Author: Collin J. LeBlanc

“Forensic Defendants” Dismissed from Wrongful Conviction Suit

07.01.2024

On December 9, 1982, a victim was raped and stabbed multiple times in her Baton Rouge residence. In those harrowing moments, the victim was face-to-face with her assailant and vowed that she would remember the characteristics of her assailant in the unlikely event she survived. A friend arrived at the residence and entered the second-floor room containing the assailant and the wounded victim. Fortunately, at that moment, noise from a postal employee caused the assailant to flee the scene. The investigation began that same day.

Sometime later, Archie Williams became a suspect and was then criminally charged after the victim identified Mr. Williams as her attacker. The victim identified a prominent scar on the assailant which, in an unfortunate twist of fate, tended to match a scar on Mr. Williams. Several of the governmental officers involved in the investigation and the April 1983 criminal trial of Mr. Williams were sued many years later in the case styled Archie Williams v. City of Baton Rouge, ET AL. Keogh Cox attorneys Drew Blanchfield, Collin LeBlanc, Cathy Giering, and Chelsea Payne represented a forensic scientist, a lab technician, and a print examiner in the suit (the “Forensic Defendants.”) In his June 10, 2024 ruling, Judge Brian A. Jackson granted a Motion for Summary Judgment in favor of these defendants, dismissing the claims against them with prejudice.

At the 1983 criminal trial, Forensic Defendants testified that they could not identify Mr. Williams as the attacker. Similarly, both the prosecutor and defense counsel advised the jury that the physical evidence did not implicate Mr. Williams. Nevertheless, Mr. Williams was convicted based upon the passionate but mistaken testimony of the victim. Mr. Williams had not committed these crimes but remained incarcerated until his release decades later.

Mr. Williams consistently denied guilt. In 2008, he hoped DNA testing would help to prove his innocence. However, the DNA evidence was of no assistance. In 1999, The FBI launched its National Fingerprint Database (“IAFIS.”) Yet, a 2009 search generated no matches to fingerprints from the crime scene that had not already been identified. In 2014, Next Generation Identification (NGI) replaced IAFIS. By 2016, NGI held approximately 72,000,000 criminal fingerprints and 50,000,000 civil fingerprints. A 2019 search of this ever-expanding database matched fingerprint evidence taken from the 1983 crime scene to the prints of a convicted rapist who had died in prison years before. Mr. Williams was innocent and was soon released through a joint filing by the State of Louisiana and Mr. Williams. His lawsuit against multiple defendants followed.

In response, the Forensic Defendants filed a Motion that advanced the “qualified immunity” granted to governmental officials. In opposition to the Motion, the plaintiff possessed the burden: 1) to raise a fact dispute on whether his constitutional rights were violated by the defendants’ individual conduct; and 2) to show those rights were “clearly established” at the time of the alleged violation. The Court found that the plaintiff did not meet this burden. Although Plaintiff alleged that certain fingerprint evidence had been “suppressed” in violation of the “Brady Rule,” the Court cited the robust factual record showing that the jury was fully aware that no fingerprint evidence identified Mr. Williams and that unidentified prints were present at the crime scene. The Court also rejected the claim that there was any fabricated exculpatory blood or serology evidence.

The facts in Williams highlight the great technological improvements since the early 1980s which now aid the court system, prosecutors, and defense attorneys to protect against the conviction of an innocent suspect. These facts also tell a sad human story of an individual who spent more than 30 years in jail for a crime he did not commit. While it does not replace the lost years, Louisiana has created a fund which provides some financial resources to wrongfully convicted individuals to help them re-enter society. Williams was able to take advantage of this fund.

References:

Archie Williams v. City of Baton Rouge, ET AL, United States District Court, Middle District of Louisiana, No. 3:20-cv-00162.

Louisiana First Circuit Finds for State Trooper in Fatal Shooting

08.01.2023

On July 27, 2023, the Louisiana First Circuit entered judgment in favor of Louisiana State Trooper Andre Bezou in the shooting death of Coltin LeBlanc. The case was defended by Keogh Cox attorneys Drew Blanchfield, Brian Butler, and Collin LeBlanc. In support of its ruling, the First Circuit cited La. R.S. 9:2798.1 which provides qualified immunity for an officer’s actions, unless their action constituted “criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant misconduct.” The court found Trooper Bezou was entitled to qualified immunity under the facts of this case.

