Author: Christopher K. "Chris" Jones

Preparing for a Storm

09.09.2024

Fortunately, the 2024 hurricane season has been relatively calm. We previously blogged about steps that can be taken after your property is damaged by a hurricane or other natural disaster. (Click here to access our prior blog). With a Tropical Storm, and potential Hurricane, threatening our coast, here are some steps to consider taking to prepare before a storm arrives in the event you must make a property insurance claim for damages after the storm:

  • DOCUMENT, DOCUMENT, DOCUMENT – The best way to prove the condition of your property before damage is caused is to document it. Take pictures and videos of the interior and exterior of your home or business. Create an inventory of your contents. Narrate the video to provide better descriptions. If your property is damaged, this documentation will be used to verify its condition and make it easier for your insurer to adjust and pay your claim.
  • INSPECT YOUR PROPERTY – As you are making your preparations, you may consider taking a walk around your property to notice any prior damage to your property. Identify any issues that could affect a potential insurance claim.
  • KNOW YOUR INSURANCE COVERAGES – Make sure you are aware of the coverages that your insurance policy provides. The Declarations Page to your policy should provide much of this information – the coverage limits, types of coverage provided, deductible, etc. While your insurance agent likely maintains this for you, it is good practice to maintain and know this information, which lets you know what will or will not be covered.
  • MITIGATE YOUR DAMAGES – You can take steps to prevent damage to your property during the storm. You can pick up items around the property that could become airborne and take whatever precautions you can to prevent damage to your property, particularly the exterior. If your property is damaged, you can make temporary repairs to prevent further damage until your insurance company can get to you (like placing a tarp on the roof).

Louisiana Supreme Court Vacates Prior Decision and Finds Prescriptive Periods for Child Abuse Claims Can Be Revived

06.17.2024

In 2021, the Louisiana Legislature amended La. R.S. 9:2800.9 to provide that a legal action against a person for sexual abuse of a minor, if barred by liberative prescription prior to the effective date of the amendment, is revived for a three-year period after the effective date of the amendment.  In 2022, La. R.S. 9:2800.9 was amended again to specifically state the Legislature’s intent to revive any cause of action related to sexual abuse of a minor that previously prescribed under any Louisiana prescriptive period.

On March 22, 2024, the Louisiana Supreme Court issued its decision in Douglas Bienvenu, et al. v. Defendant 1 and Defendant 2, and found the statute was unconstitutional because it conflicted with due process protections set forth in the Louisiana Constitution. Specifically, the Court found that a defendant has a vested property right in accrued prescription and that revival of a prescribed cause of action violated due process.

However, the Louisiana Supreme Court granted the plaintiffs’ request for rehearing, and on June 12, 2024, the Court vacated its prior ruling and found that the amendments to La. R.S. 9:2800.9 were constitutional.

On rehearing, the court agreed that a defendant has a vested property right in accrued prescription but found another step in constitutional analysis was required— examination of whether the legislature’s revival of prescribed causes of action for sexual abuse of minors “comports with substantive due process.” The Court noted, “The essence of substantive due process is protection from arbitrary and capricious action.”

In Bienvenu, the defendants’ right to plead prescription was an economic interest that did not implicate fundamental rights. The statute at issue was social welfare legislation, enacted to address societal costs of child sexual abuse. Therefore, the Court found the applicable due process test was whether the legislation was reasonable in relation to the goal to be attained and was adopted in the interest of the community as a whole. The statute needed only to have a rational relationship to a legitimate governmental interest to survive due process scrutiny.

The Court found the amendments to La. R.S. 9:2800.9 passed this test because (1) the provision assists in identifying hidden child predators so children will not be abused in the future; (2) shifts the costs of the abuse from the victims and society to those who actually caused it; and (3) educates the public about the prevalence and harm from child sexual abuse to prevent future abuse. These interests were found legitimate and compelling. Thus, the statute was constitutional and could be applied retroactively “to revive, for the period stated, all causes of action related to sexual abuse of a minor that previously prescribed under any Louisiana prescriptive period.”

