Emerging Claim Trends

UM & Bad FaithCollateral Source RuleFuture Medical ExposureCurrent Damage Awards

LOUISIANA LAW TOPICS

BasicsFault Apportionment

Louisiana Civil Code Article 2323 provides for a pure comparative fault system in Louisiana. Under Louisiana’s fault system, a tortfeasor pays only for that portion of the damage that he has caused. In any action for damages where a person suffers injury, death, or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death or loss shall be determined, regardless of whether the person is a party to the action or a non-party, and regardless of the person’s insolvency, ability to pay, immunity by statute, or that the other person’s identity is not known or reasonably ascertainable. The amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death, or loss.

THE DIRECT ACTION STATUTE

LA REV. STAT. §22:655

PLAINTIFF HAS A DIRECT RIGHT OF ACTION AGAINST THE INSURER

THE DIRECT ACTION STATUTE IS INTENDED TO PROVIDE THAT ALL LIABILITY POLICIES ARE EXECUTED FOR THE BENEFIT OF ALL INJURED PERSONS

OFTEN USED TO PRESSURE THE INSURER

CAN FORCE THE HIRING OF A SECOND LAW FIRM

UNINSURED MOTORIST COVERAGE

UM Coverage will be read into a policy unless validly rejected.

The insurer bears the burden of proving the insured rejected UM coverage or selected lower limits

SIX SPECIFIC TASKS ARE REQUIRED TO VALIDLY REJECT UM COVERAGE:

• Initialing the rejection of the coverage chosen;

• Filling in the amount of coverage for each person and accident if lower limits are selected;

• Printing the name of the insured or legal representative;

• Signing the name of the insured or legal representative;

• Filling in the policy number; and

• Dating the form.

MCDILL TENDERTHE PLAINTIFF MUST ESTABLISH THE INSURER RECEIVED SATISFACTORY PROOF OF LOSS WHICH IS DEFINED BY:

(1) THE OWNER OR OPERATOR OF THE OTHER VEHICLE WAS UNINSURED/UNDERINSURED

(2) THE DRIVER OF THE OTHER VEHICLE WAS AT FAULT (LIABILITY)

(3) THAT THE FAULT GAVE RISE TO DAMAGES (CAUSATION)

(4) THE EXTENT OF THE DAMAGES (THE VALUE OF DAMAGES OVER WHICH REASONABLE MINDS COULD NOT DIFFER)

INSURER HAS 30 DAYS TO TENDER THE UNDISPUTED PORTION (INCLUDING INTEREST)

FAILURE TO PAY WITHIN THE 30 DAYS IS ARBITRARY AND CAPRICIOUS

THE AMOUNT OVER WHICH REASONABLE MINDS COULD NOT DIFFER INCLUDES INTEREST FROM THE DATE OF JUDICIAL DEMAND. LA. REV. STAT. §13:4203

UNINSURED MOTORIST ISSUES

THE EMPLOYER’S UM CARRIER AND THE EMPLOYER/WORKER’S COMPENSATION CARRIER ARE SOLIDIARY OBLIGORS (JOINT AND SEVERALLY LIABLE)

BY LAW, THEY HAVE A “CO-EXTENSIVE OBLIGATION” TO REIMBURSE THE PLAINTIFF FOR LOST WAGES AND MEDICAL EXPENSES

THEREFORE, THE UM CARRIER CAN TAKE A CREDIT FOR AMOUNTS PAID BY THE EMPLOYER OR THE EMPLOYERS WORKMEN’S COMPENSATION CARRIER

Arbitrary and Capricious

IF A PLAINTIFF CAN ESTABLISH THAT THE INSURER WAS ARBITRARY AND CAPRICIOUS IN FAILING TO TIMELY TENDER THE UNDISPUTED PORTION THE INSURER CAN BE SUBJECT TO:

• PENALTIES

• ATTORNEYS FEES

LOUISIANA UM CLAIMS ARE NOT FOR THE FAINT OF HEART

FAILURE RESULTS IN A PENALTY OF 50% OF THE AMOUNT OF DAMAGES DUE AS WELL ATTORNEY’S FEES AND COSTS

LOUISIANA UM CLAIMS REQUIRE VIGILANT HANDLING AND COORDINATION WITH DEFENSE COUNSEL

PENALTIES FOR FAILURE TO PAY CLAIMS

INSURERS SHALL PAY THE AMOUNT OF PROPERTY DAMAGE CLAIMS WITHIN 30 DAYS AFTER SATISFACTORY PROOF OF LOSS

INSURERS SHALL PAY THIRD PARTY PROPERTY DAMAGE AND REASONABLE MEDICAL EXPENSES WITHIN 30 DAYS OF A WRITTEN AGREEMENT OF SETTLEMENT

INSURER SHALL INITIATE LOSS ADJUSTMENT OF A PROPERTY DAMAGE CLAIM OR A CLAIM FOR REASONABLE MEDCAL EXPENSES WITHIN 14 DAYS. IN THE CASE OF A CATASTROPHIC LOSS THE INSURER HAS 30 DAYS

INSURERS SHALL MAKE A WRITTEN OFFER TO SETTLE ANY PROPERTY DAMAGE CLAIM WITHIN 30 DAYS OF AN SATISFACTORY PROOF OF LOSS

FAILURE RESULTS IN A PENALTY OF 50% OF THE AMOUNT OF DAMAGES DUE AS WELL ATTORNEY’S FEES AND COSTS

Failure to pay written settlement within 30 days is a breach of good faith and fair dealing!

