PROCEDURAL DEVELOPMENTS

Admissions

In a tort case, the plaintiff stated in a filing before the court that it “does not dispute the first prong of the Affirmative Defense of Governmental Contractor Immunity applies.” Held: Based on this admission, the trial court erred in finding that there was no government immunity based on the defendant’s failure to prove the first prong of the defense because the plaintiff’s admission withdrew the issue from consideration. Harris v. Boh Bros. Construction Co., Supreme Court, No. 2021-C-00084 (3/16/21). https://www.lasc.org/Opinions/2021/21-0084.C.PC.pdf

Concursus

Parties named as defendants in concursus proceedings file answers to the petition in the concursus proceeding. At a hearing on the merits, each “defendant” would then argue its entitlement to the proceeds. Therefore, each defendant is also considered a plaintiff in relation to the other defendants in the proceeding. This transforms the answer of each defendant into its own petition or incidental action to which a party may properly file an exception. Lestelle & Lestelle v. Campo Music Shopping Center Condominium Ass’n., Fourth Circuit, No. 2021-C-0077 (3/23/21). https://la4th.org/opinion/2021/4865758.pdf

Injunction

Where the petition for injunctive relief not only failed to show that the plaintiffs had a right of action for the relief sought, but also made no mention of why the TRO should be granted without a hearing or that the notice requirements had been met, the district court did not abuse its discretion in awarding attorney fees. The fact that the TRO expired by operation of law prior to the hearing on the motion to dissolve the TRO did not affect the defendants’ right to seek damages. Girouard v. Summit Financial Wealth Advisors, Third Circuit, No. CA 20-261 (3/24/21). http://la3circuit.org/Opinions/2021/03/032421/20-0261opi.pdf

Interest

The jurisprudence is clear that the determination of the commencement of interest depends on whether the lawsuit is characterized as ex delicto or ex contractu. The distinction between damages ex contractu and damages ex delicto is that the former flows from the breach of a special obligation contractually assumed by the obligor, and the latter flows from the violation of a general duty owed to all persons. A case involving a breach of an employment contract is characterized as ex contractu. Danna v. The Ritz Carlton Hotel Co., LLC, Fourth Circuit, No. 2020-C-0187 (3/24/21). 2020-CA-0116 (la4th.org)

No Cause/No Right of Action

The jurisprudence of this state disfavors the granting of partial exceptions of no cause of action. Only where the petition is based on several separate and distinct causes of action arising out of separate and distinct transactions or occurrences should the court maintain a partial exception of no cause of action. In this case, the widow of a former member of an LLC sued the LLC and its members based on their failure to distribute profits. She also brought a derivative action against the LLC members. The defendants brought a partial exception of no cause of action based on the plaintiff’s claims of fraud against the LLC members, which the trial court granted. Held: The trial court impermissibly granted the partial exception of no cause of action as the claim arose out of the same transactions and occurrences as the remaining claims. For the same reasons, the trial court also erred in granting the defendants’ partial exception of no right of action. Parker v. Paladin Contractors, LLC, Fourth Circuit, No. 2020-CA-0492 (3/3/21). https://la4th.org/opinion/2020/4864887.pdf

The plaintiffs filed a petition for interdiction for JDM. The same day, the plaintiffs filed a petition for a TRO, preliminary injunction, and permanent injunction against the interdictee’s financial managers. The trial court granted the TRO. The defendants then sought to dissolve the TRO. They also filed exceptions of nonjoinder, no right of action, and no cause of action. After the defendants sought supervisory writs regarding the issuance of the TRO, and after the appellate court remanded, the trial court granted the exception of no right of action and dismissed the plaintiffs’ claims and the TRO. The plaintiffs appealed, arguing that the court erred in dismissing its claims. Held: The petition for interdiction and the petition for injunction were two separate and distinct actions. The plaintiffs could not “bootstrap” a right of action on the petition for injunction by relying on their status as proper petitioners in the interdiction action involving JDM. Girouard v. Summit Financial Wealth Advisors, Third Circuit, No. CA 20-261 (3/24/21). http://la3circuit.org/Opinions/2021/03/032421/20-0261opi.pdf

Service of Process

The plaintiff filed a malpractice suit against the individual physician who was employed by the state. The plaintiff served the defendant individually pursuant to La. C.C.P. art. 1232. The defendant filed declinatory exceptions of insufficiency of citation and service of process, arguing that in a claim against a qualified state health care provider, service is proper pursuant to La. R.S. 13:5107 and La. R.S. 39:1538, which require service on three entities: (1) the head of the department for the Board of Supervisors of the Louisiana State University Agricultural and Mechanical College (“Department Head”); (2) the Office of Risk Management, and (3) the Attorney General. The district court denied the exceptions, but the appellate court reversed. The Supreme Court reverses the appellate court. The plaintiff’s request for service was sufficient pursuant to La. R.S. 13:5107(D) because that section does not specify the method of service required. “Although La. R.S. 13:5107(D)(1) clearly requires that service of citation be requested within ninety days of the commencement of the action, it does not specify the manner of making such request or when request is deemed to be made.” Brown v. Chesson, No. 2020-CC-00730 (3/24/21). 20-0730.cc.opn.pdf (lasc.org)

