Category: Louisiana

Hurricane Ida: Governor Extends Legal Deadlines

We previously reported that the Louisiana Supreme Court issued Orders suspending prescriptive, peremptive and abandonment periods for thirty days in the wake of Hurricane Ida. Governor John Bel Edwards has now issued a Proclamation. In addition to other actions, the Proclamation provides that legal deadlines applicable to “legal proceedings in all courts, administrative agencies, and boards” are suspended until September 24, 2021.

The Proclamation also authorizes hotels and motels to cancel reservations which would result in the displacement or eviction of first responders, health care workers, or anyone performing disaster-related work.

Here Comes Hurricane Ida: What To Do If Your Home is Damaged by a Storm or Flood

Unfortunately, Louisianians have endured many natural disasters in the past several years. From the historic flooding in Baton Rouge in August 2016 to the devastation caused by Hurricanes Laura and Delta in 2020, Gulf Coast residents are very familiar with significant storms and flooding events. While the rebuilding process will take months or years to complete, this article is designed to provide some basic information on how to document and report your property damage claim and apply for and obtain disaster assistance.

  • DOCUMENT, DOCUMENT, DOCUMENT – Once you are able to do so, make sure to document the damages to your home and contents.  Whether for a homeowners or flood insurance policy or to obtain government assistance, take plenty of photos of the damage.  Make a list of the items in your home that were damaged or destroyed.  One way to organize this list is to list each item from each room together, approximate its age, where it was purchased and its value when purchased.  As you rebuild, and materials and items are thrown out, it will be much more difficult to document your claim.
  • REPORT YOUR CLAIM – Report your damage to your homeowners or flood insurer as soon as possible.  Provide as much detail about the damage as you can. If you are unaware of your insurer, contact your insurance agent who can help you to report your claim.
  • OBTAIN MULTIPLE ESTIMATES – Although it is often difficult to do so after a natural disaster because of the volume of work, obtain multiple estimates for the work needed on your home.  Pay for the estimate if necessary.  If you have three estimates and the amounts are close, they are much more credible.  Also, try and get as much detail as possible in each estimate, including specific materials to be used, dimensions, and finishes.
  • SAVE YOUR RECEIPTS – Whether for repairs you undertake to fix the damage to your home, to replace contents, or for living expenses after the storm, save your receipts.  These receipts will be used to document your losses and verify the amount of your claim to your insurer. 
  • FOLLOW UP WITH YOUR INSURER – Provide whatever is requested by your insurer as they adjust your claim.  Communicate with your insurer on a regular basis. Although it may seem tedious, communication with your insurer during the claim is important.
  • APPLY FOR ASSISTANCE – Especially if your property is not insured, make sure to immediately apply for government assistance.  You can apply for federal assistance at www.disasterassistance.gov.  Oftentimes, the state government will also administer federal or state disaster assistance funds. 

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.

What to do if your Home or Business is Damaged by Flood or Storm

Unfortunately, recent flooding and storm events have again affected our area in Louisiana.  Many people experienced flooding and storm damage to their homes and businesses.  If you experienced flood or storm damage, please consider following these steps to ensure your damage claim is properly documented and submitted:

  • DOCUMENT, DOCUMENT, DOCUMENT – Once you are able, make sure to document the damages to your home and contents.  Whether for a homeowners or flood insurance policy or to obtain government assistance, take plenty of photos and video of the damage.  Make a list of the items that were damaged or destroyed.  One way to organize this list is to group items from each room together, approximate its age, where it was purchased, and its value when purchased.  It will be more difficult to document your claim once the cleanup or rebuilding begins.
  • OBTAIN MULTIPLE ESTIMATES -To the extent you are able, obtain multiple estimates for the work needed on your home.  Pay for the estimate if necessary.  If you have three estimates and the amounts are close, they are much more credible.  Also, try and get as much detail as possible in each estimate, including specific materials to be used, dimensions, and finishes.
  • NOTIFY YOUR INSURER – Whether a homeowners or flood policy claim, or other insurance claim related to your business, promptly notify your insurer of your damage.  Your insurer will send someone to inspect the damage and start your claim.  Provide as much information as possible to make their job as easy as possible.  That will likely quicken the pace of your claim.
  • FLOOD CLAIMS – If you have flood insurance, it is likely provided by the federal government through the National Flood Insurance Program (NFIP).  There are specific rules for submitting your claim through the NFIP.  YOU MUST SUBMIT FEMA FORM 086-0-11 (NOTICE OF LOSS) WITHIN 120 DAYS OF YOUR DAMAGE.  You can find this form here.

