Insurance Defense – Case Results

Mitchell v. ACE Hardware
(May 2017)

Larry Mitchell et al v. ACE Hardware Corp, USDC- Eastern Dist of LA (Hon. Mary Ann Lemmon)- (May 22-24, 2017) – Peter Wanek and Elizabeth McDermott obtained a unanimous defense verdict in the defense of an 18 wheeler truck driver who allegedly rear ended another motorist driving him off the interstate highway resulting in serious spine injuries. The defendant driver was cited for the accident. Plaintiff had a cervical fusion and his neurosurgeon recommended a three-level lumbar fusion. Past and future medical expenses purportedly totaled more than $400,000. After approximately three hours of deliberation, the jury concluded that the defendant-driver was not negligent for the accident.

Casey Krueger vs. La Quinta Inn & Suites
(April 2017)

Mike Sistrunk and Matt Garver obtained a defense verdict for LQ Management, LLC (La Quinta’s management company) following a 3 day jury trial in the 19th Judicial District Court for East Baton Rouge Parish.  On August 22, 2010, Krueger was injured when he stepped on a large piece of glass while using the La Quinta pool.  Krueger suffered a complex laceration on the bottom of his foot that severed several tendons and required surgical intervention.  Krueger alleged that La Quinta was negligent in its operation and inspection of the pool and sought damages of over $350,000.    La Quinta maintained that its employees regularly inspected the pool area and that the pool, and the surrounding area, was free of trash and debris when the incident occurred.  Further, the plaintiff presented no evidence that a La Quinta employee was aware of the foreign body in the pool or that the foreign body was in the pool for any length of time before the injury.  The plaintiff theorized that a full trashcan in the pool area was evidence that the pool inspection was lacking.   The jury found by a vote of 11-1 that La Quinta did not know, nor should it have known, of the defect in the premises prior to the injury and La Quinta was free from fault.  As a result, judgment on the jury verdict in favor of La Quinta was entered by the trial judge.

Jessica Faust v. United Services Automobile Association
(April 2017)

Peter Wanek received a defense verdict from a jury in the 34th Judicial District Court/St. Bernard parish, Judge Jeanne Juneau, for a rear end auto accident for client, USAA. Ms Faust alleged that she suffered an exacerbation of a herniated disc and was offered lower back fusion surgery only after the accident. The defense alleged that the plaintiff returned to her pre-accident level of pain, and that her surgery was related to the previously diagnosed herniated disc. Plaintiff had received $15,000 from the primary insurer, and USAA had tendered $15,799. The jury awarded $9,799, less than what had been tendered presuit, resulting in a net zero verdict. Poll of jury was 12-0.

Tiffany Roy and Glenda Abate, et al  v. Republic
(September 2016)

Devin Fadaol and Geoff Hingle won a victory for Southern Insurance Company (The Republic Group) in the 15th Judicial District Court for the Parish of Lafayette.  The trial court granted Southern’s Motion for Summary Judgment on the issue of coverage under a Farm and Ranch Policy.  There were two lawsuits with multiple plaintiffs arising out of the same accident and Farm and Ranch Policy.    Southern successfully argued that the subject policy unambiguously excluded coverage for bodily injury or property damage arising out of the operation of a personal pick-up truck.    The plaintiff filed a cross-motion claiming that there is coverage because of a conflict between the definitions of “motor vehicle” and “non-farm vehicle.”   The trial court judge accepted Southern’s position that there is no ambiguity in the policy, and held that the pick-up truck falls under all three definitions of motorized vehicle, motor vehicle, and non-farm vehicle.   The trial court judge dismissed Southern Insurance Company from both lawsuits.

