Category: Car Accident

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

Under Louisiana law, uninsured/underinsured insurance coverage is implied in any automobile policy of insurance, and UM coverage will be read into the policy unless it is validly rejected. This rejection of UM coverage must be “clear and unmistakable.” The Louisiana Supreme Court recently addressed the issue of what qualifies as a valid rejection of UM coverage in Baack v. McIntosh, 2021-01054 (La. 6/30/21), — So.3d —.

The Louisiana Commissioner of Insurance provides a form which must be completed to reject UM coverage. This form allows the insured to initial one of four selections regarding UM coverage: (1) UM coverage at lower limits than liability coverage; (2) economic-only coverage with same limits; (3) economic-only UM coverage at lower limits; or (4) no UM coverage. A representative of the insured must initial one of these options for that option to apply to the policy at issue. This list does not include an option to select UM coverage. Therefore, the Baack Court held that “the only way to ‘select’ UM coverage on the form is to not initial any of the provided choices.”

The insured in Baack properly rejected UM coverage through the UM form in 2002. A proper rejection of UM coverage remains valid for the life of the policy, and a new form is not required when a policy is renewed. However, the Court found that, under La. R.S. 22:1295, an insured may change its rejection of UM coverage at any time by submitting a new UM form to the insurer. 

In 2011, the insured increased its liability limits under the policy, which required completion of a new form. UM coverage again was properly rejected. Even though not legally required, the insurer sent new UM waiver forms to the insured in 2012, 2013, and 2014 when the policy was renewed. However, the insured completed each of these forms without initialing any of the four selections related to UM coverage. The insurer later issued the insurance policies without objection. The court found that the insured changed its rejection of UM coverage when it submitted the new forms in 2012, 2013, and 2014.

Because the insurer did not initial these forms when they were resubmitted, the insured “selected” UM coverage under Baack’s analysis, and UM coverage was afforded under the policy. Importantly, the Court held that, if the insurer believed the failure to make a selection on the forms was a mistake, it was the insurer’s responsibility to follow-up with the insured to make any necessary corrections. Three justices dissented and argued that the majority opinion negates other law which provides that an insured must make a “written request” to add UM on a policy where UM is rejected. UM cases are often fact-intensive and each case should therefore be assessed under their own specific facts.

Click It: The Seat Belt Defense In Louisiana

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.

.

Biomechanical Testimony: Reliability Sinks Expert Testimony

Recently, the Louisiana Supreme Court rejected biomechanical testimony due to a lack of sufficient facts or data.  In Louisiana, as elsewhere, the trial court is to serve as the “gatekeeper” in deciding the admissibility of expert testimony.

In Blair v. Coney 20-00795 (La. 4/3/20),the plaintiff sought damages for injuries caused by a rear-end collision.  The defendant offered testimony from Dr. Charles E. Bain, partial owner of Biodynamics Research Corporation.  Dr. Bain testified that the plaintiff was not subjected to acceleration and forces sufficient to cause lasting injuries.  Dr. Bain’s testimony was based on previously conducted collision tests, photographs of the accident, and inspection of two vehicles of the same make and model.

The plaintiff moved to have Dr. Bain’s testimony excluded, claiming the testimony was irrelevant, unreliable, unduly prejudicial, and failed to satisfy the requirements of the “Daubert standard” as applied through Code of Evidence art. 702.  The district court granted the plaintiff’s motion and the defendant appealed.  After ordering reasons from the trial court, the appellate court reversed the trial court’s rejection of Dr. Bain. The Louisiana Supreme Court reversed. 

According to the Blair Court, Dr. Bain’s testimony was properly excluded where he did not review prior medicals, inspect the vehicles involved, and made assumptions regarding the plaintiff’s body position which contradicted sworn testimony. As such, the testimony did not satisfy the reliability required for expert testimony.

The Blair Court declined to address whether Dr. Bain’s testimony satisfied any of the other requirements of Code of Evidence art. 702. The Court expressed no opinion as to Dr. Bain’s qualifications or methodology. 

Erratic Driving and the Duty of Law Enforcement

The Louisiana First Circuit Court of Appeal recently ruled on the duty of law enforcement and the potential for tort liability should that duty be breached.  In Aaron L. Van Cleave and Christy Van Cleave v. Arthur Wayne Temple, et. al., 2018 CA 1353 (La. App. 1 Cir. 5/31/19), the appellate court considered the duty of law enforcement to the general public after the police receive a report of erratic driving.

Arthur Wayne Temple was driving a 2006 Ford F-250 truck in St. Helena Parish when he crossed the center line of Louisiana Highway 16 and struck a truck driven by Allen Marchand.  Aaron Van Cleave was a passenger injured in the accident. 

About an hour before the collision, June Blades was driving behind Temple, observed erratic driving, and called the police.  In response, a sheriff’s deputy was dispatched to the area but could not locate the truck.  Van Cleave sued a number of potentially liable parties. Aware that the police knew of the erratic driving before the accident, he included the sheriff’s department as a defendant.  He argued that the sheriff’s department possessed a duty to locate the erratic driver before they cause harm.

Louisiana jurisprudence recognizes that the police have an affirmative duty to ensure that motorists are not subjected to an unreasonable risk of harm.  But, the scope of that duty is based on the particular facts of the case and the relationships of the parties; and must be reasonable.  In this case, the court found that the sheriff’s department acted reasonably by immediately dispatching an officer to attempt to locate the truck, even if they were unable to ultimately stop the accident.

Virginia “Jenny” McLin has experience handling cases from the initial client consultation to preparing a writ of certiorari to the United States Supreme Court. Her experience allows her to work with clients to develop a cost-effective litigation plan for each case.  Recently, Jenny was on the defense team that prevailed in a workers’ compensation case involving a discovery-related issue that was upheld on appeal to the Louisiana Supreme Court. This had a state-wide effect on the handling of discovery in workers’ compensation matters.