Category: Liability

Louisiana COVID-19 Immunity Laws

In response to the COVID-19 pandemic, the Louisiana legislature enacted and modified several statutes to limit the liability of individuals, businesses, and government agencies for exposure claims. However, the immunity is not absolute. While the immunity applies to “ordinary” negligence claims, it does not apply where acts are grossly negligent, wanton, or involve reckless misconduct. Further, as a condition to the protection afforded, the entity must show substantial compliance with the applicable COVID-19 procedures established by government authorities.

La. R.S. 9:2800.25, entitled “Limitation of liability for COVID-19” (the general immunity statute) provides that no person, business, or government entity shall be liable for injury or death resulting from exposure to COVID-19 through the performance of its business operations unless the entity failed to substantially comply with at least one set of procedures established by the federal, state, or local agency that governs the business operations, or the injury was caused by gross negligence or wanton, reckless misconduct. With respect to employer immunity, the statute provides that, regardless of whether an employee’s COVID-19 illness is covered under workers’ compensation law, the employee shall have no tort-based remedy against his employer unless the exposure was caused by an intentional act.

The exception to immunity in the general immunity statute calls into question the type of conduct that would rise to a level of gross negligence. Gross negligence is defined in Louisiana case law as “willful, wanton, reckless conduct that falls between intent to do wrong and ordinary negligence,” “lack of even slight care and diligence,” and “utter, complete or extreme lack of care.” While the definition does not provide a bright line rule, it reflects that the conduct must move well beyond simple negligence to defeat immunity.

For a business seeking to manage the risks arising from COVID-19, some best practices emerge: (1) monitor the COVID-19 procedures of government authorities to keep informed of the latest recommended or mandated procedures, (2) institute compliance protocols, (3) document and administer those procedures to show compliance, and (4) most obviously, avoid actions or omissions that may be construed as grossly negligent, wanton, or reckless.


Mary Anne Wolf is an engineer/attorney with a construction background who represents design professionals, contractors and others in construction litigation. She also gives seminars on the subject. She enjoys travel, yoga and encouraging her husband in his gardening and cooking endeavors.

No Pay, No Play: What is it and why does it matter?

Louisiana’s automobile insurance premiums are some of the highest in the United States. With so many other demands on driver’s wallets, it may seem tempting to simply not purchase a liability automobile policy, even if it is required by Louisiana law. Louisiana’s “No Pay, No Play” statute, LA-R.S. 32:866, is intended to fight that temptation. See Progressive Sec. Ins. Co. v. Foster, 1997-2985 (La. 4/23/98), 711 So.2d 675. Below are some key considerations for drivers and insurers on either side of a potential “No Pay, No Play” dispute.

For Drivers

The “No Pay, No Play” statute means just what it seems—if you do not pay for your own liability insurance, you cannot recover under someone else’s liability insurance even if the accident is not your fault … at least to a point.

Specifically, the “No Pay, No Play” statute precludes someone who does not have liability insurance from recovering from another driver’s policy (1) the first $15,000 of bodily injury damages and (2) the first $25,000 of property damage. Of course, if damages do not exceed these amounts, it means the uninsured driver cannot recover his or her damage at all.

Of course, some exceptions exist. For example, the statute does not apply (meaning, it does reduce the plaintiff driver’s recovery) if the other driver is cited for operating his or her vehicle while intoxicated and is convicted or pleads nolo contendere; if the other driver intentionally causes the accident; if the other driver flees the scene; or if the other driver is in furtherance of the commission of a felony. However, the off-chance that a driver falls into an exception should not outweigh the obligation to comply with Louisiana law.

For Insurers

Generally, liability insurers should assert the “No Pay, No Play” affirmative defense when it appears a plaintiff driver lacks liability insurance. However, insurers should also keep in mind that this defense also has limitations.

For instance, the “No Pay, No Play” statute is not necessarily a total bar to a plaintiff’s recovery. If damages exceed $15,000 for bodily injury and/or $25,000 for property damage, payment may still be owed for these excess damages.

Secondly, the party asserting the “No Pay, No Play” affirmative defense—usually a defendant insurer—bears the burden of establishing that the plaintiff driver lacked insurance coverage on the vehicle he or she was operating at the time of the incident.

This burden can sometimes present difficult issues. For instance, in Johnson v. Henderson, 2004-1723 (La.App. 4 Cir. 3/16/05), 899 So.2d 626, the plaintiff was operating a vehicle he did not own. The defendant failed to yield and struck the plaintiff’s car.  The defendant and his insurer asserted the affirmative defense under “No Pay, No Play.”

The facts of the case suggest the vehicle that the plaintiff was operating was not insured, but plaintiff paid his “premiums” to the owners of the vehicle, had an ostensibly valid insurance card, and believed he was insured. The court found that the defendants failed to carry their burden of establishing a lack of coverage. As a result, the insurer owed the plaintiff the full amount of his damages—a total of $5,855.00 that would otherwise have been precluded under the statute.  

