Archive | December, 2009

Kimberly Creel v. Ford Motor Company

Kimberly Creel v. Ford Motor Company
(July 2009)

Keith W. McDaniel, Lance B. Williams, and Quincy T. Crochet prevailed on a Motion for Summary Judgment, which was granted in favor of Ford Motor Company. The single-vehicle accident at issue occurred in 1998, but plaintiff did not file a lawsuit until more than two-and-a-half years later. The Court rejected plaintiff’s argument that the doctrine of contra non valentem should apply, and dismissed her claims as prescribed pursuant to Louisiana’s one year liberative prescriptive period. Kimberly Creel v. Bridgestone-Firestone, Inc., et al., 2009 WL 2044264 (S.D. Ind. 7/8/2009).

Plaintiff, Kimberly Creel, was operating her 1991 Ford Explorer on August 27, 1998, in Louisiana while traveling to Texas. She alleged that a tire on the vehicle failed, causing her to lose control of the vehicle and subsequently roll over. On May 10, 2001, nearly three years after the accident, Creel joined a multi-plaintiff action filed in Jefferson County, Mississippi. After nearly six years of litigation, the Mississippi Supreme Court found that Mississippi lacked jurisdiction over Creel’s claims, and her case was dismissed. Creel v. Bridgestone/Firestone North American Tire, LLC, et al., 950 So. 2d 1024 (Miss. 2007).

Creel then initiated a new lawsuit in the 26th Judicial District Court for the Parish of Webster on April 10, 2007, nearly nine years after the accident. The matter was removed to the United States District Court for the Western District of Louisiana, and was then transferred to the Bridgestone/Firestone Multi-District Litigation pending in the Southern District of Indiana. Ford subsequently filed a Motion for Summary Judgment, arguing that Creel’s claims were prescribed, or time-barred, under Louisiana’s one year liberative prescription period. Creel argued in opposition that contra non valentem applied.

However, after reviewing the evidence, the Court concluded that it is “clear that Plaintiff failed to take the necessary steps to determine the cause of the tire failure and the resultant accident and her injuries. . .” The Court noted that the police report provided that the vehicle suffered a “blow out”, that plaintiff testified she informed the investigating officer that the vehicle suffered a blown tire, that plaintiff was told by the police officer and witnesses that the accident was not her fault, that the plaintiff believed the tire failure caused her to lose control of the Explorer, and that she knew who manufactured her vehicle and tire. Accordingly, the Court held that Creel had sufficient information to provide a basis for a lawsuit or further investigation following the accident, and rejected the proposed application of contra non valentem.

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One River Place Condominium Association, Inc. v. Axis Surplus Insurance Company

One River Place Condominium Association, Inc. v. Axis Surplus Insurance Company
(June 2009)

Peter Wanek, Kyle Kirsch, and Sid Hardy obtained a favorable jury verdict for Axis Surplus Insurance Company following a seven day trial in federal court in New Orleans. Axis insured One River Place, a luxury condominium high-rise building in downtown New Orleans on the Mississippi River, under a property insurance policy issued to its condo association. The property suffered damage during Hurricane Katrina. Axis adjusted the claim and made payments for damages that it found to be caused by the high winds of Hurricane Katrina.

One River Place filed suit against Axis, alleging that the property suffered additional damage that should have been covered under the policy. One River Place also alleged that Axis failed to pay for “business interruption” damages for two months of condominium assessments which the Board of Directors had waived following Hurricane Katrina. One River Place further alleged that Axis had acted in bad faith during the adjustment of its claim, entitling it to penalties under Louisiana law. Finally, One River Place alleged that Axis violated Emergency Rule 23 for failing to renew the insurance policy beyond June 1, 2006, entitling it to additional penalties.

One River Place presented testimony from members of its Board and from its insurance agent regarding the issues of coverage under the policy, claims handling, and the decision of the Board to seek replacement coverage from a different insurer. Regarding the extent and cause of property damage, One River Place presented testimony from its general contractor, its roofing contractor, and the architect who designed and managed an extensive renovation project following Hurricane Katrina.

Axis argued that the extensive renovations to the building were not related to Hurricane Katrina, but rather were improvements to the property that made it better able to withstand future hurricanes and corrected fundamental problems present since the construction of the building. In support of this argument, Axis presented testimony from the engineers who inspected the property following Hurricane Katrina, contractors who performed the renovations to the property, and an expert architect who called into question the opinions of One River Place’s expert architect.

Regarding the issues of “business interruption” damages, Axis presented testimony and evidence which showed that the collection of two months of condominium fees was waived by a voluntary act of the Board, and also that the property was habitable and that unit owners had returned to the property during that two month period. Finally, regarding the issue of the alleged Rule 23 violation, Axis presented evidence to show that One River Place was actively shopping the market for alternative replacement coverage in 2006, that Axis extended coverage under the existing policy every time that One River Place requested it do so, and that One River Place chose to purchase replacement coverage from a different insurer in June 2006.

At the close of trial, One River Place asked the jury to award it over $8 million in damages, including payment for its renovation project, payment for additional planned renovation, payment for two months of business interruption damages, bad faith penalties, and damages under Emergency Rule 23. Axis asked the jury to find that it had paid for all covered damages under the policy and to award no additional monies.

After over six hours of deliberation, the jury returned a verdict finding that Axis had not acted in bad faith, had not violated Emergency Rule 23, and did not owe penalties to One River Place. The jury awarded a minimal amount in comparison to the demand for business expenses and property damages. After the Court subtracted the deductible on the policy, the net Judgment awarded One River Place under $200,000 in total damages.