The mother, a Louisiana resident, filed a Petition for Custody, Visitation, and Support on June 27, 2017, naming the father, a Mississippi resident, as defendant. The court set the matter for hearing on August 9, 2017. Notice of the August 9, 2017 hearing was sent to the father at his Mississippi address on June 28, 2017, by certified mail, but was returned as unclaimed. The mother’s counsel filed an affidavit into the record attesting to these facts on August 7, 2017. The matter proceeded to hearing on August 9, 2017, and the trial court rendered judgment in favor of the mother on August 10, 2017. Notice of this judgment was sent to the father on August 11, 2017, but was returned as “refused.” Notice of a September 7, 2017 hearing on the mother’s rule for contempt was sent to father via certified mail on September 1, 2017. Although notice was left at his residence, he never retrieved the mail. The mother filed an affidavit attesting to these facts into the record on September 7, 2017, and a hearing took place on the same day. Neither the father nor his counsel were present at this hearing, and judgment was rendered in favor of the mother. Subsequently, the father filed a petition to annul, asserting he was never properly served with any of the petitions or judgments in this matter. Specifically, he alleged the affidavits of service filed into the record of the Louisiana proceedings failed to strictly comply with the Louisiana Long-Arm Statute, La. R.S. 13:3205. The district court denied the petition to annul, finding the father received proper notice under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The father appealed. On appeal, a split panel of the court of appeal held that the father did not receive proper notice. Held: Reversed. Nothing in La. R.S. 13:1808 of the UCCJEA mandates service pursuant to the Long-Arm Statute; rather, the statute is phrased in permissive terms, providing notice “may be given in a manner prescribed by the law of this state for service of process. . . .” The only mandatory requirement is that “notice shall be given in a manner reasonably calculated to give actual notice.” Cochran v. Forman, Supreme Court, No. 2020-CJ-01400 (3/9/21). https://www.lasc.org/Opinions/2021/20-1400.CJ.PC.pdf

Summary Judgment

Although La. C.C.P. art. 966 does not grant a party the absolute right to delay a decision on a motion for summary judgment until all discovery is complete, the law does require that the parties be given a fair opportunity to present their case. With respect to an inadequate discovery claim, this court has identified the following four relevant factors to be considered: (1) whether the party was ready to go to trial, (2) whether the party indicated what additional discovery was needed, (3) whether the party took any steps to conduct additional discovery during the period between the filing of the motion and the hearing on it, and (4) whether the discovery issue was raised in the trial court before the entry of the summary judgment. In this tort case, the district court erred in granting a summary judgment motion regarding the potential liability of two co-defendants where the defendants had not filed an answer to the petition, there was no resolution of the defendants’ exception of vagueness, and “discovery was in its infancy” when the motion for summary judgment was filed. Francois v. Ports America Louisiana, LLC, Fourth Circuit, No. 2020-CA-0440 (3/10/21). https://la4th.org/opinion/2020/4865249.pdf

A trial court errs in allowing late-filed affidavits and oppositions to summary judgment to be accepted into the record. Heirs of John Beckwith v. Sims, Fourth Circuit, No. 2020-CA-0476 (3/10/21). https://la4th.org/opinion/2020/4865211.pdf

SUBSTANTIVE DEVELOPMENTS

Attorneys; Discipline

The Supreme Court imposes the following discipline: (1) permanent disbarment, where the respondent neglected a legal matter, failed to communicate with a client, failed to refund an unearned fee, practiced law while ineligible to do so, and failed to cooperate with the ODC in its investigation, in In Re Fazande, No. 2020-B-1415 (3/10/21) at https://www.lasc.org/Opinions/2021/20-1415.B.PC.pdf; (2) disbarment, where respondent engaged in the unauthorized practice of law and engaged in dishonest conduct, in In Re Nalls, No. 2020-B-1126 (3/24/21), at https://www.lasc.org/Opinions/2021/20-1126.B.OPN.pdf; (3) a three-year suspension, retroactive to a prior suspension, where respondent knowingly engaged in the unauthorized practice of law, in In Re Simmons, No. 2020-B-1139 (3/24/21), at https://www.lasc.org/Opinions/2021/20-1139.B.OPN.pdf; (4) a suspension of one year and a day, where respondent practiced law while he was ineligible to do so, in In Re Smothers, No. 2020-B-1412 (3/16/21), at https://www.lasc.org/Opinions/2021/20-1412.B.PC.pdf; (5) disbarment, where respondent converted $10,267 in funds belonging to her former law firm and/or its clients, in In Re Young, No. 2020-B-1176 (3/9/21), at https://www.lasc.org/Opinions/2021/20-1176.B.PC.pdf, and (6) disbarment, where respondent received approximately $53,000 in federal grant funds through fraudulent means, in In Re Tillman-Fleet, No. 2020-B-1040 (3/2/21), https://www.lasc.org/Opinions/2021/20-1040.B.PC.pdf.

