Archive | December, 2010

Weiss V. Mazda

Weiss V. Mazda
(November 2010)

The Louisiana Fifth Circuit Court of Appeal has upheld a grant of summary judgment for Mazda Motor of America, Inc. and Royal Oldsmobile Company, Inc. The opinion can be found at http://www.fifthcircuit.org/Opinions.aspx by searching for Case No. 10-CA-608.

Lance B. Williams and Quincy T. Crochet of McCranie, Sistrunk, Anzelmo, Hardy, McDaniel & Welch, LLC obtained the judgment for Mazda and Royal in March of 2010 in the case of Elizabeth L. Weiss and John Weiss v. Mazda Motor Corp, et al., in the 24th Judicial District for the Parish of Jefferson, Case No. 536-515. The plaintiffs filed the product liability action seeking damages against Mazda and Royal for injuries allegedly sustained when the airbag deployed after Elizabeth Weiss struck a parked vehicle in her 1994 Mazda MX3 in Metairie, Louisiana. The plaintiffs claimed that the impact was minor and at an offset angle and thus the airbags should not have deployed. They alleged that the supplemental restraint system was defective in design and for failure to provide adequate warnings. The summary judgment argued that plaintiffs had failed to develop any evidence to prove that the vehicle was defective pursuant to the Louisiana Product Liability Act, and absent expert support all claims should be dismissed. Judge William “Chuck” Credo, III, agreed and granted the defendants’ motion on March 30, 2010. In his written reasons, Judge Credo explained that “Mazda provided adequate warnings regarding the activation and any potential dangers associated with airbag deployment.”

The plaintiffs subsequently appealed the dismissal of their claim to the Louisiana Fifth Circuit Court of Appeal. The Appellate Court determined that Mazda adequately warned the plaintiffs that the air bags could deploy in a frontal or near frontal accident of moderate impact, and that Mr. & Mrs. Weiss failed to produce any evidence that the subject accident resulted in less than a moderate impact. Thus, the plaintiffs were unable to establish proximate cause. In addition, the Fifth Circuit determined that the only proposed alternative warning presented by the plaintiffs’ counsel would be inapplicable to the subject accident. After noting that a plaintiff prosecuting a failure to warn claim cannot prevail based on a mere allegation of inadequacy, the Fifth Circuit affirmed the ruling of the trial court and upheld the summary judgment in favor of Mazda and Royal.

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Unum Wins Summary Judgment on Accidental Death Claim

Unum Wins Summary Judgment on Accidental Death Claim
(June 2010)

On June 8, 2010, Lauren A. Welch prevailed on a motion for summary judgment on behalf of Unum Life Insurance Company of America (“Unum”) in an ERISA suit in the United States District Court for the Eastern District of Louisiana. Plaintiffs, beneficiaries of decedent Timothy D. Letter, were seeking in excess of $200,000 Accidental Death and Dismemberment (AD&D) benefits under an Employee Life Insurance Plan owned by Pepsi Americas, Inc. and administered by Unum. Prior to his death, Mr. Letter had been declared disabled and was receiving disability benefits under a separate employee benefit plan. In addition to disability benefits, this plan provided that a disabled employee was entitled to have his life insurance premiums waived. Plaintiffs argued that the waiver should have also included the premiums necessary to continue his AD&D coverage. Unum disagreed on the grounds that the AD&D coverage was separate and distinct from the standard life insurance. Furthermore, the terms of the policy did not provide for an AD&D waiver of premium. Judge Carl J. Barbier came down squarely on the side of the insurer noting that “the Life Insurance and the AD&D benefits contain separate and distinct sections relating to eligibility, coverage and payment amounts…. Therefore, it is unclear to the court how Letter to have believed that the clause applied to both the Life insurance and the AD&D provision.” Accordingly, plaintiffs’ case was dismissed with prejudice.