Maurice Fontenot and Susan Melton Fontenot v. Jarred Levar Stevens, Carl’s Rentals, and Republic Fire and Casualty Insurance Company
(April 2015)

 Mike Sistrunk, Lynda Tafaro and Matt Garver succeeded on a Motion to Set Aside a JNOV as absolutely null on behalf of The Republic Group and its insureds. In May, 2013, a jury in the 14th Judicial District Court in Lake Charles returned a verdict in favor of plaintiff for $500,500.00. Plaintiff quickly filed a Motion for JNOV, the trial judge having pre-judged the case, opining in pre-trial conference that the case was valued at close to the $1 million insurance limits based solely on plaintiff’s $275,000.00 in past medical expenses. The Motion for JNOV was granted, and the jury’s award was raised to $1,075,417.90, resulting in an excess judgment against the insureds. Once the defendants’ Motion for New Trial on the JNOV and Motion to Recuse were denied, the trial judge then denied defendants’ appeal, concluding that appeal delays had run. The judge then abruptly resigned from the bench, and a judge pro tempore was appointed. McCranie, Sistrunk was then retained by The Republic Group as appellate counsel for all defendants.

 A thorough review of the record revealed that although a judgment had been signed granting the JNOV, the trial court had failed to sign and issue notice of a judgment on the jury’s verdict. Defendants filed a Motion to Set Aside the JNOV as absolutely null, arguing that the court had no jurisdiction to consider the Motion for JNOV as it was premature until the court issued notice of judgment on the jury’s verdict.

 The trial judge, pro tempore, denied the Motion to Set Aside, concluding that the judgment granting the Motion for JNOV contained sufficient language to constitute a judgment on the jury’s verdict, thus satisfying the requirements of La. C.C.P. arts. 1911, 1913 and 1916.

 The Louisiana Third Circuit Court of Appeal granted and docketed defendants’ application for supervisory writ. After oral argument, the Third Circuit reversed and remanded, agreeing with defendants that the trial court lacked jurisdiction to consider the Motion for JNOV as no judgment had been signed on the jury’s verdict. As, “the judgment granting the JNOV is null on its face,” no appeal delays had begun, and the trial court was ordered to enter judgment in conformity with the jury’s verdict. The JNOV was set aside and the jury’s verdict reinstated. It is paramount that the jury’s verdict be reduced to a signed judgment to start the delays for all post-trial motions and appeals. Thus, delays for post-trial motions and appeals will begin once the trial court issues notice of judgment on the jury’s verdict. In April, 2015, the Louisiana Supreme Court unanimously denied plaintiff’s writ application.

Christine Caminita v. Laura Cashio, USAA, and General Insurance Company
(September 2014)

Donna Bramlett Wood  tried a jury trial in 24th JDC, that defendants successfully defended on medical causation.   The plaintiff had a long history of back issues emanating from scoliosis. She was involved in the subject rear end accident on February 13, 2012 and a subsequent rear end accident on March 21, 2012. Dr. Rand Voohries performed an SI joint fuse procedure after both accidents but assigned medical causation to the February 13, 2012 accident.  After hearing the evidence and the testimony of Dr. Andrew Todd, defendants’ expert orthopedic surgeon, the jury was swayed that plaintiff could not satisfy her burden of proof that the SI joint injury was caused by the first accident. Plaintiff’s counsel asked the jury for $480,000. and the jury only awarded plaintiff her ER bill from the date of the first accident and $2,000. in pain and suffering for a total jury verdict of $3,710.

 

Diane Morgan, As Provisional Administrator of the Estate of Keibreon Morgan, and In Person v. Pam Schooler, et al
(March 2014)

Keith W. McDaniel and Heather M. Nagel obtained a defense verdict for the Union Parish School Board following a jury trial in Union Parish, Louisiana in March 2014.  Plaintiffs, Diane Morgan and Reginald Bilberry, brought suit as a result of the death of their son, Keibreon Morgan.  Keibreon, a sophomore at Farmerville High School, complained of pain and cramping during football practice in September of 2010.  After he was pulled from the practice field and addressed, an athletic trainer called an ambulance.  En route to the hospital, he lost consciousness, and he later died at the hospital. Following his death, an autopsy revealed a cardiomyopathy or an enlarged heart.  His heart weighed nearly two times that of an average heart for a 15 year old.