Class Action

Plaintiffs, who were charged with non-capital crimes and had counsel appointed to represent them, alleged that they had been denied effective representation based on structural defects in Louisiana’s public defender system. They sought class certification on behalf of all those similarly charged with court-appointed counsel. The district court granted class certification. Held: Reversed. “Any analysis or review of a particular indigent defendant’s allegation of constitutional violations in connection with claims of systemic ‘structural barriers,’ whether for retroactive or prospective relief, is an individualized analysis reserved for the post-conviction relief procedure. As such, claims of one class representative will not be typical of all class members.” Allen v. Edwards, First Circuit, No. 2019 CA 0125 (3/12/21). https://www.la-fcca.org/opiniongrid/opinionpdf/2019%20CA%200125%20Decision%20Appeal.pdf

Contract; Detrimental Reliance

In the wake of Hurricane Maria hitting Puerto Rico in 2017, FEMA contacted Macro to supply five million gallons of fuel. Pursuant to FEMA’s need, Macro sought to purchase fuel, sell it to FEMA, and arrange for its transportation to Puerto Rico. Macro contacted Kenneth Pullen at FMT for assistance in purchasing and transporting the fuel. Mr. Pullen identified Dearybury as a source for Macro’s fuel purchase. Shortly after it initiated negotiations with FMT and Dearybury to purchase and transport fuel, Macro decided it was not in its best interest to proceed with FEMA’s request. Macro and Dearybury agreed Dearybury would sell fuel directly to FEMA and would pay Macro a five-cent commission on the sale. Before deciding not to contract with FEMA, Macro also negotiated with FMT to transport frac tanks to Puerto Rico to implement the distribution of the fuel at different ports on the island. After Drearybury failed to pay the commission, Macro filed suit against Dearybury, FMT, and Pullen, asserting breach of contract and detrimental reliance claims. FMT answered the suit and asserted a counterclaim against Macro to recover monies it allegedly incurred preparing for Macro’s anticipated contract with FEMA. The trial court dismissed FMT’s detrimental reliance claims against Macro. Held: Reversed. The communications between the parties created a genuine issue of material fact exists as to whether: (1) Macro made representations to FMT that it would contract with FMT to transport frac tanks to Puerto Rico; (2) FMT reasonably relied upon such representations; and (3) FMT incurred expenses based on those representations. Macro Companies, Inc. v. Dearybury Oil & Gas, Inc., Third Circuit, No. 20-254 (3/3/21). http://la3circuit.org/Opinions/2021/03/030321/20-0254opi.pdf

Damages; Injury; Torts

A party moving for an additional medical examination (AME) must demonstrate: (1) that the physical or mental condition of the party sought to be examined is in controversy, and (2) that good cause exists for requiring the party to submit to the examination. Although “good cause” is not defined in La. C. C. P. art. 1464, the ability of the party seeking to compel the AME to obtain the information sought through other methods is germane to the determination of good cause. In this case, the defendants sought an AME after they had already deposed the plaintiff’s treating physicians and had received the plaintiff’s medical records, including MRI images. The trial court rejected the request. Held: Affirmed. “Ultimately, the only argument set forth by the defendants that the AME was necessary was that it would be helpful to the defendants to prepare for trial—this is insufficient to establish good cause.” Hicks v. USAA General Indemnity Co., First Circuit, No. 2019 CA 0552 (3/25/21). https://www.la-fcca.org/opiniongrid/opinionpdf/2019%20CA%200552%20Decision%20Appeal.pdf