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Steven Guillory and Holiday Guillory v. Christopher Saucier, Albert K. Newlin, Inc., and Republic Underwriters Insurance Company

Steven Guillory and Holiday Guillory v. Christopher Saucier,
Albert K. Newlin, Inc., and Republic Underwriters Insurance Company
(May 2010)

Michael R. Sistrunk and Matthew J. Garver obtained a favorable jury verdict for Albert K. Newlin, Inc. and Republic Underwriters Insurance Company following a six day jury trial in the 14th Judicial District Court for Calcasieu Parish. An employee of Albert K. Newlin, Inc., Christopher Saucier, caused a serious automobile accident while operating an Albert K. Newlin, Inc. owned vehicle while under the influence of alcohol. Steven Guillory sustained injury to his low back and underwent a series of epidural steroid injections and, ultimately, a radio frequency ablation procedure. Mr. Guillory amassed over $68,000.00 in past medical bills and claimed to be symptomatic at the time of trial. Mr. Guillory was employed at a local chemical and polymer plant and earned approximately $100,000.00 per year with extensive overtime. Immediately following the accident, Mr. Guillory was unable to work for approximately 2 months and, as a result, Mr. Guillory asserted a past lost wage claim of $11,910.00. Additionally, Mr. Guillory’s treating physician recommended a lifting restriction and assigned an anatomical disability to his low back that was alleged to be incompatible with his job requirements. Consequently, Mr. Guillory also asserted a future loss of earning capacity claim. The plaintiffs presented expert testimony regarding alternative careers and an economist estimated his loss of future earning capacity at over $1,000,000.00. Mr. Saucier’s blood alcohol level after the accident was .171. As such, the plaintiffs also sought punitive damages from Republic Underwriters Insurance Company for the alleged willful and wanton conduct of Christopher Saucier.

Prior to the commencement of trial, Michael R. Sistrunk was successful in obtaining a dismissal of Albert K. Newlin, Inc., as there was no evidence that Mr. Saucier was in the course and scope of his job with Albert K. Newlin, Inc. at the time of the accident. Republic Underwriters Insurance Company remained a defendant through trial, as Mr. Saucier was a permissive user of the Albert K. Newlin, Inc. automobile at the time of the accident. In pre-trial motions, a prior 1993 driving while intoxicated conviction was successfully excluded over plaintiffs’ arguments that this prior conviction could be used for purposes of proving willful and wanton conduct. Despite the Court’s ruling excluding this evidence, plaintiffs’ counsel made a veiled reference to the prior DWI during the examination of Mr. Saucier to the extent that the Judge actually granted a mistrial after the defenses’ motion for same. In a bid to keep the trial going, the parties came to a compromise relative to the grant of a mistrial and the trial was salvaged with the jury venire preserved. After five days of exhaustive testimony by witnesses for the plaintiff, the defense presented the testimony of a vocational rehabilitation counselor that testified that the Mr. Guillory was capable to continuing his current employment, or in the alternative, that he had the skills to seek alternative employment of a similar kind, such that he would experience little to no loss of earning capacity.

In closing arguments, counsel for the plaintiffs suggested to the jury that they award Mr. and Mrs. Guillory $11,910.00 in past lost wages, $850,000.00 in future loss of earning capacity, $68,141.25 in past medical expenses, $300,000.00 in general damages, a reasonable sum for Mrs. Guillory for loss of consortium, and a multiple of the general damages as a measure of punitive damages. In closing, the defense acknowledged its responsibility for the accident and agreed that Mr. Guillory should be awarded his past lost wages of $11,910.00. However, Michael R. Sistrunk argued that plaintiff should be awarded zero damages for loss of future earning capacity, only a portion of past medical expenses as some of the procedures were suspect and unnecessary, and $50,000.00 in general damages. Defendants also argued that Mrs. Guillory should receive no award for loss of consortium.

Both before and during the trial, plaintiffs’ lowest settlement demand was $750,000.00. The jury deliberated for less than three hours and returned a verdict in favor of Mr. Guillory for a total of $110,051.25, which was comprised of $11,910.00 in past lost wages, $68,141.25 in past medical expenses, and $30,000.00 in general damages. The jury returned a verdict of zero with regard to Mr. Guillory’s claim for a loss of future earning capacity and a zero verdict relative to Mrs. Guillory’s claim for loss of consortium. The jury also found that, while Mr. Christopher Saucier’s intoxication was a cause in fact of the injuries sustained by Mr. Guillory, Mr. Saucier did not act with wanton or reckless disregard for the rights and safety of others. As a result, the jury did not award punitive damages. In sum, the jury returned a cumulative verdict that was less than the suggested verdict set forth by defense counsel in closing.

