Tony Staines, Corey Parenton, and James Crouch obtained an Order from the Louisiana First Circuit declaring that a plaintiff could not videotape or record an examination performed by an independent medical examiner. This Order overturned the district court’s Judgement allowing the plaintiff to record his examinations. It also set a standard in the First Circuit, where many similar rulings were issued allowing recording and other similar measures. Thereafter, the Louisiana Supreme Court denied writs filed by the plaintiff, solidifying the First Circuit’s decision and its application among the district courts within its jurisdiction. This includes Baton Rouge, Houma, and Thibodaux.
Michael W. Maldonado has joined the firm as an Associate. Michael is an inaugural 3+3 pre-law program participant and a 2020 graduate of Paul M. Hebert Law Center. He was active in moot court competitions throughout his law school career and was inducted into Order of the Barristers in his final semester.
Lee Rudin has joined the firm as Special Counsel. Lee brings to the firm extensive experience in commercial and casualty litigation.
Tony Staines, Corey Parenton, and Jessie Finely prevailed in opposing summary judgment filed by a third-party defendant on the issue of prescription. The third-party defendant contended that it could not be held liable for contribution in a general maritime negligence claim because the plaintiff’s direct claims against it were time-barred. Because contribution is not truly ripe until a party is deemed to be partially at fault, but held fully responsible for a judgment, the claim against the third-party defendant was timely even though the underlying claim was not.
Staines & Eppling, LLC, is proud to announce that Jason Kenney has become a named partner of the firm and the firm name will now be Staines, Eppling & Kenney, LLC.
Staines, Eppling & Kenney, LLC congratulates its attorneys who were selected to the Louisiana 2020 Super Lawyers. Jason Kenney was recognized in the area of Transportation/Maritime and David Bernard as a 2020 Rising Star in the area of Personal Injury Defense.
Tony Staines and Julie Kammer recently received special thanks for serving on the New Orleans Chapter of the Federal Bar Association’s Civil Pro Bono Counsel Panel, and specifically, for their support and services over the past year.
No Enforceable Contract. Tommy Eppling and David Bernard recently obtained summary judgment in favor of an inland marine company and its employee, dismissing them from a suit claiming breach of an alleged contract for failure to pay a commission. The inland marine company and its employee acted as messengers between an oil company and an emergency fuel management company in attempting to broker a fuel sale to FEMA for Hurricane Marine relief in Puerto Rico. No sale was ever confected, and eventually, FEMA put a contract out for public bid, which was won by the oil company. The emergency fuel management company claimed the oil company, inland marine company, and the inland marine company’s employee all agreed to pay a commission on a fuel sale to FEMA. Although no agreement existed, the oil company’s contract with FEMA expressly prohibited any such commission pursuant to the Federal Acquisition Regulations. After deposing the representatives of each company involved, Staines, Eppling & Kenney, LLC sought dismissal of several disputed legal issues, including the prohibition of the commission agreement. In granting summary judgment, and dismissing all claims against the inland marine company and its employee, the district court agreed that the contract was not enforceable and was prohibited by law.
Lance Harwell has published an article entitled “Watch Your Words: Recorded Conversations in Louisiana” which discusses Louisiana law on recording conversations and having your conversations recorded.
Ownership, in the Absence of Negligence, Insufficient for Claim. Tommy Eppling and David Bernard recently obtained the dismissal of a truck rental company on an Exception of No Cause of Action. The plaintiff asserted claims against the truck rental company solely on the basis of its ownership of a truck allegedly involved in an accident. However, the Graves Amendment (49 U.S.C. 30106) precludes a claim against such a company based on its ownership in the absence of any negligence or criminal wrongdoing. Although the plaintiff asserted a need for additional discovery in opposition to the Exception, when examining the four corners of the Petition for Damages, the district court ultimately agreed that the rental company should be dismissed.
Lance Harwell has published an article entitled “Racing to the Doctor: Moving Your Claims to Closure” which discusses the advantages of getting a new claimant to a doctor for medical examination quickly.
Lawyers in the Classroom for Constitution Day. Staines, Eppling & Kenney, LLC attorneys annually participate in the Lawyers in the Classroom Programs coordinated by the Louisiana Center for Law & Civic Education. This year, Sara Scurlock (St. Christopher School), Lance Harwell (Faith Lutheran School) and Corey Parenton (John Curtis Christian School) visited local schools in conjunction with Constitution Day, presenting on topics including privacy issues, the requirements for election to office, and the process of amending the Constitution.
Denial of Onerous Vessel Inspection Upheld. Corey Parenton and Jason Kenney recently prevailed at the Louisiana Supreme Court, preventing an onerous and unnecessary vessel inspection from occurring. In litigation involving a 2011 incident, plaintiff’s counsel requested a repetitive and burdensome inspection for the sake of validating the opinion of an expert in ergonomics. Corey and Jason explained that the ergonomic standards forming the basis of the proposed inspection were inapplicable under general maritime law. Additionally, the inspection did not have any bearing on the limited issues of fact before the court. The inspection was ruled unnecessary and without good cause by the district court, the Louisiana Fifth Circuit Court of Appeals, and the Louisiana Supreme Court.
Lance Harwell has published an article entitled “135 Face-Saving Pronunciation Tips: A Louisiana Claims Professional’s Field Guide to Names and Places” to assist our out-of-state clients who may struggle with some of Louisiana’s more creatively pronounced names and places.