Employment; Contract

The plaintiff worked as the Director of Engineering at the Ritz-Carlton, New Orleans hotel for ten years. On his first day of work in 2000, the plaintiff and the Ritz signed an Employee Agreement, which became effective upon completion of the sixty-day orientation period. The Employee Agreement guaranteed Plaintiff the right to the Fair Discipline Pact, which stated that Plaintiff could only be terminated for a major violation for cause after a “fair and complete investigation.” In 2009, the Ritz employed a new general manager; during July of that year, the plaintiff complained that the general manager had asked him to move furniture from the Ritz to his house. After that, the plaintiff was written up for numerous violations. In January 2010, the plaintiff wrote to corporate headquarters, describing his hostile work environment and requesting an investigation. On January 18, 2010, a build-up of carbon monoxide on some of the guestroom floors resulted in the evacuation of hotel guests and the treatment of some guests at nearby hospitals. On February 1, 2010, Plaintiff received a written suspension notification, based upon the carbon monoxide incident, asserting that he caused the release by negligently working on exhaust shafts in connection with a project to remove lint from the laundry vents. After a meeting with the general manager on February 4, 2010, the plaintiff was terminated. The plaintiff brought suit against the Ritz alleging breach of the Employment Agreement and Fair Discipline Pact. After a jury trial, the plaintiff was awarded $1.65 million in damages. Held: The trial record supported the jury’s conclusion that the Employee Agreement was bargained for and enforceable contract. Although the Employment agreement provided that an employee could be terminated if he received a verbal and written warning in one year, or after a major breach in performance, there was evidence to support the conclusion that the Ritz fired the plaintiff for a major violation, wholly or partially as a result of the carbon monoxide leak, without a complete investigation and/or cause as required by the contract. Danna v. The Ritz Carlton Hotel Co., LLC, Fourth Circuit, No. 2020-C-0116 (3/24/21). 2020-CA-0116 (la4th.org)

Experts

The plaintiff sought to offer expert testimony regarding the diminished value of his vehicle based on the motor vehicle accident damage it sustained. The proposed expert was an auto broker with an independent car dealership, who appraised the value of vehicles “several times a day” for approximately fifteen years. The proposed expert regularly appraised vehicles involved in car wrecks and wrote diminished value claim reports. The proposed expert had never been qualified as an expert in diminished value but had written “several dozen” diminished value assessments. He never received any specialized training on calculation of diminished value because there is no such training. Held: The trial court did not abuse its discretion in not accepting the proposed expert’s testimony into evidence. Williams v. State Farm Mutual Automobile Ins. Co., First Circuit, No. 2020 CA 0787 (3/11/21). https://www.la-fcca.org/opiniongrid/opinionpdf/2020%20CA%200787%20Decision%20Appeal.pdf

Insurance

UM policy excluded “any automobile or trailer owned by or furnished or available for the regular use … if that automobile is not described on the Declarations.” The insured was using a vehicle furnished to him by his employer when he was involved in an accident. In the subsequent suit, the insurance company filed a motion for summary judgment based on the exclusion. The insured opposed it, arguing that the “regular use” exclusion impermissibly conflicts with the mandatory requirements of the UM statute, which only allows UM coverage to be limited under certain conditions, including the instance when the insured is occupying a vehicle that he or she owns but has not been declared in his or her insurance policy. La. R.S. 22:1295(1)(e). The trial court denied the motion, but the court of appealed reversed. Held: Reversed. The statutory exclusion unambiguously applies only to “vehicles owned by the insured.” The insurer’s policy impermissibly expanded the categories of vehicles excluded from UM coverage beyond that which the UM statute allows. Higgins v. Louisiana Farm Bureau Casualty Ins. Co., Supreme Court, No. 2020-CC-01094 (3/24/21). 20-1094.CC.OPN.pdf (lasc.org)

La. R.S. 22:1547(A)(10) unambiguously provides that an insurer may sell life insurance, and health and accident insurance, in an amount not to exceed $ 30,000 when he or she is appointed by an insurer meeting the minimum financial requirements of and is licensed pursuant to La. R.S. 22:82(A)(1) or La. R.S. 22:112(A)(1). The insurer in both statutes, La. R.S. 22:82(A)(1) and La. R.S. 22:112(A)(1), must be a domestic insurer. Where the insurer was not a domestic insurer, the trial court erred in ordering that, as a matter of law, such insurer could appoint producers with limited life, health, and accident authority as provided by La. R.S. 22:1547(A)(10), and that such appointed producers were permitted to sell life insurance in an amount not to exceed $ 30,000. Unity Financial Life Ins. Co. v. Donelon, First Circuit, No. 2020 CA 0889 (3/29/21). https://www.la-fcca.org/opiniongrid/opinionpdf/2020%20CA%200889%20Decision%20Appeal.pdf

Resolving a question of first impression, the Third Circuit holds that the duty of good faith and fair dealings imposed by La. R.S. 22:1973(A) applies to workers’ compensation insurance policies. Having thus found, the court affirms a damage award against the LWCC and for a law firm based on the LWCC’s failure to procure counsel to defend a compensation claim brought by the law firm’s former manager. Cox, Cox, Filo, Camel & Wilson, LLP v. Louisiana Workers’ Comp. Corp., Third Circuit, No. CA 20-408 (3/31/21). http://la3circuit.org/Opinions/2021/03/033121/20-0408opi.pdf

Insurance; Pollution Exclusion

The plain language of a total pollution exclusion endorsement excluded “cost or expense” arising out of an order for the insured to clean up or remove “or in any way respond to or assess the effects of pollutants.” Such language does not unambiguously include the costs associated with closing a landfill as being an “effect” of a pollutant (rather than a pollutant itself). Louisiana Department of Environmental Quality v. Tidewater Landfill LLC, Fourth Circuit, No. 2020-CA-0334 (3/24/21). 2020-CA-0334 (la4th.org)

