On February 3, 2021, the Fourth Circuit Court of Appeal affirmed a trial court’s ruling that granted a summary judgment motion finding plaintiffs failed to submit specific evidence of asbestos exposure necessary to create a genuine issue of material fact. Steib v. Lamorak Ins. Co., et al., 20-0424 (La. App. 4 Cir. 2/3/21).
In In re Deepwater Horizon, No. 20-30300, 2021 WL 96168, a three-judge panel of the U.S. Fifth Circuit Court of Appeal held that fishermen who intentionally came upon the scene of the wreckage of the Deepwater Horizon failed to state a claim of negligent infliction of emotional distress under general maritime law. The district…
In Sanchez v. Smart Fabricators of Texas, LLC, 970 F.3d 550, a three-judge panel of the United States Fifth Circuit Court of Appeal held on August 14, 2020, that seaman status under the Jones Act may apply to an injured welder on a jack-up oil rig adjacent to an inland pier. Maintaining that the plaintiff qualified as a seaman under controlling Fifth Circuit precedent but questioning that precedent in light of Supreme Court case law, the panel urged the Fifth Circuit to review the case en banc.
Continue Reading Fifth Circuit Identifies Potential Conflict with Supreme Court on Jones Act Seaman Test
In Mays v. Chevron Pipe Line Co., 2020 WL 4432025, a three-judge panel of the United States Fifth Circuit Court of Appeal held on August 3, 2020, that the Longshore Harbor Workers’ Compensation Act may apply to an injury in state territorial waters if there is a substantial nexus between an employee’s injury and his employer’s, both direct and statutory, extractive operations on the Outer Continental Shelf.
Continue Reading U.S. Fifth Circuit Clarifies “Substantial Nexus” Test for LHWCA
One of the major outcomes of the 2020 Louisiana Legislative session was the passage of tort reform legislation that supporters argue will lower insurance rates and change the state’s notoriously litigious environment. The Civil Justice Reform Act of 2020, House Bill 57 (“HB57”) introduces a number of key changes:
- Allows jury trials if damages sought exceed $10,000 (the prior rule required $50,000 in damages);
- Revised the controversial “collateral source rule”;
- Repealed the limitation on presenting evidence of a plaintiff’s failure to wear a seat belt in a car accident; and
- Limits the discussion of a party’s insurance coverage before a jury except (with limited exceptions).
On May 9, 2019, the Louisiana Supreme Court issued an important opinion restricting application of the collateral source rule in personal injury lawsuits. In Simmons v. Cornerstone Investments, LLC, et al., 2018-CC-0735 (La. 5/8/19), the Court held the collateral source rule inapplicable to medical expenses charged above the amount actually paid by a workers’ compensation insurer pursuant to the workers’ compensation medical fee schedule.
In the aftermath of a 2012 platform explosion in the Gulf of Mexico in which three workers were killed, the Department of Justice ultimately indicted the contractors who supervised the work (along with the lease holder, Black Elk Energy Offshore Operations, LLC) with violating the Outer Continental Shelf Land Act (“OCSLA”), a felony carrying a maximum penalty of up to ten years imprisonment. The contractors were also charged with certain misdemeanor Clean Water Act violations. The contractors moved to dismiss the OCSLA charges on the basis that their conduct – as contractors – was not covered by OCSLA because they were not the lease holder or operator. The district court agreed and dismissed those charges, after which the government appealed. Earlier this week, the Fifth Circuit ruled against the government finding that contractors cannot criminally violate these OCSLA regulations. United States v. Moss, et al, No. 16-30561 (5th Cir. Sept. 27, 2017).Continue Reading The Fifth Circuit Rejects the DOJ’s Attempt to Charge Black Elk Contractors with OCSLA Felonies
On July 7, 2017, the United States Fifth Circuit Court of Appeal, in Associated International Insurance Company v. Scottsdale Insurance Company, held that, under Texas law, the subrogation clause of an insurance agreement allowed a subrogated insurer to seek reformation of a contract between its insured and a third party. In that appeal, the defendant’s primary and excess insurer settled a lawsuit. The excess insurer, Associated International Insurance Co., then sought reimbursement from Scottsdale, an insurer that had also issued a commercial umbrella policy to the insured defendant. Scottsdale argued Associated could not seek reimbursement because the property that had been at issue in the underlying suit was not listed on Scottsdale’s schedule of covered properties.
Continue Reading United States Fifth Circuit Confirms Remedies Available to Subrogated Insurer
On June 1, 2017, the United States Fifth Circuit Court of Appeals in Borcik v. Crosby Tugs, L.L.C. applied a broad definition of the intent required of a plaintiff under the Louisiana Environmental Whistleblower Act. In doing so, both the Fifth Circuit and the Louisiana Supreme Court apply a more plaintiff friendly standard to claims of environmental whistleblowers.
Continue Reading U.S. Fifth Circuit Adopts Broad Definition of “Good Faith” for Louisiana Environmental Whistleblower Claims
The United States Supreme Court, in BNSF Railway Co. v. Tyrrell (May 30, 2017), declined to allow a personal injury plaintiff to sue a railroad company in a state in which the railroad does business but is not incorporated or headquartered. In BNSF Railway Co., two plaintiffs brought suit for injuries in Montana “although the injured workers did not reside in Montana, nor were they injured there.” The plaintiffs claimed that the Federal Employers’ Liability Act (“FELA”), which allows railroad workers to sue their employers for personal injuries, created a jurisdictional exception to recent cases that held that a corporation may be sued only in a state that has a connection to the injury or in the state in which the corporation is incorporated or maintains its headquarters, absent exceptional circumstances.
Continue Reading United States Supreme Court Limits Forums Available to Railroad Workers