Category: Supreme Court

Make Sure You Are Sure! – A Comment on the Finality of Settlement Agreements under Louisiana Law

09.08.2023

Preparing for a trial is a tense and stressful process for attorneys and their clients. Sometimes, during trial preparation, a crucial piece of evidence can come to light that may push a case from a path towards trial to a path towards a settlement agreement. A “settlement” or “compromise” under Louisiana law is just that – an agreement between the parties to settle the dispute raised in the lawsuit, usually with the exchange of a sum of money. Often, settlements are reached in the weeks leading up to trial or even on the courthouse steps.

This type of scenario occurred in Nola Title Company, LLC v. Archon Information Systems. While in the thick of trial preparation, audio recordings from one of the parties were discovered. That party concluded this evidence would be prejudicial to its case at trial, which spurred settlement negotiations. The parties eventually agreed to a compromise and notified the court of the settlement via an email to the judge’s law clerk. The next day, the attorneys reported to court and verbally outlined the terms of the settlement agreement on the official court record.

Two weeks later, the defendants hired new counsel. Two months after that, counsel for the plaintiff forwarded the formal settlement documents to memorialize the agreement that was made between the parties and entered into the court’s record. However, the defendants refused to sign the paperwork and did not timely make the payments that previously were agreed upon. Therefore, the plaintiff filed a motion to enforce the settlement agreement.

In opposition to the motion to enforce, the defendants argued: 1) that their prior counsel did not have authority to enter into the settlement agreement; and 2) that the agreement on the record of the court was invalid because it did not include a provision about the audio recording, which the defendant claimed was a key element of the agreement between the parties. After an evidentiary hearing, the trial court found that the settlement that was stated on the record was an enforceable settlement agreement.

The Louisiana Court of Appeals for the Fourth Circuit affirmed the ruling of the trial court. In its opinion, the appellate court includes a summary of the law governing settlements in Louisiana. After a thorough review of the applicable law, the court came to the following conclusions:

The settlement agreement on the record of the court was a binding settlement agreement, even if the parties contemplated a future formal written agreement;
When a compromise is placed on the record, the recital must include full disclosure of the material terms;
Any “missing terms” from the recorded settlement agreement were not a material element of the settlement; and
The defendants’ prior counsel had authority to enter into the settlement as written.

Based upon the court’s ruling, if the parties have a meeting of the minds and settlement terms are entered on the trial court record, there are no “do-overs” or “take-backs.” It is important to “make sure you are sure” when entering the crucial courthouse steps settlement agreement.

References:

Nola Title Company, LLC v. Archon Information Systems, et. al., 2022-CA-0967 (La. App. 4 Cir. 4/13/23), 360 So. 3d 166.

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

07.29.2020

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.

Supreme Court Rules Against Broad Application of Indemnity Provision in Engineer’s Contract

06.03.2020

The Supreme Court ruling in Couvillion Group, LLC v. Plaquemines Parish Government, 2020 -00074 (La. 4/27/20) is a reminder that an indemnity claim must be sufficiently related to the principal demand and that contract indemnity provisions are to be strictly construed.

In Couvillion, the general contractor sued the owner of a public works port project for contract delay damages resulting from a cease work order issued to allow redesign of a fuel tank platform. When the contractor submitted its delay claim, the owner requested that its project engineer review it and make recommendations. The engineer recommended payment of a little over $1 million dollars. When the owner refused to pay, the contractor sued. In response, the owner filed a third-party demand against the engineer alleging that its recommendation was erroneous and excessive and that, if it was bound by the engineer’s recommendation, then the engineer must indemnify the owner.

On behalf of the engineer, Keogh Cox attorneys argued that the engineer should not be required to reimburse the owner for any delay costs and asked for dismissal through an exception of no cause of action. Code of Procedure Article 1111 provides that a defendant in a principal action may bring in any person who may be liable to him for all or part of the principal demand. Here, that was not the situation. The engineer was not liable to the owner for any part of the contractor’s delay claim because the engineer did not cause the delay. The delay damages were incurred before the engineer made a recommendation for payment. The events giving rise to the two claims were separate and distinct: the main demand arose from the project delay and the third- party demand arose from the engineer’s recommendation of the claim amount. The Court commented that the principal claim against the owner for delay damages was too attenuated from the owner’s claim against the engineer, thus the third-party demand was improper.

The owner also relied on the indemnity provision in the engineer’s contract that required the engineer to indemnify the owner against any and all claims for personal injury or “damages to property” that may arise from its services. The Court held that the plain meaning of the term did not include the economic-only losses related to the subject delay claim. The Court further reasoned that indemnity agreements are to be strictly construed, rejecting the owner’s broader interpretation.

Privacy (Or Lack Thereof) in an Increasingly Digital Age

12.01.2017

“Historically, privacy was almost implicit, because it was hard to find and gather information. But in the digital world, whether it’s digital cameras or satellites or just what you click on, we need to have more explicit rules – not just for governments but for private companies.” -Bill Gates

Supreme Court oral arguments were heard earlier this week in Carpenter v. United States, a closely watched case which stands to impact what privacy means in our digital age. The case will decide whether law enforcement is permitted to gather cellphone data from third-party service providers like Verizon and AT&T without a warrant. Carpenter presents the latest installment in the eternal struggle between the need for safety and the desire to prevent a surveillance state.

In Carpenter, the FBI investigated a series of robberies at Radio Shack and T-Mobile stores in Detroit. Suspecting that Carpenter was operating as a “getaway driver,” the FBI sought and obtained without a warrant the location data for his cell phone. This data revealed that Carpenter (or at least his cell phone) was near the stores at the times of the robberies––damning evidence.