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USAA obtains Zero Judgment on alleged vehicle theft claim

USAA obtains Zero Judgment on alleged vehicle theft claim
(April 2010)

Peter Wanek won a defense judgment and dismissal of plaintiff’s case following a bench trial in the 24th Judicial District Court for Jefferson Parish. Plaintiff, Cha-Ron Clark filed suit against USAA Casualty Insurance Company alleging USAA was arbitrary and capricious in its refusal to pay her claim for the alleged theft of her 2006 BMW 325i from her apartment complex. Plaintiff offered conflicting times regarding the last time she had operated the car, as well as conflicting stories regarding the number of keys she possessed to the car, initially suggesting, and later affirming in three recorded statements that she only had two keys to the car. Plaintiff forwarded the two keys to USAA, which were later scanned and revealed that the time plaintiff claimed she had last driven the car significantly conflicted with the times the car had been driven last. Ultimately, the car was recovered completely burned and there was no evidence to suggest that anything had been taken from the car. After USAA denied plaintiff’s theft claim, she changed her story, insisting that she had three keys to the car, and the third or spare key was missing or must have been stolen from her apartment.

Prior to trial, USAA was successful in obtaining a partial summary judgment dismissing plaintiff’s bad faith and mental anguish claims. At trial, USAA offered unrebutted expert testimony from a BMW master technician who testified that it was highly improbable and nearly impossible to steal the model type of plaintiff’s BMW without the use of a key. The expert also disputed plaintiff’s description of the spare key for the car. USAA additionally offered extensive evidence of plaintiff’s financial history, which demonstrated a potential motive for plaintiff to dispose of the car. In ruling in favor of USAA, the court determined that plaintiff failed to meet her burden that her claim qualified as a compensable loss under the insurance policy. Other than the plaintiff’s own testimony that the car was missing, the court held that plaintiff offered no evidence of a theft, and when considering the expert’s testimony that the car could not be stolen without a key, no evidence presented by plaintiff lead to the conclusion that a theft had occurred.

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Duncan v. Ford Motor Company, et al.

Duncan v. Ford Motor Company, et al.
(March 2010)

Keith W. McDaniel prevailed on a Motion for Summary Judgment, which was granted in favor of Ford Motor Company. The two-vehicle accident at issue occurred in 2004; however, plaintiff failed to preserve the subject 1993 Ford Taurus, the most critical piece of evidence in the case. The Court ruled that plaintiff failed to carry his burden in proving that the Ford Taurus was defective under the exclusive theories of liability found in the Louisiana Product Liability Act, LSA R.S. 9:2800.51.

On January 24, 2004, plaintiff, Michael Duncan, was operating his 1993 Ford Taurus in Baton Rouge, Louisiana, when he was involved in a head-on collision. Plaintiff alleged that the air bag of the Ford Taurus failed to deploy during the collision causing him to suffer severe injuries to his legs, head and mouth.

Duncan initiated the lawsuit in the 19th Judicial District Court for the Parish of East Baton Rouge on January 24, 2005. Ford subsequently filed a Motion for Summary Judgment, arguing that Duncan failed to present any evidence that his damages were caused by any alleged defect in the Ford vehicle made the basis of his claims, and that Duncan would be unable to develop such evidence because of his destruction of the subject vehicle. Duncan responded that, although direct evidence of a manufacturing defect did not exist, res ipsa loquitur applied establishing his burden of proof.

After the presentation of the facts, evidence and oral arguments, the Court concluded that Plaintiff failed to take the necessary steps to preserve the 1993 Ford Taurus. Furthermore, the Court concluded that Plaintiff failed to carry his burden of proving that the Ford Taurus was unreasonably dangerous, or that any unreasonably dangerous or defective condition in it caused Plaintiff’s injuries. Accordingly, the Court held that Duncan had not produced sufficient evidence to support his claim of a manufacturing defect, and rejected Plaintiff’s application of the evidentiary doctrine of res ipsa loquitur.