After midnight in an area of Hammond, La. dotted with bars and restaurants, Trooper Bezou spotted LeBlanc driving a large Ford truck. Trooper Bezou testified that he witnessed two traffic violations and initiated a stop. “Bodycam” footage captured the interaction. LeBlanc exited the vehicle, and when the trooper asked for identification, LeBlanc indicated it was in his truck. LeBlanc moved to the cab of the truck, and Trooper Bezou followed, stopping within the open driver’s side door. Based upon his observations during this interaction, Trooper Bezou suspected LeBlanc was intoxicated. Later testing confirmed that LeBlanc had a blood alcohol level more than two times the legal limit.

But LeBlanc was not attempting to retrieve his license. Instead, he revved the engine and attempted to flee with Trooper Bezou immediately next to the vehicle. Trooper Bezou later testified he feared that LeBlanc would steer the vehicle to run him over with the back left wheel. In reaction, Trooper Bezou latched onto the truck and LeBlanc sped around a corner and down the roadway. Trooper Bezou was able to draw his weapon and gave multiple orders to stop. Trooper Bezou testified that he feared he would be thrown from the vehicle or scraped against parked cars in the area. When the trooper received no indication LeBlanc would relent, he opened fire. Thereafter, the truck came to a rest.

In the subsequent litigation, plaintiffs argued that Trooper Bezou used “excessive force” and should have attempted to move away and allow LeBlanc to flee the scene. In response, Keogh Cox cited Harmon v. City of Arlington, 16 F.4^th 1159 (5^th Cir. 2021), where the federal Fifth Circuit held that no “clearly established precedent” would prohibit an officer from firing while perched on the running board of a fleeing vehicle. Finding no excessive force under the facts of the case, Harmon acknowledged the simple truth that “there is an obvious threat of harm to an officer” who is “on the side of a fleeing vehicle.” The facts presented to the First Circuit showed that Trooper Bezou gave more warning to relent than was given in Harmon.

The New York Times covered this incident in an article titled, “Before the Final Frame: When Police Missteps Create Danger.” 11/17/21. In its coverage, the New York Times reported that Trooper Bezou “appeared to be in grave danger.” It then suggested that the trooper could have just backed away. However, courts are instructed not a gauge questions of immunity from an out-of-context application of “20/20 hindsight.” Because the facts in this case showed Trooper Bezou was in grave danger “at the moment” force was used and was faced with a split-second decision, he was protected from liability.

Click It: The Seat Belt Defense In Louisiana

03.03.2021

Louisiana has exhibited a certain double standard when it comes to seat belts. For years, Louisiana participated in the “Click It or Ticket” public service campaign that lectured on the grave dangers caused by a failure to wear seat belts and the criminal consequences for a failure to comply. Nevertheless, and for decades, the failure to wear a seat belt was off limits as evidence to reduce a plaintiff’s recovery in a personal injury context. But, the rule was changed: effective January 1, 2021, the “gag rule” against evidence that a plaintiff failed to wear a seat belt in an accident has been lifted. La. R.S. 32:295.1. Louisiana has no recent history with the “seat belt defense,” such that many questions arise. To frame these questions, this blog takes a quick look to cases from other states and certain guideposts that may already exist in Louisiana jurisprudence.

Like several other states, Florida has a history with the defense. In Smith v. Butterick, 769 So.2d 1056, 1058-9 (Fla.2d DCA 2000), the court outlined three elements of proof a defendant must show to prevail on the defense. Similar elements have been identified in other states. See, e.g., Law v. Superior Court In and For Maricopa County, 157 Ariz. 147, 755 P.2d 1135 (1988). Louisiana may adopt similar elements or chart a different course. The elements outlined in Smith were as follows:

1-Failure to use an available, operational seat belt

This element can be proven through testimony from the plaintiff, passengers, responding law enforcement, or other such testimony or evidence to show that a seat belt was not in use at the time of the accident. Similarly, testimony or photographs may be used to show that the seat belt was operational.

