General Litigation

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According to the Louisiana Supreme Court, a commercial general liability policy unambiguously excluded coverage for a contractor’s faulty workmanship. Supreme Services & Specialty Co. Inc. v. Sonny Greer, 958 So.2d 634 (La. 2007). The homeowner instituted legal action claiming that cracks in the slab were the result of faulty and defective design and construction, alleging causes of action based on breach of contract and breach of warranty. Relying on the “work product” exclusion in the policy, the court recognized that it reflected the insurance company’s intent to “avoid the possibility that coverage under a CGL policy will be used to repair and replace the insured’s defective products and faulty workmanship.”
Continue Reading Contractors’ Faulty Workmanship Not Covered by Insurance Policy

GENERAL DUTIES OF EMPLOYERS

Louisiana Revised Statutes 23:1306: requires employers to notify the Office of Workers’ Compensation within ten (10) days of actual knowledge of an injury resulting in death or lost time in excess of one week after the injury. This rule applies even if no claim for workers’ compensation benefits has been filed.

Ø    The form generally used for this purpose is a Form 1007 Employer First Report of Injury/Illness (a copy of which is attached for your ready reference).

Ø    If an employer elects not to use the Form 1007, he must provide, at the minimum, the following information: (1) The name, address, and business of the employer; (2)  The name, Social Security number, street, mailing address, telephone number, and occupation of the employee; (3) he cause and nature of the injury or death; (4) The date, time, and the particular locality where the injury or death occurred; (5) The wages, as defined in R.S. 23:1021(10), the worker was earning at the time of the injury.

Ø    All information and records submitted pursuant to this Section shall be confidential and privileged, shall not be public records, and shall not be subject to subpoena. However, such information or records may be used to compile statistical data wherein the identity of the individual or employer is not disclosed.Continue Reading Summary of Louisiana Workers’ Compensation Laws

Recent legislation significantly expands the scope of Louisiana’s work product privilege to include digital photographs, digital video and audio recordings, and other electronically stored information created by an attorney. Act 140 of the 2007 Regular Legislative Session (H.B. 203) (“the Act”) became effective earlier this month.  Among other provisions, the Act expands the scope of Louisiana’s work product privilege to include “electronically stored information.” (For a general discussion of the Act, click here.

Louisiana’s work product privilege is codified at Article 1424 of the Louisiana Code of Civil Procedure. Article 1424(A) previously protected from discovery a “writing obtained or prepared by the adverse party, his attorney, surety, indemnitor, or agent in anticipation of litigation. . .,” subject to certain conditions. The Louisiana Supreme Court interpreted that language to protect only a “writing,” and to provide no protection to other tangible things, in an attorney’s file, such as audio tapes, video tapes, or photographs. See, e.g., Landis v. Morreau, 2000-1157, p. 9 (La. 2/21/01), 779 So.2d 691, 697.Continue Reading Recent Legislative Change Expands Scope of Louisiana’s Work-Product Protection

Several provisions in Louisiana’s Code of Civil Procedure were amended in the last legislative session, and those changes are now in effect. One change made by the new law, Act 140 of the 2007 Regular Legislative Session (H.B. 203) (hereinafter, “Act 140”), is that the Code of Civil Procedure now specifically provides for the discovery of electronically stored information (hereinafter, “ESI”). Act 140 modifies Articles 1460-62 of the Code of Civil Procedure to explain how ESI should be requested and produced. The changes are intended to make Louisiana civil procedure more similar to federal procedure with regard to the discovery of ESI.   There are still many differences, however, between federal procedure and the changes made by Act 140. The Act did not copy and paste the recent federal rule changes regarding ESI (discussed here https://www.louisianalawblog.com/general-litigation/electronic-evidence-update-for-in-house-counsel/ into our state Code of Civil Procedure.
Continue Reading Recent Changes to Louisiana’s Code of Civil Procedure

