Archive | December, 2014

Senate Bill 69

Louisiana Legislature Attempts to prohibit Homeowners insurers from excluding coverage for the intentional acts of the policy holder’s minor child.

Shannon Howard-EldridgeThere is currently pending, subject to call, Senate Bill 69 by Senator Murray, which, if enacted would prohibit homeowners insurers from excluding from coverage the intentional acts of the policy holder’s minor child.  The final passage by the Senate is subject to call and on the Senate calendar for May 26, 2014, Memorial Day.  The Louisiana Legislature must adjourn by June 2, 2014, so that the final passage of this bill will apparently be down to the wire.

Louisiana courts have enforced many standard policy exclusions that exclude coverage for the intentional acts of “ANY” insured to exclude coverage for both the parents and the minor child related to the intentional acts of a minor (fights, intentional bodily injury, etc).  The proposed law provides:

No homeowner’s policy of insurance shall contain any provisions that exclude coverage for damages resulting from policy holder’s vicarious liability for the intentional acts of their minor child. Any such provision shall be null and void and unenforceable as contrary to public policy.

We are monitoring the activities of the legislature on insurance issues daily.

Shannon Howard-Eldridge
May 22, 2014

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Fleming v. Sheriff Newell Normand, et al

Fleming v. Sheriff Newell Normand, et al 
(May 2014)

Thomas Anzelmo, Kyle Kirsch, and Craig Canizaro obtained summary judgment on behalf of CorrectHealth Jefferson, LLC and two of its nurses.  Plaintiff brought claims of medical negligence against the nurses and CorrectHealth arising out of the treatment he received following an alleged chemical exposure to his eye.  Plaintiff developed a corneal ulcer that lead to a recommended corneal transplant.  The defense submitted evidence and expert testimony that showed that CorrectHealth and its nurses did not breach the applicable standard of care in their treatment of plaintiff’s eye, but instead responded appropriately to plaintiff’s medical complaints and condition.  Additionally, the evidence established that plaintiff’s corneal ulcer did not result from the treatment he received from CorrectHealth and its nurses.  Accordingly, the Court granted summary judgment in favor of the defense, dismissing all of plaintiff’s claims.

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Sylvia Richard v. Cameron Parish School District

Sylvia Richard v. Cameron Parish School District
(May 2014)

Lance B. Williams obtained summary judgment on behalf of the Cameron Parish School Board and Republic Insurance Company.  Plaintiff alleged a premises defect in the Grand Lake School Gymnasium.  Ms. Richard tripped and fell while working in the concession stand, causing serious injuries to her wrists, shoulders and head.  She underwent carpal tunnel releases in both wrists and sought ongoing medical treatment for cervical and neurological injuries.  Mr. Williams presented evidence that the condition which allegedly caused plaintiff’s accident was not under the control of the school board, but instead was controlled by an independent organization which ran the concession area.  Further, the court concluded that the condition was open and obvious to plaintiff and other workers in the concession stand.  Accordingly, all claims were dismissed.

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Benefits of Employment Practices Coverage

Sidney J. Hardy, AttorneyOver the past twenty years, one of the most rapidly growing areas of litigation in the United States has been in the employment area. Relatively recent changes in the law have created new causes of actions available for employees to sue their employers. Some of the most frequent suits are those based on race, sex or other discrimination, sexual harassment, violation of the family medical leave act, retaliation, and violation of laws against age discrimination.

 Jury awards relating to employee lawsuits usually reach well into the six figures. Moreover, companies who face such lawsuits are required to hire legal counsel to defend them, and litigation costs have soared. The financial burden associated with employee practices litigation is a significant risk for any business, but it is especially risky for a small business. A lawsuit by a disgruntled ex-employee could put a small business’ very existence at risk.