Plaintiffs filed suit naming the Union Parish School Board; Joe Spatafora, head football coach; and Pam Schooler, former principal.   In advance of trial, the trial court dismissed Joe Spatafora and Pam Schooler in their individual capacities, and the trial moved forward against the Union Parish School Board only. At trial, plaintiffs alleged that Keibreon died as a result of a heat related injury.  Plaintiffs retained an expert who opined that the coaching staff and athletic trainer were negligent because they failed to remove Keibreon from the heat and into an ice bath when he first reported complaints.  Plaintiffs also retained a cardiologist who opined that the Keibreon Morgan’s heart was not enlarged given his height and weight.

The school board defended the plaintiffs’ allegations with evidence demonstrating that Keibreon had undergone a conditioning program during the summer and that the team had a heat related emergency plan and hydration program in place.   On the day of Keibreon’s death, coaching staff immediately removed Keibreon from the practice field, provided him water and used an athletic trainer to assess his complaints and symptoms.  During the assessment, the trainer properly alerted 911 when she obtained a concerning blood pressure reading.

Defendants called the treating pathologist who testified that the autopsy showed that Keibreon Morgan died of an enlarged heart.  Moreover, he explained that Keibreon showed no signs of dehydration, which would have been expected in a death caused from heat exposure.  Defendants also retained a cardiologist, who testified that Keibreon suffered from an enlarged heart, which caused him to suffer an arrhythmia that went undetected by the emergency responders because they failed to put him on heart monitor.

Plaintiffs asked the jury to award general damages of $500,000. The jury found that the defendants had not caused the death of Keibreon Morgan.

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.

Hebert v. Specialized Environmental Resources, LLC, et al
(March 2013)

Mike Sistrunk, Kyle Kirsch, and Craig Canizaro secured a summary judgment in favor of A-Port, LLC, a dock owner in Grand Isle, on a maritime and state law negligence claim brought by plaintiff, Mark Hebert.  Plaintiff alleged A-Port was liable for injuries he allegedly sustained while boarding a vessel from the A-Port dock.  He claimed A-Port negligently failed to provide him a gangway for boarding the vessel.  Plaintiff’s alleged injuries included the need for a cervical fusion.  Plaintiff also brought a claim for lost wages/earning capacity of approximately $1,000,000.   The Court agreed with A-Port’s argument that dock owners are not liable under federal maritime law to provide gangways to a ship’s crew.  Additionally, the Court agreed with A-Port’s argument that A-Port owed no duty to plaintiff under Louisiana law.  Thus, plaintiff’s claims against A-Port were dismissed, with prejudice, at plaintiff’s cost.

Julie Bickett v. Walgreens
(July 2011)

Devin Fadaol and Heather Shockley won a victory for Walgreens in a one day bench trial before Judge William Morvant in Baton Rouge. The plaintiff incurred $24,000.00 in medical bills and underwent an open reduction and hardware placement surgery to repair a fractured radius. Walgreens tried the case on liability and the Judge returned a defense judgment finding Walgreens not at fault.

Reno Gregoire, Jr. v. RSUI/Landmark American Insurance Company
(May 2011)

Michael Sistrunk and Devin Fadaol won a victory for RSUI and Landmark American Insurance Company in this personal injury lawsuit. Michael Sistrunk successfully argued in the Motion for Summary Judgment hearing that there is no coverage or duty to defend under the assault and battery exclusion in the Landmark American Insurance Company policy. Judge Kirk Vaughn in Chalmette granted the MSJ dismissing RSUI and Landmark American Insurance Company from the lawsuit.

Amy Ochello v. RSUI/Landmark American Insurance Company
(April 2011)

Michael Sistrunk and Devin Fadaol won a victory for RSUI and Landmark American Insurance Company in this personal injury lawsuit alleging brain damage to the plaintiff. Michael Sistrunk successfully argued in the Motion for Summary Judgment hearing that there is no coverage or duty to defend under the assault and battery exclusion in the Landmark American Insurance Company policy. Judge Rosemary Ledet in New Orleans granted the MSJ dismissing RSUI and Landmark American Insurance Company from the lawsuit.

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.

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

Peter Wanek, Kyle Kirsch, Sid Hardy, and Kevin Kress 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.

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.

