Public Health Emergencies, Medical Review Panels, and Gross Negligence – Where Does Louisiana Currently Stand?

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.

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.

Plaintiff Brady Hardisty and a coworker attempted to use chains attached to a tractor to pull a Caterpillar bulldozer from the mud. A chain snapped and struck plaintiff in the head and face. Hardisty sued Caterpillar under allegations that its product was unreasonably dangerous. Caterpillar filed a Motion for Summary Judgment arguing Hardisty was not engaged in a “reasonably anticipated use” of its product. Both the trial court and the appellate court identified “material issues of fact” in denying Caterpillar’s motion. The Supreme Court reversed, and entered summary judgment for Caterpillar.^

Caterpillar cited its Operation Manual that warned against the use of chains and gave a safer alternative. Hardisty asserted that material issues of fact existed as to whether Caterpillar “knew or should have known” that users were not following product warnings. Hardisty offered opinions from its expert witness that: (1) Caterpillar knew of the danger because it warned against the use of chains and (2) experience showed that the use of chains was a common practice in the industry.

The Hardisty court reasoned that the expert’s own “experience” was insufficient to refute Caterpillar’s evidence that it received no report of prior similar accidents. However, the Court cited to earlier case law for the proposition that even actual knowledge would not defeat the motion, stating:

The jurisprudence has recognized that knowledge of the potential and actual intentional abuse of a product does not create a question of fact on the question of reasonably anticipated use when the manufacturer expressly warned against the danger of such misuse.

In a recent case handled by Keogh Cox, the federal Fifth Circuit affirmed summary judgment for defendants, citing Hardisty for the proposition that a manufacturer may reasonably expect that its users will follow “clear and direct” product warnings. See Friels v. Louisiana State Administrative Office of Rick Management, et al.

References:

^Hardisty v. Walker, 25-00239 (La. 6/3/25), 410 So,3d 774.

Louisiana State Administrative Office of Rick Management, et al., No. 24-30688, 8/15/25. Opinion not designated for publication. 5^th Cir. R. 47.5.