The “No Pay, No Play” issue is easily avoided: Louisiana drivers should get the insurance required by the statute. Failure to do so runs the risk of discounting (and potentially barring) recovery for accidents that are not the driver’s fault.

Is Timing Everything Where Workers Compensation Benefits are Forfeited Based on Fraud? It Depends…

In Moran v. Rouse’s Enterprises, LLC, 19-2392019(La. App.5 Cir. 12/26/19)- – – So. 3d – – -, the Louisiana Fifth Circuit held that there is a forfeiture of all benefits when a worker’s compensation claimant commits fraud, regardless of when the fraudulent conduct occurs. The court declined to follow opinions from the First and Third Circuits concluding otherwise.

In Moran, the claimant obtained treatment for injuries to her back, right knee, and right shoulder after a slip and fall at work for Rouses supermarket. In her deposition, the claimant Moran testified that she experienced knee pain only once before her fall; it was “years ago” and not “serious.” Moran also claimed that she experienced no prior shoulder or back pain. However, medical records established:

•             Complaints of knee pain on at least 8 separate occasions between 2012 and the job injury;

•             Complaints of right knee, right wrist, and back pain after a slip and fall in 2013; and

•             A right shoulder impingement diagnosis 2 months before the on-the-job accident.

Rouses and its workers compensation carrier affirmatively alleged a violation of La. R.S. 23:1208, Louisiana’s workers compensation fraud statute, following the claimant’s deposition. Paragraphs “A” and “E” of section 1208 provide in pertinent part:

A.            It shall be unlawful for any person… to willfully make a false statement or representation… for the purpose of obtaining or defeating any benefit or payment under…this Chapter.    

***

E.            Any employee violating this Section shall… forfeit any right to compensation benefits under this Chapter.

As part of their fraud defense, the defendants specifically denied responsibility for all worker’s compensation benefits, i.e. benefits that that might have otherwise been due both before and after the fraudulent deposition testimony.

Following trial, the workers compensation judge determined that Moran carried her burden of proving the occurrence of on-the-job injury and disability. Nevertheless, the trial court also ruled that the claimant made false statements for the purpose of obtaining workers compensation benefits in violation of section 1208, thereby forfeiting the right to both the pre and post-deposition benefits that she was claiming.

On appeal, Moran argued that the forfeiture requirement of section 1208 applies prospectively only. Moran cited opinions from the Louisiana First and Third Circuits. After addressing the statute and the case law, the Moran court affirmed the decision of the workers compensation judge finding that the forfeiture of benefits provided for in of Section 1208 is clear and unambiguous. The opinion states that “…if the legislature had intended to limit the application … it would have clearly expressed that in the statute.”

There are no Louisiana Supreme Court opinions which specifically address whether the Section 1208 forfeiture applies retroactively or prospectively only. Given the defined split in the Louisiana appellate courts, the issue is ripe for consideration by the state’s highest court.


Ed is a Keogh Cox partner who litigates Worker’s Compensation, automobile and premises liability as well as subrogation claims. He is an avid runner and enjoys traveling with his wife Jennifer and their three children.

Limitation of Liability under the LPLA: Can Internet Retailers be Manufacturers?

The Louisiana Products Liability Act (“LPLA”) contains the exclusive theories of recovery against a manufacturer for damages caused by its product. The term “manufacturer” within the LPLA includes “the seller of a product who exercises control over or influences a characteristic of the design, construction, or quality of the product that causes damage.” The rapid growth of e-commerce raises a unique question – how do we classify internet retailers?

Internet retailers generally act as a middleman for third party manufacturers and online consumers. In this respect, they are not technically “sellers” as defined by the LPLA because they typically do not have control over the design or construction of the products they sell. Nevertheless, the proper categorization of internet retailers may become important when someone is injured by a product, as was the case in State Farm Fire and Casualty Company v. Amazon.com, Inc., 2019 WL 5616708 (Miss. N.D. 10/31/19) — F.Supp.3d —.

In State Farm Fire and Casualty Company v. Amazon.com, Inc., two hoverboards purchased through Amazon caught fire inside a Mississippi home and the home was destroyed. In considering Amazon’s possible liability, the Mississippi Court asked whether Amazon was a “service provider” or a “marketplace.” In Mississippi, a finding that Amazon was a “service provider” would insulate it from the claim. However, if Amazon acted as a “marketplace,” it could be exposed by the common law to a negligent failure-to-warn claim. The Mississippi Court held that, because Amazon operated as a marketplace, the claim against it could go forward.

If similar facts arose in Louisiana, could Amazon or similar retailers be exposed under the LPLA? If an internet retailer established policies that forced a “true” manufacturer to negatively alter product quality, would the LPLA provide a remedy?  For example, if an internet retailer sets a price ceiling, this artificial figure, especially if unreasonably low, might pressure a manufacturer to lower product safety. Is setting a price range the exercise of enough control or influence over the “design, construction, or quality of a product” to render internet retailers subject to suit under the LPLA? That is a question likely to be answered in cases to come.

