DCR Weblog

JANUARY 2008

U.S. Supreme Court Denies Writ
LA Homeowners are not entitled to agreed face value from total loss due to flood

The United States Supreme Court denied writ of certiorari from the Fifth Circuit ruling in Chauvin v. State Farm & Casualty Co.  The Fifth Circuit’s August 6, 2007 ruling held that homeowners were not entitled to agreed face value of their policies pursuant to Louisiana’s Valued Policy Law where their homes sustained some damage from a covered peril, but total loss resulted from a non-covered peril. 

Chauvin, et al  v. State Farm, ---S.Ct. , 2008 WL 114049, 76USLW 3255 (U.S. Jan. 14, 2008) (No. 07-602).

For more information please click here to see the attached case summary of the Fifth Circuit ruling.

NOVEMBER 2007

11th Circuit upholds decision allowing seaman to recover punitive damages

The vessel owner argued the seaman could not recover punitive damages for a general maritime maintenance and cure cause of action because he would not be able to recover punitive damages, which are non-pecuniary in nature-under the Jones Act because the uniformity principle dictates a ruling can not be in conflict with  the U.S. Supreme Court decision in Miles.  However, the 11th Circuit disagreed and said they were not bound by the decision in Miles because the Miles decision did not specifically deal with a claim for maintenance and cure.  The 11th Circuit upheld the district court’s ruling and allowed punitive damages against the seaman’s employer for arbitrarily and willfully refusing to pay maintenance and cure.  The U.S. 11th Circuit Court of Appeals maintains jurisdiction over Alabama, Florida and Georgia. 

Atlantic Sounding Co., Inc., Weeks Marine, Inc. v. Townsend, 496 F. 3d 1282 (C.A. (Fla.) 2007)

NOVEMBER 2007

DCR attorney Kelley Sevin to participate in OMSA Legal Forum

Kelley Sevin of Duncan, Courington & Rydberg is moderating a panel and discussing the benefits of surveillance at the OMSA Legal Forum on Thursday, November 15, 2007. The one-day seminar includes topics such employment practices for marine employers, collision, shipyard contracting, an open forum with the U.S. Coast Guard, and effective surveillance techniques. Click here for the brochure and agenda.

APRIL 2007

G.N.O.B.F.A River and Marine Industry Seminar

The Greater New Orleans Barge Fleeting Seminar celebrated its Silver Anniversary on April 24-27, 2007 with a Mardi Gras Ball and a sold out seminar. GNOBFA has scheduled their 26th Annual Seminar for April 23-25, 2008 at the Intercontinental Hotel in New Orleans. For more information or to register, click here.

FEBRUARY 1, 2007

OSHA: Employers must post illness/injury summaries

The Occupational Safety and Health Administration (OSHA) reminds employers that as of Feb. 1, they must post a summary of the total number of job-related injuries and illnesses that occurred during 2006. Employers are only required to post OSHA Form 300A (summary), not the OSHA 300 log. The summary must be posted from Feb. 1 to April 30, 2007.

The summary must list the total number of job- related injuries and illnesses that occurred in 2006 and were logged on the OSHA 300 form. Information about the annual average number of employees and total hours worked during the calendar year is also required to assist in calculating incidence rates. Companies with no recordable injuries or illnesses in 2006 must post the form with zeroes on the total line. All summaries must be certified by a company executive.

The form is to be displayed in a common area wherever notices to employees are usually posted. A copy of the summary must be made available to employees who move from worksite to worksite, such as construction employees and employees who do not report to any fixed establishment on a regular basis.

Employers with ten or fewer employees and employers in certain industry groups are normally exempt from federal OSHA injury and illness recordkeeping and posting requirements. A complete list of exempt industries in the retail, services, finance and real estate sectors is posted on the OSHA Web site. Exempted employers may still be selected by the Department of Labor's Bureau of Labor Statistics to participate in an annual statistical survey. All employers covered by OSHA need to comply with safety and health standards and must report verbally within eight hours to the nearest OSHA office all accidents that result in one or more fatalities or in the hospitalization of three or more employees.

Copies of the OSHA Forms 300 and 300A are available on the OSHA Recordkeeping Web page in either Adobe PDF or Microsoft Excel Spreadsheet format.

