Author: Keogh Cox

Court Finds Real Estate Agents Are Not Required to Research the Truthfulness of Their Client’s Representations

02.05.2026

In Smith v. Grantham, homebuyers sued the sellers for alleged failure to disclose prior flooding of the home. The buyers also sued the sellers’ real estate agent for negligent misrepresentation, arguing the realtor knew or should have known of a prior history of flooding. The plaintiff referenced the previous sellers’ property disclosure documents located in the MLS listing database, which disclosed a prior flooding incident. However, the property disclosure document that the realtor received from her clients denied any prior flooding of the property or structure.

The Court of Appeal affirmed summary judgment in favor of the sellers’ agent, noting that her clients represented in their property disclosure document that the property had never flooded, and she had no actual knowledge contradicting their representation. The Court stated that under La. R.S. 9:3894(B), a real estate agent is relieved of liability for providing false information furnished by her client if she did not have actual knowledge that the information was incorrect. The court held that imposing a higher duty on a real estate agent would improperly “create a situation in which the agent had to independently verify information before conveying it to the buyer.”

Reference:

Smith v. Grantham, 93-0881 (La. App. 1 Cir. 9/4/24), 394 So.3d 316.

Louisiana Supreme Court Revisits How General Damage Awards Are Reviewed on Appeal

02.19.2025

In Barber Brothers Contracting Company, LLC v. Capitol City Produce Company, LLC, the Louisiana Supreme Court re-examined how Louisiana courts should review general damage awards. The Court noted its decision also was intended to clarify its prior ruling in in Pete v. Boland Marine & Mfg. Co., which addressed the same issue. To review our prior analysis of the Court’s holding in Pete, click here.

Traditionally, Louisiana has required a two-step analysis for appellate review of a lower court’s damage awards. First, the appellate court must determine whether the trier of fact “abused its discretion” in assessing damages. Courts generally found a damage award abused discretion if it “shocked the conscience,” a standard critics argued was too subjective. Second, and only if the award “shocked the conscience,” courts could consider prior awards to establish the highest or lowest reasonable award.

In Pete, the Court held that courts of appeal should compare verdicts to general damage awards in similar cases during the first step of analysis to determine whether a trial court abused its discretion. This approach suggested general damage awards should not be solely based on the subjective findings of the jury but should be grounded in objective comparisons to other cases. It was thought this also served the purpose of maintaining consistency and reasonableness of damage awards. The Pete decision was seen by many as an attempt to address Louisiana’s trend of rising verdicts, which critics argued were contributing to higher insurance premiums in the state.

However, in Barber Bros., the Supreme Court revisited these issues, when it examined a jury verdict that awarded the plaintiff $10.75 million in general damages, $2.5 million to his wife for loss of consortium, and $1.5 million to each of their two children. The jury found the plaintiff sustained extensive physical injuries and a traumatic brain injury, which significantly impacted his personality, lifestyle, and self-image.

Citing Pete, the Louisiana Supreme Court initially reduced the awards to $5 million for the plaintiff, $400,000 for his wife, and $100,000 for each child. However, upon rehearing, the Court reinstated the original general damages award. Citing Pete again, the court clarified how damage awards should be reviewed on appeal as follows: (1) courts should determine whether abuse of discretion occurred by examining the particular facts and circumstances of the case, to include a “consideration of prior awards in similar cases,” and (2) if abuse of discretion is found, “the court is to then also consider those prior awards to determine ‘the highest or lowest point which is reasonably within that discretion.’”

The Court clarified that the consideration of prior awards should be balanced with an examination of the unique facts and circumstances of each case. Considering the facts of Barber Bros., the Court held it did not adequately account for the effects of the plaintiff’s injuries upon initial hearing. While the jury award was “on the high end of the range of reasonable awards,” the court found it was not disproportionate to prior awards and “bore a reasonable relationship” to the evidence presented at trial.  Thus, the award did not “shock the conscience” and should not have been adjusted following the initial hearing.

The Barber Bros. decision may be limited to the facts presented in that case. However, the ruling appears to suggest that prior verdicts are only a factor to be weighed against a case’s facts to assess whether a trial court abused its discretion with a general damage award that “shocks the conscience.” While the court did not overturn Pete, the Barber Bros. case appears to re-open the door for damage awards to be based upon more subjective assessments of the jury and not the more objective standards the Pete decision initially appeared to create. It remains to be seen how much weight prior decisions will carry when courts address these issues moving forward.