Staines, Eppling & Kenney, LLC is pleased to announce that member, Lance Harwell, has joined the Louisiana Association of Business and Industry’s (LABI) Legal Advisory Council.
Lance Harwell has published an article entitled “Hey Claims Professional, Read This to Get All the Money YOU Deserve! (4 Perfectly Legal Areas in Which You Can Claim Credits)” to identify for our clients circumstances in which they may assert a credit in Louisiana.
Why Procedural Defenses are Important. Tommy Eppling and David Bernard recently obtained a dismissal of all claims over a water delivery company following a pre-trial motion to dismiss for failure to comply with the Court’s Case Management Order and submit witness and exhibit lists. A driver claimed to have sustained severe personal injuries and property damage when several five-gallon water bottles allegedly fell out of the truck and onto the interstate. During the investigation of the claim, the firm discovered several issues that would have severely impeached the plaintiff’s credibility, the sum of which served as the basis for a reconventional demand for fraud against the driver. Although prepared to defend the liability claims and prosecute the fraud claim against the driver, the defendants orally moved the Court for dismissal on the morning of trial. In granting the motion in the water company’s favor, the Court agreed that the driver failed to obey the Court’s Order, and all witnesses and exhibits should be stricken, and accordingly, dismissal was appropriate given the lack of substance of plaintiff’ case.
Tony Staines was honored as the 2019 Member of the Year by the Houston Mariner’s Club, a group which provides a venue for social and business interaction for members of the maritime community and their spouses and guests. The Houston Mariner’s Club uses its meetings and special events to provide continuing professional education and to raise money for maritime-related charities in Houston, Texas. Congratulations Tony – well deserved!
Lance Harwell has published an article entitled “Flop Sweat: Unexpected Claims for Double Damages” to help clients and friends avoid a nasty little surprise in the Medicare Secondary Payer Act allowing a private action for double damages.
The Supreme Court has released its long awaited decision in Dutra Group v. Batterton. Finding that punitive damages are disallowed for claims of unseaworthiness. The Court reversed the Ninth Circuit in a 6-3 vote in an opinion by Justice Alito in which Chief Justice Roberts and Justices Thomas, Kagan, Gorsuch and Kavanaugh joined. Justice Ginsburg authored the dissenting opinion and was joined by Justices Breyer and Sotomayor. For a brief analytical summary of the Court’s reasoning, click here.
Lance Harwell has released the most recent LOUISIANA CLAIMS PROFESSIONALS’ HANDBOOK. The new version (v.1.7) contains updates on the law, tips on testifying, protecting your claims file, bad faith traps, medical abbreviations and other glossaries, guides and compilations.
Lance Harwell has published an article entitled “27 Tips to Winning Every Negotiation” to provide our clients with useful tips on negotiating at mediation, on the telephone, or with their spouses.
Staines, Eppling & Kenney, LLC partnered with Ascot Insurance US for the 37th Annual Houston Mariners Club Cook-Off and took home 3rd place trophies in both the chili and chicken categories.
Lance Harwell has published an article entitled “11 LHWCA Questions Used to Exclude Government Employees” examining an exclusion in the Longshore and Harbor Workers’ Compensation Act excluding government employees from coverage.
Lance Harwell published a case note directed to LHWCA Claims Professionals on the Supreme Court case of Kisor v. Wilkie entitled “A Vietnam War Vet’s Lawsuit May Change the Way You Do Your Job” to highlight how the case will determine the future of the long-applied Auer deference to administrative cases. Read it here.
NOLA Boat Rentals Prevails Against Company That Refused to Pay. Jason Kenney and David Bernard recently obtained summary judgment in favor of a small boat company to recover the money it was owed for work it performed. NOLA Boat Rentals was a third tier contractor who was told by a subcontractor that it would not be paid by the prime contractor. In justifying its refusal to pay, the subcontractor claimed NOLA Boat Rentals agreed to a “pay-when-paid” clause in a contract. However, there was no signed contract with any such provision. The subcontractor was already engaged in litigation with the prime contractor and when there appeared to be no end in sight, NOLA Boat Rentals was forced to seek court intervention to recover what was owed. After focused discovery, Staines, Eppling & Kenney, LLC filed a Motion for Summary Judgment to bring an end to the payment stand-off. In granting the motion in NOLA Boat Rentals’ favor, the Court agreed that the unexecuted contract was not enforceable; that an open account existed between the parties; and that the subcontractor owed NOLA Boat Rentals the full amount due and owing, as well as attorney’s fees per Louisiana’s open account statute.
Staines, Eppling & Kenney, LLC Knows a Winner When It Sees One. At the 11th Annual Hogs for the Cause festival and cook-off (March 29-31, 2019), Team Fleur De Que raised $442,442 for the families of children with brain cancer and defeated over 90 other teams to again win the title of Top Fundraising Team. Hogs for the Cause is a non-profit organization that provides aid and relief to families of children with pediatric brain cancer. The organization has given over 800 direct grants to families in need and has made financial contributions to children’s hospitals in New Orleans, South Carolina, North Carolina, Tennessee, Texas and Atlanta, Georgia. With this year’s win, Team Fleur de Que has won the fundraising title nine consecutive years and has now raised approximately $1.4 million for Hogs. As a sponsor, Staines, Eppling & Kenney, LLC is proud to be associated with Team Fleur de Que.
But there’s more – this year, our own Craig Brewer was inducted into the Hogs for the Cause Hog of Fame. Congratulations Craig!!
Lance Harwell has published an article entitled “How to Improve Your Claims Handling Career Through Subrogation”examining how to identify and maximize subrogation recovery opportunities.