References:

Bienvenu v. Defendant 1, 2023-01194 (La. 3/22/24), 382 So. 3d 38, reh’g granted, 2023-01194 (La. 5/10/24), and opinion vacated on reh’g, 2023-01194 (La. 6/12/24).

Bienvenu v. Defendant 1, 2023-01194 (La. 6/12/24).

Class Action Basics: What Are They and When Are They Certified?

03.21.2023

Sometimes, a number of people or parties will file claims, in which each party alleges the same or similar injuries that were caused by the same or similar conduct. In these circumstances, federal and Louisiana law recognize class actions as procedural devices that can be used to aggregate the parties’ claims into a single action.

The purpose and intent of class action procedure is to adjudicate and obtain res judicata effect on all common issues applicable to the representatives who bring the action. However, this res judicata effect also applies to all others who are “similarly situated,” provided they are given adequate notice of the pending class action and do not timely exercise the option to exclude themselves from the class. Class actions are commonly filed in matters that involve common facts and damages such as plant explosions, claims based upon allegedly defective products, or claims involving employment practices or civil rights violations.

Before a court can hold a trial on the merits of a class action, the court must determine whether all of the procedural requirements are met for certification of the class. In making this determination, the court rules on whether the matter may proceed as a class action or whether the named parties must bring individual claims. In Louisiana, the threshold requirements for class certification are found in La. C.C.P. art. 591(A), which provides:

A.      One or more members of a class may sue or be sued as representative parties on behalf of all, only if:

(1) The class is so numerous that joinder of all members is impracticable.

(2) There are questions of law or fact common to the class.

(3) The claims or defenses of the representative parties are typical of the claims or defenses of the class.

(4) The representative parties will fairly and adequately protect the interests of the class.

(5) The class is or may be defined objectively in terms of ascertainable criteria, such that the court may determine the constituency of the class for purposes of the conclusiveness of any judgment that may be rendered in the case.

Every one of these requirements must be met for an action to be maintained as a class action. Stated differently, the class cannot be certified if even one of these threshold requirements is not met. A party seeking class certification must also establish one of the additional requirements outlined in La. C.C.P. art. 591(B).

In Doe v. Southern Gyms, LLC, the Louisiana Supreme Court held that a court must conduct a “rigorous analysis” of the class certification requirements, to ensure that every one of them are satisfied before a case is certified as a class action. Moreover, it is the plaintiff’s burden to prove that every requirement of La. C.C.P. art. 591 is satisfied. While only the procedural requirements for class certifications are relevant to determine if a matter should be certified, the “rigorous analysis” required of the court oftentimes requires analysis of the overlapping merits of the plaintiff’s underlying claim. See Wal-Mart Stores, Inc. v. Dukes.

Whether a matter should be certified as a class action is often a contested issue involving high stakes. If it is certified, the matter proceeds as a class action, where the claims are asserted on behalf of the entire class and can result in substantial damage awards. If the matter is not certified, the claim representatives must pursue their claims individually, which leads to significantly less exposure for defendants named in the action.

Case References:

Doe v. Southern Gyms, LLC, 2012-1566 (La. 3/19/13), 112 So.3d 822, 829.
Wal-Mart Stores, Inc. v. Dukes, — U.S. —, 131 S.Ct. 2541, 2550, 180 L.Ed.2d 374 (2011).

Here Comes Hurricane Ida: What To Do If Your Home is Damaged by a Storm or Flood

08.27.2021

Unfortunately, Louisianians have endured many natural disasters in the past several years. From the historic flooding in Baton Rouge in August 2016 to the devastation caused by Hurricanes Laura and Delta in 2020, Gulf Coast residents are very familiar with significant storms and flooding events. While the rebuilding process will take months or years to complete, this article is designed to provide some basic information on how to document and report your property damage claim and apply for and obtain disaster assistance.