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Martin Edgar, et al. v. Ford Motor Company, et al.

Martin Edgar, et al. v. Ford Motor Company, et al.
(February 2010)

Keith W. McDaniel, Lance B. Williams, and Quincy T. Crochet of McCranie, Sistrunk, Anzelmo, Hardy, McDaniel & Welch obtained a summary judgment for Ford Motor Company in the case of Martin Edgar, et al v. Ford Motor Company, et al., 2010 WL 481030 (S.D. Ind. 2/4/2010). The single vehicle accident at issue occurred on December 24, 2005, on Interstate 49 in central Louisiana. The six plaintiffs were the occupants of a 1993 Ford Explorer involved in a rollover after Martin Edgar lost control of the vehicle after its Firestone tire lost its tread. As a result of the accident, Mr. Edgar suffered a cervical fracture and the remaining occupants sustained various injuries.

All six occupants of the five-passenger Explorer filed suit against Ford and Firestone in the 27th Judicial District Court for the Parish of St. Landry. The case was removed to the United States District Court for the Western District of Louisiana and then transferred to the Bridgestone/Firestone Multi District Litigation pending in the Southern District of Indiana.

After more than two years of litigation, Ford moved for Summary Judgment and argued that the plaintiffs had not carried their burden under the Louisiana Product Liability Act for establishing a defect in the vehicle. The District Judge granted the motion, noting that plaintiffs had not participated appropriately in the discovery process and had not satisfied a previous award of costs and attorney fees in favor of Ford. The plaintiffs attempted to salvage their case by retaining experts and offering reports after the deadline to do so had long passed. The Court granted Ford’s Motion to Strike the tardy expert opinions, and held that plaintiffs had failed to provide any evidence of any defect. Accordingly, Ford’s Motion for Summary Judgment was granted.

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The Paragon Lofts Condominium Owners Association, Inc. v. The Paragon Lofts, L.L.C., Ekistics, Inc., Edifice Construction, Inc., The Roof Doctors, Inc., and Minerit, Inc.

The Paragon Lofts Condominium Owners Association, Inc. v. The Paragon Lofts, L.L.C., Ekistics, Inc., Edifice Construction, Inc., The Roof Doctors, Inc., and Minerit, Inc.
(February 2010)

Donna Wood was victorious on a motion for summary judgment dismissing claims against Cement Board Fabricators, Inc., and Lannie Gwartney assisted in successfully defending against the appeal of that judgment. The Paragon Lofts Condominium Association sought damages from the defendants arising from alleged construction defects related to the roof and exterior walls of the condominium’s penthouse. Edifice, who served as the general contractor, sought indemnity from Cement Board as the supplier of the Minerit board used in the construction. The Louisiana Fourth Circuit found that Edifice could not seek indemnity from Cement Board as a matter of law, because no contract of indemnity existed between Cement Board and Edifice. Further, the court found that there was no implied contract of indemnity, because Edifice was not free of fault, in that it deviated from the installation specifications. Finally, the court found that Edifice did not have a contribution claim against Cement Board because they were not solidary obligors.

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Glenn D. Schurr and Lori Schurr v. Christopher M. Gagnon, Milton L. Gagnon, United States Automobile Association (USAA) and Liberty Mutual Fire Insurance Company

Glenn D. Schurr and Lori Schurr v. Christopher M. Gagnon, Milton L. Gagnon,
United States Automobile Association (USAA) and Liberty Mutual Fire Insurance Company
(January 2010)

Donna Wood succeeded in obtained a summary judgment dismissing the claim against USAA on the basis of lack of coverage, and, with the assistance of Lannie Gwartney, successfully defended an appeal of that judgment. The Louisiana Fourth Circuit affirmed the dismissal of the claim against USAA, finding that the non-owned truck’s Rated Load Capacity exceeded the amount allowed under the USAA personal automobile policy, and thus, was specifically excluded.

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