References:

Barber Brothers Contracting Company, LLC v. Capitol City Produce Company, LLC, 23-788 (La. 12/19/24), 397 So. 3d 404.

Pete v. Boland Marine & Mfg. Co., 23-170 (La. 10/20/23), 379 So. 3d 636, reh’g denied, 23-170 (La. 12/7/23), 374 So. 3d 135.

UM Claim in Amended Petition Prescribed When Original Petition Did Not Give Sufficient Notice of Claim

02.11.2025

In Madden v. Fairburn, the plaintiff amended her petition to assert a UM claim against an insurer based upon the alleged negligence of a new defendant not named in the original petition. The amended petition asserted a new theory of liability but sought the same recovery under the same UM policy.

The issue presented to the Louisiana Court of Appeal for the First Circuit was whether the original petition interrupted prescription for the claim brought against the UM insurer. Because the insurer did not receive notice in the original petition that it could be liable for damages based upon the new defendant’s fault, the court found prescription could not be interrupted.

Madden was a passenger in a vehicle driven by John Seibert that collided with Steven Ray Fairburn. Madden timely filed suit against Fairburn and Capitol Specialty Insurance Corporation (Capitol Specialty), claiming uninsured motorist (UM) coverage under its policy. The Trial Court later dismissed Madden’s claims against Fairburn. While the appeal of that ruling was pending, and over five years after the accident, Madden amended her petition to allege Seibert was at fault and sought the same UM coverage any damages he caused. Capitol Specialty argued the claim brought against it in the amended petition had prescribed.

At the time of the accident, claims for torts/delictual actions had a one-year prescriptive period that commenced from the date of the injury or damage sustained* Claims to recover damages under a UM policy are subject to a prescription period of two years.^ Madden argued her original claim against Capitol Specialty interrupted prescription because her amended claim arose from the same accident and sought to recover damages under the same UM policy.

La. C.C. art. 3462 states that prescription is interrupted when an obligee (Madden) commences an action against an obligor (Capitol Specialty) in a court of competent jurisdiction and venue. However, in Kling v. Hebert, the Louisiana Supreme Court has clarified that the “essence of interruption of prescription by suit is notice to the defendant of the legal proceedings based on the claim involved.” The Kling judges emphasized that prescription serves to protect defendants from unexpected liability years after an event, particularly when a new legal theory or a different alleged tortfeasor is introduced.

The court also considered Trahan v. Liberty Mutual Insurance Company, which held that a claim against an insurer based on one party’s negligence does not interrupt prescription for a later claim against the same insurer based on another party’s negligence. Because Madden’s original suit was based on Fairburn’s negligence, Capitol Specialty did not receive timely notice that she would later seek UM coverage based on Seibert’s alleged fault. Thus, the appellate court ruled in favor of the insurer, affirming the prescription of the plaintiff’s claims.

References:

Madden v. Fairburn, 2024-0513 (La. App. 1 Cir. 12/27/24), — So.3d —, 2024 WL 5232995.

Kling v. Hebert, 23- 00257, p. 4 (La. 1/ 26/24), 378 So. 3d 54.

Trahan v. Liberty Mutual Insurance Company, 314 So. 2d 350 (La. 1975).

*La. C.C. art. 3492. See As of July 1, 2024, delictual actions are subject to a two-year liberative prescriptive period, applying to delictual actions that arose or after the effective date.

^ La. R.S. 9:5629.

Court holds real estate agents representing sellers are not required to investigate the seller’s representations about the property.

08.26.2024

In Casbon v. K.W.E.J., LLC d/b/a Keller Williams Realty, et al, the buyer of a home sued her real estate agent for the seller’s alleged misrepresentation of the home’s living area square footage. The facts of this case are unusual because the seller’s representation was based on a prior appraisal report, and accurately reflected the home’s square footage as stated in that report. Also, the buyer financed the purchase, and her lending institution appraised the home again, which resulted in a nearly identical living area square footage calculation.

The plaintiff sought to refinance about a year after buying the home. She used a different lending institution, which retained a different appraiser. The house included a sunroom which had been converted from a porch. The appraiser chose to classify the sunroom as something other than standard living area. As a result, the appraisal report stated the home’s living area square footage was several hundred square feet smaller than the prior appraisal reports, and the plaintiff was not approved for the refinance. The plaintiff sued her real estate agent on the ground that the agent failed to verify the living area square footage before plaintiff purchased the home.