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.

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The New Home Warranty Act: Protections and Pitfalls

Louisiana’s New Home Warranty Act (“NHWA”) provides remedies to homeowners forcertain construction defects once the new home construction is complete.  La. R.S. 9:3141 et seq.  These protections can prove crucial to a homeowner’s ability to remedy defects that appear in their home, but the statutes providing these remedies establish strict guidelines that must be followed for the protections to apply. This generally post sets forth some of the key protections and obstacles/defenses that often arise. However, each specific claim should be considered under its own facts.

PROTECTIONS

The NHWA provides specific protections to homeowners.  Each protection expires if not advanced within a set time-period.

Noncompliance/Defects– The NHWA protects against “any defect due to noncompliance with the building standards or other defects in materials or workmanship not regulated by building standards.”  La. R.S. 9:3144(A)(1).  This category includes defective construction or materials used in the construction. Even seemingly minor issues such as cracked plaster, yellowing paint, and “rubbing off” of new paint can give rise to a valid claim for recovery under this portion of the NHWA.  See Bynog v. MRL, LLC, 05-122 (La. App. 3 Cir. 6/1/05), 903 So.2d 1197.   Deviations from the “plans and specifications” for a home may also be recoverable.  See Thorn v. Caskey, 32-310 (La. App. 2 Cir. 9/22/99), 745 So.2d 653.

Because this first protection is so broad, it also provides the shortest time-period to assert a claim: one year from the “warranty commencement date,” which is either the date legal title to the home is conveyed to its initial purchaser or the date the home is first occupied, whichever occurs first.  La. R.S. 9:3142(7).

Plumbing/Electrical/HVAC– The NHWA also protects the homeowner from defects in the plumbing, electrical, heating, cooling, and ventilating systems.  These protections exclude equipment or appliances.  A homeowner must bring a claim under this second category within two years of the warranty commencement date.  La. R.S. 9:3144(A)(2). 

Major Structural Problems– the NHWA allows recovery for major structural defects up to five years following the warranty commencement date.  La. R.S. 9:3144(A)(3).  For instance, recovery was allowed for a failing foundation under this provision in Campo v. Sternberger, 15-53 (La. App. 5 Cir. 11/19/15),179 So.3d 908.

PITFALLS

The most obvious – and probably most prevalent – pitfall is the timeliness of the claim. Courts do not hesitate to dismiss a claim if it is not timely filed. 

The NHWA also requires that the homeowner give the builder written notice (via certified mail) of the defect before the homeowner attempts a repair, or before filing suit under the NHWA.  La. R.S. 9:3145(A).  This notice must be sent to the builder within one year after the homeowner has knowledge of the defect.  Therefore, the one-year “clock” may begin to run when the homeowner gains knowledge of the problem even if the NHWA provides a longer time-period to advance the claim.

A failure by the homeowner to give timely notice can also diminish the claim even if it is brought within the deadlines. Under La. R.S. 9:3144(B)(4)(c), any damages caused by the homeowner’s failure to give the builder notice of the defect are not recoverable.  In that circumstance, builders often contend that the severity of the problem could have been lessened had they been made aware.

RECOVERABLE DAMAGES

With some exceptions, damages under the NHWA are limited to the actual damages incurred by the homeowner, including attorney fees and court costs arising out of the builder’s violation.  La. R.S. 9:3149.  The actual damages cannot exceed the reasonable cost of repair or replacement necessary to cure the defect.  If there are multiple defects across the home, damages are limited to the original purchase price of the home. 

Consequential damages such as pain and suffering, mental anguish, or loss of use are generally not recoverable.  See La. R.S. 9:3144(B); Iteld v. Four Corners Const., L.P., 12-1504 (La. App. 4 Cir. 6/5/13), 157 So.3d 702.  However, there may be exceptions to this general rule under certain factual circumstances beyond the scope of this post.

CONCLUSION

The NHWA provides important remedies to homeowners. But, the New Home Warranty Act is complex and balances the competing interests of the homeowners and the builders. For this reason, a failure to follow the notice and timeliness requirements will often defeat the claim. 


