Category: Louisiana

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.

Medical Malpractice: Can failure to communicate test results be medical malpractice?

The Louisiana Fourth Circuit Court of Appeal recently considered a medical malpractice case with an unusual set of facts.  Rather than the standard medical malpractice case, where a patient argues that he was misdiagnosed and/or claims that the doctor made a mistake when administering medical treatment, in Dufreche v. Jeffery Wayne Coco, MD and Internal Medicine Specialists, Inc., 2020-CA-0030 (La. App. 4th Cir.), the patient alleged that his doctor committed malpractice by failing to communicate test results.

In Dufreche, the patient showed signs of an HIV infection.  He was tested twice before being treated by the infectious disease specialist.  Both tests were negative.  During his examination, the infectious disease doctor thought it was unlikely that the patient had HIV, but tested him anyway at the patient’s insistence.  According to the patient, he was notified by the doctor that he would be provided the results upon receipt.

Unfortunately, the test results showed that the patient was HIV positive; however, he was not contacted.    Fifteen months passed, during which the patient was unaware that he was HIV positive.  Because he was not contacted, he assumed he was negative. When testing by another physician showed he was positive, the patient/plaintiff filed suit to recover damages allegedly suffered through a delay in treatment and psychological shock, including a claim for “emotional distress.”

To recover, the patient was required to establish: 1) the standard of care; 2) breach of that standard of care; and 3) that the breach caused his emotional distress.   At trial, the doctor testified that he required his patients to follow up in person to receive test results, and expected the patients to contact his office to schedule an appointment.  The court found that expecting a patient to follow up in person to receive sensitive test results was not a breach of the standard of care.  However, the evidence established that the patient was not instructed that he must schedule an in-person appointment to obtain his test results. 

The Dufreche court agreed with the lower court in finding that a failure to notify the patient of the doctor’s policy was a breach of the standard of care.  Further, the court found that the infectious disease specialist, who admitted to a duty to the public to protect them from HIV, had also breached his duty for failing to notify an HIV positive patient of his diagnosis for over fifteen months.  The doctor’s failure to communicate the results caused the patient’s emotional distress – resulting in an award of $45,000 in damages.


Virginia “Jenny” McLin is a partner at Keogh Cox who practices in the fields of corporate litigation, insurance defense and workers compensation defense.  When she is not practicing law, Jenny can be found volunteering with the Junior League of Baton Rouge; cheering for the LSU Tigers with her husband Ryan; or shuffling her two kids to and from dance practice.

Novel Coronavirus Breeds Novel Litigation: Business Interruption Suits in the Age of COVID-19

The nation’s first suit seeking a declaration of coverage under a commercial property policy for business interruption and extra expenses incurred as a result of COVID-19 was filed in a Louisiana state court on March 20, 2020. Since then, similar suits have been filed across the nation by restaurants, casinos, dentists, dive shops, movie theatres, repertory theatre companies, etc.  Clearly, the same coverage issues raised in the Louisiana case will be litigated throughout the nation.

The suit in Cajun Conti, LLC, et al v. Certain Underwriters at Lloyd’s, London, et al, Suit No. 2020-02558, was filed on March 16, 2020, in the Civil District Court for the Parish of Orleans, State of Louisiana. Plaintiffs, doing business as Oceana Grill, a restaurant in the French Quarter, allege coverage should be declared to exist because: 1) the property policy is an “all risks” policy such that all risks are covered unless the insurer can clearly and specifically establish an exclusion from coverage; 2) the policy does not contain any exclusion “for losses from a virus or global pandemic;” 3) the virus has “physically impact[ed] public and private property” as it “physically infects and stays on the surface of objects or materials, ‘fomites,’ for up to twenty-eight days;” 4) such “contamination … [is] a direct physical loss needing remediation;” and, alternatively and in addition, 5) the current and future state orders limiting its operations serve to trigger the civil authority provisions of its policy.