Deborah Jackson v. Allstate Insurance Company, et al.
(October 2008)

Thomas P. Anzelmo and Kyle P. Kirsch won a victory in favor of Landmark Insurance Company in Jackson v. Allstate Ins. Co., 07-7904 in the Eastern District Court of Louisiana. Plaintiff sued Landmark arguing that it provided Errors and Omission coverage for an insurance agent whom they alleged negligently procured her a flood insurance policy without advising her about the proper limits of insurance needed. Judge Lemmon granted Landmark’s Motion to Dismiss dismissing plaintiff’s claims against Landmark finding that Landmark’s “Claims Made” policy did not provide coverage since the alleged acts occurred prior to the retroactive date of the policy.

House Call Home Health Care v. Rodco Worldwide, et al.
(March 2008)

Michael R. Sistrunk and Kyle P. Kirsch won a victory in favor of Axis Surplus Insurance Company in the case entitled House Call Home Health Care v. Rodco Worldwide, et al., Docket No. 07-9088 in the United States District Court for the Eastern District of Louisiana where plaintiff attempted to assert a Hurricane Katrina claim against Axis. Judge Lemelle granted Axis’ Motion to Dismiss finding that Axis had no coverage for plaintiff’s claims.

Cairn Curran, LLC v. Axis Surplus Insurance Company, et al.
(February 2008)

Michael R. Sistrunk and Kyle P. Kirsch won a victory in favor of Axis Surplus Insurance Company in the case entitled Cairn Curran, LLC v. Axis Surplus Insurance Company, Docket No. 07-8826 in the United States District Court for the Eastern District of Louisiana where plaintiff attempted to assert a bad faith claim against Axis after settling their property damage claim which was the result of Hurricane Katrina. Judge Porteous dismissed plaintiff’s claims finding that the settlement agreement barred plaintiff’s bad faith claims.

Bayou Medical Care, Inc. v Rodco Worldwide, et al.
(February 2008)

Michael R. Sistrunk and Kyle P. Kirsch won a victory in favor of Axis Surplus Insurance Company in the case entitled Bayou Medical Care, Inc. v. Rodco Worldwide, et al., Docket No. 07-10966 in the Civil District Court for the Parish of Orleans where plaintiff attempted to assert a Hurricane Katrina claim against Axis. The Court granted Axis’ Motion for Judgment on the Pleadings find Axis had no coverage for plaintiff’s claims.

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.

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.

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.

________ 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.

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.

Melanie McGrath v. Donald L. Davis, ET AL.
(December 2006)

Michael R. Sistrunk and Kyle P. Kirsch won a victory in favor of Amica Mutual Insurance Company in Civil District Court for the Parish of Orleans. Plaintiff sued Amica arguing that she had $300,000.00 in Uninsured Motorist Coverage because the UM rejection form had the words Not Available typed next to the economic only provisions of the UM rejection form; thus, precluding her from making a meaningful selection. Amica argued the rejection form was valid because: (1) the UM rejection at issue was on the form prescribed by the Louisiana Insurance Commissioner; (2) the UM statute specifically indicates that economic only coverage is a type of coverage that an insurer may offer, in contrast to other provisions in the statute in which the word shall indicates that a provision is mandatory rather than permissive; (3) the UM statute does not require that the form prescribed by the Louisiana Insurance Commissioner afford an insured the option of selecting economic only coverage; rather, the statute simply requires that, when an insured makes a selection concerning UM coverage, that selection must be made on the prescribed form; and (4) to the extent an insured need be made aware that economic only coverage is available from other insurers the prescribed form so advises the insured. The district court granted Amica’s summary judgment motion finding that the UM rejection validly rejected UM coverage.

Thomas Sharbono v. Michael Shipes, ET AL.
(July 2006)

Michael R. Sistrunk and Kyle P. Kirsch won a victory in favor of Cincinnati Insurance Company in the 14th Judicial District Court for the Parish of Calcasieu. Plaintiff sued various defendants as a result of an automobile accident which aggravated his multiple sclerosis condition. The district court granted Cincinnati’s summary judgment motion finding that the tortfeasor was not employed by Cincinnati’s insured and as a result Cincinnati could not be held liable for plaintiff’s injuries.