John Grinton, is a partner at Keogh Cox whose practice areas include commercial and construction litigation. When he is not practicing law, John spends most of his time with his wife and son, and their two dogs.

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.

A Decade Old Article Finds New Life: Televised Testimony

Courts across the country now grapple with the changing face of trials in a time of social distancing and spikes of COVID-19 complicated by the confines of the courtroom. Attorneys and litigants must also adapt to this new “normal.” In this setting, an older law may help to bring new technology into the courtroom.

COVID-19 spawned the immediate use of videoconferencing and other technology in the courtroom. Fortunately, over a decade prior to the current pandemic, the Louisiana Legislature adopted Louisiana Civil Code of Procedure article 1633.1 which expressly provides for live televised testimony at a trial. Pursuant to Article 1633.1:

The court may order, upon a showing of appropriate safeguards, live testimony of a witness to be presented in open court by teleconference, video link, or other visual remote technology, if the witness is beyond the subpoena power of the court or when compelling circumstances are shown. The order may be entered at a pretrial conference or, in exceptional circumstances, on motion set for hearing at least ten days prior to trial or at another time that does not prejudice the parties.

The Article, titled “Live trial testimony by video,” does not limit the live video testimony feature only at trial. Commentary suggests that the term “trial” is intended to include evidentiary hearings on exceptions as well as summary matters. The comments further provide that a showing must be made to the court’s satisfaction of appropriate safeguards, such as (1) reliable transmission procedures and image quality, (2) an orderly process for reference to exhibits by the witness and all counsel or parties conducting the examination, and (3) an absence of any outside influence on the witness during testimony. Even if all the parties agree to the use of live televised testimony, the Article nevertheless requires a court order.

Pursuant to the Article, the court may order televised testimony when “compelling circumstances are shown.” These circumstances may exist where a witness has a pre-existing condition or is restricted from live attendance by their physician.  They may also exist for witnesses barred from work-related travel by their employer.

Although adopted in 2007, Article 1633.1 remains largely unused by both courts and litigants; it appears its time has come.

When It Comes to Real Estate, Get It In Writing

As the old adage goes, it’s always safest to get an agreement in writing.  In Louisiana, when an agreement is about the sale of real estate, the adage is law.  A contract for sale must be in writing as provided in Louisiana Civil Code articles 1839 and 2440.

This long-standing rule was at issue in the recent case of Holmes v. Paul, 19-130 (La. App. 5 Cir. 10/2/19), 279 So. 3d 1068. In Holmes, the plaintiff/seller and defendants/purchasers entered into a purchase agreement for a Metairie home which required a closing by no later than April 29, 2016.  The contract was a standard form Louisiana purchase agreement which required that any change in the closing deadline be written and signed by both parties.  The parties later entered a written extension of the closing deadline to May 6, 2016. 

Three days before the closing, the home appraised for $14,000 below the purchase price, leading the seller’s agent to encourage the purchasers’ agent to pursue an appraisal review.  However, the parties did not sign a written extension of the May 6, 2016 closing deadline.  Thereafter, the seller agreed to decrease the purchase price to the appraised value, but on the same day the purchasers sent a signed cancellation. The seller sued the purchasers for breach of contract, arguing that the parties verbally agreed to extend the closing deadline and intended to execute a written extension as soon as they determined a feasible closing date. 

The purchasers moved for summary judgment on the ground that the purchase agreement had expired and was unenforceable.  The Court agreed. The purchase agreement expressly required that extensions be made in writing signed by both parties.  Upon the expiration of the May 6, 2016 closing deadline, the contract was unenforceable. 

The seller also asserted a detrimental reliance claim, arguing she was lulled into not insisting on a written extension because the purchasers’ agent agreed to it orally.  However, the seller conceded her awareness that an extension had to be in writing. As such, her reliance was not reasonable. The court further noted the absence of evidence that the purchasers themselves agreed to orally extend the contract or to waive the writing requirement. 

Unfortunately, business deals in the modern world cannot be finalized by a handshake.  Remember that when you buy and sell property in Louisiana — get it in writing.


Marty Golden has been practicing law based in Baton Rouge, Louisiana for over thirty years, concentrating in civil litigation primarily involving injuries, property damage, insurance coverage, and contract disputes. Much of his practice is defending and advising real estate agents in suits by property buyers and sellers, but Marty also defends other professionals, insurance companies, manufacturers, and business owners. Marty has a special interest in all things procedural, because they are the rules of the road for litigators and knowing them better than his opponent gives him a leg up in court.