The defendant agent filed summary judgment, arguing she did not owe the plaintiff a duty to investigate or confirm the home’s square footage. The trial court denied the defendant’s motion, finding an issue of fact regarding the classification of the sunroom, specifically “whether it is living area or not living area.”

Reversing the Trial Court, the Court of Appeal granted summary judgment in favor of the real estate agent. The Court noted prior caselaw establishing that agents are not required to confirm square footage as represented by a property owner by measuring or otherwise researching the accuracy of the seller’s representation. The Court also rejected the plaintiff’s contention that the issue here was how the sunroom was classified rather than how the room was measured. To the Court, this was a “distinction without a difference.”

The Court applied the standard rule that real estate agents only are required to disclose defects which are known or should be known to them. Additionally, the purchase agreement expressly put the obligation to verify the seller’s representation of living area on the buyer. Thus, the plaintiff’s claims were dismissed.

Case reference: Casbon v. K.W.E.J, LLC, et al, 23-321 (La. App. 5 Cir. 10/4/23), 375 So.3d 524.

Louisiana Second Circuit Applies Anti-Dram Shop Statute to Grant Summary Judgment

02.05.2024

Louisiana’s “anti-dram shop” statute, La. R.S. 9:2800.1, limits the ability of a claimant to hold a provider of alcohol liable for damages resulting from the acts of an intoxicated patron. Subsection A of the statute declares that the consumption of intoxicating beverages, rather than the sale, serving, or providing of those beverages, is the proximate cause of any injury or property damage that the consumer may cause. Under Subsection B, anyone who lawfully serves alcohol to a person of legal age is provided immunity for any injury caused by the consumer that occurs “off the premises.” This immunity extends to sellers of alcohol and social hosts.

The Louisiana Second Circuit recently examined these provisions of this statute in Rugg v. Horseshoe Entertainment, et. al. The plaintiff alleged she was injured when an intoxicated patron (John Doe) fell onto her at a hotel bar. She alleged that the defendant, which operated a casino bar, was liable because it ignored multiple complaints about John Doe’s drunken state prior to the incident and failed to escort him out.

The defendant moved for summary judgment, arguing that Louisiana’s anti-dram shop statute prevented any finding of liability on its part. In opposing the summary judgment, the plaintiff argued that the statute did not rule out liability because the injury occurred on the premises.

The Second Circuit determined that the immunity afforded in Subsection B of the statute was not available because, as the plaintiff argued, the injury occurred on the premises. However, Subsection A of the statute, which declares the consumption, not the serving, of alcohol is the proximate cause of injury inflicted by an intoxicated person, still applied.

Under these circumstances, the Court held it had to determine whether the bar owner violated general negligence principles. In conducting this analysis, the court was required to focus on two issues: 1) whether the alcohol provider acted reasonably under the circumstances, and 2) whether the alcohol provider took any “affirmative acts” that increased the chances of the incident.

The Court of Appeal granted summary judgment under the facts of the case. The court found no evidence in the record that Horseshoe acted unreasonably leading up to the incident. Testimony indicated that the complaints about John Doe’s behavior arose after the incident occurred, not before. Similarly, the court reasoned that the failure to escort John Doe out of the bar was not an “affirmative act” that increased the risk of the incident because the record did not indicate Horseshoe had any reason to do so prior to the injury.

In conclusion, the court noted “that in no case will the serving of alcohol be held as the proximate cause of a tort in which alcohol was involved.” Therefore, the plaintiff had to show Horseshoe did something more to cause her injury than just serve John Doe alcohol.  Because the plaintiff failed to do so, summary judgment was granted. Under these facts, Louisiana’s dram shop statute still applied to protect the defendant provider of alcohol, even though the injury occurred on its premises and the statutory immunity was not available.

References:

La. R.S. 9:2800.1

Mechelle Rugg v. Horseshoe Entertainment, et al., 55,239 (La. App. 2 Cir. 1/10/24), 2024 WL 104143.

Summary Judgment Affirmed Because Alleged Defect was Open and Obvious

01.10.2024

The First Circuit Court of Appeals recently affirmed summary judgment in Rainey v. Knight, on grounds that the alleged defect was open and obvious. Its ruling shows that the open and obvious defense remains viable and supports summary judgment when reasonable minds can only agree that a condition is not unreasonably dangerous.