Lance Harwell has published an article entitled “Louisiana Worker’s Compensation for the Student-Athlete” as a timely look into whether college athletes would qualify for workers’ compensation benefits in Louisiana.
Heavy Equipment Dealer Dismissed from Subrogation Suit on Summary Judgment. Tommy Eppling and David Bernard recently obtained summary judgment dismissing a subrogation suit against a heavy equipment dealer, including claims under the Louisiana Products Liability Act, and for negligence, breach of contract, and breach of warranty. The plaintiff filed suit as a result of fire damage to its insured’s large landfill compactor. The Court agreed that plaintiff had adequate time to conduct discovery and yet its expert engineer was still not certain of the cause of damage. As the expert was unable to offer an opinion on a “more likely than not” basis, the Court held that the insurer did not produce evidence sufficient to defeat the motion, and accordingly, ruled in favor of the heavy equipment dealer, dismissing all claims against it with prejudice.
Lance Harwell has published an article entitled “Identifying the Crooked Life Care Plan”“as a much-needed discussion given the rise of life care plans.
Lance Harwell has published an article entitled “Protect Your Claims File” to discuss the frustration we all feel then the subpoena for documents arrives on a claims handler’s desk.
Lance Harwell has published an article entitled “Composing Your Best Reservation of Rights Letter” as a love letter to all claims handlers everywhere.
Jessica B. “Jessie” Finley has joined the firm as an associate.
Lance Harwell has published an article entitled “Can An Illegal Alien Sue Your Insured?” providing an answer to a question your insureds may ask with some urgency.
Summary Judgment Dismissal of Motor Carrier Upheld. The Louisiana Court of Appeals, First Circuit held that the denial of an initial motion for summary judgment is an interlocutory judgment, which the trial court may change at any time until final judgment, and a second summary judgment is not barred under the doctrine of res judicata. Beyond a procedural challenge, the appellate court found that a motor carrier’s duty was limited to transport and because a load was sealed prior to transport, there was no duty to inspect the contents of a trailer under 49 C.F.R. §392.9, or to confirm the trailer’s load was secured with restraints. The trial court correctly considered plaintiff’s expert’s affidavit, but also the expert’s subsequent deposition testimony, together with the depositions of other experts and witnesses, and found no factual basis in the record that the carrier breached a duty of reasonable care. Because the carrier set forth evidence of an absence of factual support of a duty of inspection, or breach of duty of reasonable care, the plaintiff failed to satisfy his evidentiary burden and summary judgment was properly granted. When presented with a challenge of the First Circuit’s decision, the Louisiana Supreme Court denied writs on the showing made.
Lance Harwell has published an article entitled “Longshore Coverage Heroes: The ‘Vendor Exclusion'” exploring a little-used exclusion to Longshore benefits for employers that qualify as vendors.
Lance Harwell has published an article entitled “Is the Longshore Act a Sanctuary for Deadbeat Parents?” about the difficulties for claims handlers when dealing with child support liens against Longshore benefits.
Lance Harwell has published an article entitled “Spoilation: Your Trash May Be Your Opponent’s Pleasure” detailing the trouble that may come from a lack of awareness of the need to preserve evidence after an accident.
Lance Harwell has published an article entitled “Wait! Don’t Pay That Ticket!” to inform our clients about the presumption of liability that arises when an individual pleads guilty or even simply pays a traffic ticket related to an accident.
Coast Guard Amends Monetary Property Damage Threshold Amounts for Reporting a Marine Casualty and for Reporting a “Serious Marine Incident.” This amendment will affect when a 2692 report must be submitted to the USCG after an incident. Under 46 U.S.C. 6101, the Coast Guard is required to prescribe regulations on marine casualty reporting, and the manner of reporting, and has developed regulations in part 4 of title 46 of the Code of Federal Regulations (CFR) that include, among other criteria, monetary property damage threshold amounts for reporting a “serious marine incident” (SMI) and for reporting a marine casualty. The original regulations setting these threshold amounts were developed in the 1980s, and have not been updated since that time. Because the monetary thresholds have not kept pace with inflation, vessel owners and operators have been required to report relatively minor casualties. Additionally, the original regulations require mandatory drug and alcohol testing following a serious marine incident. As a result, vessel owners and operators are conducting testing for casualties less significant than those intended to be captured by the original regulations. Updating the original regulations will reduce the burden on vessel owners and operators, and will also reduce the amount of Coast Guard resources expended to investigate these incidents.
In 46 CFR 4.05-1(a)(7), the $25,000 damage threshold for reporting marine casualties will now move to $75,000, and in section 4.05-2(a)(3), the previous $100,000 threshold for SMIs changes to a $200,000. The amendment will be effective April 18, 2018. See full content via Federal Register.
Lance Harwell has published an article entitled “THE FUTURE OF WILLFUL INTENTION: ‘Irresistible Impulse’ or ‘Chain of Causation'”discussing the two different tests used by appellate courts now in suicide cases under the LHWCA and Defense Base Act.