NOVEMBER 2006

Homes damaged by flood waters from levee failures are covered by Homeowners policies

In analyzing the contractual disputes between an individual policy holder and the relevant insurers, the Court interpreted the language pursuant to the Louisiana Civil Code and Louisiana Law. In an eighty five page opinion rendered on November 27, 2006, Judge Stanwood Duval denied several insurers’ Motions to Dismiss the plaintiffs’ Complaints. The insurers argued the homeowners’ request for coverage was excluded pursuant to the Water exclusion. The Court held the water exclusions contained in the homeowner’s policy for Hanover Insurance Company, Standard Fire Insurance Company, Hartford Insurance Co. of Midwest and Unitrim Preferred Insurance Co. were ambiguous and denied the insurers Motion to Dismiss. The Court found the language contained in the water exclusion was ambiguous as to whether it included water from man made failure due to a levee breach. State Farm’s Motion was granted due to a water exclusion that contained “regardless of cause” language. The insurers are expected to file an immediate appeal. For additional information, click here to view the 85-page decision by Judge Duval.

To avoid conflicting decisions among the various sections of the Federal Court in New Orleans, all cases which concern damages caused by flooding as a result of breaches or overtopping in the areas of the 17th Street Canal, the London Avenue Canal, the ndustrial Canal and the Mississippi Gulf River Outlet (“MRGO”) have been consolidated in the captioned case, “In re: Katrina Canal Breaches Consolidated Litigation,” C.A. No. 05-4182 before Judge Duval.

NOVEMBER 16, 2006

DCR participates in OMSA Legal Seminar

Elton “Chip” Duncan, III and Kelley A. Sevin spoke at the First Annual Offshore Marine Service Association (OMSA) Legal Forum on November 16, 2006. The one day seminar focused on specific issues surrounding vessel owners and vendors working in the Gulf of Mexico.

Click here to view the 2006 OMSA Legal Seminar Agenda.

Click here to view upcoming seminars in the New Orleans area.

SEPTEMBER 22, 2006

*** EMERGENCY CONTACT INFO ***

Due to a fire in our building at 400 Poydras Street last night (which, fortunately, did not affect our 12th floor offices), we are without basic services today. Because of the loss of electricity, our email servers and phone lines are down. We expect services to be restored by Monday morning, September 25th. In the meantime, if you have an emergency, please click here for instructions on contacting us. 

FALL, 2006

Mass tort personal injury cases should be litigated in class action

The Illinois Supreme Court, in a unanimous ruling, held that most mass tort personal injury cases should not be litigated by class actions.  The Court determined that class actions are inappropriate when the central issue is the plaintiffs’ individual injuries and not the question of liability for a catastrophic incident.  The Illinois’ Court’s ruling followed the reasoning of the United States Fifth Circuit Court of Appeal and the Texas Supreme Court.  The plaintiffs in Smith were residents of Tamaroa, Illinois who were allegedly exposed to dangerous chemicals after a freight train derailment in February 2003.  Smith, et al v. Illinois Central Railroad Co.

AUGUST 25, 2006

LA Supreme Court rules extended prescriptive period for Hurricane claims constitutional

The Louisiana Supreme Court heard on an expedited basis whether Acts Nos. 739 and 802 enacted by the Louisiana legislature to extend the prescriptive period under which certain insurance claims arising from Hurricane Katrina and Rita may be filed and which may alter the insurance contractual provisions regarding the time period in which to bring a claim were constitutional.  Prior to these amendments, Louisiana law held that no insurance contract issued in Louisiana could limit the right of action against an insurer to a period less than twelve months.  See. La. R.S.629(A)(3). 

On August 25, 2006, the Supreme Court ruled the legislative acts are constitutional.   The Supreme Court found the legislation to be substantive in nature.  The Court analyzed the effect of the 2006 act in a four step analysis: “first, the court must determine whether the state law would in fact, impair a contractual relationship; second, if an impairment is found, the court must determine whether the impairment is of constitutional dimension; third, if the state regulation constitutes a substantial impairment, the court must determine whether a significant and legitimate public purpose justifies the regulation; finally, if a significant and legitimate public purpose exists, the court must determine whether the adjustment of the of the rights and responsibilities of the contracting parties is based upon reasonable conditions and is of a character appropriate to the public purpose justifying the legislation’s adoption.” Segura, 630 So. 2d at 729.