In Rainey, the plaintiff fell and was injured while leaving a veterinary hospital. Evidence showed the plaintiff frequented the premises for nearly twenty years before the incident. The plaintiff attempted to descend four steps from the hospital’s elevated porch but stepped off the porch and fell twenty-one inches to the ground. Rainey filed suit for his injuries, alleging the defendant failed to maintain its property. Specifically, he claimed that the elevated porch lacked a railing, which created a defect.

The defendant filed a motion for summary judgment and argued (1) the front porch ledge was an open and obvious defect and (2) the plaintiff could not show the defendant had knowledge of the allegedly dangerous condition of the porch. The defendant also produced evidence to show it had no prior problems with anyone falling from the porch.

The plaintiff opposed the defendant’s motion, but his opposition was filed one day late. Because the opposition was not filed timely, the appellate court noted it was unable to consider the plaintiff’s opposition and exhibits under the Louisiana Supreme Court’s ruling in Auricchio v. Harriston.

On appeal, the court focused its analysis on whether the defendant breached a duty owed to the plaintiff, applying Louisiana’s risk/utility balancing test to consider the utility of the condition, the likelihood and magnitude of harm, the cost of preventing the harm, and the nature of the plaintiff’s activities.

In examination of the likelihood and the magnitude of the harm, the appellate court noted that summary judgment may be granted if a condition is open and obvious. If reasonable minds could only agree that the condition was not unreasonably dangerous, that condition would be open and obvious, and the plaintiff would be unable to establish the defendant breached any duty owed to the plaintiff. 

Considering the evidence before the court, the First Circuit found a reasonable person would have found the lack of a railing on the porch open and obvious and would have avoided the area where plaintiff fell when exiting the building. Importantly, the court found the lack of a railing was apparent to all who encountered it such that it was open and obvious.

The Rainey court also noted that the lack of reported complaints about the alleged condition indicated a low risk of harm. The height of the porch also showed the likelihood and magnitude of the plaintiff’s harm was minimal.  In light of this evidence, the lack of railing around the entire porch was not an unreasonably dangerous condition. No reasonable factfinder could find that the defendant breached any duty owed to the plaintiff, and summary judgment was appropriately granted.

References:

Rainey v. Knight, 2023-0133 (La. App. 1 Cir. 11/3/23) (La. App. 1st Cir. Nov. 3, 2023)

Auricchio v. Harriston, 2020-01167 (La. 10/10/21), 332 So.3d 660

Court Examines Whether AI Images May Receive Copyright Protection

11.06.2023

Under the Copyright Act of 1976, copyright protection “subsists in any original work of authorship fixed in any tangible medium of expression, now know or later developed, from which they can be perceived or otherwise communicated, either directly or with the aid of a machine or device.”^ The Act goes on to state that works that may receive copyright protection are not limited to script or printed material but may include “any physical rendering of the fruits of creative intellectual or aesthetic labor.”^

Throughout its history, and despite the Act’s somewhat archaic language, copyright law has proven to be adaptable enough to cover all manner of works created with new and emerging technologies. However, the traditional understanding of copyright law is being challenged by the advent of artificial intelligence (AI) and its ability to produce new creations.

The US District Court for the District of Columbia. recently ruled that works created autonomously by AI are not susceptible of copyright protection. In Thaler v. Perlmutter, Stephen Thaler appealed an administrative decision by the United States Copyright office denying his application to register the copyright for an image generated by an AI program he developed. The court’s decision examined the meaning of what it means to be an “author,” as defined by the Copyright Act and held that only works of human authorship are susceptible of copyright protection under U.S. law.*

The court compared the issue to a case from 1884 that examined whether copyright protection could extend to the then-cutting edge field of photography. In Burrow-Giles Lithographic Co. v. Sarony, it was argued that a photograph should not qualify as a protected work because it was created by a camera. The US Supreme Court disagreed and held that while a camera may generate a “mechanical reproduction” of a scene, it does so only after the photographer develops a “mental conception” of the photograph^^. The court reasoned that the technology used to create the work was immaterial so long as there was human involvement in and creative control over the work.

In a later case, the US Ninth Circuit examined a case in which a crested macaque monkey took a photograph of himself, and various parties attempted to file suit on the monkey’s behalf to confirm copyright protection for the monkey’s photograph.** While the case was decided on standing grounds, the court considered whom the Copyright Act was designed to protect and concluded that the act was designed solely to protect humans.