EGGSHELL PLAINTIFF

DEFENDANTS TAKE THE VICTIMS “AS THEY FIND THEM”

TORTFEASORS ARE RESPONSIBLE FOR ANY AGGRAVATION OF A PRE-EXISTING CONDITIONS

SIGNIFICANT INJURIES CAN RESULT FROM MINIMAL IMPACT ACCIDENTS

Force of Impact TestimonyExpert testimony that the force of impact, based on the minimal damage to the vehicle, was too slight to cause the alleged injuries.

Not accepted:3rd Cir. - Godchaux v. Peerless Ins. Co., 2013-1083 (La. App. 3 Cir. 6/4/14), 2014 WL 2515132.

Accepted:1st Cir. – Fussell v. Roadrunner Towing and Recovery, Inc., 99-194 (La. App. 1 Cir. 3/31/00), 765 So.2d 373.

2nd Cir. – Currie v. Myers, 32,633 (La. App. 2 Cir. 1/26/00), 750 So.2d 388.

4th Cir. – Chavers v. Travis, 2004-0992 (La. App. 4 Cir. 4/20/05), 902 So.2d 389.

LOUISIANA “NO PAY NO PLAY” LAW

LA REV.STAT. 32:861VEHICLE OWNERS REQUIRED TO MAINTAIN INSURANCE LIMITS OF

15,000/30,000/25,000

NO RECOVERY OF FIRST $15,000 OF BODILY INJURY AND OF FIRST $25,000 OF PROPERTY DAMAGE

APPLIES TO BOTH OWNERS AND OPERATORS OF AN UNINSURED VEHICLE,BUT NOT TO UNINSURED “PROPERLY PARKED” VEHICLES

COLLATERAL SOURCE RULE

DEFENDANTS DO NOT BENEFIT FROM AN INJURED PLAINTIFF’S RECEIPT OF MONEY FROM AN INDEPENDENT SOURCE

PAYMENTS FROM AN INDEPENDENT SOURCE ARE NOT DEDUCTED FROM A PLAINTIFF’S AWARD

NO CREDIT FOR MEDICAL PAYMENTS OR DISCOUNTED PRICES FROM A PLAINTIFF’S OWN MEDICAL INSURER

DEFENDANTS ONLY OWE THE ACTUAL REIMBURSEMENT COST OF MEDICAID BENEFITS BECAUSE THE PLAINTIFF DID NOT PAY A PREMIUM FOR THIS MEDICAL COVERAGE

CURRENT MEDICAL TRENDS

Spine – Extreme Life Care Plans for disc injuries

LIFE CARE PLANSAND

VOCATIONAL ASSESSMENTS

Vocational Assessment – methodical evaluation of an individuals residual employability and earnings capacity following a change in vocational status, for the purpose of quantifying losses.

Life Care Plan – Dynamic document based upon published standards of practice, comprehensive assessment, data analysis and research, which provides an organized, consice plan for current and future medical needs.

NON-SURGICAL DISCLIFE CARE PLAN

Davis v. Foremost Dairies, 45,835 (La. App. 2 Cir. 2/16/11), 58 So.3d 977

• Ouachita Parish (Monroe) – Bench Trial (Judge Rambo)

• 24 year old – Cervical injury (C6-7)• ESIs, trigger point injections, rhizotomies• $120,000 past meds• Future meds – 54 years of injections and

rhizotomies (2 per year)• Awarded future meds of $1,146,000.• On appeal, future meds reduced to

$230,000• $2,654,249.99 reduced to $871,301.99 (on

basis of lack of sufficient evidence)

Drives Damages Models for Plaintiffs

$1,874,781.05

Defense Strategies

Parishes

White – Most liberalYellow – Slightly liberalOrange - NeutralGreen – Slightly conservativePink – Most conservative

2011-2013 Auto Negligence Report

2011-2013 Auto Negligence Report

While the average verdict was $387,957, of the 152 plaintiffs that prevailed, sixty-one plaintiffs exceeded that sum. Ninety-one other plaintiffs (representing 59.8% of the sample) took less than the average. Sixty plaintiffs took less than $100,000.

DUPLASSZWAIN BOURGEOISPFISTER &WEINSTOCK

3838 N. CAUSEWAY BLVD.SUITE 2900METAIRIE, LA 70002(504) 832-3700(504) 837-3119 – FAX

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