2- Failure to use seat belt was unreasonable under the circumstances

Insofar as Louisiana and most states generally mandate the use of seatbelts, this element should be easy to demonstrate. Therefore, unusual facts may be necessary to excuse a plaintiff’s failure to use a seat belt such as an emergency trip to the hospital.

3-Plaintiff’s failure to use a seat belt substantially caused or contributed to the damages

Of the three possible elements, this is likely to be the battleground. In some cases, the issue may be simple. For instance, if a plaintiff’s failure to use a seatbelt allows their body to strike (or travel through) a windshield, it may be simple to show that the plaintiff’s (or decedent’s) failure to use a seatbelt magnified the injuries. Expert testimony may not even be needed. In Smith, testimony from a mechanical engineer that the passenger would not have hit interior surfaces had they used a seat belt was allowed. However, will expert testimony be required in most cases and what type of expert will be needed? Engineer? Physician? Biomechanical?

Will the defendant bear the burden to prove the aggravation like they have in many national cases? Will Louisiana courts fashion an inference or “shifting burden” approach where a prima facie showing that a plaintiff’s whose failure to wear a seat belt increased the possibility of injury would possess the burden to show their injuries would have occurred even had they used a seat belt. In Anderson v. Watson, 953 P. 2d 1284 (Colo. 1998), the court required the defendant to only show a prima facie case of seat belt nonuse to allow the fact of nonuse to go to the jury.

Seat belts are required because they can prevent or lessen injury. Does a defendant have to show the precise details as to how seat belt nonuse caused or magnified the injury? In Louisiana, these answers remain unclear; but these are some of the questions.

Further complications are present in cases involving alleged traumatic brain injury (TBI) and the new frontier of vestibular injuries. Louisiana courts have often rejected testimony from accident reconstruction or bio-mechanical experts for a variety of reasons, but with this statutory defense, such testimony may be critical to determine who is responsible for an alleged catastrophic loss. States that recognize this rule have examined many factors that relate to the injuries that arise from the failure to use a seatbelt. As such, it seems inevitable that expert testimony on this issue must be considered in many nonuse cases.

No doubt, many of these questions will be the subject of litigation arising from accidents which occur after January 1, 2021. Louisiana’s double standard has ended. What is certain is that a failure to wear a seat belt now has the potential to harm not only a plaintiff’s health, but also their chances of recovery in civil litigation.

Collin is a Keogh Cox partner who litigates injury, commercial, and legal malpractice disputes. He lives in nearby Zachary, Louisiana with his wife Melissa and three all too active children. He is an outdoorsman, a tennis player, a cook, and a hobbyist writer.

This blog was written in partnership with John P Wolff, III.

“Collectibility” in Legal Malpractice: Can a client have greater rights against an attorney that existed in the underlying case?

12.01.2020

It is well-established that a client in legal malpractice shall have no greater rights against their attorney than they had against the original defendant. That is, until the recent decision by the Supreme Court in Ewing v. Westport Insurance Corporation, 20-00339 (LA. 11/19/20), 2020 WL 6789490 where the Louisiana Supreme Court held that the “collectibility“ of the underlying judgment against the defendant is neither part of the plaintiff’s burden of proof nor the proper subject of an affirmative defense.

In Ewing, the defendant/attorney fax-filed a petition for damages but failed to forward the original petition within seven days as required by statute. As a result, the claim he sought to advance on behalf of Elaine Ewing prescribed. Ewing sued her attorney and his insurer.

Prior to trial, the tortfeasor testified that he would have filed for bankruptcy had an excess judgment been entered. On this basis, the defendants obtained a motion for summary judgment establishing that the underlying tortfeasor would have been unable to pay any amount above the $30,000 in available insurance coverage. Following trial, an award of $30,000 was entered in favor of the plaintiff and the plaintiff appealed.

The appellate court reversed citing to the decision in Rodriguez v. Traylor, 468 So.2d 1186, 1188 (La. 1985) which held that “the wealth or poverty of a party to a lawsuit is not a proper consideration in the determination of compensatory damages.“

The Supreme Court upheld the appellate opinion. In the analysis, Chief Justice Johnson on behalf of the majority also cited to the Rodriguez decision for the proposition that the wealth of the tortfeasor is not relevant to damages. The majority acknowledged that a majority of courts nationwide hold that the collectibility of a judgment is an essential element of a plaintiff’s legal malpractice case. It also observed “a growing trend” in other states to allow the defendant/attorney to plead collectability as an affirmative defense. Nevertheless, the Supreme Court in Ewing chose to follow neither position.

