SANCTIONS – in Wilson Acosta v. B&B Oilfield Services, Inc., the Third Circuit Court of Appeal affirmed an award of $7,500 in attorney fees and $65.04 in costs as sanctions in a revocatory action. The Wilson plaintiff alleged that the defendant’s sale of assets rendered it insolvent, and should be revoked as a sham transaction. Summary judgment was granted in favor of the defendants. Sanctions were awarded because the plaintiff continued to pursue the revocation after the facts of the claim demonstrated that revocation was not available. On this subject, the Court stated:
In light of the information available to Plaintiff, Wilson Acosta and his counsel as of February 15, 2011, the continued pursuit of the litigation after that date was without reasonable basis.
This decision shows that Code of Civil Procedure article 863 (which allows sanctions for the filing of unsupported pleadings) can have “teeth” under appropriate facts.
PENALTY AND ATTORNEY FEES – in State Farm Mutual Auto. Ins. Co. v. Norcold, the Third Circuit Court of Appeal held that a third party claimant can recover penalty and attorney fees under La. R.S. 22:1892 for an insurer’s failure to make a written offer to settle a property damage claim within 30 days after receipt of satisfactory proof of loss. The statute expressly requires the making of such an offer whether the claimant is the insured or a third party, but only provides for a penalty based on the amount “payable to the insured.”
WORKER’S COMPENSATION – In Clay v. Our Lady of Lourdes Regional Medical Center, the Louisiana Supreme Court reversed the Court of Appeal’s decision to require that the employer prove that a job was offered to the claimant (to establish the ability to earn 90% of his pre-injury wages). The Supreme Court held that the supplemental earning benefits statute merely requires proof that a job was offered, or is available . The Supreme Court observed that the Court of Appeal’s decision effectively rendered “the second part of the statute meaningless.”
Environmental – In a pair of bills sent to the Governor for signature, the Louisiana legislature struck a compromise on hotly contested issues relating to “Corbello” actions/Legacy claims relating to responsibility for environmental cleanup of property in the state. Both of these statutes apply to all cases that are not set for trial as of May 15, 2012
House Bill 618 (Enacting Code of Civil Procedure Articles 1552 and 1563)
Article 1552 provides that any party in any civil action alleging environmental damage pursuant to R.S. 30:29 may request that the court enter an “environmental management order” that allows the parties to access the property, investigate, test, etc. All tests relating to the property must be produced to all parties or such testing cannot be used by the party as evidence in the civil action.
Article 1563 provides that a party may enter a “limited admission” for specific environmental damage without global admission if a “feasible” remediation plan is offered and accepted. Such a limited admission does not result in a waiver of any rights or defenses of the admitting party, but the admission and comments by the department shall be admissible in a civil action.
Senate Bill 555 (R.S. 30:29)
This bill amends R.S. 30:29 to provide a number of rules pertinent to civil litigation:
It provides that any party can conduct a full range of discovery of “any employee, contractor, or representative of the department involved in the feasible plan.”
The bill also provides for a preliminary hearing, if requested within 60 days of service of “a petition or amending petition” pursuant to which a defendant may require the plaintiff to make a showing that supports the claim of environmental damage against that defendant, in default of which a dismissal without prejudice will be entered as to that defendant.
Prescription on a covered action “shall be suspended for a period of one year” from the time that the department is physically served with notice of intent to investigate-the details of which are defined by the statute.
Any “subsequent judicial demand…shall identify on a map the location of any alleged environmental damage and include the results of any environmental testing performed on the property. Failure to include this information at the time of the filing of the judicial demand shall result in exclusion of the information.”
On a determination of liability or upon a limited admission of liability, the court will require the party to submit a “feasible plan.” No party may have any ex parte communication with “any employee, contractor, or representative of the department.”
The bill also provides that any “responsible party” waives any indemnification against punitive damages arising out of the environmental damages. Other claims for indemnification may be enforced, however.