 The insurance industry has responded to this significant increase in employee litigation by offering insurance coverage to businesses that protect them from the financial consequences of these lawsuits. This type of coverage is known as employee practices liability (“EPL”) insurance. These policies provide coverage for most alleged employment practices violations, including discrimination, harassment, and wrongful termination. The availability of employment practices liability coverage now enables small and medium-sized businesses to insure themselves against the consequences of lawsuits from former employees.

 Small and medium-sized businesses that are considering purchasing EPL insurance coverage have a variety of choices for coverage. Some policies provide  coverage for a wide spectrum of risks, while other policies are more narrowly written. Employers should closely examine the policies to determine exactly what is and what is not covered, and how the scope of coverage relates to the business in which those employers are engaged. Employers should also take note of policy provisions regarding selection of counsel, and the appropriate claims reporting procedure.

 For most employers, having EPL insurance coverage is every bit as important as having comprehensive general liability insurance – both types of insurance protect and insulate an employer from the costs of litigation. So long as an employer does its homework and selects the policy most appropriate for that employer, purchasing EPL insurance is a smart business decision.

Sidney J. Hardy
May 5, 2014

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Copyrights of Film Performance

Sidney J. Hardy, AttorneyDoes an actress have a copyright interest in her performance in a film? The answer to that question is “yes”, at least according to a recent decision by the Ninth Circuit Court of Appeals in California.

In Garcia versus Google, Inc., et al., 743 F.3rd 1258 (9th Cir. 2014), the plaintiff, Cindy Lee Garcia, had sought a preliminary injunction in district court requiring Google to remove from YouTube a film in which she had appeared as an actress, claiming that the posting of the video infringed her copyright in her performance. Ms. Garcia had originally been approached to appear in the film, which she was advised would be entitled “Desert Warrior”. In fact, “Desert Warrior” was never made into a film; instead, Ms. Garcia’s performance was used in an anti-Islamic film entitled “Innocence of the Muslims”.

The inflammatory content of “Innocence of the Muslims” resulted in protests from many in the Muslim community, and death threats were directed against Ms. Garcia. Her request for a restraining order from the district court was denied, because the judge felt that she had failed to demonstrate a likelihood of success on the merits, and she failed to show that the requested preliminary relief would prevent any alleged harm.

The Ninth Circuit disagreed.  In writing the opinion for the panel, Chief Judge Kozinski found that an actor’s performance “. . . when fixed, is copyrightable if it evidences ‘some minimal degree of creativity. . .’ No matter how crude, humble or obvious it might be.” Garcia, page 8.  The panel further found that Ms.  Garcia was neither an employee of the film producer, nor was she an independent contractor who had transferred her interests to the filmmaker in writing.

In a strongly worded dissent, Judge Smith noted that to be eligible for protection under the copyright act, an interest must be “an original work of authorship fixed in any tangible medium of expression. . .” 17 USC section 102 (a). Judge Smith argued that Ms. Garcia did not have a copyright interest in her role in the film because: (1) her performance did not constitute a work; (2) she was not an author, as contemplated by the copyright act; and (3) her acting performance was not fixed, in that it was too personal. Garcia at page 21

The implications of this holding are significant, especially in the film industry. Could this holding open the door for similar claims by a multitude of actors who also claim copyright interests in their performances?  Could an actor with such a claim to a copyright interest obtain a restraining order because that actor did not like the way the final product was edited or filmed? And, could others who have creative input into filmmaking, such as musicians, or cinematographers, claim copyright protection of their “performances”?

Needless to say, many in the film industry are upset with this decision. Do not be surprised to see Google fight to get this holding reversed.

Sidney J. Hardy
May 20, 2014

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House Bill 1060

Shannon Howard-Eldridge

House Bill 1060 proposes certain changes relative to homeowner’s insurance

House bill 1060 has been passed and was signed by the President of the Louisiana Senate. It was sent to the Governor for executive approval. The proposed law, which we assume will be signed by Governor Jindal changes the law as follows:

A. Current law provides that a homeowner’s policy may be cancelled or non-renewed due to two or more claims being made within a period of three years. The proposed law would require that two claims are made within a continuous three year period in five years preceding the policy renewal date.

