Constructive notice - 10 minutes to a triable fact under La. R.S. § 9:2800.6

Louisiana's First Circuit Court of Appeal reversed a defense summary judgment on finding a genuine issue of material fact regarding constructive notice under the Merchant Liability Act (La. R.S. § 9:2800.6). See Foto v. Rouse's Enterprises, LLC, 2017-1601 (La.App. 1 Cir. 08/06/18). Evidence that a clear substance was on the floor of defendant's grocery store at least 10 minutes "was sufficient to constitute constructive notice."

Plaintiff testified that she was present in the aisle where she slipped between 9:30 a.m. and 9:40 a.m. During that time no other person was present in the aisle. Plaintiff slipped in a clear liquid substance that did not come from a product shelved in the area. Thus, the evidence supported a reasonable conclusion that the liquid was present for at least 10 minutes. Further, this was sufficient duration to give rise to a triable issue as to whether the defendant had constructive notice of the hazardous condition.

Concurring, Judge Crain writes:

With this evidence, granting defendant summary judgment requires the conclusion that ten minutes, as a matter of law, is not an unreasonable period for the condition to exist. While a very close call, I cannot reach that conclusion under the facts presented.

Posted: Aug. 8, 2018

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24th JDC jury: $500K for 3 level lumbar fusion

A Jefferson Parish jury returned a couple of interesting damage awards for a husband's lumbar and wife's cervical fusions. For a three level lumbar fusion and second revision surgery, Christopher Baldassaro was awarded $300,000 for pain and suffering and $200,000 for mental anguish. Raquel Baldassaro was awarded $200,000 for pain and suffering and $200,000 for mental anguish for a single level cervical arthroplasty and future ulnar nerve release and transposition surgery. Loss of consortium damages awarded to each spouse was $50,000. See, Baldassaro v. Travelers Prop. Cas. Co. of America, 727,793 (24th JDC 07/18/18).

Special damages to the husband included $459,000 for past medicals, $400,000 for future medicals, $158,192 for past loss of earnings, and $400,000 for future loss of earnings and earning capacity. The wife's special damages included past medical of $127,176.01, future medicals of $100,000.00, past wage loss of $200,000 and future loss of earnings and earning capacity of $310,000.

Posted: Aug. 1, 2018

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The inverse of Erie is Ireland

Louisiana's Supreme Court unanimously reversed a (La.) Fifth Circuit opinion with reference to the (U.S.) 5th Circuit's analysis of a comparable issue, making it's decision a rare inversion of the Erie doctrine.

A per curiam opinion in Forvendel v. State Farm Mut. Auto. Ins. Co., 2017-2074 (La. 06/27/18), held that an insurer's waiver of anti-stacking as a defense to one UM claim does not effect waiver of the same defense for a subsequent UM claim arising out of a different occurrence.

Plaintiff was involved in two relevant motor vehicle accidents, one in 2007 and a second in 2013. In connection with his 2007 accident, plaintiff claimed UM benefits under a personal auto policy and under a second policy issued to his mother. State Farm mistakenly paid benefits under both UM coverages. Following his 2013 accident, plaintiff made the same claims for UM benefits. State Farm asserted an anti-stacking defense against compensation under both policies. Plaintiff argued that State Farm waived the defense by virtue of its prior errant claim handling.

Relying on Steptore v. Masco Construction Co., Inc., 1993-2064 (La. 08/18/94), 643 So.2d 1213, the trial judge agreed with the plaintiff's position and awarded UM benefits under both policies following a bench trial on the 2013 claim. By a 2-1 decision, Louisiana's Fifth Circuit Court of Appeal affirmed.

The Supreme Court distinguished Steptore based on the difference between waiver of coverage defense[s] as to the original claim and subsequent claims. On the final result, defense counsel, Ryan Acomb of Porteous, Hainkel & Johnson, L.L.P. comments:

The Supreme Court correctly noted that it had not addressed this precise issue before. Its decision is consistent with the application of principles of “waiver” in insurance law throughout other state and federal jurisdictions and similar lower court caselaw in Louisiana.

The Supreme Court's opinion cited with approval the U.S. Fifth Circuit opinion in American Int. Specialty Lines Ins. Co. v. Canal Indem. Co., 352 F.3d 254 (U.S. 5th Circuit 12/15/03). In American Intern. the plaintiff brought a declaratory judgment action in diversity seeking to have the United States District Court for the Eastern District of Louisiana declare that it did not owe a pro rata share of indemnity with Canal for pollution damages caused by a common insured. Canal argued at the trial court that an "other insurance" escape clause was waived by American International's prior payment of another claim against the same insured arising out of a factually similar scenario. The U.S. Fifth Circuit affirmed that portion of the trial court's judgment rejecting the waiver defense.

The federal appellate court's reasoning discussed by Louisiana's Supreme Court without explicit disagreement was more expansive than the obvious different claims scenario. Once I've had a chance to look closer at the potential implications, I'll update this post with further comment.

Posted: July 5, 2018

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UM rejection - a dissent's view on reading plurality opinions

It's been a while since selection/rejection of UM coverage was a regular subject of appellate discussion. It still comes up on occasion and does again in the Third Circuit opinion Higginbotham v. USAgencies Ins. Co., 2017-0491 (La.App. 3 Cir. 06/13/18). The opinion is worth reading for a refresher on the basic requirements and a split between First and Third Circuit jurisprudence.