Jones Act; Emotional Distress

The plaintiff, an African-American, was employed by the defendant as a tankerman. On October 3, 2008, the plaintiff started a 28-day hitch aboard a vessel. The plaintiff allegedly noticed a rope that resembled a noose hanging in the tugboat’s wheelhouse. The plaintiff did not express any concerns about the noose until October 17, 2008, when he went into the wheelhouse and told the captain that he would report him for the noose. The captain reported the incident to the defendant’s personnel coordinator, and the plaintiff was transferred to another vessel the following day. As a result of the incident the plaintiff filed suit, alleging that he felt threatened with immediate physical injury. He argued that he had a claim for intentional and negligent infliction of emotional distress under the “zone of danger” test and that he was entitled to damages pursuant to La. C. C. art. 2315. The defendant filed an exception of no cause of action on the basis that the plaintiff’s state law claims were preempted by the Jones Act and general maritime law. The district court granted the exception as to the Louisiana law claim. The defendant subsequently filed a motion for summary judgment seeking the dismissal of the remainder of the plaintiff’s claims. The defendant argued that, as a matter of law, the plaintiff could not prove the existence of a genuine issue of material fact as to his Jones Act and unseaworthiness claims because he did not satisfy the “zone of danger” test. The trial court granted the defendant’s motion, and the plaintiff appealed. Held: Reversed. The plaintiff’s claim for emotional damages under the “zone of danger” test depends upon whether he felt threatened with imminent physical impact, and if so, did that threat place him in reasonable apprehension of physical harm. “The issue of whether an African-American plaintiff felt threatened for his life upon seeing the noose in the tugboat’s wheelhouse is one that necessarily requires the court to make a credibility determination. The trial court should assess the plaintiff’s credibility at a trial on the merits and not at summary judgment.” Thompson v. Cenac Towing Co., LLC, First Circuit, No. 2019 CA 1185 (3/25/21). https://www.la-fcca.org/opiniongrid/opinionpdf/2019%20CA%201185%20Decision%20Appeal.pdf

Lease

Lease between the parties provided that: “Lessee must obtain the prior written approval of Lessor … to make any addition, change, alteration or modification to any of the existing structures located on the Leased Premises or to the Lease itself.” The Lease further provided that: “All such changes, modifications, improvements and alterations shall become the property of Lessor at the termination or cancellation of this Lease Agreement without payment whatsoever to Lessee for the same.” During the lease, Lessee constructed a metal structure on the leased property which was not connected in any way with existing structures on the premises. The structure had an open front, three complete sides, and a roof, and was secured by bolts to cement slabs that were poured on the property. Before the lease was terminated, Lessee removed the structure from the property. Lessor argued that, under the terms of the Lease, the structure was an improvement that belonged to the Lessor upon termination of the Lease. Held: The structure was not an addition, change, alteration or modification of an existing structure and thus the Lessor did not gain ownership of it at the conclusion of the Lease. La. C.C. art. 2695, which allows a lessee to remove all improvements that he made to the leased thing, applies. Domino Estate, LLC v. Brand Scaffold Services, LLC, First Circuit, No. 2020 CA 0191 & 2020 CW 0015 (3/29/21). https://www.la-fcca.org/opiniongrid/opinionpdf/2020%20CA%200191%20Decision%20Appeal.pdf

Maritime Law

The plaintiff’s vessel allided with an underground obstruction and sank. The plaintiff filed suit against the defendant, alleging that it had a lease interest in the property where the allision occurred. The defendant filed a motion for summary judgment and presented evidence that it had no ownership or lessee interest in the property and that it did not have any knowledge of the underwater structure involved in the allision. The trial court granted the motion. Held: Affirmed. Even if the plaintiff could prove that the defendant had a mineral lease interest in the property as he alleged, there is no basis in federal regulations or applicable federal or maritime law to impose upon a mineral lessee a duty to police the waters covered in its lease or to take steps to remove obstructions which it did not place at the site and that it does not own, maintain, or control. Further, although the defendant conceded to having operations in the vicinity of the plaintiff’s allision, the plaintiff failed to offer any corroborating evidence from any employee of the defendant or any other independent source to establish defendant’s ownership, placement, or control over the underwater obstruction. Puderer v. Hilcorp Energy Corp., Fourth Circuit, No. 2020-CA-0383 (3/24/21). https://la4th.org/opinion/2020/4865786.pdf