Assisting Tug Boat Not “Tow” of Leading Tug for Hull & Machinery Policy; Dominant Mind Doctrine Not Applicable. Staines, Eppling & Kenney, LLC recently obtained a decision from the United States Fifth Circuit declaring that a Hull and Machinery policy did not provide coverage for damages sustained by an assist tug. The damaged assist tug was part of a three-tug towing unit pushing a large deck barge downriver. When the assist tug shut down its engines mid-voyage to change fuel filters, the entire flotilla drifted into the Sunshine Bridge in Convent, Louisiana. Only the assist tug struck the bridge, and as such, was the only vessel damaged. The lead tug in the flotilla was covered by both a Hull and Machinery policy and a Protection and Indemnity policy. The Protection and Indemnity insurer moved for, and obtained, summary judgment on the basis that the assist tug was in the tow of the lead tug, triggering the Collision and Tower’s liability clause of the Hull and Machinery policy. The Fifth Circuit disagreed, and concluded that an assist tug is not “the tow” of the lead tug. Thus, the Collision and Tower’s liability clause is not triggered, and there is no basis for coverage under the Hull and Machinery policy.
Workers’ Compensation and Tort Claims Defeated. A store clerk robbed in the course of making a bank drop for her convenience store employer was injured while scrambling away from her attacker as he shot into her car. While receiving worker’s compensation benefits, she filed a claim for penalties and attorney’s fees alleging that the employer refused to authorize treatment for her right knee requested by her treating physicians. At trial, Lance Harwell proved that the employer authorized treatment to the right knee from the outset of the claim. Additionally, defendants showed that the treating physicians did not properly request treatment for the knee via a form 1010. As a result, the court found that the employer was not arbitrary and capricious, and denied plaintiff’s claim for penalties and attorney’s fees. The claimant took the verdict up on appeal, where it was affirmed at the Third Circuit.
Contemporaneously with her worker’s compensation claim, plaintiff also filed suit in tort, claiming that her convenience store employer either intended the injury or was substantially certain it would occur. Plaintiff asserted that her assailant was the paramour of a store co-worker, and that her manager alerted the robber to the time of the bank drop. Mr. Harwell prevailed on a motion for summary judgment on the basis that the employee’s exclusive remedy was in worker’s compensation by showing that the claimant could not carry her burden of proof and by discrediting each of the plaintiff’s factual assertions. This judgment also was upheld on appeal at the Third Circuit.
Summary Judgment Limits Damages Available for Wrongful Death. Craig Brewer and Corey Parenton recently obtained partial summary judgment on two issues dramatically altering the damages available to a plaintiff in a wrongful death case. In its Order & Reasons granting partial summary judgment, the Eastern District of Louisiana concluded that an award for loss of future support must be limited by the decedent’s work-life expectancy as expressed by the Bureau of Labor Statistics or other accepted statistical data. Any variation from the statistical averages must be supported by evidence establishing that the decedent desired to work beyond the statistical average, that he was physically capable of working to the desired age, and that from a vocational standpoint, it was possible that he would have continued working in the particular job until the desired age. Having no such evidence, plaintiff’s claims for loss of future economic support were limited to a work-life expectancy established by relevant statistical data.
The court also concluded that adult children living in the same home as the decedent at the time of his death did not qualify as dependents, and could not assert a claim for loss of society under the general maritime law, absent proof of dependency. The decedent’s children were employed and contributed their paychecks to a joint checking account utilized by the entire family, the decedent included. This was part of the decedent’s culture, not necessarily because of financial concerns. Without evidence that this arrangement existed because the decedent’s children needed financial support from their father, the court declared that they did not establish dependency, and could not assert a claim for loss of society.
Appellate Court Agrees Summary Judgment Proper. The Louisiana Court of Appeals, Second Circuit recently affirmed the workers’ compensation court’s summary judgment ruling, which resulted in the dismissal of a claim with prejudice. Plaintiff was an employee of a convenience store, and sustained injuries when he was shot while leaving work. The defendant was the lessor of the building, and consignor of gasoline sold on the premises. In reviewing the record, the Second Circuit agreed with the arguments presented by Tommy Eppling and Sara Scurlock, and found there was nothing to support the contention that the companies were in a joint venture or that the defendant was the plaintiff’s employer. Rather, they were two separate and distinct entities that entered into a standard commercial lease and standard agreement to sell gasoline on consignment.
Minimum Contacts Insufficient for Personal Jurisdiction. Corey Parenton and Tommy Eppling recently obtained the dismissal of a lawsuit for lack of personal jurisdiction over the defendant. The matter was initially filed in state court before being removed to the Eastern District of Louisiana. Using controlling jurisprudence and prior decisions of the presiding judge as guideposts, Corey and Tommy were able to develop and present evidence establishing that the defendant, a trucking company, logged a very small fraction of its total miles driven within Louisiana and that none of its trips originated or terminated in Louisiana within five year period. As a result of its limited presence in Louisiana, the defendant lacked sufficient minimum contacts for the court to assert personal jurisdiction.
No Duty for Offshore Service Vessel Provider. Staines & Eppling successfully argued that a plaintiff could not prove the necessary elements of his general maritime negligence claim, and summary judgment was granted on behalf of an offshore service vessel. Through the depositions of fact witnesses and corporate representatives, Corey Parenton established that the vessel at issue had performed as directed, and was not responsible for standing by a platform while the plaintiff, who was alone on the platform, completed his work assignments. In finding summary judgment was proper, the district court also acknowledged that a duty to act cannot be created in hindsight by an expert witness, especially if there is no support in the applicable Coast Guard regulations, company manuals, or industry standards. The offshore service vessel provider was dismissed from the litigation.