The Supreme Court found the state law would impair a contractual relationship but found the legislative extension of the prescriptive period for damage claims is based upon a significant and legitimate public purpose.  The Supreme Court found the Louisiana Legislature Acts Nos. 739 and 802 were both appropriate and reasonable and would neither violate federal or state constitutional prohibitions against impairment of contractual obligations. Click here to view opinion.

AUGUST 15, 2006

MS Judge denies both sides’ motions and case proceeds to trial

Federal Court - Southern District of Mississippi
Judy Guice v. State Farm Fire & Casualty Company, et al

In the continuing wind versus flood debate, State Farm filed a Motion to Dismiss based on policy exclusions. Plaintiffs filed a Motion for Declaratory Judgment for interpretation of the insurance policy and class action status.

Judge Senter denied State Farm’s Motion to Dismiss the complaint under Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. State Farm argued the water damage exclusion, as well as the weather conditions’ provision, unambiguously bar coverage caused by a combination of wind and water. Judge Senter also dismissed Plaintiff’s Motion for Declaratory Judgment. Judge Senter explained that both plaintiff and State Farm focused on “diametrically opposed interpretations of the policy language.” Judge Senter commented that the evidence is not known at this early juncture and anticipates expert testimony from both sides regarding the cause or causes to plaintiff’s damage. Additionally, Judge Senter denied plaintiff’s motion to certify this matter as a class action. For further information, please click here to see Judge Senter’s ruling.

The Guice lawsuit seeks to represent those policyholders with "slab'' or "foundation'' claims in Harrison, Hancock and Jackson counties. Plaintiffs further seek to represent homeowners in cases in which a State Farm adjuster requested an engineering report that allegedly the company subsequently canceled. A jury trial in this matter is set for December 11, 2006 with Judge Senter presiding.

AUGUST 14, 2006

MS Federal Judge ruled policy does not cover water damage

Federal Court - Southern District of Mississippi
Leonard v. Nationwide Mutual Insurance Company

After hearing testimony for a couple of weeks, Judge Senter ruled in favor of the insurer and dismissed plaintiffs’ claim with the exception of $1,228.16 in damages that the plaintiffs proved was caused by wind damage. Judge Senter held an insurer does not have to cover water damage from Hurricane Katrina if the policyholder had not purchased flood insurance. The Memorandum Opinion is clear that the provisions of the Nationwide policy that exclude coverage for damages caused by water are valid and enforceable terms of the insurance contract.

However, in finding that all damages from wind and concurrent causes were covered, Judge Senter noted that the policy exclusion for combined causes of loss was ambiguous. Nationwide had relied upon this key provision in its claim that such concurrent losses were excluded from coverage. For further information, please click here to see Judge Senter’s ruling.

JULY 28, 2006

INSURANCE
Increase in penalties for late payment of settlement

The Louisiana legislature has increased the penalty for late payment of a settlement from 25% of settlement to 50% or $1,000 whichever is greater for an insurer which arbitrarily fails to make a prompt payment or settlement offer as required by R.S. 22:658. In addition, the insurer is subject to reasonable attorney fees and costs. Click here to view Act 813 of 2006.

JULY 19, 2006

NEW ORLEANS FEDERAL COURT
Hurricane related lawsuit against numerous
federal and state officials is dismissed

Judge Duval issued a lengthy opinion in favor of defendants, the City of New Orleans, Ray Nagin both individually and in his official capacity, Eddie Compass, both individually and in his official capacity as Chief of Police, Kimberly Williamson Butler, individually and in her official capacity as Clerk of Court for the Orleans Parish Criminal District Court, the State of Louisiana, Kathleen Blanco, both individually and in her official capacity as Governor of the State of Louisiana, Eddie Jordan, both individually and in his official capacity as District Attorney for the City of New Orleans, United States and against all plaintiffs dismissing their claims.

The Court found there was no subject matter jurisdiction for the majority of the claims alleged. In regard to the civil rights federal jurisdictional claims, because the plaintiffs failed to state a claim against any of the moving defendants. In the remaining state law claims, the Court exercised its discretion and declined to exercise Supplemental jurisdiction over any of the state law claims brought against the moving defendants. Click here to see Judgment by Judge Duval.

JULY 12, 2006

HURRICANE FILING DEADLINE EXTENDED

Louisiana Insurance Commissioner Jim Donelon ordered property insurance providers on Tuesday, July 11, 2006 to allow homeowners and business owners two years to file lawsuits. The Insurance Commissioner said he will use "all means necessary" if the property insurance providers do not voluntarily comply with his order. The commissioner advised this could possibly include fines and revocation of the insurance companies' certificates of authority to operate in Louisiana.