But I found Judge Amy's dissent to be the most interesting reading (joined by Judge Gremillion). He describes jurisprudential views on the value of plurality opinions. It may not occur often, but the point is an important one to consider when arguments rely on case law, particularly opinions of Louisiana's Supreme Court, that represent the holding of a particular case, but are not endorsed by a majority of the panel.

Posted: June 17, 2018

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Prescription and service of process - in Theriot, First Circuit pushes Pullin

For the second time in less than two months the First Circuit held that plaintiff consent to dismissal under La. C.C.P. art. 1672 for failure to request service within 90 days is not a voluntary dismissal for purposes of prescription. See, Theriot v. Archer, 2017-1304 (La.App. 1 Cir. 04/30/18); citing with approval Pullin v. Chauvin, 2017-1292 (La.App. 1 Cir. 03/15/18).

In both cases defendants obtained plaintiffs' consent to judgments on exceptions of insufficiency of service of process and dismissal without prejudice as provided in La. C.C.P. art. 1672(C) for failure to comply with the requirements of La. C.C.P. 1201(C).

Two panels of the First Circuit have now concluded without dissent that this scenario does not trigger Civil Code article 3463 which provides, in relevant part, that "[i]nterruption is considered never to have occurred if the plaintiff abandons, voluntarily dismisses the action... ."

Posted: May 3, 2018

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Civilian law for common dummies

Being a common lawyer, it never got taught to me how this whole rejection of stare decisis thing actually works. So it was that I were mighty pleased the see the following quote in Blanchard v. Hicks, 2017-1045 (La.App. 3 Cir. 05/02/18):

Under the civilian tradition, while a single decision is not binding on our courts, when a series of decisions form a “constant stream of uniform and homogenous rulings having the same reasoning,” jurisprudence constante applies and operates with “considerable persuasive authority.” James L. Dennis, Interpretation and Application of the Civil Code and the Evaluation of Judicial Precedent, 54 La. L.Rev. 1, 15 (1993). Because of the fact that “one of the fundamental rules of [the civil law tradition] is that a tribunal is never bound by the decisions which it formerly rendered: it can always change its mind,” 1 Marcel Planiol, Treatise on the Civil Law § 123, (La. State Law Inst. trans.1959) (12th ed.1939), prior holdings by this court are persuasive, not authoritative, expressions of the law. See Yiannopoulos, supra, at § 35, p. 54. Thus, it is only when courts consistently recognize a longstanding rule of law outside of legislative expression that the rule of law will become part of Louisiana's custom under Civil Code article 3 and be enforced as the law of the state. See La.Civ.Code art. 3.

Having cleared that up, I'll admit that my operating assumption has always been that if you're quoting Planiol, you're either really smart, or you're gonna lose. Or both.

Posted: May 2, 2018

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"Library of the Future" shuts down present day 19th JDC

Unexpected settlement in the construction of the Baton Rouge downtown River Center library forced the Wednesday, April 18 closure of City Hall and the 19th JDC. From the Advocate, Barriers up, some businesses evacuated after construction issues reported at downtown library.

Posted: April 18, 2018

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$11M CDC jury verdict - single level lumbar fusion and PTSD

Lataria Duplessis, a 38 year-old single mother of three and garbage truck driver, was badly hurt in a head on collision with another truck. Most seriously, she suffered a lumbar injury requiring single level fusion and psychological damages treated with a psychiatrist.

Ms. Duplessis' case was tried in New Orleans Civil District Court and a jury returned its verdict in her favor on April 10, 2018, awarding total damages of $11,003,576.26. See Duplessis v. Turner, 2015-4256 (Civil District Court 04/10/18).

Posted: April 12, 2018

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Sacroillitis: $370,000 general damages

In Alexandria a few years ago, Alfred Mansour ran his Chevy Suburban into Laura Jolly’s Ford Expedition. She reported no immediate pain, but soon began treating for complaints diagnosed as a sacroiliac injury. Ms. Jolly received an SI injection 11 months after her accident and last saw a physician four months later.

A 9th JDC jury awarded $370,000 general damages, $11,502.40 past medicals and $5,000 future medicals. See, Jolly v. AIG Prop. & Cas. Ins. Co., 251,996 (9th JDC 08/08/17.)

Posted: April 11, 2018

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The difference between Jim Brown and Noor Salman

In 2000, former Louisiana Insurance Commissioner Jim Brown was convicted of lying in interviews with the FBI. The interviews were not recorded. His conviction rested on testimony of agents based on their recollections supported by contemporaneous notes.

In 2018, Noor Salaman, the widow of Pulse Nightclub shooter Omar Mateen, was acquitted of aiding and abetting the attack. The jury foreman issued the following statement to the Orlando Sentinel:

... A verdict of not guilty did NOT mean that we thought Noor Salman was unaware of what Omar Mateen was planning to do. On the contrary we were convinced she did know. She may not have known what day, or what location, but she knew. However, we were not tasked with deciding if she was aware of a potential attack. The charges were aiding and abetting and obstruction of justice. I felt the both the prosecution and the defense did an excellent job presenting their case. I wish that the FBI had recorded their interviews with Ms. Salman as there were several significant inconsistencies with the written summaries of her statements. ...

See, "Foreman: Jury 'convinced' Noor Salman knew Mateen was plotting attack, but couldn't convict".

Posted: March 31, 2018