The Thaler court identified no authority supporting copyright protection in any work originating from a non-human.* However, the issue presented in Thaler was limited to copyright protections for a work created solely by an AI, absent any human input. Therefore, it remains to be seen how courts will address issues related to copyright protection for images that blend human and AI origins.

We stand in a new frontier in both technology and copyright law. As artists and developers increasingly use AI as a tool, the increased distance between human creativity and the final product will present challenging questions regarding how much human input is necessary to afford these creations protection under copyright law.*

References:

^17 U.S.C § 102(a)

* Thaler v. Perlmutter, No. 22-CV-01564-BAH, R. Doc. 24 (Filed 08/18/23).

^^ Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 59 (1884).

** Naruto v. Slater, 888 F.3d 418 (9th Cir. 2018).

Court Examines Requirements of Financing Provision in Purchase Agreement for  Residential Property

10.02.2023

Purchase agreements for residential property routinely include financing provisions that require the buyer to show that he has applied for a loan. The Louisiana Fourth Circuit Court of Appeals recently analyzed such a provision in Abdelqader v. Ramos. The plaintiff in Abdelqader entered into a purchase agreement with the defendant for an unimproved lot on which the plaintiff planned to build his home.

The financing provision in the purchase agreement required the buyer to provide the seller with (1) written documentation; (2) from a lender; (3) that a loan application has been made; and (4) that Buyer authorized lender to proceed with the loan approval process. The provision also required that this documentation be provided to the seller “within 3 calendar days after” the date of Agreement.

After the parties executed the purchase agreement, various disputes led the seller to terminate the agreement and re-list the property for sale. The plaintiff sued for stipulated damages and attorney’s fees, which were allowed under the contract if either party breached the purchase agreement.

The buyer introduced evidence that his agent sent the seller’s broker a USDA pre-approval letter and certificate of eligibility for financing under a USDA Rural Development Program. These documents were sent to the seller’s agent before the parties executed the purchasing agreement. Generally, such pre-approval letters show the buyer appears qualified for a loan in the amount of the purchase. They do not confirm a loan was applied for or approved by the lender for the property to be purchased.

The seller argued that the pre-approval letter furnished by the buyer before the parties entered into the purchase agreement was not an actual loan application and did not verify that a loan application for the purchase had been made. The seller also argued that the buyer did not comply with the terms of the financing provision because he did not provide the subject documents within the three-day window after the purchase agreement was signed. The court rejected these arguments. The Court found the agreement did not require the buyer to produce his loan application to the seller or that the loan application be dated within three days of the Agreement. The buyer’s lender produced the pre-approval letter and the certificate of eligibility in response to the buyer’s application for financing and pursuant to the buyer’s instruction to proceed with the loan process. Though its ruling may be limited to the facts of this case, the Court found that the buyer complied with the terms of the financing agreement.

It appears the court viewed the seller’s claim that the seller did not comply with the financing provision of the purchasing agreement as after the fact justification for the seller unilaterally terminating the purchase agreement for some unrelated dispute. The Court found that the seller breached the purchase agreement and awarded the buyer stipulated damages of 10% of the contract price and attorney’s fees. This ruling also serves as a reminder that purchase agreements for residential properties are contracts, and breaches of these contracts can have consequences if terminated on a whim.

Reference:

Abdelqader v. Ramos, 2022-0305 (La. App. 4 Cir. 11/30/22), 353 So.3d 750.

When Buying a House with a Flooding History, Let the Buyer Beware

10.26.2022

In Dunlap v. Empire Trading Group, LLC, the buyers of a home sued the seller and the seller’s real estate agent for fraud after the home flooded three times in the first year after they bought the home. The seller was a home-flipper who disclosed two prior flooding incidents, both of which occurred during the ten months the seller owned the home.

However, the plaintiffs later discovered the home had a substantial flooding history when they requested a flood insurance quote from the National Flood Insurance Program. The quote included a report that identified eighteen incidents of flooding and flood insurance claims at the property over the ten years before the plaintiffs purchased their home.

The plaintiffs argued the seller’s agent committed fraud because she concealed her knowledge of previous flood claims. The seller’s agent moved for summary judgment, arguing that the plaintiffs could not prove that she knew about any of the prior undisclosed flooding incidents. The plaintiffs had no direct evidence to dispute the agent’s defense.