Carpenter argued that the government’s collection of his cell photo data was a “search” under the 4th Amendment, a “search” which would require a warrant supported by “probable cause.” The government maintained that privacy concerns were addressed when law enforcement complied with the Stored Communications Act which allows law enforcement access upon a showing that the information sought is “relevant and material” to an ongoing investigation. The government further argued that there is no reason to afford greater protection to cell phone data than given to other data such as bank records and dialed telephone numbers which can be obtained without a warrant.

The issues presented in Carpenter are not new, but are magnified by the awesome power of advancing technology to track our movement and assembly with others. The Louisiana court in State v. Bone, 12-34 (La. App. 5 Cir. 9/11/12), 107 So. 3d 49, held that an exclusive user of a cell phone did not have a reasonable expectation of privacy to the call detail record log associated with the phone. The court reasoned that access to the information in the detail record log was voluntarily surrendered by the defendant to the phone’s providers. However, in United States v. Jones, 132 S. Ct. 945 (2012), the United States Supreme Court found that the installation of a GPS device on a vehicle to monitor the vehicle’s movement was a “search” under the 4th Amendment. Carpenter addresses the intersection of these two cases.

By carrying a cell phone you know can track your movements, do you lose any reasonable expectation of privacy? Or, would allowing warrantless access to this information be akin to the prohibited GPS search in United States v. Jones? The Supreme Court will soon decide. How it chooses will impact criminal litigation and by extension how cell phone data is regarded in civil suits. More importantly, it may also impact the relationship between citizens and their government.

Collin LeBlanc is a Keogh Cox partner and experienced litigator who concentrates in 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.

Supreme Court Emphasizes “Error-Correcting” as Proper Role of Appellate Courts

01.21.2016

In a 68 page decision, the Louisiana Supreme Court in Hayes Fund for the First United Methodist Church of Welsh, LLC, et al. v. Kerr-McGee Rocky Mountain LLC, et al. forcefully explained the role of an appellate court. It is axiomatic that Louisiana appellate courts are courts of review. Louisiana law specifically sets the standard of review an appellate court must apply when reviewing a trial court’s factual decisions (manifest error) or its legal decisions (de novo). According to Hayes Fund, a failure to faithfully apply the “manifest error” standard of review where applicable causes an appellate court to function as a “choice-making court” when its proper role is to serve as an “errors-correcting court.”

Less Than Obvious State of “Open and Obvious” Defense

08.25.2015

The “open and obvious” defense remains alive and well in Louisiana according to an article penned recently by Professor John M. Church of the LSU Law Center for the Louisiana Association of Defense Counsel. In April 2013, the Louisiana Supreme Court announced Broussard v. State of Louisiana, 2012-1238 (La. 4/5/13), 113 So.3d 175, which muddied the waters regarding use of the “open and obvious” defense. Some read Broussard as a pronouncement that the “open and obvious” defense was essentially dead in Louisiana. However, as reflected in Professor Church’s article, subsequent Louisiana Supreme Court decisions have given new life to the defense.

When No Higher Court Remains

12.10.2014

On April 20, 2010, BP’s Deepwater Horizon rig exploded at a cost of eleven lives. What followed was the largest accidental marine oil spill in history. In the aftermath, BP looked for a solution, ostensibly to cap its exposure and address a swirling PR disaster. BP began to actively negotiate a settlement.

Volunteer Firemen “On the Hook” in Louisiana

03.26.2013

The Louisiana Supreme Court recently held that the workers’ compensation tort immunity provided by LSA-R.S. 23:1032 does not apply to suits by one volunteer fireman against another volunteer. See Champagne v. American Alternative Insurance Corp., 12-1697 (La. 3/19/13), — So.3d —. LSA-R.S. 23:1036 provides that workers’ compensation is the sole and exclusive remedy provided to a volunteer fireman against a fire company. Champagne clarified that this immunity does not similarly apply to claims for personal injury brought by one volunteer fireman against another.

Sentencing Juveniles in Louisiana after Miller v. Alabama

03.20.2013

The Louisiana Supreme Court recently held that a district court must reconsider a case involving a seventeen year old who was sentenced to life in prison without the possibility of parole for second degree murder under a mandated penalty provision of a statute. See State of Louisiana v. Darrius R. Williams, 12-1723 (La. 03/08/13), –So.3d—. The defendant’s application for review to the Louisiana Supreme Court was pending when, Miller v. Alabama, 567 U.S. ___, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), was decided by the United States Supreme Court.

Case on a Wire – Last Minute Fax Filing

03.13.2013

The Louisiana Supreme Court recently held that a request for service of process made by facsimile filing within ninety days from the filing of the petition, but not perfected until after the ninety days has passed, is a timely request for service of process under LSA-C.C.P. art. 1201. See Brenda Morales and Jerson Rodriguez v. State of Louisiana Through the Board of Supervisors of LSU Through Earl K. Long Medical Center, 12-2301 (La. 1/11/13), –So.3d—.

Oil & Gas Clean-Up Not “Capped”

03.04.2013

Louisiana’s long relationship with oil and gas has been profitable for both the oil and gas industry and Louisiana’s citizens. However, the nature and extent of the duty to restore the land after drilling has often been a disputed and litigated issue. Recently, the Louisiana Supreme Court’s decision in State v. Louisiana Land and Exploration Co., 2012-0884 (La. 1/30/13), – So.3d – added clarity to the law by establishing that the presence of a Court-approved remediation plan does not create a “cap” on damages.

Louisiana Supreme Court Rejects Mental Anguish Claim

02.09.2013

The Louisiana Supreme Court recently held that an insurance agent’s negligent handling of a claim did not justify an award for mental anguish in Prest v. Louisiana Citizens Property Corp., 2012-0513 (La. 12/4/12). In Prest, it was alleged that the agent negligently failed to process a request for increased insurance sent more than 10 days prior to Hurricane Katrina.