  • DOCUMENT, DOCUMENT, DOCUMENT – Once you are able to do so, make sure to document the damages to your home and contents.  Whether for a homeowners or flood insurance policy or to obtain government assistance, take plenty of photos of the damage.  Make a list of the items in your home that were damaged or destroyed.  One way to organize this list is to list each item from each room together, approximate its age, where it was purchased and its value when purchased.  As you rebuild, and materials and items are thrown out, it will be much more difficult to document your claim.
  • REPORT YOUR CLAIM – Report your damage to your homeowners or flood insurer as soon as possible.  Provide as much detail about the damage as you can. If you are unaware of your insurer, contact your insurance agent who can help you to report your claim.
  • OBTAIN MULTIPLE ESTIMATES – Although it is often difficult to do so after a natural disaster because of the volume of work, obtain multiple estimates for the work needed on your home.  Pay for the estimate if necessary.  If you have three estimates and the amounts are close, they are much more credible.  Also, try and get as much detail as possible in each estimate, including specific materials to be used, dimensions, and finishes.
  • SAVE YOUR RECEIPTS – Whether for repairs you undertake to fix the damage to your home, to replace contents, or for living expenses after the storm, save your receipts.  These receipts will be used to document your losses and verify the amount of your claim to your insurer. 
  • FOLLOW UP WITH YOUR INSURER – Provide whatever is requested by your insurer as they adjust your claim.  Communicate with your insurer on a regular basis. Although it may seem tedious, communication with your insurer during the claim is important.
  • APPLY FOR ASSISTANCE – Especially if your property is not insured, make sure to immediately apply for government assistance.  You can apply for federal assistance at www.disasterassistance.gov.  Oftentimes, the state government will also administer federal or state disaster assistance funds. 

What to do if your Home or Business is Damaged by Flood or Storm

05.18.2021

Unfortunately, recent flooding and storm events have again affected our area in Louisiana.  Many people experienced flooding and storm damage to their homes and businesses.  If you experienced flood or storm damage, please consider following these steps to ensure your damage claim is properly documented and submitted:

  • DOCUMENT, DOCUMENT, DOCUMENT – Once you are able, make sure to document the damages to your home and contents.  Whether for a homeowners or flood insurance policy or to obtain government assistance, take plenty of photos and video of the damage.  Make a list of the items that were damaged or destroyed.  One way to organize this list is to group items from each room together, approximate its age, where it was purchased, and its value when purchased.  It will be more difficult to document your claim once the cleanup or rebuilding begins.
  • OBTAIN MULTIPLE ESTIMATES -To the extent you are able, obtain multiple estimates for the work needed on your home.  Pay for the estimate if necessary.  If you have three estimates and the amounts are close, they are much more credible.  Also, try and get as much detail as possible in each estimate, including specific materials to be used, dimensions, and finishes.
  • NOTIFY YOUR INSURER – Whether a homeowners or flood policy claim, or other insurance claim related to your business, promptly notify your insurer of your damage.  Your insurer will send someone to inspect the damage and start your claim.  Provide as much information as possible to make their job as easy as possible.  That will likely quicken the pace of your claim.
  • FLOOD CLAIMS – If you have flood insurance, it is likely provided by the federal government through the National Flood Insurance Program (NFIP).  There are specific rules for submitting your claim through the NFIP.  YOU MUST SUBMIT FEMA FORM 086-0-11 (NOTICE OF LOSS) WITHIN 120 DAYS OF YOUR DAMAGE.  You can find this form here.

Louisiana Legislature Passes the Civil Justice Reform Act of 2020

07.09.2020

On June 30, 2020, the last day of the 2020 First Extraordinary Session, the Louisiana legislature passed HB 57 legislation designed to revise tort law legislation.  Although not yet signed by Governor Edwards, it appears he is likely to sign this legislation into law.  The highlights of this new legislation include the following:

  • The jury trial threshold has been lowered from $50,000 to $10,000;
  • If the tort demand is between $10,000 and $50,000, the party demanding a jury must post a cash deposit of $5,000 within sixty (60) days of the jury demand;
  • The existence of insurance coverage will not be communicated to the jury unless (a) the jury will decide a coverage issue; (b) “the existence of insurance would be admissible to attack the credibility of the witness under Article 607;” or (c) bad faith is claimed under La. R.S. 22:1973 or against the insurer alone under the Direct Action statute;
  • The identity of the insurer will not be communicated to the jury “unless the identity of the insurer would be admissible to attack the credibility of a witness under Article 607.”  The Judge will instruct the jury at the opening and closing of trial that there is insurance coverage for the damages claimed by the plaintiff;
  • If Medicaid or workers’ compensation pays medical bills, the amount recoverable is limited to the amount actually paid.  If health insurance or Medicare pays medical bills, the amount recoverable is limited to the amount actually paid (plus any co-pays, deductibles, etc.).  Additionally, the Court shall award 40% of the difference between the amount of the bill and the amount paid.  If anyone other than health insurance, Medicare, Medicaid, or workers’ compensation pays the medical bills, the amount recoverable is the amount actually paid and amounts remaining owed;
  • Except for Medicaid and workers’ compensation the jury will only know the amount of medical treatment billed.  After trial, the Judge will take evidence relevant to any discounts;
  • Failure of the plaintiff to wear a seat belt is now admissible evidence of comparative fault or failure to mitigate.

Importantly, if signed by the Governor, HB 57 will become effective on January 1, 2021.   It will have prospective application only and will not apply to a cause of action arising or action pending prior to January 1, 2021.

Chris Jones is a partner with Keogh Cox in Baton Rouge, LA.  He focuses his practice on class actions and mass torts, and handles these matters in courts throughout the country.  He is a life-long resident of Baton Rouge, where he lives with his wife and four children

Google Earth Images Ruled Admissible

03.11.2020

Recently, a Louisiana appellate court found that images from Google Earth images were admissible.   In Walker v. S.G.B.C., LLC, 2019-506 (La.App. 3Cir. 2/5/20); — So.3d —, 2020 WL 563818, the Louisiana Third Circuit rejected a challenge to the use of the images on the basis that they were not properly authenticated. 

In this case, the plaintiff sought recognition of a historical servitude of passage from his landlocked property. During the trial, the plaintiff offered Google Earth images of the property to show a gravel pathway on the alleged right of way. The images were dated January 2004, November 2005, and December 2017.  Multiple witnesses identified the path on the images. Thereafter, the trial court admitted the images into evidence over the defendant’s objections.

On appeal, the defendant argued that the images were not properly authenticated under La. C.E. art. 901 because the plaintiff did not: (1) have the creator of the images testify to their authenticity; (2) get a certification from Google that the images were what they purported to be; and (3) have an expert testify that the images were accurate depictions of what they claimed to be.

The Walker court affirmed the trial court ruling that these images were admissible. Louisiana Code of Evidence Article 901(B)(1) provides the testimony of a witness with personal knowledge may supply the authentication of evidence required for its admission. Because the plaintiff identified various landmarks on each image, and each image was subsequently recognized by multiple witnesses (including the defendant’s witnesses), the Court concluded there was sufficient support for finding the images authentic.

In Walker, the precise dates the photographs were taken were not critical. Under different facts, courts may choose to apply the authentication rules of Article 901 more stringently.

Chris Jones is a partner with Keogh Cox in Baton Rouge, LA.  He focuses his practice on class actions and mass torts, and handles these matters in courts throughout the country.  He is a life-long resident of Baton Rouge, where he lives with his wife and four children.

Louisiana Supreme Court issued a significant ruling in a class action case involving tax credits for solar panels

05.10.2019

Recently, the Louisiana Supreme Court issued a significant ruling in a class action case handled by Keogh Cox partners Chris Jones and Nancy Gilbert.  The case involved tax credits for solar panels.  The Court’s ruling overturned a lower court decision that held an Act of the Legislature unconstitutional.  After the plaintiffs’ Application for Rehearing was denied, the Court’s decision is now final.

In Ulrich, et al. v. Kimberly Robinson, Secretary of the Louisiana Department of Revenue, 2018-0534 (La. 3/26/19), 2019 WL 1395316, the class action plaintiffs were persons who purchased and installed residential solar panel systems in their homes. When they claimed the solar electric system tax credits on their 2015 state tax returns pursuant to La. R.S. 47:6030, the tax credits were denied by the Louisiana Department of Revenue, based on Act 131 of the 2015 legislative session.  Act 131 capped the maximum amount of solar panel tax credits to be granted by the Department of Revenue, and the plaintiffs’ claims were made after the cap was exhausted.