Louisiana's one-year statute of limitations is one of the shortest in the country. Other Gulf states allow up to six years to file suits regarding insurance claims. For more information, click here.

JULY 10, 2006

HEDONICS DAMAGE (Loss of Enjoyment of Life) ALLOWED IN LA

The Louisiana Supreme Court, in a 5-2 decision, held that it would permit recovery for the loss of enjoyment of life to the primary tort victim during that person's lifetime and in a survival action. Hedonic damages are not available in wrongful death actions because the Court believes that such an award would be duplicative of loss of consortium and similar awards given to a primary tort victim's family. Loss of enjoyment of life may be included as a separate item on a jury verdict form. The majority of other states do not allow hedonic damages. See McGee v. A.C & S., Inc. 2006 WL 1883368 (La. July 10, 2006)

JUNE 6, 2006

LA Federal Judge rules “Value Policy” law does not apply to hurricane losses

Federal Court - Western District of Louisiana
Turk, et al v. Louisiana Citizens Property Ins. Co., et al

Judge Haik granted partial summary judgment for carriers, State Farm and Louisiana Citizens Property. Judge Haik ruled that Louisiana’s valued policy law under La. R.S. 22:695 does not apply to hurricane losses that result from both wind and water.

In Judge Haik’s Order he noted that the issue involved “a controlling question of law as to which there is a substantial ground for difference of opinion.” Judge Haik stayed further proceedings and certified his order for immediate appeal to the Fifth Circuit. However, plaintiffs filed a Motion to Vacate Judge Haik’s order instead of filing immediate appeal. Judge Haik is currently considering the motions without oral argument. For further information, please click here to see Judge Haik’s ruling.

JUNE 5, 2006

HURRICANE EMERGENCY INFORMATION

As we enter the first week of the 2006 Hurricane Season, we can hardly help look back at what happened last year with Hurricane Katrina -- or think forward to what could happen in the future. With that in mind, in the case of an evacuation please click here for contact numbers and other information. If, for some reason, the New Orleans office is not accessible, we will return to our Hammond office.

JUNE 1, 2006

DCR Hammond Update

As of June 1, DCR is no longer staffing its its Hammond office as all employees return to the New Orleans office. We are no longer receiving mail at the Hammond address, so please address all future correspondence to our New Orleans office. We are maintaining the Hammond office as a backup location in the event it is necessary to evacuate New Orleans.

MAY 31 , 2006

Reduction of wrongful death award

The Louisiana Fourth Circuit Court of Appeals reduced a $2 million dollar jury award to $1 million dollars to a surviving spouse in a lung cancer case. For premise defendants, the concurrence by Judge Tobias raises some interesting points. Judge Tobias questioned the validity of Zimko v. American Cyanamid, 905 So.2d 465 (La.App.4th Cir.6/08/05), a decision regarding premises liability for secondary asbestos exposure. Judge Tobias questioned Zimko's reliability because that issue has never been reviewed by the Louisiana Supreme Court.

The Fourth Circuit did not disturb the jury's assessment of all liability onto premise owners. This case only reemphasizes that premise defendants must be ready and willing to present a case against manufacturers in an asbestos trial because in most recent cases, the plaintiffs have been unwilling or unable to place liability on many product manufacturers.

MAY 5, 2006

Fifth Circuit affirms DCR's defense verdict in $3.2 million cargo salvage case

The cargo owner had maintained the vessel was responsible for seven tanks that were lost overboard from a barge under tow. DCR successfully represented the vessel's interest. After a week-long trial before Judge Mary Anne Lemmon, the court found no liability on the part of DCR's client. The 5th Circuit Court of Appeals affirmed the Trial Court on May 5th, 2006. Vessel owners and insurers will find interest in the judge's comments regarding the Pennsylvania Rule relative to a 24/14 violation. Halliburton Energy Services, Inc., et al v. Denet Towing Services, Inc. and as owner of the tug LADY MELINDA, et al, 2006 WL 1210961 (5th Cir.)

MAY 2006

Transportation Worker Identity Cards (TWIC):

The Department of Homeland Security is in the process of developing proposed rules on Transportation Worker Identity Cards (TWIC). Under the TWIC plan, every holder of a Coast Guard License, Merchant Mariner document or registry would be required to undergo a security background check and receive a TWIC.