The defendants in Ewing did not argue that collectibility was part of the plaintiff’s burden. However, they did assert an affirmative defense on this basis. In rejecting this defense, the Ewing court found that nothing in statutory law of Louisiana limits damages based upon the collectibility of a judgment against a particular tortfeasor. In Ewing, it was established that the tortfeasor would have been immediately unable to pay an excess judgment. Nevertheless, the majority highlighted that a money judgment is valid for 10 years and may be revived for successive 10-year periods. As such, the court concluded that the money judgment has intrinsic value, regardless of immediate collectibility. To quote the majority, “impecunity is a snapshot in time.”

The concurring opinion by Justice Weimer reasons that there may be certain and rare cases where the underlying tortfeasor is truly judgment proof. In that circumstance, he writes that summary judgment in favor of the defendant may be appropriate but not under the record before the court.

Writing for the dissent, Justice Crain observed: “Thirty states have determined collectibility is relevant in a legal malpractice action. No state has reached a contrary conclusion, until now.” According to the majority, the absence of any statute making collectability a relevant consideration mandated the result under our civilian traditions. Justice Crain disagreed and argued that the majority opinion is inconsistent with the Code of Evidence articles which generally allow the admissibility of relevant evidence such as an inability to pay. La. L.C.E. art. 402. In support of his position, Justice Crain gave a hypothetical scenario involving an insolvent, uninsured driver who rear-ends a world-class professional athlete rendering him a paraplegic, resulting in damages and $50 million. About this hypothetical, he states:

“What did the plaintiff lose, or what harm did the lawyer cause the plaintiff, when the lawyer failed to preserve the claim against the insolvent, uninsured driver? The lawyer did not cause the paraplegia, nor did he caused a loss of $50 million, as that money was clearly uncollectible.“

To Justice Crain, the determinative question is the value of the lost judgment.

Insofar as the majority and concurring opinions highlight the absence of any statutes to support their conclusions, it would not be surprising for this issue to be considered by the legislature in coming years.

This blog was written in partnership with Andrew “Drew” Blanchfield whose practice also includes professional liability defense.

Torts: “Loss of Chance”: Claim Limited to Medical Malpractice

12.31.2019

In Niang v. Dryades YMCA School of Commerce, Inc., 19-0425 (La. App. 4 Cir. 12/4/19), – – – So.3d – – -, the Fourth Circuit declined to expand the “loss of chance of survival” cause of action to non-medical defendants. Despite a statute which arguably supported such a cause of action under case facts, the Fourth Circuit felt constrained to reject the claim.

On March 7, 2017, Mouhamadou Niang collapsed while playing basketball at a YMCA. Mrs. Niang was certified in cardiac life support, and requested an automated external defibrillator (“AED”) to attempt to resuscitation. Mrs. Niang was advised that an AED machine was not available. Thereafter, Mr. Niang was transported to University Medical Center where he died on March 11, 2017 secondary to cardiac arrest.

Mrs. Niang sued the YMCA for failing to have an AED machine on premises and asserted multiple claims including a loss of chance of survival claim. She contended that the lack of the defibrillator contributed to her husband’s death. Under La. R. S. 40:1137.3, all “physical fitness facilities” such as the YMCA are required to have an AED available.

The YMCA filed a Motion for Partial Summary Judgment which was granted. In its reasons, the trial court held that the “loss of chance” cause of action was limited to claims raised in a medical malpractice context. The Fourth Circuit affirmed.

The Fourth Circuit found that, although styled as a Motion for Partial Summary Judgment, the YMCA had actually raised an Exception of No Cause of Action and therefore analyzed the issue as a pure question of law. The Fourth Circuit reviewed prior Louisiana Supreme Court decisions providing a right to recover damages for a loss of chance of survival in the medical malpractice context including the decision in Hastings v. Baton Rouge Gen. Hosp., 498 So.2d 713 (La. 1986). In Hastings, the Louisiana Supreme Court identified a cause of action where a stab wound victim with weak vital signs was transferred from the hospital after the patient lacked insurance. The Hastings court commented on the reduced burden of proof in such cases:

“The law does not require the plaintiff to prove to a certainty that the patient would have lived had he received more prompt diagnosis and treatment for the condition causing the death.”