When their claims for the tax credits were denied, plaintiffs filed a declaratory judgment action seeking to declare Act 131 unconstitutional.  During the pendency of the suit in the district court, the Louisiana Legislature enacted Act 413 which provided additional funding for solar tax credits.  Under Act 131, all taxpayers whose solar panel tax credit claims were previously denied would receive the entirety of their tax credits over installments.  The district court declared Act 131 unconstitutional and concluded that Act 413 did not moot the controversy.

Because the district court declared Act 131 unconstitutional, the Department directly appealed the decision to the Louisiana Supreme Court.  Oral arguments occurred in October of 2018.  In the Court’s recent opinion, it concluded that Act 413 mooted the controversy.  According to the Court, the plaintiffs no longer maintained a “justiciable controversy” because Act 413 provided for the payment of the entirety of the previously denied tax credits.  Accordingly, the Court overruled the district court’s judgment that declared Act 131 unconstitutional.  Plaintiffs filed an Application for Rehearing and that request was recently denied, making this decision final.

Chris Jones is a partner with Keogh Cox in Baton Rouge, LA.  He focuses his practice on class actions and mass torts, and handles these matters in courts throughout the country.  He is a life-long resident of Baton Rouge, where he lives with his wife and four children.

SHOW ME YOUR TAX RECORDS: Why You Should Preserve Business and Tax Records

09.22.2017

A case successfully handled by Keogh Cox on behalf of the Louisiana Department of Revenue serves a strong reminder of the importance of maintaining business tax records, and of the significant burden imposed on Taxpayers who do not.

In Barfield v. Diamond Construction, Inc., 51,291 (La. App. 2 Cir. 4/5/17), 217 So.3d 1211, writ denied, 2017-0751 (La. 9/15/17), 2017 WL 4105839, the Louisiana Second Circuit affirmed the Trial Court who granted summary judgment in favor of the Louisiana Department of Revenue in response to a Taxpayer’s failure to pay sales and use taxes over the span of several years.

Although the burden of proof on a motion for summary judgment is usually imposed on the party who filed the motion, a Louisiana statute (La. R.S. 13:5034) shifts the burden in suits filed by the Department of Revenue to collect unpaid taxes. Therefore, to defeat the Department’s motion in Barfield, the Taxpayer possessed the burden to demonstrate that taxes were not owed on the various transactions at issue. Because the law presumes that sales and rentals of tangible personal property are fully taxable, the Taxpayer possessed the additional burden to show that the sales and rentals involved exempted categories. In the face of this “double burden,” the Taxpayer was unable to provide business records to demonstrate the nature of each transaction as these records were not preserved by the Taxpayer.

During the Department’s audit, the Taxpayer was unable to present the necessary records to prove it did not owe taxes on certain transactions. As a result, the Department was allowed to complete the audit by making an estimate of the amount of taxes owed for the subject transactions. The resulting audit findings were then treated as prima facie correct and were ultimately accepted because the Taxpayer offered no contrary evidence.

Noting the Taxpayer’s poor record-keeping, the Court cited the failure to produce the necessary records in support of its conclusion that the Taxpayer did not create a “material issue of fact” in opposition to the Department’s motion. This warranted the entry of judgment in favor of the Department and should remind every business of the real-world need to keep your tax records.

Written by: Chris Jones

Another Year, Another Natural Disaster: What to do if Your Home is Damaged by a Storm or Flood

09.11.2017

Unfortunately, Louisianans (and their property insurers) have endured many natural disasters in the past several years. From the historic flooding in the greater Baton Rouge area in August 2016 to the devastation caused by Hurricane Harvey in August 2017, Gulf Coast residents are all too familiar with significant storms and flooding events. While the rebuilding process will take months or years, this article is designed to provide some basic information on how to document your property claim and apply for and obtain disaster assistance.