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Toga Society, Inc. v. Harry Lee, et al.

Toga Society, Inc. v. Harry Lee, et al.
(April 2009)

Thomas P. Anzelmo and Kyle P. Kirsch won a victory in favor of Jefferson Parish in the case entitled Toga Society v. Harry Lee, et al. in the United States District Court for the Eastern District of Louisiana where plaintiff maintained “that it is entitled to total damages in the amount of $436,057.24 for its losses for three “parade” years–those being 2003-04, 2004-05, and 2005-06.” Toga Society v. Harry Lee, et al., 2005 WL 1578726, at p.1 (E.D. La. 2005). Jefferson Parish after taking over twenty depositions brought a Motion for Summary Judgment on damages which was granted by the district court. The district court found “that the only damages to which Toga is entitled to $3,485.00 in security costs paid in 2002 for its 2003 parade. The rest of the claims are specious at best and without any support in admissible evidence.” See Toga Society, 2005 WL 1578726, at p.7. This ruling was affirmed by the U.S. Fifth Circuit on appeal. See Toga Society v. Normand, 2009 WL 909431 (5th Cir. 2009).

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Ankesheiln v. USAA

Ankesheiln v. USAA
(March 2009)

Peter Wanek and Thomas P. Anzelmo tried a case in the Civil District Court in New Orleans, LA. The case involved a rear-end auto accident and liability was stipulated to. Representing the Uninsured/Underinsured Motorist Carrier (USAA), the defendant argued that the accident was a minor one and could not have caused the serious low back injuries alleged by the plaintiff, and also that the plaintiff’s back complaints, which gradually became worse in the years following the accident, were related to his degenerative disc condition and not the accident. The plaintiff eventually had a two level fusion of the lower two vertebrae in his back and claimed related medical expenses in excess of $200,000. Incidentally, prior to trial, the excess UIM carrier settled two days before trial for $200,000.

In closing, the plaintiff requested that the jury award $1,010,000.00 including approximately $209,000 in medical expenses. The jury returned a verdict in favor of the plaintiff but awarded only $47,000 in general damages and $20,000 in past and future medical expenses. USAA had tendered $10,000 prior to trial and with a credit for payment made by the primary carrier ($10,000), the net judgment was $47,000.

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DiMaggio v. Ford Motor Company

DiMaggio v. Ford Motor Company
(February 2009)

McCranie Sistrunk Attorneys obtained a defense verdict for Ford Motor Company in a two week jury trial arising from the death of two people in a rollover accident involving a Ford Explorer. Plaintiffs claimed that Explorers manufactured from 1991 – 2001 were defective in handling and stability characteristics. The jury rendered a unanimous defense verdict for Ford and a judgement of $1.28 million against a co-defendant who caused the accident.

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Kurt Albert, et al. v. Kenneth Jordan, et al.

Kurt Albert, et al. v. Kenneth Jordan, et al.
(January 2009)
United States District Court for the Western District of Louisiana, Docket No. 05-516, 517, 518, 519

Michael R. Sistrunk and Kyle P. Kirsch obtained a favorable verdict in the United States District Court for the Western District of Louisiana for Landstar in a rear end collision wherein the defendant driver had fallen asleep at the wheel and rear ended a pick up truck on I-10. Defendants were successful in having the court issue a limine ruling which effectively prevented plaintiff’s vocational rehab and economic experts from testifying to the opinions they rendered in their reports. After this ruling two of the four plaintiffs claims settled and the remaining two plaintiffs went to trial. For Kurt Albert the court only awarded $18,152.43 rejecting any treatment he received from Dr. Robin because the doctor’s “opinion as to causation is unsound and unreliable.” The court awarded Mr. Bradley $32,818.63. Following the trial the plaintiffs refused to sign the checks for the amount of the judgment because the amount awarded was less than the costs incurred by plaintiff’s counsel. As a result the defendants were forced to place the judgment amount into the registry of the court. The court finally released all the funds to plaintiffs’ counsel as the amount of costs incurred by plaintiff’s counsel incurred exceeded the amount of money in the court’s registry.

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Martin v. Davis et al.

Martin v. Davis et al.
(January 2009)

Thomas P. Anzelmo and Kyle P. Kirsch won a victory in favor of the City of Westwego and Officer Michael Davis in the case entitled Martin v. Davis, 2009 WL 152648 (E.D. La. 2009). The plaintiffs sued the City of Westwego and Officer Davis for excessive force alleging that the decedent’s Civil Rights were violated when he was shot a killed while Officer Davis was responding to a domestic violence 911 call. The District Court dismissed plaintiffs’ claims on summary judgment finding that Officer Davis’ actions were objectively reasonable in light of the fact that “Davis was facing a fleeing irrational man who had just fired a gun, who would not comply with simple commands and who was aggressively approaching Davis and his gun while asking to be shot.”

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Whelen v. Chief Penouilh, et al.

Whelen v. Chief Penouilh, et al.
(January 2009)

Thomas P. Anzelmo and Kyle P. Kirsch won a victory in favor of Jean M. Llovet and Dr. Green in a case entitled Whelen v. Penouilh, 2009 WL 86667 (E.D. La. 2009). The plaintiff sued the defendants alleging his Civil Rights were violated when the defendants allegedly failed to provide him adequate medical care for his diabetes which he claimed led him to become legally blind. The District Court dismissed plaintiffs’ inadequate medical care claims against Llovet and Dr. Green because plaintiffs Complaint, as amended by his testimony at the Spears hearing, was insufficient to establish a §1983 claim since his medical records and testimony on cross-examination established that “he received constitutionally adequate medical care . . ..”

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