Staines, Eppling & Kenney, LLC honored as one of the 2017 LSU 100: Fastest Growing Tiger Businesses during the LSU 100 Gala on October 5, 2017 at the L’Auberge Casino Hotel Baton Rouge. The LSU 100 is hosted by the LSU Stephenson Entrepreneurship Institute housed in the E.J. Ourso College of Business. The event identifies, recognizes and celebrates the 100 fastest growing companies owned or led by Tiger alumni. By engaging the honorees with the LSU community, students and alumni network with and learn from one another to create a legacy of entrepreneurship at LSU. For a full list of honoree companies, please visit www.lsu100.com.
No Duty of Inspection for Motor Carrier Transporting Sealed Load. Sara Scurlock and Tommy Eppling successfully obtained summary judgment on behalf of a defendant motor carrier, arguing there was no evidence of a duty, or breach of a duty to render the carrier liable to plaintiff. Plaintiff alleged that he sustained injuries while unloading cargo from a truck owned by the carrier and specifically, that the truck was improperly loaded and/or loaded with defective boxes. Because the truck was loaded by a third party, the plaintiff also argued that the carrier was negligent for failing to discover, and/or failing to correct or warn of an unreasonably dangerous condition that occurred during loading. Although plaintiff offered multiple expert opinions regarding a change in structural configuration and the carrier’s duty of inspection under 49 C.F.R. §392.9, their theories did not establish a duty to inspect a sealed trailer, or that the motor carrier was a cause-in-fact of plaintiff’s injuries. In sum, there were insufficient facts to overcome the record evidence that the carrier transported a pre-loaded, sealed trailer, and that the load was undisturbed when the seal was broken and the contents were inspected prior to plaintiff’s accident. The carrier was dismissed from the litigation with prejudice.
No Liability for Fraudulent Claim Against Trucking Company. Staines, Eppling & Kenney, LLC recently obtained dismissals with prejudice of the lawsuits of two plaintiffs who claimed that a client’s truck moved into their lane, striking their automobile and causing injuries. Fraud was suspected, as the truck driver was adamant that he never switched lanes, as plaintiffs claimed. A witness who was driving behind both vehicles was deposed and confirmed that the plaintiffs’ vehicle twice attempted to strike the back of the client’s truck before finally coming in to contact with it, revealing that the “accident” was in fact a set-up.
District Court Finds Government Contractors Immune. Staines, Eppling & Kenney, LLC successfully urged a Motion for Summary Judgment on behalf of a general contractor alleged to have caused property damage in conjunction with the federally funded Southeast Louisiana Urban Flood Control Projects (SELA) in Uptown New Orleans. The contractor was dismissed based on its immunity as a federal government contractor. The United States District Court, Eastern District of Louisiana considered the defense, as expanded by Boyle v. United Tech Corp., 487 U.S. 500 (1988) and specifically (1) whether the government approved reasonably precise specifications; (2) whether the work conformed to those specifications; and (3) whether the contractor warned of any dangers known to it, but not the government. After extensive briefing and argument by the parties, the district court found that the plans and specifications for the SELA projects were reasonably precise for each feature of construction implicated by the claims. The United States Army Corps of Engineers (USACE) approved the reasonably precise specifications and USACE’s oversight and supervision, together with its acceptance of the contractor’s work, was persuasive evidence of conformity with those reasonably precise specifications. Finally, the district court found that USACE knew of the risks associated with the construction activities and was chargeable with general knowledge that the construction had the potential to cause damage. Because there was no evidence that the contractors failed to report a dangerous condition unforeseen by USACE, the contractor satisfied the last prong of Boyle. The district court’s ruling confirms that a federal government contractor who builds a project in accordance with reasonably precise plans and specifications, and whose work conforms to those specifications, will be immune from liability.
Appellate Court Affirms Class Certification Denial in SELA Litigation. Staines, Eppling & Kenney, LLC successfully defended a general contractor at the appellate level, and precluded certification of a class estimated to include over 1000 property owners and residents within 1000 feet of the Dwyer Road SELA construction project. The United States Fifth Circuit Court of Appeals maintained that a lawsuit which seeks to recover different damages caused by different acts committed by different defendants at different times over a five year period is inappropriate for class treatment. In focusing on how causation would be evaluated at trial, the possibility of a formulaic model for damages, and whether mass torts were appropriate for class treatment, the Fifth Circuit concluded the district court did not abuse its discretion in finding that individualized issues of causation and damages would necessarily predominate, and affirmed the denial of class certification. Although not a part of the original appeal, the Fifth Circuit also considered whether removal of the case from Civil District Court by the general contractor was proper, and found the district court properly maintained jurisdiction over the case based on the federal officer removal statute.
When Does a Duty to Defend Apply? Tony Staines, Craig Brewer and Corey Parenton obtained a partial summary judgment declaring that a Hull and Machinery policy did not give rise to a “duty to defend.” The ruling confirmed long-standing precedent that an insurance policy is controlled by its terms and provisions. A Hull and Machinery policy, as an indemnity policy, requires only that the insurer reimburse the assured for defense costs which are properly covered under the policy and which erode the policy limits. Conversely, a traditional liability policy obligates the insurer to provide a defense for its assured pursuant to its “duty to defend” language, with the defense costs paid separately from the limits of liability. Thus, absent any policy language to the contrary, the Eastern District of Louisiana re-affirmed that a Hull and Machinery policy does not provide an obligation to defend the assured.
Motion to Sequester Funds Granted. Lance Harwell filed a Motion to Sequester Funds to protect a longstanding client’s valued interest after its attempts to collect for materials purchased by two Northshore businesses acting as a single enterprise were unsuccessful. The motion requested the district court order the debtors to collectively deposit nearly $1 million into the registry of the Court based on verified outstanding invoices. The Court agreed that the request was valid, granted the motion, and ordered the debtors to deposit the full sum once a bond equal to 1% of the total amount to be deposited was furnished.
