Category: Attorney

Technical Difficulties: Incomplete “Fax Filed” Petition Interrupts Prescription

11.12.2021

Tim Berners-Lee, computer scientist and founder of the World Wide Web Consortium, famously stated, “We can’t blame the technology when we make mistakes.” One Louisiana appellate court disagrees.

In Worm v. The Berry Barn, LLC, 20-1086 (La. App. 1 Cir. 10/21/21), the Louisiana First Circuit utilized a broad interpretation of Louisiana’s fax-filing statute, La. R.S. 13:850. In Worm, the plaintiff was injured in an accident on October 7, 2018. Plaintiff’s counsel fax-filed the Petition to the Tangipahoa Parish Clerk of Court’s office on Friday, October 4, 2019. The next Monday, the Clerk sent a “Fax Filing Confirmation” to Plaintiff’s counsel. Plaintiff’s counsel filed the original Petition with the Clerk of Court on October 11, 2019.

Defendants filed an exception of prescription, arguing that the faxed Petition did not interrupt prescription because Plaintiff’s original Petition was not “identical” to the faxed Petition, as required by La. R.S. 13:850. Defendants correctly pointed out that portions of the first and second pages of the fax filed Petition were “cut off … thereby eliminating some of the substance of plaintiff’s allegations.” Plaintiff opposed the exception, arguing that any error in the receipt or printing of the fax filed petition was attributable to the Clerk of Court and/or its fax machine.

The trial court recognized that the difference between the fax filed Petition and the original Petition was “ultimately the result of, we think a machine error.” Nevertheless, the court sustained defendants’ exception and dismissed plaintiff’s claims as prescribed. Plaintiff appealed.

The First Circuit Court of Appeals noted that Louisiana’s prescription statutes are to be strictly construed against prescription and in favor of the obligation sought to be extinguished. The court held, “There is no dispute that the physical copies contained in the record show that the fax filed petition and the original petition are different. However, the differences are due to missing as opposed to substantively different or altered portions of the petition. … As reasoned by the trial court, the apparent error in receipt and printing of plaintiff’s fax filed petition by the Clerk of Court was attributable to ‘machine error …’” The First Circuit held that the fax filed Petition interrupted prescription and reversed the decision of the trial court.

While the explicit language of La. R.S. 13:850 requires that a fax filed pleading be “identical” to the original pleading, the First Circuit’s decision in Worm suggests that the statute has at least some flexibility. Although the plaintiff in Worm was able to “blame the technology,” the impact of the decision may ultimately be limited to its specific facts where the “machine error” was caused by the Clerk’s system.

“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.

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 Andrew “Drew” Blanchfield whose practice also includes professional liability defense.

La. Supreme Court Rules 10-year Contract Prescription Applies to 1st Party Claims Against Insurer

03.23.2020

In a first-party action obtained by assignment for excess liability against an insurer, the Louisiana Supreme Court in Smith v. Citadel Insurance,19-00052 (La. 10/22/19) ruled that the claim against the carrier is subject to the 10-year contract prescription period under La. law, stating:

“For the above reasons, we hold an insurer’s duty of good faith owed to its insured under La. R.S. 22:1973 does not exist separate and apart from an insurer’s contractual obligations. The duty of good faith is codified in La. R.S. 22:1973, but this duty is an outgrowth of the contractual and fiduciary relationship between the insured and the insurer, and the duty of good faith and fair dealing emanates from the contract between the parties. Thus, first-party bad faith claims against an insurer are governed by the ten-year prescriptive period set forth in La. C.C. art. 3499. Consequently, Ms. Smith’s first-party bad faith claim against GoAuto, brought pursuant to an assignment of rights from the insured, was subject to a 10-year prescriptive period and is not prescribed.”

The concurring justice noted that it was not necessary to engage in the protracted discussion concerning the duties of insurers relative to first-party claims. Nevertheless, the court offered an in-depth discussion of these duties.

THE “ATTORNEY CLIENT” PRIVILEGE”: How, When (and Why) Communications between You and Your Attorney are Protected – Part 2

10.20.2017

Part 1 of this two-part series explored the basic elements of the attorney-client privilege. Part 2 will discuss some of the restrictions to the privilege.

The privilege applies only to legal matters.

While legal advice is protected, advice that is considered “business advice” may not. Unfortunately, the line between legal and business advice is not always clear. Legal advice requires that the attorney interpret law and apply it to specific facts to do one (or both) of two things: tell the client what to do in the future or tell the client what was done right (or wrong) in the past. Business advice involves discussions about the operations of a client which are independent from legal considerations.