On January 24, 2006, the U.S. Food and Drug Administration (FDA) issued a Final Rule entitled Requirements on Content and Format of Labeling for Human Prescription Drug and Biological Products, 71 Fed. Reg. 3922 (Jan. 24, 2006). In the now-famous preamble to that Final Rule, the FDA stated its view that “… under existing preemption principles, FDA approval of labeling under the act, whether it be in the old or new format, preempts conflicting or contrary State law.”   The preamble contains a detailed explanation of why the FDA believes that allowing certain state tort law claims for failure to warn would conflict with and stand as an obstacle to achievement of the full objectives and purposes of Federal labeling requirements for pharmaceutical and biologic products.   The FDA explains that it makes labeling decisions based on “a comprehensive scientific evaluation of the products’s risks and benefits under the conditions of the use prescribed, recommended, or suggested in the labeling.”   The FDA further explains:
Continue Reading Vioxx Multidistrict Litigation Court Refuses to Give Deference to FDA’s Preemption Preamble

Many businesses have come to realize the value of having a document retention/ destruction policy as part of their regular operations. A policy that is well planned and consistently followed will help a business increase its efficiency, reduce its document storage costs, and protect itself from allegations that particular documents were destroyed because the company did not want them to become public in litigation.
Continue Reading The Document Retention Policy – An Important Part of Your Business’s Operations

On March 23, 2007, the Louisiana First Circuit addressed the validity of an arbitration agreement in Lafleur v. Law Offices of Anthony G. Buzbee, 2007 WL 858859 (La. App. 1st Cir. 2007). The opinion has not been released in permanent law reports and is still subject to revision or withdrawal.

The case arises out of a contract between Mr. Lafleur, a Louisiana resident, and his Texas attorneys, Jeffrey M. Stern and the firm of Stern, Miller, and Higdon. Mr. Lafleur retained the Stern defendants to pursue his maritime claim for personal injuries he sustained while traveling on a vessel in navigable waters off the coast of Louisiana. He executed an agreement with the Stern defendants which stated, “Any and all disputes, controversies, claims or demands arising out of or relating to this Agreement or any provisions hereof, the providing of services by the Stern defendants to Mr. Lafleur, or in any way relating to the relationship between the Stern defendants and Mr. Lafleur, whether in contract, tort or otherwise, at law or in equity, for damages or any other relief, made by or on behalf of Mr. Lafleur shall be resolved by binding arbitration pursuant to the Federal Arbitration Act in accordance with the Commercial Arbitration Rules then in effect with the American Arbitration Association.” It also provided “the expense of any arbitration shall be a Case Advance pursuing the claims” and that “Mr. Lafleur understands and acknowledges that Mr. Lafleur is waiving all rights to a trial by jury or a judge.”Continue Reading FIRST CIRCUIT ADDRESSES ARBITRATION AGREEMENT

Most commercial leases for multi-tenant properties contain clauses which regulate the tenants’ use of the leased premises. Many tenants will require a landlord to grant the tenant the exclusive right to operate a certain business or sell a certain product to avoid competing with other tenants. These provisions are appropriately referred to as exclusive use clauses. For the landlord to satisfy its obligations under an exclusive use clause of one lease, the landlord is required to incorporate provisions in its other leases prohibiting the other tenants from using the leased premises for the restricted purpose. These clauses are commonly referred to as prohibited use clauses.
Continue Reading COMMERCIAL LEASES: EXCLUSIVE AND PROHIBITED USE CLAUSES

During a presentation at the Defense Research Institute’s Toxic Torts and Environmental Law Seminar in New Orleans on Friday March 9, 2007, Dr. Pamela Williams of ChemRisk, Inc. indicated that she was preparing to publish a study on the potential for exposure to benzene from products containing trace (less than 0.1%) levels of benzene. Her study will likely conclude that measured airborne concentrations of benzene during the handling or use of petroleum-derived products in the United States have typically not exceeded workplace standards since at least the early 1980’s. The Williams’ study will also likely conclude that indoor air modeling shows that workplace exposures are likely to be minimal during the application of products containing trace levels of benzene. Finally, the Williams study will likely conclude that petroleum-derived products containing trace levels of benzene are not expected to produce 8-hour TWA airborne concentrations that exceed current regulatory standards under typical product use scenarios.
Continue Reading New Trace Benzene Study To Be Published

Much of the time of a construction lawyer is spent assisting clients in finding solutions to the many problems that befall the typical construction project. These problems range from simple contract preparation and negotiation to the more fact-intensive work of constructive defect litigation, surety claims, liens, and payment issues. Each construction project, no matter how…