Louisiana Supreme Court Rejects Mental Anguish Claim

Sometimes in law, the facts of a case may threaten to eclipse the legal issue. However, Louisiana law instructs the fact finder to see through the facts, and their sometimes tragic nature, and apply the law as written. As Aristotle once wisely said, “The Law is reason free from passion.”

In Kazan, et. al. v. Red Lion Hotels Corporation, et. al., 2021-CC-01820 (La. 6/29/22), the Louisiana Supreme Court recently ruled on a case with tragic facts, and its ruling provides an example of Aristotle’s description of law in action. In Kazan, a female patron was in the parking lot of a motel when a male patron approached her and used Kazan’s vehicle to abduct her from the premises. The car was later found submerged in a lake, and Kazan’s body was recovered from the water. The family filed a tort suit against several parties, including the motel’s owner and its insurer, the Great Lakes Insurance Company SE.

Great Lakes filed a motion for summary judgment and asked to be dismissed on grounds that coverage for the event was excluded from its policy. Specifically, the insurer argued that bodily injury caused by an “assault,” “battery,” or “physical altercation” was excluded under the policy’s terms. Great Lakes further argued that the kidnapping and ultimate death of the patron was excluded under the policy as bodily injury caused by an assault, battery, or physical altercation. The Louisiana Supreme Court agreed and reversed the decision of the trial and appellate courts.

Under Louisiana law, “[a]n insurance policy is a contract between the parties and should be construed using the general rules for the interpretation of contracts.” Id. at p. 3. “When the words of an insurance policy are clear and explicit and do not lead to absurd consequences, courts must enforce the language as written.” Id. at p. 3. “Courts lack authority to alter the terms of an insurance policy under the guise of interpretation and should not create an ambiguity where none exists.” Id. at p. 3.

With these basic rules in mind, the Court carefully reviewed the wording of the exclusion in the Great Lakes policy which stated as follows: “This insurance does not apply to ‘bodily injury,’ ‘property damage,’ or ‘personal advertising injury’ arising out of an ‘assault,’ ‘battery,’ or ‘physical altercation.’” “Physical altercation” was defined in the policy as “a dispute between individual [sic] in which one or more persons sustain bodily injury arising out of the dispute.” Citing Merriam-Webster’s dictionary, the Court defined the term “dispute” as “verbal controversy” or “quarrel.”

Based upon the evidence in the case, the Court found the female patron was involved in a “dispute” with her male attacker, and ultimately sustained bodily injury as a result of the dispute. Therefore, the patron was injured in a physical altercation, as defined under the specific terms of the Policy, and coverage for the event was excluded under the policy’s terms.

The Court noted as follows: “The facts of this case are undoubtedly tragic. Nonetheless, absent a conflict with statutory provisions or public policy, insurers are entitled to limit their liability by imposing reasonable conditions upon the policy obligations they contractually assume. That is what Great Lakes did in the insurance policy at issue here.” Despite the tragic facts presented in the case, in so holding, it appears the court agreed with Aristotle’s belief that the Law is Reason Free from Passion.

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.”

The plaintiffs in Hayes Fund alleged that negligence by Kerr-McGee caused two wells to stop producing, leaving valuable assets out of reach. After a lengthy bench trial which spanned a ten-month period and involved over twenty-five days of live testimony, the trial court found that the plaintiffs failed to meet their burden to prove that the defendants caused the loss. Thereafter, the Third Circuit reversed the finding of the trial court as an abuse of discretion.

The Supreme Court reversed and reinstated the ruling in favor of defendants. The Court found that the primary issues in the trial court were factual issues concerning whether the experts were credible or factually correct, thus the “manifest error” standard of review should have been applied.

According to Hayes Fund, the manifest error standard of review is accomplished by undertaking a two-step process which asks: 1) whether there was any factual basis for the trial court’s conclusions; and, 2) whether the findings of the trial court were “clearly wrong.” Applying this test requires the appellate court to do more than “simply review the records for some evidence, which supports or controverts the Trial Court’s finding.” Instead, the appellate court must review the “entire record.” The Court cautioned that an appellate court is not to “re-weigh the evidence or to substitute its own factual findings just because it would have decided the case differently.”

Through its conclusion, the Hayes Fund Court provided clear guidance moving forward, stating:

Rarely should a District Court’s choice of expert(s) be found clearly wrong because it is so difficult to find a reasonable basis does not exist for the expert’s opinion relied upon by the District Court. It is destructive to the manifest error analysis for a reviewing Court to make its choice of the evidence rather than look for clear error in the reasonable basis found by the trier of fact. We have tortuously studied this scientific and voluminous record to demonstrate a proper manifest error review.

By its own terms, the Court intends the Hayes Fund decision in to provide “guidance” as to the “proper analysis for the reviewing Court(s).” While the principles discussed in Hayes Fund are not new or novel, the emphasis given by the Court was uniquely passionate and likely to quickly become a focus of future appellate argument and briefing.

Winning or losing in court often comes down to who possesses the burden of proof. Like a driver at a four-way stop, a litigant has to know when it is their turn.

Civil Procedure Article 966, the "Summary Judgment Article," provides that the mover bears the burden of proof. The Louisiana Supreme Court recently addressed this burden in Dan Veuleman & Jody Veuleman v. Mustang Homes, LLC, 2013-C-190 (La. 4/5/13), - So. 3d - in the context of insurance coverage.

The general rule in Louisiana is that an insurer bears the burden of proving that a loss falls within a policy exclusion. In Veuleman, the insurer argued that the loss was excluded through a "work product" exclusion. However, the "work product" exclusion contained a "subcontractor" exception. The plaintiffs argued that the work was performed by a subcontractor and should for that reason be covered under the policy.

At the hearing, the insurer introduced its policy as evidence of the exclusion. However, it offered no evidence to show who performed the work at issue. The plaintiffs attempted to introduce an affidavit to establish that the work was performed by a subcontractor. The court of appeal rejected the affidavit as insufficient and concluded that the plaintiffs did not establish that their claims were spared from the work product exclusion.

The Louisiana Supreme Court disagreed. It stressed that the insurer, not the plaintiff, possessed the burden of proving that the policy exclusion applied. The Court stated that "[t]he insurer offered no proof to accomplish its burden." Id. at 1.　

The Veuleman Court held that the appellate court "erroneously shifted the burden of proof on the motion for summary judgment" to the plaintiffs and that the insurer had the burden to show that "the exception [to the exclusion] is not met." In keeping, the Court vacated the summary judgment and remanded the matter for further proceedings.

The Veuleman decision reminds that a litigant should be aware when it is their turn to go.