A key issue in Cajun Conti as well as in the other COVID-19 business interruption coverage litigation will be whether the existence of the novel coronavirus constitutes a “direct physical loss or damage” under the intendment of an all risks property policy. The Cajun Conti plaintiffs cite to Widder v. Louisiana Citizens Prop. Ins. Corp., 2011-0196 (La. App. 4 Cir. 8/10/11), 82 So.3d 294, writ denied, 2011-2336 (La. 12/2/11) for the premise that the existence of a hazardous condition that renders the insured property unusable or uninhabitable is sufficient to constitute a “physical loss or damage” sufficient to trigger coverage.  Notably,  in Widder, the actual presence of inorganic lead in the insured property was confirmed to exist and coverage was therefore available. Because policyholders have the burden to establish the existence of “physical loss or damage,” reliance on Widder may require the Cajun Conti plaintiffs to establish coronavirus was actually present in their property or that its presence otherwise caused their property to be unusable or uninhabitable.  Presence in the community may not be sufficient to prove the coronavirus made the insured property uninhabitable or unusable.

One of the items of proof required for the triggering of coverage under the civil authority provisions of a commercial property policy is that the alleged business loss was caused by an action by the civil authority that prohibited access to the insured premises. Relying on out-of-state jurisprudence, one Louisiana federal court has determined this factor requires proof that access to the insured premises be “actually and completely prohibited,” which is not satisfied if the access is merely “limited or hampered.” Kean, Miller v. National Fire Ins. Co. of Hartford, C.A. No. 06-770 (M.D. La. Aug. 29, 2007), 2007 WL 2489711, *4-*6. The state orders expressly referenced in the Cajun Conti suit would appear not to satisfy this standard as they served only to limit occupancy and required earlier closures. Even the subsequent stay-at-home orders [Proclamation Number 33 JBE 2020 and 41 JBE 2020, issued respectively on March 22, 2020 and April 2, 2020], may likely be insufficient to satisfy this requirement as they do not expressly mandate closure of restaurants, but simply require restaurants to  “reduce operations to continue minimum contact with members of the public,” expressly allow for curbside delivery, drive-thru, and delivery services, and only prohibit the consumption of food and beverages on site. 

The specific facts of each business interruption claim and the terms of the relevant policy should be considered in every occasion. Yet, these suits may face problems of proof generally. For now, we expect the novel suits to continue.


John has been practicing over 30 years and is a Senior Partner with firm where he serves on the Management Committee. He has devoted attention to non-profit boards dedicated to assisting at risk children. He enjoys time with his three children and grandchildren. He also enjoys tennis and hiking.

Nancy B. Gilbert is a partner with Keogh Cox in Baton Rouge, Louisiana.  She is a puzzle-solver by nature, and specializes in providing clear and in-depth analysis of complex litigation issues. 

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.

Coronavirus and Workers Compensation in Louisiana

In Louisiana, workers compensation benefits can be owed if an employee sustains an accident or develops an occupational disease arising out of and occurring during the course and scope of their employment.  The definitions and burdens of proof differ for each.

An accident is defined by La. R.S. 23:1021 as:

(1) “Accident” means an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.

An occupational disease is defined by La. R.S. 23:1031.1 as:

B. An occupational disease means only that disease or illness which is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease. Occupational disease shall include injuries due to work-related carpal tunnel syndrome. Degenerative disc disease, spinal stenosis, arthritis of any type, mental illness, and heart-related or perivascular disease are specifically excluded from the classification of an occupational disease for the purpose of this Section.

C. Notwithstanding the limitations of Subsection B hereof, every laboratory technician who is disabled because of the contraction of any disease, diseased condition, or poisoning which disease, diseased condition, or poisoning is a result, whether directly or indirectly, of the nature of the work performed, or the dependent of a laboratory technician whose death is the result of a disease, diseased condition, or poisoning, whether directly or indirectly, of the nature of the work performed shall be entitled to the compensation provided in this Chapter the same as if said laboratory technician received personal injury by accident arising out of and in the course of his employment.