The Fourth Circuit identified no cases directly “on point” when the defendant was not a medical practitioner. Therefore, the Fourth Circuit gave consideration to a noted Oklahoma decision in Hardy v. Southwestern Bell Tel. Co., 910 P.2d 1024 (Okla. 1996) which addressed the issue. The court in Hardy considered the public policy implications associated with expanding the loss of chance of survival claim to non-medical cases and reasoned that the policy concerns which justify a reduced burden of causation in medical malpractice claims do not transfer to ordinary negligence cases. The cause of action against medical providers is supported by the “special relationship” of the physician and the patient. No such relationship exists in a non-medical setting.

Citing to Hardy, the Niang court determined that allowing a loss of chance of survival claim with general negligence would allow for improper speculation as to a person’s chance of survival. Identifying no controlling cases and the lack of any statute creating a cause of action in non-medical malpractice cases, the Niang court concluded that loss of chance of survival claims are not supported outside of the medical context.

Louisiana Court is Clear: Res Ipsa Loquitur of Little Use in Pool Defect Case

12.20.2018

When Casey Krueger and his family went to the pool at the La Quinta Inn & Suites in Baton Rouge, they knew how they wanted to end their day. What the Kruegers (and La Quinta) did not know was that a piece of clear, broken glass was on the bottom of the pool. Mr. Krueger stepped on the glass and experienced a “large and deep cut” that caused permanent loss of some function of his toe. He filed suit alleging that La Quinta was negligent for the defective condition in its pool. Krueger v. La. Quinta Inn & Suites, 18-0052 (La. App. 1 Cir. 9/21/18). He also alleged the negligence of La Quinta was self- evident such that the doctrine of res ispa loquitur should apply to impose liability. His claims were rejected by the jury; the Louisiana First Circuit upheld the verdict.

“Res ipsa loquitur” is a Latin phrase that means “the thing speaks for itself.” The doctrine of res ipsa is used where a plaintiff relies solely upon circumstantial evidence to prove negligence. For res ipsa to apply, the plaintiff must: 1) prove that the injury is the kind which ordinarily does not occur in the absence of negligence; 2) eliminate other more probable causes of the injury (such as the conduct of the plaintiff or of third-persons); and 3) show that the negligence of the defendant fell within the scope of the duty owed to the plaintiff. Res ipsa is often cited where the defendant possessed exclusive control of the thing which caused the injury. Id.

In the Krueger case, La Quinta checked the pool twice a day and posted signs that banned glass from the pool area. There was also no evidence that it knew or should have known of the glass in the pool. After all, clear glass in a clear pool is hard to detect. Lacking direct evidence of negligence, the Kruegers hoped the res ipsa doctrine would make their case. With some justification, they contended that broken glass was not to be expected in a hotel pool. However, res ipsa was found not to apply. Because it was “possible that a third party caused broken glass to enter the pool,” the plaintiffs could not establish all three elements to the doctrine.

Leave Different: Gasquet Agreements and What Insurers Need to Know

02.02.2018

As part of its travel pitch, Louisiana tourism once used the slogan: “Louisiana. Come as you are. Leave different.” If an out-of-state insurer writes in Louisiana and does not understand the ramifications of “Gasquet,” then they may leave different, very different.

The term “Gasquet” comes from the case of Gasquet v. Commercial Union Ins. Co., 391 So. 2d 466 (La. App. 4th Cir. 1980). The case considered how a settlement of the plaintiff’s claims against the primary carrier and a partial settlement of claims against the tortfeasor/insured impacted the excess carrier.

In Gasquet, the plaintiff alleged serious personal injury. Prior to trial, he settled with the primary insurer, Commercial Union, for $200,000, even though it had a $300,000 policy limit. In the deal, the plaintiff fully released Commercial Union. He also released the tortfeasor/insured from all liability not insured by the excess carrier, Stonewall Insurance. The insured therefore remained in the lawsuit as a “nominal defendant” to allow the plaintiff to pursue the excess carrier.