In June 2015, the plaintiff was ordered to work on a fixed platform in a lake in Cameron Parish. The lake was experiencing a dangerous sea state as a result of a tropical storm. He was unable to moor his vessel to the platform as the platform lacked the equipment for mooring, and thus he left the vessel in gear to maintain contact with the platform. The vessel lost contact with the platform and begin to drift away. The plaintiff jumped from the platform to the vessel to avoid being stranded on the platform. He sustained injuries as a result of his jump. In April 2016, the plaintiff brought a Jones Act case against his employer in state court. In September 2016, the employer brought a limitation of liability action in federal court. The federal court then entered an order barring the commencement of future claims and staying all pending actions during the limitation proceeding. In September 2019, the federal court dismissed the limitation proceeding based on insufficient service. The plaintiff then filed a supplemental and amending petition adding Texas Petroleum, who owned the platform, as a defendant. Texas Petroleum filed an exception of prescription, claiming that the three-year statute of limitations for his general maritime law action had prescribed. The district court granted the exception. Held: Reversed. Louisiana substantive law applies to the plaintiff’s claim against Texas Petroleum. When the plaintiff filed suit, he invoked the “savings to suitors” clause; thus the state court exercised concurrent jurisdiction over the plaintiff’s admiralty action. The plaintiff’s suit against his employer was sufficient to interrupt prescription against Texas Petroleum even though that suit sounded in admiralty law. Navarre v. Prosper Operators, Inc., Third Circuit, No. CA 20-312 (3/24/21). http://la3circuit.org/Opinions/2021/03/032421/20-0312opi.pdf

Negligence

Plaintiff bought a side-by-side off-road vehicle in a transaction conducted through the defendant automobile dealership. Immediately prior to the sale, the vehicle had been sold to the dealership by the brother-in-law of the dealership’s general manager. A few days later, the plaintiff took the vehicle for a ride off road, and the vehicle rolled over. The seatbelt failed to secure him, and the latches holding the seat failed. After suing the manufacturer, the plaintiff dismissed the suit upon discovering that the vehicle had been modified after it left the factory. The plaintiff then sued the dealership, which moved for summary judgment, which the district court granted. Held: Reversed. The evidence revealed that the purchase and installation of the non-factory tires had been billed through the dealership because the previous general manager’s brother-in-law had previously worked at that dealership. Thus there were factual disputes regarding the dealership’s actual or constructive knowledge regarding the installation of the non-factory tires to the vehicle. Bruno v. BRD US, Inc., Third Circuit. No. CA 20-233 (3/17/21). http://la3circuit.org/Opinions/2021/03/031721/20-0233opi.pdf

Negligence Per Se

A violation of La. R.S. 32:383, which governs loads on vehicles, is negligence per se. In this case, the plaintiffs were injured when a chute fell out of the back of the truck traveling in front of their vehicle. The plaintiffs claimed that the chute was part of the truck’s “load” and therefore the defendant was negligent per se in failing to properly secure the chute. Held: The chute was not a “load” for purposes of La. R.S. 32:383. The chute was intended to be used as a device to aid in the discharge of the load the truck was transporting. Clinton v. Jones, Second Circuit, No. 53,747-CA (3/3/21). https://www.la2nd.org/archives/docs/295ae8.pdf

Penal Institutions; Liability

Prison authorities have a duty to prevent inmates from escaping; however, this duty is based on the potential for harm to members of the public. There is no recognized duty by the prison authorities to protect an escaping inmate from the criminal acts of a third party. Absent special circumstances, a penal institution is not the insurer of the safety of inmates in its custody. Miller v. State of Louisiana, Department of Corrections, Supreme Court, No. 2020-CC-1345 (3/16/21). https://www.lasc.org/Opinions/2021/20-1345.CC.PC.pdf

Premises Liability

The plaintiff was invited to a home owned by defendant company. The plaintiff went up and down the three stairs to the outside deck several times during the course of the evening. The stairs were of different sizes and did not have a handrail. Later in the evening, the plaintiff slipped and fell on the stairs, injuring himself. In the subsequent suit brought by the plaintiff, the defendant filed a motion for summary judgment, claiming that the condition of the stairs was open and obvious. The district court granted the motion. Held: Reversed. The plaintiff presented expert testimony regarding the lack of a handrail, continuity of coloring of the stairs and deck and specifications of the stairs’ height and width. The expert’s findings were sufficient to create a genuine issue of material fact as to whether the stairs’ condition was unreasonably dangerous. “The pivotal issue is not whether the condition was open and obvious to [the plaintiff], who had traversed the stairs several times that day, but whether the condition was open and obvious.” Bercy v. 337 Brooklyn, LLC, Fourth Circuit, No. 2020-CA-0583 (3/24/21). https://la4th.org/opinion/2020/4865796.pdf

