Louisiana courts preclude summary judgments on insurance coverage matters until the underlying litigation is resolved and the factual basis for the insured’s liability is determined. For example, in Vidrine v. Constructors, Inc., 953 So.2d 193 (La. App. 3rd Cir. 2007), welders, pipe fitters and their helpers brought action against the employer and plant owner to recover for asbestos exposure allegedly arising during a plant renovation. One of the insurers filed a motion for summary judgment, asserting there was no coverage based on an exclusionary provision for bodily injury caused or aggravated “by the conditions of your employment.” Under that provision, the employee’s last day of last exposure had to occur during the policy period. The insurer based its summary judgment on the plaintiffs’ petition and discovery responses that alleged asbestos exposure beyond the last day of the policy period.

Continue Reading Lack of Final Determination Precludes Insurance Coverage Summary Judgment

The Kean Miller Healthcare Regulatory team will present an informative seminar on the new Stark III regulations on Wednesday, November 14th from 5:30 to 8:00 p.m. at Juban’s Restaurant in Baton Rouge.

Topics will include physician recruitment and compensation, non-monetary gifts, hospital ownership and investment by physicians, professional services agreements, radiology arrangements, and equipment and office lease arrangements.

Here is a program description.

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

As a myriad of new state laws go into effect, employers are reminded of the Louisiana Smokefree Air Act and La. R.S. 23:966.

The Louisiana Smokefree Air Act took effect January 1, 2007, and applies not only to public buildings, schools, and restaurants, but also applies to Louisiana employers. One of the Act’s stated purposes is to “protect non-smokers from involuntary exposure to secondhand smoke in . . . places of employment.”

Continue Reading Smoking Laws

The Department of Health and Human Services Office of Inspector General (OIG) issued its Fiscal Year 2008 Work Plan on October 1, 2007. The OIG annual Work Plan gives an advance preview of what issues the OIG has on its radar for the upcoming year.

The OIG stated in its opening message of the Work Plan that it will continue to concentrate its efforts in evaluating and investigating Medicare and Medicare programs, representing 80% of its resources.  The remaining 20% of the OIG resources will be spent on public health and human services programs.

Target areas for the OIG in 2008 include: Long Term Care Hospitals (LTCHs), patient care and safety at physician-owed specialty hospitals, accreditation of hospitals, and “place of service” for physician coding.

Continue Reading Department of Health and Human Services Office of Inspector General Issues Fiscal Year 2008 Work Plan

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

The Centers for Medicare & Medicaid Services (CMS) issued an advisory opinion on October 5, 2007 regarding the Physician Recruitment Exception to the federal physician self-referral prohibition, otherwise known as the Stark Law.  In this advisory opinion, CMS essentially concluded that a hospital could not amend an existing physician recruitment agreement to delete a provision requiring the physician to pay back monies under an income guarantee to the hospital during the financial guarantee period of the agreement.

Continue Reading CMS Issues Advisory Opinion on Physician Recruitment Exception to the Stark Law

The Centers for Medicare and Medicaid Services (CMS) published on September 5, 2007 the long-awaited Phase III of the federal regulations of the physician self-referral prohibition commonly known as the Stark Law. CMS commented that the Phase III regulations finalize, and respond to public comments to the first two phases, or Phase I and Phase II, of the rulemaking process by CMS to adopt regulations to interpret and enforce the Stark Law.

The significance of the release of the Phase III Stark Law regulations, however, is tempered by the inclusion of several proposed changes to the Stark Law by CMS in the 2008 proposed Medicare physician fee schedule. Physicians and other healthcare providers should nonetheless adopt the changes and new interpretations in the Phase III Stark Law regulations while continuing to monitor the changes to the Stark Law adopted in the “final” version of the 2008 Medicare Physician Fee Schedule.

Continue Reading CMS Releases Phase III of the Final Stark Law Regulations