After settlement, the excess carrier denied the claim and asserted that payment by the primary carrier of less than policy limits did not trigger its policy, which required that the primary policy be “exhausted.” Without exhaustion, the excess carrier argued that it could not be called upon to respond under its policy language. The court rejected this argument and held that the plaintiff was entitled to a direct action against the excess carrier who would, in turn, receive a credit for the full limits of the primary policy. The “Gasquet release” has since become a staple of Louisiana litigation.

In Louisiana, unlike many states, a primary insurer owes no general duty to the excess carrier under Great Southwest Fire Ins. Co. v. CNA Insurance Companies, 557 So. 2d 966 (La. 1990). This creates a dynamic not present in states where the primary carrier is duty bound to consider the interests of the excess carrier. This lack of duty magnifies the vulnerability of the excess carrier’s position in Gasquet-friendly Louisiana.

An excess carrier in Louisiana should measure its reliance upon a primary carrier who can independently settle out with the plaintiff, sometimes on the eve of trial. If the excess carrier relied upon the primary carrier to defend the case, the excess carrier could be placed in the unenviable position of scrambling to defend a case where the insured (protected by Gasquet) may be suddenly disinterested in the outcome. Excess carriers with real potential exposure need to stay involved in the litigation and be prepared.

Following Gasquet, permutations have developed such as a “reverse-Gasquet,” where the excess carrier settles with the plaintiff and then pursues the primary insurer to recoup its payment. So, come to Louisiana, but know that we are sometimes different.

Collin LeBlanc is a Keogh Cox partner and experienced litigator who concentrates in injury, commercial, and legal malpractice disputes. He lives in nearby Zachary, Louisiana with his wife Melissa and three all-too-active children. He is an outdoorsman, a tennis player, a cook, and a hobbyist writer.

Privacy (Or Lack Thereof) in an Increasingly Digital Age

12.01.2017

“Historically, privacy was almost implicit, because it was hard to find and gather information. But in the digital world, whether it’s digital cameras or satellites or just what you click on, we need to have more explicit rules – not just for governments but for private companies.” -Bill Gates

Supreme Court oral arguments were heard earlier this week in Carpenter v. United States, a closely watched case which stands to impact what privacy means in our digital age. The case will decide whether law enforcement is permitted to gather cellphone data from third-party service providers like Verizon and AT&T without a warrant. Carpenter presents the latest installment in the eternal struggle between the need for safety and the desire to prevent a surveillance state.

In Carpenter, the FBI investigated a series of robberies at Radio Shack and T-Mobile stores in Detroit. Suspecting that Carpenter was operating as a “getaway driver,” the FBI sought and obtained without a warrant the location data for his cell phone. This data revealed that Carpenter (or at least his cell phone) was near the stores at the times of the robberies––damning evidence.

Carpenter argued that the government’s collection of his cell photo data was a “search” under the 4th Amendment, a “search” which would require a warrant supported by “probable cause.” The government maintained that privacy concerns were addressed when law enforcement complied with the Stored Communications Act which allows law enforcement access upon a showing that the information sought is “relevant and material” to an ongoing investigation. The government further argued that there is no reason to afford greater protection to cell phone data than given to other data such as bank records and dialed telephone numbers which can be obtained without a warrant.

The issues presented in Carpenter are not new, but are magnified by the awesome power of advancing technology to track our movement and assembly with others. The Louisiana court in State v. Bone, 12-34 (La. App. 5 Cir. 9/11/12), 107 So. 3d 49, held that an exclusive user of a cell phone did not have a reasonable expectation of privacy to the call detail record log associated with the phone. The court reasoned that access to the information in the detail record log was voluntarily surrendered by the defendant to the phone’s providers. However, in United States v. Jones, 132 S. Ct. 945 (2012), the United States Supreme Court found that the installation of a GPS device on a vehicle to monitor the vehicle’s movement was a “search” under the 4th Amendment. Carpenter addresses the intersection of these two cases.

By carrying a cell phone you know can track your movements, do you lose any reasonable expectation of privacy? Or, would allowing warrantless access to this information be akin to the prohibited GPS search in United States v. Jones? The Supreme Court will soon decide. How it chooses will impact criminal litigation and by extension how cell phone data is regarded in civil suits. More importantly, it may also impact the relationship between citizens and their government.