The plaintiff visited her husband at his worksite to deliver his lunch. After handing him his lunch, she turned and walked back to her vehicle. While she was walking, she allegedly fell into a hole and sustained injuries. In the subsequent suit, the defendant moved for summary judgment, arguing that the hole was open and obvious. The trial court granted the motion. Held: Affirmed. The plaintiff testified that she was not looking at the ground, and her daughter, who was present at the scene, admitted that her mother would not have fallen if she had seen the hole. Robinson v. The Kearney Companies, Inc., Fourth Circuit, No. 2020-CA-0605 (3/25/21). https://la4th.org/opinion/2020/4865855.pdf

Property; Immovable Property

There are three different actions through which one can assert ownership or possession of real property—a possessory action, a petitory action, or a declaratory judgment. Similarly, a party who claims to be the owner of an immovable may bring an action to confirm his title. Heirs of John Beckwith v. Sims, Fourth Circuit, No. 2020-CA-0476 (3/10/21). https://la4th.org/opinion/2020/4865211.pdf

For purposes of acquisitive prescription of immovable, a title is considered to be “just title” when “the deed is regular in form, is valid on its face, and would convey the property if executed by the owner.” While a transfer of title may be an absolute nullity, this does not prevent the running of ten years prescription, provided the other requisites of such prescription are present. However, the payment of taxes on property, alone, is not sufficient evidence of corporeal possession of the property to support an acquisitive prescription claim. Beckwith, supra.

In a disputed boundary case, the court of appeal erred in finding that the defendants could not prove their possession of the disputed tract because they did not erect the chain link fence or plant the crepe myrtle trees to create the original boundary of the property for which they claimed ownership through acquisitive prescription. A possessor need not construct his own fence or boundary, but may occupy up to an existing fence line and prescribe on the land possessed. Further, the defendants’ discussion with their neighbor before the building of new fencing on the existing fence line was not evidence of precarious possession, but actually supported a finding that the defendants’ possession was continuous, uninterrupted, peaceable, public, and unequivocal. Horaist v. Pratt, Supreme Court, No. 2021-C-00166 (3/23/21). https://www.lasc.org/opinions/2021/21-0166.C.PC.pdf

Property; Liability

The passenger of a vehicle was severely injured when high winds associated with a weather incident caused a tree limb to fall on the vehicle in which she was riding. The plaintiff filed suit against the owners of the property where the tree was located and the town responsible for the roadways, alleging negligence for failure to identify and remove the risk posed by the tree in its alleged weakened condition. The claims against the property owner were resolved by settlement, but the claims against the town proceeded to trial. The trial court found in favor of the town. Held: Affirmed. While the plaintiff alleged that the defects in the sidewalk where the tree roots had grown were or should have been obvious to the town, there was conflicting testimony as to whether a fallen limb and cracked sidewalk should have put the town on notice that there was a defect with the tree itself. The trial court’s finding was supported by evidence in the record. Wells v. Town of Delhi, Second Circuit, No. 53,607-CA (3/3/21). https://www.la2nd.org/archives/docs/1020ec.pdf

Successions

La. C.C.P. art. 3285 provides that a “succession representative may sell bonds and shares of stock at private sale at rates prevailing in the open market, by obtaining a court order authorizing the sale. No advertisement is necessary, and the order authorizing the sale may be rendered upon the filing of the petition.” Where such bond or shares of stock do not have a value in the open market, the codal provisions governing the private sale of movable property of a succession apply. In this case, the succession representative sold the decedent’s membership interest in a two-member LLC pursuant to La. C.C.P. 3285, and an heir challenged the sale. Held: Reversed. The trial court erred in authorizing the sale and in treating the LLC interest as a bond or share of stock. A member’s interest in an LLC is not referred to as “stock,” and even if it were, the interest of the two-person LLC did not have any value on the open market. Succession of Chisholm, Second Circuit, No. 53,771-CA (3/3/21). https://www.la2nd.org/archives/docs/1feed9.pdf

Taxation

A manufacturer chose to include ZN 203 among the materials it utilized to manufacture its end product, polypropylene pellets. However, there was no evidence in the record showing that the manufacturer purposefully designed its process for manufacturing polypropylene so that ZN 203 would remain in its end product. Thus the Board of Tax Appeals did not err in finding that the “further processing exclusion” under La. R.S. 47:301(10)(c)(i)(aa) did not apply to relieve the manufacturer from sales tax liability on its purchases of ZN 203. Pinnacle Polymers, LLC v. St. John the Baptist Parish Sales and Use Tax Office, Fifth Circuit, No. 19-CA-310 (3//24/21). http://www.fifthcircuit.org/dmzdocs/OI/PO/2021/23E74F1C-022D-49F3-984E-C7C54B3F992C.pdf