A Matter of Control of a Bike Results in No Liability under the LPLA

A Louisiana man logged onto eBay. To save some money, he bought a used racing bicycle. While riding this bike through his neighborhood, he noticed an unlevel section of the roadway and attempted a “bunny hop” over the gap in the pavement. The front wheel disconnected when he landed. The cyclist lost control and flipped over the handlebars, sustaining serious injuries. He later filed suit against Specialized, the manufacturer of the bicycle, under the Louisiana Products Liability Act (“LPLA”). See Delahoussaye v. Boelter, — So.3d—, 2019-0026 (La. App. 1 Cir. 11/15/19).

The evidence in Delahoussaye showed that the bike was missing its “secondary retention device,” which keeps the wheel from disengaging if the “quick release” on clamp on the front fork is not engaged properly. Also, no warnings were found on the bike. Based upon this evidence, the cyclist claimed Specialized should be liable because the bike was defective; unreasonably dangerous in its design, construction, and manufacture; and inadequate in its instructions and warnings.

To recover from a manufacturer under the LPLA, a plaintiff must show that the product (here, the bike) was unreasonably dangerous at the time it left the manufacturer’s control. Photographs of the bike showed a light, silver spot on the bike where the secondary retention device had been located. This confirmed that the secondary retention device was removed after it originally was manufactured. Evidence also showed that warning stickers originally on the bike had been removed.

These changes were made after Specialized lost control of the bike. Because the bike was not defective when the product left Specialized’s control, Specialized, as the bike’s manufacturer, could not be liable under the LPLA for injuries the plaintiff sustained when he lost control of the bike. In short, this case came down to a matter of control.


Reynolds LeBlanc is a partner at Keogh Cox. His practice areas include commercial litigation, personal injury claims, appeals, and other matters. Reynolds is a former teacher, who in his free time plays music and perpetually talks himself into training for his next marathon.

Throw Me Something Mister? Liability for Mardi Gras Krewes

As part of the unique aura that surrounds Mardi Gras in South Louisiana, the expression “Laissez les bons temps rouler” is forever linked to the spirit of the season. The Cajun French phrase meaning “Let the good times roll” captures the eccentric soul of Carnival. However, it might be difficult to let the good times roll after being struck by a bag of beads hurled from the second deck of float. If the spectator suffers a severe injury as a result, who is liable? Does the injured party have any recourse against the person who threw the beads? Against the Mardi Gras krewe organizers?

The Fourth Circuit Court of Appeal held that spectators assume the risk of injury when attending a parade. Citron v. Gentilly Carnival Club, Inc., 14-1096 (La. App. 4 Cir. 4/15/15), 165 So.3d 304. The foundation of the decision was based on the Mardi Gras Immunity Statute, La. R.S. 9:2796, which has two parts: (1) creates broad immunity for krewes which sponsor parades; and (2) states that anyone who attends such a parade “assumes the risk of being struck by any missile whatsoever which has been traditionally thrown, tosses or hurled by members,” which include, but are not limited to: beads, cups, doubloons, and many other things.

To impose liability on a krewe, there must be evidence of the krewe’s—as opposed to its member’s—gross negligence. Palmer v. Zulu Soc. Aid & Pleasure Club, Inc., 09–0751 (La. App. 4 Cir. 3/1/10), 63 So.3d 131 (emphasis added). Furthermore, a carnival krewe or organization may not be vicariously liable for its members’ acts. To the contrary, Louisiana jurisprudence has rejected the argument that a krewe is vicariously liable for its members’ acts. Kibble v. B.P.O. Elks Lodge No. 30, 640 So.2d 267, 269 (La. App. 4th Cir. 1993).

The Mardi Gras Immunity Statute imposes an extremely high burden of proving the “loss or damage was caused by the deliberate and wanton act or gross negligence” of the krewe or organization. Gross negligence has been defined as the “entire absence of care” and an “extreme departure from ordinary care or the want of even scant care.” Ambrose v. New Orleans Police Department Ambulance Service, 93–3099 (La. 7/5/94), 639 So.2d 216. In calculating whether an act was grossly negligent in the context of Mardi Gras Immunity Statute, the Citron court considered several factors: (1) the weight of the object thrown, (2) the distance the object was throw, and (3) the manner in which the object was thrown. Citron, 165 So.3d at 317.

Ultimately, the statute absolves krewes from liability for injuries caused by objects thrown to parade spectators, except in extreme and unusual circumstances. Therefore, be alert during parades this Mardi Gras season and Laissez les bons temps rouler.


Cole Frazier joined Keogh Cox as an associate in 2019 after working at the firm as a law clerk during law school. He earned his J.D. and Diploma in Comparative Law from Louisiana State University, Paul M. Hebert Law Center. During his time at LSU Law, he also studied comparative law at Jean Moulin Lyon 3 University in Lyon, France. Cole received his Bachelor’s degree in Business Administration with a concentration in Pre-law from Nicholls State University in 2015. He was elected to the Southland Conference all-academic team twice as a member of the Nicholls State football program.