Theresa Perkins, et al. v. Timothy Edwards, et al.
(March 2006)

Michael R. Sistrunk and Kyle P. Kirsch won a victory in favor of Axis Insurance Company in the 31st Judicial District Court for the Parish of Jefferson Davis involving an 18 wheeler accident where the 18 wheeler rear ended a John Deere tractor carrying several bales of hay and killed the driver. Plaintiffs (decedent’s wife and his five children) agreed to voluntarily dismiss their claims against Axis Insurance Company, the 18 wheeler’s excess carrier, a week prior to trial.

Elaine Tate and Keisha Lemar v. Michelle Hand and USAA Insurance Company
(March 2006)

Devin Fadaol won a victory in favor of United Services Automobile Agency (USAA) Insurance Company in the case entitled Elaine Tate and Keisha Lemar v. Michelle Hand and USAA Insurance Company, Docket No. 04-10683, Division “E” in Civil District Court for the Parish of Orleans. The lawsuit arose out of an automobile accident at the intersection of Tulane Avenue and South Claiborne. Both drivers claimed they had a green light but only Michelle Hand was issued a citation. The police report and traffic citation were not admitted into evidence and the plaintiffs were successfully impeached on cross examination with evidence of prior convictions and moving violations. Judge Madeleine M. Landrieu ruled in favor of defendants, Michelle Hand and USAA on the issue of liability and returned a zero judgment against the plaintiffs finding them 100% liable for the accident.

Debra Brown v. State Farm Insurance Company
(January 2006)

 McCranie Sistrunk Attorneys won an appeal in favor of State Farm Insurance Company in the case entitled Debra Brown v. State Farm Insurance Company in the 4th Circuit Court of Appeals. The Court of Appeals reversed the trial court completely and entered judgement in favor of the defendants.

Rosamond Nicolosi, et al. V. Jerry Chastain, et al.
(December 2005)

Michael R. Sistrunk and Kyle P. Kirsch won a victory in favor of Landstar Inway, Inc. in the 18th Judicial District Court for the Parish of Iberville in an 18 wheeler accident when their summary judgment was granted based on the fact that the tractor trailer was not hauling at the time of the accident despite the fact that the vehicle was being operated with a Landstar placard.

Reginald Simon, et al. v. BASS, LLC
(December 2005)

Michael R. Sistrunk and Kyle P. Kirsch won a victory in favor of Anheuser Busch, Inc. in the case entitled Reginald Simon, et al. v. BASS, LLC, et al. in 17th Judicial District Court for the Parish of Lafourche. Plaintiffs sued Anheuser Busch, Inc. and other defendants for a severe back injury which required surgery that he sustained in a boating accident during the 2003 Bassmaster Classic. Plaintiffs’ claims against Anheuser Busch, Inc. were based on Anheuser Busch, Inc. being a promoter/sponsor of the 2003 Bassmaster Classic. The Motion for Summary Judgment was opposed by not only the plaintiff but also the defendants. However, the trial court ruled in favor of Anheuser Busch, Inc. placing stringent guidelines on when a promoter/sponsor of an event can be held responsible.

Dina Azar, et al. V. Taryn L. Alfortish, et al.
(October 2005)

Michael R. Sistrunk and Kyle P. Kirsch won a victory in favor of Landstar Ranger, Inc. in the 15th Judicial District Court for the Parish of Lafayette in an 18 wheeler accident when the plaintiff agreed to voluntarily dismiss their wrongful death claim and personal injury claims against Landstar for an alleged defective DOT/ICC bar when their vehicle was rear ended by another vehicle pushing plaintiff’s vehicle into Landstar’s trailer.

Shirley Kimble, et al. v. East Jefferson General Hospital
(September 2004)

Thomas P. Anzelmo won an important victory for East Jefferson General Hospital (“EJGH”) in the 24th Judicial District Court in the case entitled Shirley Kimble, et al. v. East Jefferson General Hospital. The plaintiff suffered injuries as a result of a fall off a hip adduction machine at the East Jefferson General Hospital Wellness Center. The court found the plaintiff 100% at fault and did not assess damages against EJGH.