As used herein, the phrase “laboratory technician” shall mean any person who, because of his skills in the technical details of his work, is employed in a place devoted to experimental study in any branch of the natural or applied sciences; to the application of scientific principles of examination, testing, or analysis by instruments, apparatus, chemical or biological reactions or other scientific processes for the purposes of the natural or applied sciences; to the preparation, usually on a small scale, of drugs, chemicals, explosives, or other products or substances for experimental or analytical purposes; or in any other similar place of employment.

Except as otherwise provided in this Subsection, any disability or death claim arising under the provisions of this Subsection shall be handled in the same manner and considered the same as disability or death claims arising due to occupational diseases.

In general, if an employee can prove that they were exposed to Coronavirus at work, and that the particular exposure caused them to contract Coronavirus disease, they may be able to prove a compensable accident.  The burden of proof is a tough one, of course, because it would seem to be nearly impossible for an employee who contracts the Coronavirus to prove the contraction resulted from work as opposed to exposure in some other environment.  However, it is important to note that one Louisiana court did find that a claimant was able to meet that burden when he contracted the West Nile Virus by proving to the satisfaction of the Workers Compensation Judge, rather incredibly, that a particular mosquito bite occurring at work was the cause.  Allen v. Graphic Packaging,   51,080 (La. App. 2nd Cir. 1/11/17), 211 So.3d 1219.   If a claimant is able to prove the occurrence of an accident, then the usual workers compensation medical and indemnity benefits would be payable depending on medical needs, disability status, or even death benefits if the employee expired as the result of such an accident.

For an employee to be able to prove that their contraction of Coronavirus disease fits within the definition of an occupational disease, they would have to prove that it was “due to causes and conditions characteristic of and peculiar to” their employment.  Some healthcare workers and others in related fields who become infected would seem to have an easier time proving their cases than others whose work would not customarily lead to such exposures.  The definition above includes laboratory technicians (which could be an expansive list as defined) who contract a disease as the result exposure to something that they are working on/with.  The statute also provides some timing elements for claim filing and causation presumption, most of which would not seem to apply because of novel nature of the current Coronavirus outbreak.  As with claims asserted as accidents, the usual medical and indemnity benefits would be payable depending on the circumstances of the individual worker.

For additional details on the Allen case, please review Keogh Cox blog “One Particular Mosquito: West Nile Virus Found to be a Compensable Workers’ Compensation Claim” by clicking here:  https://keoghcox.com/one-particular-mosquito-west-nile-virus-found-compensable-workers-compensation-claim/.

Google Earth Images Ruled Admissible

Recently, a Louisiana appellate court found that images from Google Earth images were admissible.   In Walker v. S.G.B.C., LLC, 2019-506 (La.App. 3Cir. 2/5/20); — So.3d —, 2020 WL 563818, the Louisiana Third Circuit rejected a challenge to the use of the images on the basis that they were not properly authenticated. 

In this case, the plaintiff sought recognition of a historical servitude of passage from his landlocked property. During the trial, the plaintiff offered Google Earth images of the property to show a gravel pathway on the alleged right of way. The images were dated January 2004, November 2005, and December 2017.  Multiple witnesses identified the path on the images. Thereafter, the trial court admitted the images into evidence over the defendant’s objections.

On appeal, the defendant argued that the images were not properly authenticated under La. C.E. art. 901 because the plaintiff did not: (1) have the creator of the images testify to their authenticity; (2) get a certification from Google that the images were what they purported to be; and (3) have an expert testify that the images were accurate depictions of what they claimed to be.

The Walker court affirmed the trial court ruling that these images were admissible. Louisiana Code of Evidence Article 901(B)(1) provides the testimony of a witness with personal knowledge may supply the authentication of evidence required for its admission. Because the plaintiff identified various landmarks on each image, and each image was subsequently recognized by multiple witnesses (including the defendant’s witnesses), the Court concluded there was sufficient support for finding the images authentic.

In Walker, the precise dates the photographs were taken were not critical. Under different facts, courts may choose to apply the authentication rules of Article 901 more stringently.


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.