Instead, they argued that circumstantial evidence was sufficient to defeat the motion. They claimed that because the seller had a flood policy on the home, it also would have received the same flood claim history the plaintiffs received in connection with the same federal program. However, the plaintiffs had no evidence to show the seller, or anyone affiliated with the agent’s firm, actually received the flood claim history as they alleged.

Based upon these facts, the court agreed that without evidence that the seller’s agent actually received the flood claim history or otherwise had knowledge of it, the plaintiffs could not carry their burden of proving misrepresentation by the agent.

Case Reference: Dunlap v. Empire Trading Group, LLC, 2021-0180 (La. App. 1 Cir. 10/18/21), 331 So. 3d 932.

UM Waiver Completed by Insured’s Assistant Found Invalid

08.01.2022

Uninsured/underinsured motorist coverage (“UM coverage”) is included in all automobile liability policies by Louisiana law unless the insured “rejects [UM] coverage, selects lower limits, or selects economic only coverage.”  What constitutes an adequate rejection of UM coverage has been the crux of countless lawsuits across the state. Recently, in Havard v. Jeanlouis, et al, 2021-C-00810 (La. 6/29/22), the Louisiana Supreme Court examined the validity of a corporate representative’s signature in the context of execution of a UM waiver form. Louisiana courts have found that without a valid signature, UM coverage generally may not be waived.  

The Havard court recognized that a corporation cannot “sign” its own name, and that an authorized representative must act on its behalf. Under the facts of this case, an administrative assistant attempted to execute a UM waiver form at the corporate representative’s direction with a stamp of the representative’s signature. The plaintiff argued that the use of the stamp did not meet the requirements for proper execution of the UM waiver form at issue. 

Considering these facts, the court noted that Louisiana law of mandate provides that “when the law prescribes a certain form for an act, a mandate authorizing the act must be in that form.” The court continued: “Accordingly, where one individual signs a UM form on behalf of another individual and authority is not conferred by law, our Civil Code requires this authority be in writing.”

While the corporate representative in Havard verbally instructed his administrative assistant to complete the waiver with his signature stamp, no written mandate existed between the representative and the assistant to confirm this authority. Absent the written mandate, the court disregarded the express intention of the corporate representative and held the form invalid.

The court recognized the impracticality of its holding. However, it also commented “Concerns over the practical impact within the insurance industry in scrutinizing stamped signed UM forms are unavailing. Inconvenience is not absurdity. The insurer has the authority, opportunity, and responsibility to assure the UM form is completed properly. … Practical considerations regarding increased due diligence requirements are matters of policy best directed to the legislature.”

Cases involving UM waiver forms are fact-sensitive. Havard involved unique facts where the company’s authorized agent did not sign the UM waiver form personally. While Havard may be limited to its facts, it reminds that proper execution of a UM waiver form is necessary for UM coverage to be properly waived.

Louisiana Supreme Court Provides Updated Guidance on Execution of UM Waiver Forms

Louisiana Court Considers Defamation in Context of “New Media”

07.21.2022

The country was recently captivated by the Johnny Depp and Amber Heard trial, arguably the most high-profile defamation case in recent history. Following a colorful trial, a Virginia jury found that a 2018 Washington Post op-ed by Heard defamed Depp. As a result, Depp was awarded $10 million in compensatory damages and $350,000 in punitive damages. At the same time, the jury awarded Heard $2 million dollars in compensatory damages for defamatory statements made by one of Depp’s attorneys, ostensibly on Depp’s behalf. The trial had millions of people asking a number of different questions, including the basic question “What is defamation?” Recent Louisiana cases such as Yanong v. Coleman, 53-933 (La. App. 2 Cir. 5/17/21), 317 So. 3d 905, 911, reh’g denied (June 24, 2021), writ denied, 21-01107 (La. 11/10/21), 326 So. 3d 1249 help to provide an answer.

As explained in Yanong, a party claiming defamation in Louisiana must prove four elements:

(1) a false and defamatory statement concerning another;

(2) an unprivileged publication to a third party;

(3) fault (negligence or greater) on the part of the publisher; and

(4) resulting injuries.

**To prove the third element of “fault,” malice must be shown.

The Yanong court explained that claims of defamation must be balanced against the right to free speech found in the state and federal Constitutions.