Torts; Conspiracy

La. C.C. art. 2324 does not, by itself, impose liability for a civil conspiracy. The actionable element in a claim under this article is not the conspiracy itself, but rather the tort which the conspirators agreed to perpetrate and which they actually commit in whole or in part. To recover under a theory of civil conspiracy, a plaintiff must show that an agreement existed among the defendants to commit the tortious act which caused the plaintiff’s injury. The conspiracy action is for damages caused by acts committed pursuant to a formed conspiracy, and all of the conspirators will be regarded as having assisted or encouraged the performance of those acts. Proof of a conspiracy can be by actual knowledge of the parties or overt actions with another, or can be inferred from the knowledge of the alleged co-conspirator of the impropriety of the actions taken by the other co-conspirators. The plaintiff must therefore prove an unlawful act and assistance or encouragement that amounts to a conspiracy. Payne v. Stanley, Second Circuit, No. 53,773-CA (3/3/21). https://www.la2nd.org/archives/docs/dbf50d.pdf

Workers’ Compensation

The Supreme Court finds that cumulative hearing loss incurred as a result of repeated exposure to high noise levels on the job does not constitute “a permanent hearing loss solely due to a single traumatic accident” as required for the award of permanent partial disability benefits pursuant to La. R.S. 23:1221(4)(p). Hartman v. St. Bernard Fire Department, No. 2020-C-00693 (3/24/21). https://www.lasc.org/Opinions/2021/20-0693.C.OPN.pdf

On December 26, 2018, the plaintiff filed a workers’ compensation disputed claim for death benefits pursuant to La. R. S. 23: 1231(A) following the death of her husband on July 27, 2018. She alleged that her husband was exposed to asbestos on a daily basis while working for defendant BASF from approximately 1969-1989. BASF filed an exception of prescription, alleging that Ms. Rowland’s claim was prescribed under La. R.S. 23:1031.1. The Office of Workers’ Compensation granted BASF’s exception of prescription, finding that the plaintiff’s claim was derivative of her husband’s cause of action, her husband’s claim had prescribed pursuant to La. R.S. 23:1031.1, and the plaintiff’s claim for death benefits had also prescribed. Held: Reversed. The plaintiff filed her claim for death benefits within one year of her husband’s death as required by La. R.S. 23:1031.1(F). The right of action for death benefits pursuant to La. R.S. 23:1231 is granted to only those dependents of an employee whose death occurs within two years of the last treatment resulting from the work-related accident or occupational disease. Because there was no indication in the record regarding then date of the husband’s last treatment, the appellate court remands the case for a determination whether the husband died within two years of the last treatment resulting from the occupational disease. Rowland v. BASF, First Circuit, No. 2020 CA 0278 (3/29/21). https://www.la-fcca.org/opiniongrid/opinionpdf/2020%20CA%200278%20Decision%20Appeal.pdf

MARRIAGE AND FAMILY

Child Support

Overtime worked by a utility worker following the 2016 flood was “extraordinary” income that was properly excluded in the calculation of the worker’s child support obligation. Dugue’ v. Dugue’, Fifth Circuit, No. 20-CA-292 (3/24/21). http://www.fifthcircuit.org/dmzdocs/OI/PO/2021/41CBBFCC-9AD4-497B-8FD1-C9902B7A63A3.pdf

Community Property; Partition

While divorce was pending, Wife filed rules for ancillary matters of the divorce, including a request for use and occupancy of the Home. The parties then entered into an interim consent agreement that provided that Wife would have exclusive use and occupancy of the Home, Wife would pay the mortgage payments, and Husband reserved “his right to claim rental reimbursement without the need to file a rule for rental reimbursement.” After Wife’s 180-day period for exclusive use of the home ended, Husband requested, via email, a key to the Home but his request was denied. Husband filed a petition to partition the co-owned property but did not include a claim for damages. Wife responded by filing a request for reimbursement for mortgage payments. During the subsequent proceedings, Husband included a claim for damages in the amount of one-half the rental value of the Home in his detailed descriptive list and in his pretrial memorandum. At the trial of the matter, Wife objected to Husband’s testimony and evidence regarding his claim for damages on the basis that Husband had failed to properly plead these damages. The trial court overruled the objection and awarded Husband $91K in damages. Wife appealed. Held: Reversed. The damages for loss of use of property falls within the category of special damages. A trial court cannot award special damages that have not been properly pled. Husband did not plead damages in his petition for partition by licitation or in his reconventional demand, and Husband’s inclusion of his claim in his pre-trial memorandum and in his descriptive list were not pleadings through which the damages could be pled. St. Germain v. St. Germain, Fourth Circuit, No. 2020-CA-0146 (3/17/21). https://la4th.org/opinion/2020/4865522.pdf

Filiation

Is a statement alleging paternity in a request for Medical Review Panel, filed with the Division of Administration, sufficient to preserve the claim of paternity? The Second Circuit concludes that it is not. The Division of Administration, unlike the state’s district courts, has no authority to adjudicate a paternity claim. Flintroy v. State of Louisiana Health Science Center-Monroe, No. 53,777-CA (3/3/21). https://www.la2nd.org/archives/docs/d5247f.pdf