Trial Victory on Limited Bailment. Staines, Eppling & Kenney, LLC represented Bent Marine and their insurers in a lawsuit filed by a boat owner arising from damages which allegedly occurred while the owner’s boat was at Bent Marine’s Madisonville yard during Hurricane Isaac. The plaintiff navigated his boat to Bent Marine’s yard and left it for repairs. Most of the repairs were made weeks before the hurricane’s landfall and Bent Marine called plaintiff to inform him his boat was operable, although not 100% repaired since they were waiting on delivery of a hatch lift. In conjunction with its hurricane preparations, Bent Marine again called plaintiff and left messages to pick up his boat, but he did not do so before the hurricane. Bent Marine hauled the boat out of the water, placed it on blocks and removed the bilge plug. When Isaac made landfall, the combination of rising flood waters and rain caused the Tchefuncte River to rise to an unprecedented level. Flood waters inundated the Bent Marine yard and allegedly entered the boat through the bilge drain, totaling the vessel. After a trial on the merits, the 22nd Judicial District Court found that plaintiff was authorized to pick up his boat and was encouraged to do so before the hurricane, therefore a limited bailment existed under general maritime law (i.e. plaintiff had shared access to his property) and there was no presumption of negligence against Bent Marine. Plaintiff was required to prove that Bent Marine deviated from the standard of care expected of a reasonably prudent repair yard in similar circumstances. Because Bent Marine implemented its hurricane protection plan and exercised ordinary care in its actions to protect the plaintiff’s boat, the Court found plaintiff failed to meet his burden of proof. As a result, a Judgment was entered in favor of Bent Marine and plaintiff’s claims were dismissed with prejudice.
David C. Bernard joins the firm as an associate.
Staines, Eppling & Kenney, LLC recently presented “Employment Issues Facing the Maritime Industry,” a free seminar offered in conjunction with the International WorkBoat Show in New Orleans, Louisiana. Topics by Julie Kammer included FLSA issues in the Maritime Industry, a discussion of the similarities and differences between the FLSA’s and Jones Act’s definitions of “seaman,” how “independent contractors” are treated under the FLSA, and the potential for employer liability for miscategorization under the Act. Jason Kenney joined and offered insight on “How to Handle Root Cause Analyses So you Don’t Shoot Yourself in the Foot,” with tips for answering difficult questions in a RCA that may be required by a client, as well as how to create internal RCA forms to avoid liability issues in litigation.
Summary Dismissal of Jones Act, Unseaworthiness and Vessel Negligence Claim. Corey Parenton and Craig Brewer recently obtained a summary judgment verdict in the United States District Court, Middle District of Louisiana. The plaintiff-employee alleged that he was a Jones Act seaman who was injured when he fell into an empty barge, suffering a traumatic brain injury, a fractured pelvis and a number of other serious injuries. His wife asserted a claim for loss of consortium. Hearing the matter on the briefs, the district court ruled that the plaintiff was not a seaman, as he lacked the requisite connection to a vessel in navigation. The district court also concluded that plaintiffs could not present any evidence to establish fault on the part of the defendant-employer. Accordingly, the claims of both plaintiffs were dismissed in their entirety with prejudice.
Staines, Eppling & Kenney, LLC obtained a Judgment dismissing punitive damages claims asserted against a vessel operator as the court found those damages are not available under the general maritime law. While another section of the Eastern District of Louisiana, in a case titled Collins v. A.B.C Towing, LLC, recently held that punitive damages were available against a non-employer under the general maritime law, attorneys at the firm were able to convince Judge Susie Morgan that both the Supreme Court and the Fifth Circuit have precluded punitive damages against non-employer’s under the general maritime law. Accordingly, Judge Morgan, in a well-reasoned opinion, agreed with our brief holding that punitive damages are not available under the general maritime law for allegations of negligence or unseaworthiness. Please click here to see Judge Morgan’s entire decision.
Staines, Eppling & Kenney, LLC was honored as one of the 2015 LSU 100: Fastest Growing Tiger Businesses during the LSU 100 Honoree Luncheon, on Friday, October 23, 2015, at the L’Auberge Casino Hotel Baton Rouge. The LSU 100 is hosted by the LSU Stephenson Entrepreneurship Institute (SEI), housed in the E.J. Ourso College of Business. The event identifies, recognizes and celebrates the 100 fastest growing companies owned or led by former LSU students and alumni. For a full list of honoree companies, please visit www.lsu100.com.
Jason Kenney was invited to present at the first annual Marine Risk and Claims Seminar (“MRCS”) on October 16, 2015 in Port Fourchon, Louisiana. Jason discussed “Punitive Damages for the Failure to Pay Maintenance and Cure” during a presentation shared with Christian Kelly, Claims Manager at Osprey Underwriting Agency Limited. The seminar was a resounding success and was followed by a fishing tournament at Moran’s Marina.