  • DOCUMENT, DOCUMENT, DOCUMENT – Once able, make sure to document the damages to your home and contents. Whether for a homeowners or flood insurance policy or to obtain government assistance, take plenty of photos and even video of the damage. Make a list of the items in your home that were damaged or destroyed. One way to organize this list is to group items from each room together; approximate the item’s age, where it was purchased, and its value when purchased. If you have receipts, try to salvage them. As you rebuild, and materials and items are thrown out, it will become more difficult to document your claim. Proper documentation will lessen the burden upon your insurer’s claims handlers and adjusters and may speed the processing of your claim. A lack of documentation may require the insurer to investigate longer and result in delay.
  • OBTAIN MULTIPLE ESTIMATES – Although the volume of work and distractions which follow a natural disaster make this difficult, try to obtain estimates for the work needed on your home. Pay for the estimate, if necessary. If you have three estimates and the amounts are close, they are more credible. Also, try and get as much detail as possible in each estimate, including specific materials to be used, dimensions, and finishes. Your insurer is looking to determine the true amount of the loss and thorough estimates help to define your claim.
  • APPLY FOR ASSISTANCE – Especially if your property is not insured, make sure to immediately apply for government assistance. You can apply for federal assistance at disasterassistance.gov. Oftentimes, the state government will also administer federal and state disaster assistance funds.

Recovering after a disaster may not be a quick or easy process, but spending more time and effort initially may ultimately save you time and allow you to present a claim your insurer will agree to pay.

When the Stakes are High: Class Actions in Louisiana

09.09.2016

They make movies about “class actions” exactly because they can involve high stakes, with millions, even billions of dollars on the line. The class action procedure can create exposure at this level because of the large numbers of potential claims involved. Class actions are used to address losses experienced from unfair or fraudulent business practices, natural disasters, industrial explosions, or any event or action which is alleged to have damaged a large group in a similar way.

As a procedural device, the class action combines several claims (often hundreds or thousands) into a single action. A key battle in most Louisiana class actions is whether the proposed claim can properly be “certified” as a class action under Louisiana procedure. The recent Fourth Circuit decision in Duhon v. Harbor Homeowners’ Ass’n., Inc., 2016 WL 3551620 (La. App. 4 Cir. 6/30/16) addressed whether the lower court’s class “certification” was proper under Louisiana Code of Civil Procedure Article 591.

Duhon involved damages experienced following hurricanes Katrina and Rita.  In particular, the class representatives sought damages against the Harbor View Condominium Association and its insurers claiming that the association was guilty of faulty repairs following these two hurricanes. In deciding whether certification was proper, the Duhon court considered the following elements, all of which must be present to certify a proper class action:

Numerosity- the class must be so numerous that joinder of all involved persons would prove impractical;

Commonality- the case must present questions of law and fact that are common to the class;

Typicality- the claims and defenses of the representative parties must be typical of the claims or defenses of the class; and,

Adequacy of representation- the representative parties must be positioned to fairly and adequately protect the interest of the class.

After analyzing each of these “elements,” the Duhon court upheld the Trial Court’s certification of the claim as a class action. Further, the court concluded that the questions of law and fact common to the members of the class predominated over any questions affecting only individual members such that a class action was superior to other available methods to fairly and efficiently adjudicate the controversy.

While the class action procedure has its detractors, it is sometimes the only real option to address a harm to a large group. Now that the class in Duhon has been certified, the case will proceed through discovery and towards trial on the merits. Who knows, they may make a movie about it someday.

The “Great Flood of 2016”–Update and Resources

08.17.2016

“Disaster Declaration” Expanded. The list of parishes now declared disaster areas by the federal government has increased to include the following parishes: Acadia, Ascension, East Feliciana, Iberia, Lafayette, Pointe Coupee, St. Landry, and Vermilion.

http://gov.louisiana.gov/news/additional-parishes-added-to-federal-disaster-declaration-8-16-16

Potential Tax Implications for Flood Victim. For those insured, it is critical that you document your losses with as much detail as possible; serial numbers, make/model/description—the more detail the better. Keep receipts and credit card statements. Time-dated photos are also important. Even those without flood insurance should do the same as it may assist in obtaining FEMA assistance. However, the same documentation of your losses could also help to reduce your tax exposure. The attached link provides key information and outlines the impact the flooding may have on tax-filing and other deadlines.

https://www.irs.gov/uac/tax-relief-for-victims-of-severe-storms-flooding-in-louisiana