If the communication involves both legal advice and business advice, the general rule is that the legal advice must predominate over the business advice. See, Exxon Mobil Corp. v. Hill, 2013 WL 3293496 (E.D. La. June 28, 2013), vacated and remanded on other grounds by Exxon Mobil Corp. v. Hill (5th Cir. May 6, 2014).

The crime-fraud exception.

The privilege is also subject to the “crime fraud” exception. Communications between an attorney and client regarding either: 1) a plan or intent to commit a crime or fraud; or 2) while the crime or fraud is being committed, are not protected by the attorney-client privilege. Remember, you obtain the services of an attorney to obtain legal advice, not illegal advice. As explained by the court in State v. Menard, 02-1182 (La. App. 3 Cir. 5/7/03), 844 So. 2d 1117, the reasons for the privilege cease to operate when the legal advice refers to future wrongdoing.

Other exceptions.

The privilege also has other limitations, including the fact that it may be waived, intentionally or unintentionally, by the client. As discussed in Part 1 of this blog, the decision to include third-parties in conversations and communications (including emails) between the client and the attorney may waive the privilege. If a client sues an attorney after the relationship has terminated, the privilege is likewise waived, and the attorney can discuss privileged communications to defend himself against that suit. Similarly, if an attorney acted as a notary or witness to a document, the attorney may discuss whether a document is authentic or whether the signors were legally competent to sign. Interestingly, the privilege also does not apply to communications with a deceased client if the communications are relevant to an inheritance dispute.

The attorney client privilege offers broad protection; however, it is important to remember that this protection is not without its limits.

THE “ATTORNEY-CLIENT” PRIVILEGE: How, When (and Why) the Communications between You and Your Attorney are Protected – Part 1

10.10.2017

This blog is one of a two-part series regarding perhaps the most important aspect of the attorney-client relationship — the attorney-client privilege. So, what is it and why is the privilege so important? In short, the attorney-client privilege is a legal doctrine that protects communications between a client and his or her attorney. Unlike most other relationships, the privilege stays in place even after the relationship is terminated. The purpose of the privilege is to allow clients to have open and honest communications with their attorney. LSA-L.C.E. art. 506. However, not all communications between a client and attorney are privileged and certain requirements must be met for the privilege to attach.

-Existence of Attorney-Client Relationship. An attorney-client relationship must be in place. Louisiana law does not require that the attorney be formally retained or payment made for the privilege to attach. The privilege may apply even when the client merely discusses a legal matter with an attorney when the client reasonably believes the attorney is acting as his or her attorney.

-Confidential Communications. While the communication can take many forms (oral, written, digital, etc.) it is protected only if it was intended to be confidential, which generally means that the communication was not intended to be disclosed to others not involved in the attorney-client relationship or the legal representation. For example, if a client meets with his attorney and brings a friend along, then the meeting may not be protected by the privilege. Because the privilege is for the protection of the client, the client may choose to intentionally waive the privilege, or may do so inadvertently through their actions.

-Legal Services. The communication must be related to obtaining or facilitating the legal services offered by the attorney. The privilege has been held to apply to the employees of the attorney and sometimes experts retained to assist in the case.

When applicable, the attorney-client privilege applies not only to what was said, but also to your attorney’s observations of your mental, emotional, and physical state at the time you communicate. The privilege does not generally apply to information gathered by the attorney from other sources; however, another doctrine, the “work product” doctrine, may nevertheless protect such information.

It is important that clients understand that the privilege does not apply merely because the client chooses to involve the attorney in the communication. Generally, the privilege only applies when the communication was intended as confidential and to further the legal services offered by the attorney. In this way, the client may not be allowed to utilize the privilege where they include the attorney in a communication with a third-party that is not otherwise protected.

While the attorney-client privilege safeguards the attorney-client relationship, ensures that clients can tell their attorney the things they need to know about a case, and assists the attorney to provide the best legal help possible, it is also subject to restrictions. These restrictions are explored in Part 2 of this series.

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.

Walking Drivers: A “Sudden” Defense to Rear-end Liability

08.02.2016

A rear-end collision is a unique animal in the law. Plaintiff’s attorneys seek them out, and insurance companies fear them–sometimes for good reason. The “rear-end” accident is unique because proof of the mere fact that one vehicle strikes the rear of another creates a strong legal presumption of fault under La. R.S. 32:81. While this presumption is formidable, it may be overcome.

Can a Corporation Drive Drunk?: A Look at Employer Liability for Punitive Damages

07.05.2016

The power to punish is generally the role of the criminal courts. Civil courts concern themselves with making a plaintiff “whole.” In fact, it would be legal error for a civil court to impose recovery against a defendant as a form of punishment–with one notable exception. When “punitive damages” are allowed, a civil court may “punish” a defendant.