable to recall the referring doctor's orders, the panel reviewed each element of the claim in detail. Included is a discussion of loss of chance of survival as a theory of recovery. Ultimately the court found that the jury was not "plainly wrong."

The court also affirmed a finding that defendant's violation of privacy for having spoken with the referring physician without consent resulted in no recoverable damage to the patient.

Aggravation and Impeachment
Perry v. Starr Indemnity Co.
52,720 (La.App. 2 Cir. 09/25/19)

Affirming trial court judgments consistent with the jury's verdict and denying plaintiff JNOV, the active ingredient in this Second Circuit opinion is a quote from Green v. K-Mart Corp., 2003-2495 (La. 05/25/04), 874 So.2d 838:

The trier of fact may substitute common sense and judgment for that of an expert witness when such a substitution appears warranted on the record as a whole. (Emphasis added.)

Inconsistent treating physician testimony and an impeached plaintiff supported the jury's verdict awarding general and special damages totaling $1,149,509.27.

The jury's verdict was also notable for a finding of all elements, but awarding no punitive damages, under 2315.4. See Perry v. Starr Indemnity and Liability Co., 148,883 (26th JDC 05/10/18). That decision was not among plaintiff's assigned errors addressed on appeal.

Work Product
Production Order Vacated, Remanded for In Camera Inspection
Spivey v. Hornbeck Offshore Operators, LLC
2019-CW-0703 (La.App. 1 Cir. 09/25/19)

Vacating the trial court's order requiring response to subpoena by defendant's investigator, the 1st Circuit observes:

Work product protection afforded pursuant to La. Code Civ. P. art. 1 24( A) extends to materials prepared by agents for the attorney as well as those prepared by the attorney himself. See U. S. v. Nobles, 422 U. S. 225, 95 S. Ct. 2160, 45 L. Ed. 2d 141 ( 1975).

See Spivey v. Hornbeck Offshore Operators, LLC, 133,472 (17th JDC 04/26/19), for the trial court hearing transcript filed in response to request for written reasons.


Premises Liability


Merchant Liability
Defense MSJ Reversed
Green v. Brookshire Grocery Co.
53,066 (La.App. 2 Cir. 09/25/19)

Surveillance video lent credence to plaintiff's testimony that she could not see a cone placed to warn customers of a spill. The trial court summary judgment for the defense on cross-motions reversed.

Recreational Use Immunity - Public Liability
Plaintiff Trial Judgment Reversed
Lewis v. City of Bastrop
52,884 (La.App. 2 Cir. 09/25/19)

Plaintiff broke her foot on rebar securing a metal pipe to the ground. Her foot struck the rebar as she walked through a city park to attend her grandson's baseball game. Following a bench trial, the court awarded general damages of $300,000 and specials of $58,180.53. The 2nd Circuit reversed, finding that the city was entitled to protection of the recreational use immunity act (La. R.S. § 9:2795) and that plaintiff failed to satisfy her burden of proof to establish public liability under La. R.S. § 9:2800.

Posted: Sept. 27, 2019