Eric Costello v. Yvette Hewitt, et al
(July 2004)

Thomas P. Anzelmo won a victory in favor of State Farm in the case entitled Eric Costello v. Yvette Hewitt, et al before Ad Hoc Judge Paula Brown in Civil District Court in Orleans Parish. Our insured, Yvette Brown, rear ended the vehicle driven by the plaintiff. The court found the plaintiff cut in front of our insured, creating a sudden emergency, for which she was not at fault.

Ernest and Marina Howells v. Cincinnati Ins. Co.
(July 2004)

Michael Sistrunk and Peter Wanek won a victory in favor of Cincinnati Insurance Co in the case entitled Ernest and Marina Howells v. Cincinnati Ins. Co. in the 24th Judicial District Court before the Honorable Judge Benge. Plaintiffs were involved in a motor vehicle accident on January 1, 2000. The defendant driver was an employee of Cincinnati’s insured. Cincinnati contended the employee was driving the van without permission because he was on his way home from a New Years Even party. The defendant driver’s blood alcohol content was .194%.

Plaintiffs requested $100,000 in general damages and $200,000 in punitive damages. The jury returned a verdict finding the employee was driving with implied permission, but the jury only awarded $12,395 to Ernest and $11,000 to Marina, including medicals, which alone totaled $25,000. The jury also found the plaintiff to be at 5% fault. No punitive damages were awarded.

Anthony Hill v. Amica Mutual Ins. Co.
(June 2004)

Donna Wood won a victory in favor of Amica in the case entitled Anthony Hill v. Amica Mutual Ins. Co. in Civil District Court for the Parish of Orleans. Amica field an Exception of No Cause of Action and No Right of Action to Plaintiffs’ Claims for additional damages under LSA-R.S. 22:658 and 1220 as the surviving heirs of their deceased mother against her UM carrier. Plaintiffs were the major, non-resident children of the insured and the limits of the mother’s UM policy were paid to them and two other siblings. Plaintiffs claimed the payments were untimely. Amica claimed that only an insured has the right to file this action and this action is not heritable. The Court granted Amica’s Exception.

Barbarin v. Kramer and USAA
(May 2004)

Peter Wanek won a victory in favor of USAA in the case entitled Barbarin v. Kramer and USAA in Judge DiRosa’s court in CDC. The plaintiff sustained injuries when our insured hit her as she correctly exited a parking lot. Plaintiff agreed to stipulate damages were under $50,000, even though they originally demanded well over $100,000. After a two day trial, the judge returned a verdict awarding the plaintiff $10,000, plus his medicals.

N. Abramson v. N. Jurkovic/United States Automobile Assn.
(May 2004)

Peter J. Wanek won a victory in favor of USAA in the case entitled N. Abramson v. N. Jurkovic/United States Automobile Assn. in the Civil District Court for the Parish of Orleans in May 2004. Plaintiff, who was a lawyer himself, sued USAA claiming 5 years of medical treatment and future neck surgery resulting from a motor vehicle accident. Plaintiff demanded $186,000, including $6,200 in past medicals, and $30,000 in future medicals. Although USAA had the plaintiff on surveillance video playing softball and other sports, the judge would not allow the tape into evidence. Even so, the jury, after 1 ½ hours of deliberation, awarded only $6,000 in general damages and $1,100 in past medicals. They rejected plaintiff’s claim for future medicals in its entirety. The jury also found the plaintiff to be 5% at fault.

Lathers v. U-Haul
(April 2004)

McCranie Sistrunk Attorneys won an important victory in favor of U-Haul in the case entitled Lathers v. U-Haul before Judge Robert Murphy in the 24th Judicial District Court in Jefferson Parish in September 2003. The plaintiff stored his property at a U-Haul storage center. He completed a rental agreement and purchased insurance. The plaintiff allegedly later entered the space to find $14,000 worth of property missing. U-Haul filed a Motion for Summary Judgment and the trial court dismissed the suit concluding the terms of the rental agreement were a bar to the suit. Interestingly, neither U-Haul nor the plaintiff possessed a copy of the rental agreement. The court permitted U-Haul to prove the terms and conditions of the contract by an affidavit of the facility manager.