Is Texting While Driving The New Drunk Driving?

08.11.2017

Earlier this year, Apple was sued in the California class action of Ceja v. Apple, BC #647057, Superior Ct. of California, County of Los Angeles. In the Ceja suit, it was alleged that Apple is liable for automobile-related injuries and death. The “theory of recovery” against Apple is fairly straight-forward: 1) since 2008, Apple has possessed the “lock-out” ability to prevent texting while driving; and, 2) it is liable because it failed to do so. Whether or not the plaintiffs prevail against Apple, the national trend is toward stricter anti-texting laws and harsher consequences for those who text and drive. While this post does not intend to suppose a moral equivalence between drunk driving and driving while texting, the building momentum against texting while driving is reminiscent of the development of the anti-drunk driving laws and message.

It was not until 1938 when 0.15 became the first commonly-used blood alcohol level for intoxication (nearly two times today’s legal limit). Today, driving with a .08 will land you in a Louisiana jail. Many states such as Louisiana have enacted punitive damage statutes that allow for substantial money awards against drunk drivers. For instance, under Civil Code Article 2315.4, punitive damages (a.k.a. “exemplary” damages) are available against any driver whose intoxication causes injury. The message has been heard: drunk driving is illegal and may costs you your freedom, your money, or both.

The prohibitions against texting while driving (and even the broader category of “distracted driving”) are expanding. The State of Washington was the first state to ban texting while driving in 2007. Almost every state has since followed suit. Attitudes are also changing, perhaps in response to public service announcements and targeted media campaigns.

While once legal here, Louisiana, at least on paper, now completely bans texting while driving under La. R.S. 32:300.5. This law was later expanded to prohibit driving while accessing, reading, or posting to a “social networking site.” Last year, related fines and penalties were increased.

The practice of texting while driving has been said to involve three forms of distraction:

1. Manual distraction- taking your hands away from the wheel;

2. Visual distraction- diverting your eyes away from the road;

3. Cognitive distraction- taking your attention away from safely driving.

In the last few years, at least two drivers (one in New Jersey and one in Pennsylvania) have been sued under allegations that they are liable for injury because they sent texts to persons they knew or should have known were driving. Kubert v. Best, 75 A.3d 1214 (2013) and Gallatin v, Gargiulo, #10401 of 2015, Lawrence County, PA.

At some point, auto manufacturers and phone/electronics suppliers may choose or be forced to render texting while driving impossible. Until such a time, the trend against texting while driving continues.

Uninsured Motorist Coverage: Making Smart People Feel Dumb

07.28.2017

I have met smart, sophisticated “business” people whose eyes glass over when they try to explain their understanding of “UM” coverage. The picture becomes murkier when discussing “economic-only UM,” a form of UM coverage many people purchase without even knowing it. Through many years and conversations, I have come to conclude that there is a general fogginess that obscures this entire subject with many, if not most, people. This blog is an effort to improve understanding on the subject.

What is “UM” Coverage?

“UM” signifies “uninsured motorist” insurance coverage, but is more properly described as “uninsured/underinsured” motorist coverage. A person, family, business, or group purchases UM coverage to respond to damages caused in an accident by someone who has either no insurance or not enough to cover the loss. You purchase UM insurance to protect yourself or those connected to you. Without UM, you are gambling that the person who caused the accident (the “tortfeasor”) will have insurance coverage, and enough coverage, to respond to the injuries and damages they have caused.

Why UM?

This question is simply answered in a two-part response:

#1- The roads are dangerous–

Unless you are a crop duster or an undercover agent, the most dangerous thing you will likely do on any given day is to drive on a public road, even more so in the age of “smartphones” and distracted-driving.

#2- Many drivers lack sufficient liability coverage-

An unhealthy portion of drivers have either no insurance on insufficient insurance coverage to address an accident involving severe injuries or damages. The State of Louisiana requires motorists to obtain at least the minimum insurance of $15,000 “per person,” $30,000 “per accident,” and $25,000 to address property damage. If you do not purchase UM, you are trusting that these limits will be enough, as they might be in a minor accident. But what if the injuries are severe or you have multiple passengers in your car, van, or suburban?