B. Current law allows an insurer to cancel its policies when it ceases writing homeowner’s insurance in Louisiana, without penalty. The proposed law would require an authorized property, casualty and liability insurer that withdraws from the homeowner’s insurance market in Louisiana to abstain from issuing policies for a minimum of five years beginning from the date of the discontinuation of the last homeowner’s policy not so renewed.  There is a provision for the Commissioner of Insurance to allow reentry into the market prior to the expiration of the five year period. A similar provision is proposed for approved unauthorized insurers.

Shannon Howard-Eldridge
May 23, 2014

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Tyron Eastwood v. Niblett’s Bluff Park Authority and Southern Insurance Company

Tyron Eastwood v. Niblett’s Bluff Park Authority and Southern Insurance Company
(April 2014)

Michael Sistrunk, Devin Fadaol and Lynda Tafaro won a victory for The Republic Group in this personal injury lawsuit alleging multiple injuries and surgeries to the legs, hip and lower back as a result of a slip and fall at the Niblett’s Bluff Park.   Defendants filed a Motion for Summary Judgment seeking dismissal of all of Plaintiff’s claims pursuant to Louisiana’s Recreational Use Immunity statutes, La. R.S. 9:2791, et seq.  The trial court originally granted the Motion for Summary Judgment, then reversed itself in a rehearing.  After the Louisiana Court of Appeals for the Third Circuit upheld the denial of Defendants’ Motion for Summary Judgment, Defendants took a writ to the Louisiana Supreme Court.  The Louisiana Supreme Court unanimously granted the writ application and granted the Motion for Summary Judgment, concluding that Defendants are immune from liability pursuant to the Recreational Use Immunity Statue.

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And the Defense Wins…

Keith W. McDanielQuincy T. Crochet, AttorneyRead how Keith McDaniel and Quincy Crochet successfully represented Ford Motor Company in a product liability jury trial in The Voice, DRI’s weekly e-newsletter published April 23, 2014.
Full article…The Voice PDF

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And the Defense Wins…

Peter Wanek, AttorneyRead how Peter J. Wanek achieved two wins for his clients in premises liability cases published in The Voice, DRI’s weekly e-newsletter published April 9, 2014.
Full article… The Voice PDF

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McNabb v. Ford Motor Company

McNabb v. Ford Motor Company
(March 2014)

Keith W. McDaniel and Quincy T. Crochet obtained summary judgment for Ford Motor Company in the 21st Judicial District Court for the Parish of Tangipahoa in two separate lawsuits filed by Hansford McNabb and his wife, Connie McNabb, as a result of a single vehicle accident that occurred on September 17, 2010.  According to plaintiffs, as Hansford McNabb was driving west on LA 10 in rural Tangipahoa Parish with his wife, Connie McNabb, riding as a front seat passenger, Hansford lost consciousness and their Ford F-250 veered off a curve and impacted a tree.  Connie McNabb sued her husband and alleged he was at fault for the accident.  However, Connie and Hansford also sued Ford and alleged that their injuries resulted from the non-deployment of the airbags in the F-250 due to an unspecified manufacturing defect.

Ford pushed plaintiffs for the details of their defect theory and the court ordered the production of liability expert reports, but the McNabbs failed to comply.  Ford then moved for summary judgment and argued that plaintiffs developed no proof of a defect and that they deprived Ford of the ability to inspect the vehicle because they failed to preserve it after the accident.  Plaintiffs suggested that the doctrine of res ipsa loquitur applied, but Ford countered that under controlling law res ipsa was inapplicable because the case did not present “highly unusual” circumstances and plaintiffs could not exclude other reasonable causes for the non-deployment – namely that the accident simply did not present forces which surpassed the deployment threshold.  After hearing oral argument on the motion, the court agreed and dismissed plaintiffs’ claims against Ford, with prejudice.

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