Important Case Results

• The federal Fifth Circuit Court of Appeals affirmed a district court ruling finding insurance coverage under an excess liability policy in a case involving severe injury and “a mix of excluded and nonexcluded causation” under the policy. The case arose after a company installing fiber optic cables hit an underground sewer line and did not notify anyone or make any repairs. A sinkhole was formed and someone fell into it. The drilling company had two insurance policies, one a primary policy and the other an excess liability policy that contained certain exclusions. One of these was a “subsidence exclusion.” The insurance company for the excess liability policy argued that this applied to the sinkhole. The parties agreed that Tennessee law applied, under which “where a nonexcluded cause is a substantial factor in producing the damage or injury, even though an excluded cause may have contributed in some form to the ultimate result and, standing alone would have properly involved the exclusion contained in the policy” (citing Allstate Ins. Co. v. Watts, 811 S.W.2d 811, 887 (Tenn. 1991). The Fifth Circuit panel noted that failure by the drilling company to report the damage or make repairs “was part of the negligence but did not cause the sinkhole.” This failure contributed to the injury, however, because had it been reported, it may have been fixed or there could have been a warning that would have prevented falling into the hole. Applying the Watts reasoning, the Court said “the mere relationship to the excluded conduct is not enough to cause everything to be excluded.” The district court therefore properly found the excess liability coverage applied given the combination of causation with both excluded and nonexcluded factors.Thibodeaux v. Rockhill Insurance, No. 21-30543 (US Ct. App. Fifth Circuit, 8-8-22).
• The federal Fifth Circuit affirmed the dismissal of a state court judge’s civil rights suit alleging retaliation for exercising her First Amendment right to free speech and a violation of her Fourteenth Amendment right to equal protection. Named as defendants were other elected judges in her district, judicial administrator for the 4th JDC, the attorney general, a law clerk, and both state and private attorneys who represented the other defendants in underlying litigation. The judge’s complaint alleged that the law clerk engaged in unethical and illegal activity while clerking for the 4th JDC that the other judges conspired to cover up. In speaking out against the law clerk’s purportedly improper activities, the judge contended that she was ostracized, accused of disclosing confidential information about the law clerk, and ultimately resigned as chair of the 4th JDC personnel committee. The Fifth Circuit agreed with the district court that the judge failed to allege violations of her constitutional rights. The judge failed to allege any adverse employment action under any retaliation framework. The Fifth Circuit declined to find that being publicly accused in pleadings of illegally disclosing documents, being accused of leaking information to a litigant, or ostracism and unprofessional behavior by similarly situated judges sufficed as adverse employment action. Sharon Ingram Marchman v. Brian E. Crawford, Lawrence W. Pettiette, Jr., James D. Caldwell, Carl V. Sharp, Frederic C. Ammon, J. Wilson Rambo, Benjamin Jones and Allyson Campbell, No. 17-30200, U.S. 5th Cir. 3/12/18
• Louisiana First Circuit affirmed dismissal on summary judgment of plaintiff’s claim of intentional infliction of emotional distress via text message against attorney. After a close friend passed away, an attorney sent an insulting and distasteful text message to the decedent’s brother, who filed suit against the attorney claiming the text was extreme and outrageous and caused debilitating depression and emotional trauma. The trial court determined that the text failed to rise to the level of extreme and outrageous under White v. Monsanto Company, 585 So. 2d 1205 (La. 1991), and granted the attorney’s motion for summary judgment. On appeal, the First Circuit found that the text “was not so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized community,” and that “persons must necessarily be expected to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind,” but not tortious.Russell Joseph Perrone v. Shawn W. Rogers, 2017-CA-509 c/w 2017-CA-510, 2017-CA-511 (La. Ct. App. 1 Cir. 12/18/17) at p. 8.
• ​​Louisiana Third Circuit affirmed summary judgment in favor of attorneys when plaintiff failed to demonstrate that he would have succeeded in the underlying medical malpractice claim. Plaintiff’s decedent was receiving inpatient treatment for a gangrenous foot when she eloped out of her window and was struck and killed on a nearby highway by a motorist. Defendant attorneys handled the case through the medical review panel process. After an unfavorable panel opinion approving the care rendered to the decedent by the rehab hospital, defendant attorneys sought an opinion from an outside psychiatrist. The outside expert also found no breach of the standard of care. Although the attorneys recommended dismissal of the medical malpractice lawsuit filed on behalf of the plaintiff, no action was taken in the case and it abandoned. Plaintiff sued the attorneys for allowing the case to abandon. Using the panel opinion and outside expert report, the defendant attorneys moved for summary judgment arguing that the plaintiff could not prove he would have won the underlying medical malpractice case. The plaintiff opposed with a nurse’s affidavit. Finding the nurse unqualified and that her affidavit failed to address causation, summary judgment was granted. On appeal, the Third Circuit rejected the plaintiff’s arguments that the trial court (1) relied on unverified, unsworn documents; (2) excluded expert testimony as unqualified without a contradictory hearing; (3) erred in finding that the nurse-practitioner’s affidavit did not create a genuine issue of material fact; (4) required the plaintiff to provide expert medical testimony; and (5) failed to shift the burden pursuant to defendants. The attorney defendants’ dismissal was affirmed. Shawn M. Cupit, individually and on behalf of James Cupit (Deceased) v. Twin City Fire Ins. Co., Roger G. Burgess, Baggett, McCall, Burgess, Watson & Gaughan, LLC and Joseph B. Moffett, 2017-918 (La. Ct. App. 3 Cir. 3/14/18)http://la3circuit.org/Opinions/2018/03/031418/17-0918opi.pdf

• Louisiana Third Circuit dismissed defendants’ motions for sanctions against plaintiff and plaintiff’s attorney on an exception of prescription. Plaintiff initiated three separate actions all asserting similar claims against the same defendants. All three actions were dismissed on exceptions of prescription. The dismissals were all appealed and affirmed. All three judgments became final. Defendants then filed motions for sanctions against plaintiff and plaintiff’s attorney for “the repeated filing of the same prescribed claim in multiple separate proceedings.” The motions were filed “twenty months after all three of the separate, allegedly offending petitions had been filed in each case, over sixteen months after all prescriptions exceptions had been filed, and after the trial courts’ dismissals of the underlying claims had become final.” The motions for sanctions were consolidated and denied. On appeal, the Third Circuit dismissed the motions for sanctions on an exception of prescription. The Third Circuit explained it applied a “reasonable time frame” rule when determining the timeliness of a motion for sanctions. The court asked whether the motions for sanctions were filed within a reasonable time frame following the behavior that was sought to be deterred—here “the repeated filing of the same prescribed claim in multiple separate proceedings.” The Third Circuit held the motions for sanctions were not filed within a reasonable time frame. The court reasoned the motions for sanctions filed after the decisions in the underlying suits became final were not timely, especially when defendants were aware of the behavior sought to be deterred (the repeated filings) prior to the decisions becoming final.Linda M. Snavely, et al v. Ace Pain Management, LLC et al., 17-237, C/W 17-238, C/W 17-239, (La. Ct. App. 3 Cir. 12/13/17)http://www.la3circuit.org/Opinions/2017/12/121317/17-0237opi.pdf