Often, the same people who reject UM, will buy “collision” coverage on their car to make sure they are not left paying for a car note after the car is destroyed in an accident. In this limited way, you can think of UM insurance as collision coverage on you, your family, passengers, or employees.

While perfect statistics are not available, many drivers on the road have no insurance. Frequently, drivers will obtain minimum limits insurance through a “premium finance” arrangement, but will have stopped paying the premiums (thereby losing coverage) by the time of an accident.

What is “Economic-Only” UM?

In Louisiana, UM coverage will be afforded to you unless you “waive” the coverage under La. R.S. 22:1295. Louisiana residents are presented with a form that allows them to waive or select UM coverage. They are also allowed to select “economic-only” UM. People often choose this option because it is cheaper, but economic-only UM coverage will only pay for economic damages such as lost wages, medical bills, funeral costs, and other monetary damages. Economic-only UM will not pay money to compensate for pain and suffering/mental anguish, scarring and disfigurement, or other non-economic damages.

FAQS

Can UM protect me from a hit-and-run driver? Yes.

What if another driver’s negligence caused the accident, but there was no physical contact with that driver’s vehicle and they fled? In this scenario, UM may be available under La. R.S. 22:1295(1)(f); however, you will need to identify an “independent and disinterested witness” to establish the actions of the unidentified driver.

Will UM protect me if I am at fault in an accident? No. The law would consider that a “moral hazard” and invite unscrupulous individuals to cause an accident in hopes of recovering under the policy they purchased.

Will UM protect me if I am a pedestrian? It may, depending upon the terms of your insurance policy.

What if an object falls from a vehicle and causes an accident? UM may be available in this circumstance. The ultimate answer may depend upon whether the “falling object” had come to rest before the accident. Rener v. State Farm Mut. Auto. Ins. Co., 99-1703 (La.App. 3 Cir. 4/05/2000), 759 So.2d 214, 215.

CONCLUSION

Rational people may decide to reject UM to save money; and this decision may be the right one if they have health insurance, short-term disability, long-term disability, or others such protections. However, people often make such decisions with less than full information. Hopefully, you will make the smart choice.

When “Drone” Used to be a Boring Word

03.13.2017

Webster’s top two definitions of the word “drone” are as follows:

1: A stingless male bee (as of the honeybee) that has the role of mating with the queen and does not gather nectar or pollen.

2: one that lives on the labors of others: parasite

While bees and parasites have their allure, Webster’s third definition of the word “drone” is the one with current intrigue.

According to Webster’s, a drone is also “an unmanned aircraft or ship guided by remote control or onboard computers.” Drones began as play things; but are now poised to revolutionize industry, retail, agriculture, journalism, art, and law at an ever-increasing pace.

Currently, drones are regulated by the Federal Aviation Administration which has for decades regulated flight by planes and helicopters; but not everyone can own an airplane or helicopter. Everyone can own a drone and many soon will.

The soon-to-be pervasive use of drones will stretch at the fabric of criminal and civil law and raises intriguing questions with hazy answers. For example,

1: Without probable case, can the government park a drone over a house or building, or even a crime-ridden city block, and monitor for criminal activity with sensors that easily peer through walls?

2: Does one have a reasonable expectation of privacy within a fenced-in back yard?

3: Is following a personal injury plaintiff via drone considered stalking?

4: Can a business fly a drone over a competitor’s work yard to observe it processes without recourse?

5: Is it legal to use technology (which is now available) to disrupt or even crash drones flying overhead? Would that be a tort?

In an upcoming Keogh Cox blog, we will advise of pending changes to the law that may begin to answer some of these questions. For now, we will observe that the word “drone” is no longer a boring word.

Umm, Should I Buy UM?

03.21.2016

It’s a question you will have to answer if you purchase automobile liability insurance in Louisiana. While the question may appear simple, many people, even sophisticated people, do not fully understand the purpose of uninsured motorist coverage.

Uninsured motorist coverage (or “UM”) is a form of insurance that can be purchased to protect you, your family, your passengers and/or your workers in the event they are injured in an automobile accident when the at-fault driver is uninsured. Your auto liability policy will not cover your bodily injuries, lost wages and other damages caused by the fault of another.