Apportionment of Fault for Basket Transfer. Staines, Eppling & Kenney, LLC obtained a favorable judgment for a crew boat company in the liability stage of a bifurcated trial in the United States District Court, Eastern District of Louisiana. The litigation involves three plaintiffs who claimed they were injured while being transferred by a personnel basket from a lift boat to the deck of a crew boat. The plaintiffs were clear that they considered the crew boat company the “target” defendant and believed the crew boat company bore the majority of fault for the accident. At trial, the district court considered the comparable fault and/or negligence of multiple defendants under general maritime law and rejected the theory that the crew boat company was liable on the basis that their deckhand mistimed the landing of the personnel basket. Through the efforts of trial counsel and the liability experts, Staines, Eppling & Kenney, LLC successfully thwarted plaintiffs’ attempt to assign the majority of fault to the crew boat caption and its crew. Instead, the district court concluded that while there was some negligence on the part of the crew boat captain for failing to initiate a conversation about the procedure of a basket transfer, the majority of negligence and liability (70%) rested with a co-defendant’s failure to communicate about transfer procedures and any visibility issues (in violation of express safety procedures requiring a work permit and a “dry run” before a personnel transfer).
Workers Compensation is Exclusive Remedy for Statutory Employer. Following arguments and briefing on summary judgment, Staines, Eppling & Kenney, LLC successfully obtained the dismissal of Entergy in a personal injury claim in the 29th Judicial District Court. Pursuant to a written contract with another co-defendant, who was judicially determined to be the plaintiff’s statutory employer, or under the two contract theory of La.R.S. 23:1061, Entergy was held to also be the statutory employer of plaintiff, which rendered his exclusive remedy in workers’ compensation and not tort.
Consignment is Not a Joint Venture. Staines, Eppling & Kenney, LLC obtained a favorable ruling on summary judgment, resulting in the dismissal of a workers’ compensation claim with prejudice. Plaintiff was an employee of a convenience store, and sustained injuries when he was shot while leaving work. The defendant was a lessor and consignor of gasoline only, and the trial court agreed that Plaintiff could not establish that his employer, who was a lessee/consignee of defendant, was in a joint venture with the defendant for the purpose of imposing workers’ compensation liability.
Summary Dismissal of Jones Act Claim. Jason Kenney and Corey Parenton obtained a summary dismissal of a plaintiff’s claims for Jones Act negligence and unseaworthiness against his employer in the 29th Judicial District Court, Parish of St. Charles. The plaintiff, who was employed as a captain of an inland tug, alleged he was injured while moving a cross-over hose. He alleged that his employer was negligent in failing to provide him proper help or an alternative mechanical means to lift, as he described, unreasonably heavy items. Defendants argued plaintiff could not prove negligence under the Jones Act because there was no actual or constructive notice of an unsafe condition, or an opportunity to correct it. Further, because there was no evidence of an unreasonably dangerous condition, missing equipment or an unfit crew, plaintiff could not prove the elements required for an unseaworthiness claim. Following oral argument, the trial court issued a judgment dismissing plaintiff’s claims for Jones Act negligence and unseaworthiness in their entirety.
Staines, Eppling & Kenney, LLC was one of 20 New Orleans area law firms who participated in the 2015 Food from the Bar Campaign coordinated by the New Orleans Chapter of the Association for Women Attorneys, and was recently announced as the per capita winner. The annual competition among local firms serves as a fundraiser for Second Harvest Food Bank to assist with stocking extra supplies for summer months, when Second Harvest typically sees a rise in demand because children are not in school and are receiving subsidized meals. Overall, the campaign raised over $30,000 and 2,179 pounds of food, with this years’ results representing a 39% increase over the 2014 campaign. The success of this year’s effort is a testament to the incredible teamwork and generosity from all the firms’ employees.
On June 26, 2015, Tony Staines presented “Recent Maritime Law Developments in the 5th, 9th and 10th Circuits” at the Southeastern Admiralty Law Institute annual seminar.
No Duty or Third Party Liability Owed. Summary judgment was granted for not one, but two clients in a lawsuit arising out of a fire to a Nabors’ drilling barge, the BR-100. Third Party Demands were filed against Superior Derrick Services (SDS), the company who constructed and fabricated the drilling barge, for contribution, asserting SDS was ultimately responsible for designing, construction, procuring, installing, inspection and qualifying the BR-100 and all of its systems and equipment. After extensive briefing and argument by counsel, the court found there were no causes of action for contribution by either party against SDS pursuant to General Maritime Law or Louisiana law since SDS had no duty (contractual or extra-contractual) to the other defendants under the circumstances. Under the complex factual scenario, numerous interpretations of contracts and a line of U.S. Fifth Circuit cases, as well as the East River doctrine (which stems from the U.S. Supreme Court concerning liabilities arising out of the construction of vessels), were at issue. The decision limits a co-defendant’s ability and scope of third party pleading in litigation arising out of the design and construction of vessels, even where General Maritime Law is applicable.
Louisiana Supreme Court confirms bad faith to name UM/UIM carrier solely to establish venue. Following an automobile collision in Terrebonne Parish, plaintiffs filed suit and named as defendants the other driver, his employer, and plaintiff’s UM/UIM carrier. Defendants filed an Exception of Improper Venue and sought to have the case transferred. Although plaintiff conceded that adequate underlying coverage existed, he argued that there might be a significant deductible, the insured might file bankruptcy, or that the insurer might go out of business. The district court found that plaintiff did not name the UM/UIM insurer solely for the purpose of establishing venue in his home parish and was not in bad faith. In a 2-1 opinion, the Third Circuit Court of Appeal upheld the ruling. In a per curium opinion, the Louisiana Supreme Court found the evidence introduced at the hearing on the Exception establishes sufficient insurance coverage and that plaintiff did in fact act in bad faith in naming their UM carrier as a defendant.