La. Supreme Court Determines Impact of Failure to Pay Filing Fee in Medical Review Panel

The Louisiana Supreme Court recently held that failure to pay filing fees necessary to add a defendant does not invalidate the proceeding as to other defendants. Prior to the ruling, Louisiana courts held that a failure to pay for one defendant invalidated the entire proceeding. 

In Kirt v. Metzinger 2019-C-1162 (La. 04/03/20), plaintiffs requested a medical review panel after the death of their mother due to complications after surgery.  Plaintiffs named three defendants—two doctors and the hospital.  A letter from the Patient’s Compensation Fund Oversight Board (PCF) was mailed to the plaintiffs, confirming that the defendants were qualified under the Louisiana Medical Malpractice Act, and informing the plaintiffs that they were required by La. R.S. 40:1231.8 to pay a filing fee of $100 per named defendant within forty-five days of the mailing of the letter.  Plaintiffs responded, requesting to add two additional defendants to the panel, one of whom was an unidentifiable nurse.  Plaintiffs also included payment of $500.

The PCF responded that it was unable to add the nurse without proper identification.  Three weeks later, plaintiffs notified the PCF they were also unable to identify the nurse. Upon request, Parish Anesthesia was added to the panel instead. Nearly five months later, plaintiffs provided the PCF with the identity of the nurse in question and requested she be added. The PCF sent confirmed the addition and requested another $100 filing fee which was never paid.  Nevertheless, the medical review panel thereafter determined that none of the defendants, including the nurse, breached their standard of care.  Suit followed against all defendants.

The defendants moved for summary judgment, arguing that the failure to pay the additional filing fee invalidated the proceeding as to all defendants. The trial court granted this motion, and the appellate court affirmed.   Reversing the lower courts, the Supreme Court found that the failure to pay the additional $100 filing fee did not invalidate the entire proceeding. The court observed that separate confirmation letters sent by the PCF provided a different forty-five day period during which to pay the filing fee tied to each individual defendant.

The Kirt court stated: “[t]he notion of ‘one filing fee’ for every panel proceeding cannot be reconciled with the different payment deadlines that arise when the PCF sends separate letters confirming defendants’ qualified status.  A single filing fee cannot be subject to different payment deadlines.”  The court dismissed only the nurse and remanded the remainder of case to the lower courts. 


Chad A. Sullivan is a partner with Keogh, Cox & Wilson, Ltd.  Prior to becoming an attorney, he worked as a licensed Registered Nurse.  He utilizes his background in nursing on a daily basis in his law practice that primarily focuses on automobile liability, medical malpractice, nursing home litigation, healthcare professional licensure and discipline, and products liability.

Louisiana Legislature Passes the Civil Justice Reform Act of 2020

On June 30, 2020, the last day of the 2020 First Extraordinary Session, the Louisiana legislature passed HB 57 legislation designed to revise tort law legislation.  Although not yet signed by Governor Edwards, it appears he is likely to sign this legislation into law.  The highlights of this new legislation include the following:

  • The jury trial threshold has been lowered from $50,000 to $10,000;
  • If the tort demand is between $10,000 and $50,000, the party demanding a jury must post a cash deposit of $5,000 within sixty (60) days of the jury demand;
  • The existence of insurance coverage will not be communicated to the jury unless (a) the jury will decide a coverage issue; (b) “the existence of insurance would be admissible to attack the credibility of the witness under Article 607;” or (c) bad faith is claimed under La. R.S. 22:1973 or against the insurer alone under the Direct Action statute;
  • The identity of the insurer will not be communicated to the jury “unless the identity of the insurer would be admissible to attack the credibility of a witness under Article 607.”  The Judge will instruct the jury at the opening and closing of trial that there is insurance coverage for the damages claimed by the plaintiff;
  • If Medicaid or workers’ compensation pays medical bills, the amount recoverable is limited to the amount actually paid.  If health insurance or Medicare pays medical bills, the amount recoverable is limited to the amount actually paid (plus any co-pays, deductibles, etc.).  Additionally, the Court shall award 40% of the difference between the amount of the bill and the amount paid.  If anyone other than health insurance, Medicare, Medicaid, or workers’ compensation pays the medical bills, the amount recoverable is the amount actually paid and amounts remaining owed;
  • Except for Medicaid and workers’ compensation the jury will only know the amount of medical treatment billed.  After trial, the Judge will take evidence relevant to any discounts;
  • Failure of the plaintiff to wear a seat belt is now admissible evidence of comparative fault or failure to mitigate.