Louisiana recognizes two categories of defamatory words: (1) words that are defamatory per se and (2) words that are defamatory in meaning. Id. at 9. Words that are defamatory per se “expressly or implicitly accuse another of criminal conduct, or which by their very nature tend to injure one’s personal or professional reputation, without considering extrinsic facts or circumstances.” Id. When words are deemed defamatory per se, there is a presumption of fault on the part of the defendant that may be rebutted by showing that the statement was true or protected by a privilege such as fair commentary on a matter of public concern. Id. Words that are defamatory in meaning are words that, when taken in context, “a listener could have reasonably understood the communication to have been intended in a defamatory sense.” Id. at 9-10. Proof of words that are defamatory in meaning creates no presumption of fault.

Louisiana defamation suits frequently arise in the employment context. However, defamation claims in the employment context face obstacles. Such cases sometimes fail on the second element, publication to a third party, because “inter-corporate communications…[are] merely a communication of the corporation itself,” meaning an employer may need to communicate the alleged defamatory statement to an outside third party outside for it to be considered “published to a third party.” Cook v. Par. Of Jefferson, 2022 WL 19350, at *11 (E.D. La. Jan. 3, 2022). However, defamation claims do not always fail on the publication element and they are not limited to “A-list” celebrities or multi-million dollar cases.

In Yanong, the Louisiana Second Circuit affirmed a $15,000 compensatory damage award to a plaintiff who successfully proved that statements made by defendants on a podcast show and on Facebook were defamation per se. Yanong, p. 8. Under the facts of the case, the defendants on a live “podcast” expressed on multiple occasions their belief that the plaintiff was a victim of sex-trafficking and that she was purchased by her much-older husband. Id. at 1. The defendant(s) also labeled the plaintiff’s marriage as “legalized prostitution,” and stated that they had contacted foreign authorities to inform them the plaintiff was a victim of “trafficking.” Id. at 2. The statements continued onto social media, where one defendant insinuated the plaintiff’s husband purchased her from a catalogue or an internet matchmaking site. Id.

On appeal, the defendants argued the plaintiff did not prove the publication element of her case. Id. at 5. The appellate court found this contention meritless. The defendants “were fully aware they were engaging” in communications with third parties, they were recoding a podcast, were “shown onscreen on all the broadcasts,” and made comments that showed “they were aware that they had an audience and third parties were engaged in the interactive broadcast.” Id. at 17-19. Thus, the Second Circuit found Plaintiff met her burden on the publication element and affirmed the trial court’s judgment. Id. at. 20.

While the publication element can present a hurdle in some cases, the publication need not be in a national media source as featured in the Depp-Heard case. The Yanong decision reminds that statements made on social media and podcasts can meet the required standard.

A Decade Old Article Finds New Life: Televised Testimony – Keogh Cox.

Hurricane Ida: Louisiana Department of Insurance Implements Mediation Program

12.10.2021

In the wake of Hurricane Ida, the Louisiana Department of Insurance (LDI) implemented a mediation program to assist policy holders with disputed insurance claims. Effective October 18, 2021, the program was implemented to assist in the prompt and reasonable settlement of disputed insurance claims.

The program is open to all authorized property and casualty insurers, as well as all surplus line insurers for personal lines residential insurance claims up to $50,000.00. Both the insurer or policyholder can submit a written request for mediation; the opposing party is free to accept or deny the invitation. If initially denied, the parties are free to later opt to participate.

If both parties agree to mediation, a mediator will be assigned and within 30 days a mediation will be scheduled at a local Mediation & Arbitration Professional Systems (MAPS) or Perry Dampf Dispute Solutions location in the Baton Rouge or New Orleans area. The initial mediation session allows for 90-minutes; however, parties are allowed to continue the mediation beyond the initial session at the agreement of the mediator.

The mediation program is free to all policyholders and a $600 fee is assessed to the insurer for the first 90-minute mediation session. If the parties and mediator agree to continue the mediation beyond the initial 90-minute session, additional fees will be assessed for the mediator’s services. The parties are to determine among themselves who will be responsible for the additional costs.  

The parties are required to provide all relevant documentation to the assigned mediator and a detailed explanation of the claim and any obstacles to resolution. The policyholder can represent themselves or through counsel. They are even encouraged to bring knowledgeable individuals such as adjusters, appraisers, or contractors.

If a resolution is reached, even just partial, both parties will reduce the agreement to writing and sign the agreement. The insurer will be required to furnish any required payment to the policyholder within ten (10) days of signing the agreement. If the parties only reach a partial agreement, they will be permitted to continue to use the mediation services and schedule future mediation dates.

At this time, the program is scheduled to continue through June 30, 2022.