Archive | December, 2007

Fenkel v. St. Paul Mercury Insurance Company et al

Fenkel v. St. Paul Mercury Insurance Company et al
(November 2007)

Michael Sistrunk, Kyle Kirsch, and Matthew Garver secured a summary judgment in favor of United Services Automobile Association (USAA), which was upheld on appeal by the Fifth Circuit. In Fenkel, the plaintiff, a Colorado resident who was in Louisiana for a trade show and operating a rental vehicle, was severely injured by a drunk driver in an automobile accident when his vehicle was struck by a vehicle operated by an Illinois resident. Fenkel sought benefits from USAA under his UM coverage. The issue in this case was the choice of law to be applied to the USAA policy. If Colorado law was applied to the USAA policy, Fenkel would not be entitled to any UM benefits because Colorado law allows an insurer to offset any funds paid to the insured up to the underlying UM limits. If Louisiana law applied to the USAA policy, USAA would be liable for its policy limits. Michael Sistrunk, Kyle Kirsch, and Matthew Garver successfully argued in brief and oral arguments that Colorado law applied to the USAA policy and summary judgment was properly granted to USAA. The Fifth Circuit agreed, holding that the USAA policy was written and delivered in Colorado, Fenkel was a Colorado resident, the parties to the policy contemplated application of Colorado law, and that it was equally clear that neither party contemplated that another state’s laws would apply to the policy.

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Barbara Lopicolo v. USAA

Barbara Lopicolo v. USAA
(August 2007)

Peter Wanek and Devin Fadaol won a victory for USAA in this four day jury trial before Judge Hand in 24th JDC for the Parish of Jefferson. After stipulating to liability, the case was tried on the issue of damages and a loss of earning capacity claim. Plaintiffs asked for $275,000.00 in closing argument, and were awarded a total of $8,000.00 plus $16,000.00 for medical bills. The jury awarded zero for the loss of earning capacity claim, loss of consortium, loss of enjoyment of life, and future pain and suffering/mental anguish.

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Wilbert Johnson v. U-Haul Company of Louisiana

Wilbert Johnson v. U-Haul Company of Louisiana
(August 2007)

Devin Fadaol won a victory for U-Haul before the Louisiana Court of Appeals for the Fourth Circuit. The issue was whether U-Haul is liable to plaintiff for an accident in which its lessee failed to return the rental truck, and the rental truck was involved in a hit-and-run accident three weeks later. After briefing and oral argument, the Fourth Circuit Court of Appeals affirmed the summary judgment granted in favor of U-Haul holding that U-Haul was not liable under the circumstances as it made sufficient attempts to recover the vehicle, and the Court refused to establish any time frame under Louisiana law by which rental companies were required to recover a vehicle to avoid liability to third parties.

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State of Louisiana v. Ford Motor Company, et al.

State of Louisiana v. Ford Motor Company, et al.
(July 2007)

Michael T. Pulaski secured a 1st Circuit Court of Appeal victory for Ford Motor Company, in the case entitled State of Louisiana v. Ford Motor Company, et al., which overturned a class action certification in the 19th Judicial District Court. The State of Louisiana filed a class action petition alleging redhibitory defects in Ford Crown Victoria Police Interceptors, a vehicle marketed and specifically designed to be used by law enforcement, seeking a reduction in the purchase price and other damages. At trial, Ford argued that the State failed to establish the elements of numerosity, commonality, typicality and adequacy, which are necessary in maintaining a lawsuit as a class action. The trial court certified the lawsuit as a class action, defining the class as “All parishes, municipalities, police and sheriffs departments, law enforcement districts and other political subdivisions within the State of Louisiana who have purchased, leased or otherwise acquired Ford Crown Victoria Police Interceptors since the 1992 model year for use as law enforcement vehicles.” After oral arguments, before a five judge panel, the Court of Appeal reversed and remanded, holding that the State has not met its burden of establishing the elements necessary to maintain the suit as a class action. Supreme Court Writ Denied October 2007.

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Alfred Kelly/Kenneth Prejean/Cypress Bellard v. U-Haul Company of Louisiana

Alfred Kelly/Kenneth Prejean/Cypress Bellard v. U-Haul Company of Louisiana
(June 2007)

Devin Fadaol won a victory for U-Haul in this special investigations unit/fraud case. Devin Fadaol successfully argued in summary judgment that the accident was staged based on the testimony of the U-Haul vehicle driver and another witness. Judge Rubin in Lafayette granted the summary judgment dismissing U-Haul and its driver from the lawsuit, and granted a $7,500.00 bond for costs against the plaintiffs.

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________ v. Louisiana Insurance Guaranty Association, et al

________ v. Louisiana Insurance Guaranty Association, et al
(May 2007)

Devin Fadaol won a victory for LIGA in a two week jury trial before Judge Ethel Simms Julien in Civil District Court for the Parish of Orleans. As a result of an automobile accident, ________ alleged various injuries including brain damage and herniated discs against the various individual defendants and insurers involved in the litigation. At the close of plaintiff’s case in chief, Judge Julien granted a Directed Verdict in favor of LIGA dismissing it from the lawsuit with no exposure.

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Caprice Bivens v U-Haul Company of Louisiana

Caprice Bivens v U-Haul Company of Louisiana
(March 2007)

Devin Fadaol won a victory for U-Haul in this special investigations unit/fraud case. Devin Fadaol was able to obtain a voluntary dismissal from the plaintiffs following the deposition of an eyewitness that raised issues of possible perjury in the plaintiff’s prior testimony.

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Plaintiff (omitted) v. U-Haul Company of Louisiana and Republic Western Insurance Company

Plaintiff (omitted) v. U-Haul Company of Louisiana and Republic Western Insurance Company
(March 2007)

Michael Sistrunk and Devin Fadaol won a victory for U-Haul in this bench trial before Judge Madeleine Landrieu in Civil District Court for the Parish of Orleans. Plaintiff claimed that U-Haul employees cut the lock on his self-storage unit and stole or discarded over $100,000.00 worth of personal property. Plaintiff also alleged that U-Haul allowed rodents to destroy his personal property two years earlier in another self-storage unit.

After a two day trial, Judge Landrieu rendered a defense judgment in favor of U-Haul, finding that plaintiff failed to meet his burden of proof. Judge Landrieu also ruled that plaintiff submitted a fraudulent claim, awarded all court costs to be paid by plaintiff, and awarded attorney’s fees in favor of U-Haul.

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Burnette Armstrong v. HMC Hotel Properties II Limited Partnership

Burnette Armstrong v. HMC Hotel Properties II Limited Partnership
(March 2007)

Michael R. Sistrunk and Kyle P. Kirsch secured a summary judgment dismissal, with prejudice, for the Baton Rouge Marriot Hotel and its General Manager, Janet Schwartz, in the case entitled Burnette Armstrong v. HMC Hotel Properties II Limited Partnership, which was pending in the 19th Judicial District Court in Baton Rouge, Louisiana. Ms. Armstrong filed suit against the Marriott claiming she suffered serious injury as a result of a trip and fall in the Marriott parking lot. Ms. Armstrong underwent one shoulder surgery, had a second surgery recommended, and had received $34,217.52 in worker’s compensation benefits. The trial court granted the summary judgment motion finding same to be well-founded, specifically noting that none of the alleged defective joints or crevices in the parking lot were over 2″ in depth and thus, there was no unreasonably dangerous condition.

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