Author: John Grinton

Creating Obstacles to Frivolous Claims

The costs of litigation can be substantial, but a seldom used statute arms defendants with a tool to minimize these costs.  If a defendant has not filed another pleading, La. R.S. 13:4522 allows the defendant to request that a court order the plaintiff to post a bond as security to cover certain costs. If the plaintiff fails to post this security in the time fixed, his case will be dismissed without prejudice.

The security identified in this statute can include expert witness fees, deposition costs, exhibit costs, and other related expenses.  The defendant bears the burden of showing the amount needed for proper security. If a plaintiff’s damages are questionable, or preliminary investigation shows that the plaintiff might be apportioned most of the liability for the incident, the attorney filing the suit may think twice before pursuing the claim further, especially if a substantial amount of security is ordered.

By its terms, the statute does not apply to cases brought in forma pauperis. It also does not apply to claims filed in the Parish of Orleans. Everywhere else, the provisions of La. R.S. 13:4522 can add a layer of protection in the defense of frivolous claims.

 

John Grinton is a Keogh Cox associate whose practice areas include commercial and construction litigation. When not practicing law, John spends most of his time with his wife and son, and their two dogs.

“IME” Killer Bill Put Down

The Louisiana plaintiffs’ bar recently sought to tilt the scales of justice through Senate Bill 185, a bill seeking to complicate a defendant’s efforts to obtain an Independent Medical Examination (“IME”). An IME is an examination of the plaintiff by a physician or medical examiner hired by the defense. IMEs are important in the defense of a case and often act as a catalyst for settlement or to reduce the value of a claim.

Bill 185 was introduced by Senator Jay Luneau (D) and passed with a unanimous 35 – 0 vote in the Senate. The bill proposed amendments to Louisiana Code of Civil Procedure Article 1464 to impose the following conditions upon IMEs:

  • All parties would be barred from referring to an IME as “independent” in the presence of a jury. 
  • A plaintiff could not be ordered to submit to multiple examinations by multiple physicians within the same field of specialty, regardless of the number of defendants. 
  • The party to be examined would have the right to have a person of his or her choosing present during the exam, including the plaintiff’s attorney.
  • The party to be examined would have the right not only to have the entire examination videotaped, but the ability to force the party requesting the examination to pay for all associated costs. 

Were these conditions enforced, many physicians might have chosen not to provide IMEs at all when the process would involve: a potentially adversarial plaintiff’s attorney; a patient room packed with video equipment; and, the spectacle of it all captured on tape. Further, the bill would have stifled the ability to defend injury claims.

We may never know what effect these changes might have brought. On May 16, 2017, the House Civil Law and Procedure Committee, involuntarily deferred on a 4-4 vote. This action effectively killed the bill and saved the IME as currently understood.

 

By: John Grinton, a Keogh Cox associate whose practice areas include commercial and construction litigation. When he is not practicing law, John spends most of his time with his wife, Kellye, and their two dogs.

One More Reason: Louisiana’s “Drunk Driving” Immunity

A conviction for DWI brings the consequences you might expect, such as the loss of driving privileges, expensive attorneys’ fees, and public embarrassment. However, there is one additional, less-obvious consequence of which many are unaware; Louisiana provides immunity from claims brought by a drunk driver who was at least 25% at fault in the accident which caused his injuries, no matter how severe the injuries.

Generally stated, if you are driving drunk and are in an accident that is mostly someone else’s fault, you will not be able to recover for the injuries you sustain.  Similarly, if your fault injures a drunk driver, the statute may shield you from liability.  The “drunk driving” immunity is found in La. R.S. 9:2798.4. The statute provides immunity against the claims of a driver with a blood alcohol level of .08 or higher. 

The immunity may even apply to defendants who were not directly involved in the accident. In Stewart v. Daiquiri Affair, Inc., 20 So.3d 1041 (La. App. 1st Cir. 2009), writ denied, 19 So.3d 477 (La. 2009), the immunity was found to apply to claims brought by an 18-year-old employee who consumed alcohol on the premises and was subsequently injured in a motor vehicle accident. Rejecting the argument that immunity should not apply when the employer arguably contributed to the under-age plaintiff’s consumption of alcohol, the appellate court in Stewart concluded that the statute’s language required immunity because the employee was more than 25% at fault and her blood alcohol content was over the legal limit.

Because the “drunk driving” immunity statute is supported by the legislature’s strong and long-standing interest in protecting citizens against drunk driving, it has been upheld and applied in many instances. Although you should not need another reason to not drive drunk, you now have one.