The Offshore Marine Service Association (OMSA), vessel owners and other maritime groups are opposed to the procedure as it is currently set forth due to problematic provisions. Specifically, vessel operators are concerned it would be extremely expensive and complex for vessel owners to implement. Under the proposal, vessel operators would be forced to place a fingerprint scanning machine on vessels and there is concern whether these machines are operable in a marine environment. Additionally there is concern that the process for obtaining TWIC cards will range from 30 to 60 days which will further hinder an already tight labor force.

For more information please click here to see the OMSA Newsletter dated May 2006 and OMSA July 6, 2006 correspondence to the U.S. Department of Transportation.

MAY 2006

2006 MARINE SAFETY HURRICANE UPDATE

Click here to view Marine Safety Bulletin for the 2006 Hurricane Season (USCG Sector New Orleans).

MAY 2006

DCR ATTORNEY ACTIVTIES

Bill Sommers (click here to see biography) is coaching Loyola law school trial team for LSBA competition

Steve Irwin (see here to see biography) is lecturing on Police Liability in Louisiana on May 17th at The Marriott in Baton Rouge

APRIL 2006

G.N.O.B.F.A River and Marine Industry Seminar

Despite having to reschedule their annual seminar from September 2005 to April 2006, the Greater New Orleans Barge Fleeting Seminar was a success with approximately 450 attendees. In fact, GNOBFA plans to make this date change permanent, in order to avoid hurricane season, and has scheduled their 25th Annual Seminar for April 25-27, 2007 at the Intercontinental Hotel in New Orleans. GNOBFA will also celebrate its Silver Anniversary on Tuesday night, April 24th, at a Mardi Gras-type event. For more information or to register, click here.

MARCH 2006

HURRICANE LITIGATION UPDATE

USDC Southern District of MS - Elmer and Alexa Buente v. Allstate Insurance Company, et al. Civil Action No. 1:05CV712 LTS-JMR

Judge Senter's March 24th, 2006 ruling denying Allstate Insurance Company's motion for judgment on the pleadings under F.R.Civ.P. 12(c).

Click here to see ruling.

MARCH 2006

RECENT FIFTH CIRCUIT MARITIME DECISIONS

Fifth Circuit - In Re: In the Matter of the Complaint of TAIRA LYNN MARINE LIMITED, ET AL v. JAYS SEAFOOD, INC., et al - March 23, 2006. 2006 WL 728026 (C.A.5 (La.))

The case arose out of an allision of a vessel and its tow striking a bridge in St. Mary Parish, Louisiana. The only claims before the court were claims for purely economic losses. The 5th Circuit again confirmed that it would not allow recovery of purely economic claims absent physical injury to a proprietary interest in a maritime negligence suit citing the Supreme Court decision of Robins Dry Dock & Repair v. Flint, 275 U.S. 303, 309 (1927).

Click here to see ruling.

Fifth Circuit - Withart v. Otto Candies, L.L.C., et al, 431 F.3d 849, C.A. 5 (La.) 2005

The U.S. Fifth Circuit Court of Appeals held the Jones Act allows general maritime negligence and indemnity claims by shipowner-employers against their seamen employees for property damage.  In Withart, a mate aboard a vessel filed a lawsuit against his employer (the vessel owner) alleging personal injuries as a result of a collision between his employer’s vessel and a third-party vessel.  The shipowner-employer brought a negligence counter-claim against the employee for the property damage sustained by its vessel, alleging the employee, who was acting as the mate/captain aboard the vessel, was on watch and in command of the vessel at the time of the collision.  The Court found that that Jones Act contains no prohibition against a shipowner-employer pursuing a claim against its negligent seamen-employee for property damage.

Click here to see ruling.

SEPTEMBER, 2005

HURRICANE KATRINA

To those friends that are not in the area hit by this catastrophic loss, thank you for your thoughts. Our whole region thanks you so much for your support. For our friends in South Louisiana and Mississippi, our thoughts and prayers are with you. 

DCR is fully operational and presently operating from both our offices in New Orleans and our new satellite office in Hammond, Louisiana. 

We give special thanks to our computer vendor, Sparkhound, who was able to return our servers online only two days after Katrina made landfall and allowed us to continue to provide uninterrupted dedicated service to our clients.