Importantly, if signed by the Governor, HB 57 will become effective on January 1, 2021.   It will have prospective application only and will not apply to a cause of action arising or action pending prior to January 1, 2021.


Chris Jones is a partner with Keogh Cox in Baton Rouge, LA.  He focuses his practice on class actions and mass torts, and handles these matters in courts throughout the country.  He is a life-long resident of Baton Rouge, where he lives with his wife and four children

Subcontractor’s Status as Plaintiff’s “Two-Contract” Statutory Employer Establishes Owner’s Immunity

In Louisiana, a “statutory employer” is entitled to protection from tort suit. With limited exceptions, the defense must be supported by a contractual provision declaring the defendant to be a statutory employer in a manner consistent with La. RS 23:1061. In Spears v. Exxon Mobil Corporation & Turner Industries Group, LLC, 2019-0309, 291 So. 3d 1087 (La. App. 1st Cir. 2019), the defendant-premises owner successfully asserted the defense, notwithstanding multiple issues with respect to the nature and terms of the agreement and an alleged lack of privity with the plaintiff’s immediate employer.

In Spears, the plaintiff was injured when he slipped and fell on the production floor at the Exxon plastics plant. Spears filed suit against multiple parties, including Exxon, alleging it failed to provide a safe premises. The plaintiff worked for Poly Trucking who operated at Exxon under a contract with Polly-America. Poly-America, LP and Exxon, in turn, were signatories to an agreement entitled “STANDARD PURCHASE ORDER” which stated that Polly-America was to:

“… provide pickup/delivery service… For all containers of Polyethylene scrap as well as Polyethylene’s scrap recovery vacuum service for a quoted amount of one dollar.”

The “STANDARD PURCHASE ORDER” also contained a section expressly recognizing Exxon:

“… as the statutory employer of employees of Poly America and subcontractors while such employees are engaged in the contracted work.”

Exxon filed a motion for summary judgment based upon its status as Spears’ statutory employer. The Trial Court granted the motion and dismissed Exxon with prejudice. On appeal, Spears argued that the contract between Exxon and Poly-America presented multiple issues of fact and law which necessitated a reversal of the summary judgment. The issues identified by the plaintiff included the following:

  1. The agreement upon which Exxon relied was a “Contract of Sale,” not a “Contract for Services;”
  2. The agreement specified that the signatory contractor (Poly America) was an “Independent Contractor;”
  3. The plaintiff’s immediate employer (Poly Trucking) was neither a signatory to, nor specifically identified anywhere in the agreement; and,
  4. Although the agreement designated Exxon as the statutory employer of the “employees of Poly America,” Exxon is not specifically designated as the statutory employer of the employees of Poly Trucking, the plaintiff’s immediate employer.

The First Circuit Court of Appeal expressly rejected each of the plaintiff’s arguments.

First, the Court pointed out that the law does not mandate that the contract containing the statutory employment language be of any particular type. As such, whether the contract was considered a contract of sale or for services was irrelevant.

Secondly, the Court rejected the claim that contractual language describing Exxon as an “independent contractor” required a rejection of the statutory defense. The Spears Court reasoned that nothing in La. RS 23:1061 prevents an independent contractor from entering into a written agreement whereby the principal to that contract is recognized as the statutory employer of the employees of the contractor and its subcontractors.

Finally, the Court rejected the claim the defense should be rejected because the plaintiff’s immediate employer was not a party to the contract. As discussed in Spears, the law provides that the contract establishing statutory employment can be with either the plaintiff’s immediate employer or the plaintiff’s statutory employer, and Poly America qualified as the plaintiff’s statutory employer under the “two contract” theory because the work that Poly America subcontracted to the plaintiff’s immediate employer (Poly Trucking) was included within Poly America’s “STANDARD PURCHASE ORDER” contract with Exxon.

The Spears opinion highlights that the statutory defense should be maintained, even under unusual facts, when the requirements of La. RS 23:1061 are satisfied.