Favorable judgment recognizing cause of action against agent for failure obtain requested policy limits. Staines, Eppling & Kenney, LLC obtained a favorable judgment for our client, Cajun Sugar Cooperative, Inc. recognizing that an additional insured under an omnibus clause has a cause of action against the insurance agent for failing to obtain the requested limits under a policy purchased by the named insured.
Cajun contracted with a third party for transportation services for its co-operative members. The contractor was required to obtain auto liability insurance of $1,000,000.00 and to add Cajun as an additional insured. The contractor sent the contract to its insurance agent who added Cajun as an additional insured under an omnibus clause, but did not increase the policy limits to $1,000,000.00. The error came to light after an accident occurred, and Cajun filed a third party claim against the agent as a result of its failure to obtain the appropriate insurance. The agent filed an Exception of No Cause of Action asserting that Cajun had no privity of contract, and that the only party who could sue it was the now-defunct contractor. Cajun argued, and the court agreed, that Cajun is a third party beneficiary to the agreement between the contractor and the agent, and the agent owes a duty to the third party beneficiary under Louisiana law. When that duty is breached, the third party beneficiary has a cause of action against the agent.
Class Action Defeated. Plaintiffs sought to certify a class action of over 1000 property owners with complaints of property damage, emotional distress and stigma damages arising from construction activities associated with the Dwyer Road SELA Project. A team of Staines, Eppling & Kenney, LLC attorneys, including Tommy Eppling, Craig Brewer, Sara Scurlock and James Crouch, successfully defeated the class by arguing that plaintiffs’ claims failed to meet the requirements of Federal Rule of Civil Procedure 23, namely commonality, predominance and superiority.
Successful claim on contract and injunction to continue work. On June 4, 2015 Staines, Eppling & Kenney, LLC appeared in the 25th Judicial District Court on behalf of Y&S Marine who was involved in a dispute with Swiftships Shipbuilders, LLC over the construction of a 200′ FSV which centered on the late delivery of the vessel and Swiftships’ decision to bar Y&S and its representatives from entering its shipyard.
Y&S filed an injunction to permit Y&S access to Swiftships’ yard, to require delivery of the vessel, and to prevent Swiftships from denying Y&S access to its boat and equipment. Additionally, Y&S filed a Motion for Summary Judgment to have the court find that Swiftships was in breach of the vessel construction contract by virtue of the construction delay. After briefing and oral argument, the Court granted Y&S Marine’s motions, holding Swiftships in default of the construction contract and granting the motion for injunctive relief.
Jason Kenney co-authored an article with Dominique Renaud, President of the Houston Business Insurance Agency, Inc. entitled “Punitive Damages Present Hidden Risks in the Marine Market,” which appears in the June 2015 edition of the Port Bureau News. The article covers the risk of punitive damages, and how they practically affect maritime employers and vessel owners and can be found at: http://www.txgulf.org/news/index.php#june2015
By invitation of the Lloyd’s Market Association, Tony Staines, Craig Brewer and Jason Kenney presented to the Under 35 Marine and Entergy Claims groups Lloyd’s of London. The presentation, US Marine & Energy Claims: An Interactive Legal Overview, on May 7, 2015, was an interactive workshop designed to provide attendees in the Lloyd’s Market with a practical understanding of the process of evaluating and resolving marine and energy claims. It received a 100% positive rating from the attendees.
Supreme Court reversal of erroneous Third Circuit ruling on law of abandonment. Service on all parties is required to constitute a step in the prosecution or defense of an action and therefore, discovery mailed to only one defendant is insufficient to interrupt toe accrual of the abandonment period. Although limited extrajudicial exceptions exist outside of the record, including notice scheduling a 10.1 discovery conference, like written discovery, such notice must be served on all parties. Moreover, participation in a discovery conference does not constitute a waiver. And finally, the Supreme Court confirmed that Clark v. State Farm Mutual Automobile Insurance Co., 00-3010, p. 11 (La.5/15/01), 785 So.2d 779, 787 cannot and should not be interpreted to suggest that interruption of the abandonment period as to one defendant applies to all defendants. Although there are some parallels between the concepts, there is absolutely no authority for engrafting the general rules of prescription into the law of abandonment.
Staines, Eppling & Kenney, LLC leverages a fraud defense to obtain dismissal of a workers’ compensation claim. When evidence revealed a plaintiff continued to receive workers’ compensation benefits after returning to work at heavy labor, Staines, Eppling & Kenney, LLC drafted a Reconventional Demand for fraud, seeking a waiver of benefits and penalties and attorney’s fees. After the Court struck plaintiff’s claim for indemnity and medical benefits, the plaintiff ultimately elected to dismiss all remaining claims for any late payment of benefits, penalties or attorney fees in exchange for a dismissal of the fraud claim.
Julie Kammer presents “Employment Issues Facing the Marine Industry,” a free seminar offered in conjunction with the International WorkBoat Show. Topics included (1) how the Americans with Disabilities Act (ADA) is and is not implicated when an employee has an accident; (2) common misconceptions and hazards of various discrimination laws; and (3) best practices for how to avoid the potential for employer liability.
Sara Scurlock and Jason Kenney have been elected shareholders.
Staines, Eppling & Kenney, LLC recognized as one of the 2014 LSU 100: Fastest Growing Tiger Businesses, which identifies, recognizes and celebrates the entrepreneurial success of the fastest growing LSU-owned or LSU-led businesses in the world in various fields and professions including technology, oil and gas, insurance, healthcare, design, construction, manufacturing, public relations and law.
James Crouch joins the firm as an associate.