1) The relative wealth of State Farm;

2) The nature of State Farm’s misconduct;

3) Facts and circumstances surrounding State Farm’s misconduct;

4) The effect of State Farm’s misconduct on the Campbells and others;

5) The probability of future recurrences;

6) The relationship of the parties;

7) The ratio of punitive to compensatory damages;

Of particular importance to our analysis of State Farm’s exposure for punitives in subsequent cases are the findings of the Utah Supreme Court on the nature of State Farm’s misconduct. It is these findings which would apply to State Farm’s adjustment practices in any case in any state.

From the Campbell case the findings are as follows:
“2. The Nature of State Farm’s misconduct.
This factor specifically analyzes the nature of the defendant’s conduct in terms of its maliciousness, reprehensibility, and wrongfulness. It mirrors the “reprehensibility” factor described by the United States Supreme Court in BMW of North American, Inc. v. Gore, 517 U.S. 559 (1996). There, the Supreme Court stated that the defendant’s misconduct is “[p]erhaps the most important indicium of the reasonableness of a punitive damages award.” Id. at 575, 576. Repeated “trickery and deceit” targeted at people who are “financially vulnerable” is especially reprehensible and worthy of greater sanctions. Id. Moreover, “deliberate false statements, acts of affirmative misconduct, or concealment of evidence of improper notice” also warrant larger awards. Id. at 579.

With these standards clearly in mind, the trial court made nearly twenty-eight pages of extensive findings concerning State Farm’s reprehensible conduct. We summarize here three examples from those findings of State Farm’s most egregious and malicious behavior.

Third, State Farm has systematically harassed and intimidated opposing claimants, witnesses, and attorneys. Id. at 33-37. For example, State Farm published an instruction manual for its attorneys mandating them to “ask personal questions” as part of the investigation and examination of claimant in order to deter litigation. Id. at 34. Several witnesses at trial, including Gary Fye and Ina DeLong, testified that these practices had been used against them. Id. at 34-35. Specifically, the record contains an eighty-eight page report prepared by State Farm regarding DeLong’s personal life, including information obtained by paying a hotel maid to disclose whether DeLong had overnight guests in her room. Id. at 35. There was also evidence that State Farm actually instructs its attorneys and claim superintendents to employ “mad dog defense tactics” – using the company’s large resources to “wear out” opposing attorneys by prolonging litigation, making meritless objections, claiming false privileges, destroying documents, and abusing the law and motion process. Id. At 36-37.

Taken together, these three examples show that State Farm engaged in a pattern of “trickery and deceit,” “false statements,” and other “acts of affirmative misconduct” targeted at “financially vulnerable” persons. BMW, 517 U.S. at 575, 576. Moreover, State Farm has strategically concealed “evidence of [its] improper motive” to shield itself from liability, which was furthered by State Farm’s treatment of opposing witnesses and counsel. BMW, 517 U.S. at 579. Such conduct is malicious, reprehensible, and wrong.

Without dwelling on the details of the findings in that case, you should note that one of the expert witnesses who testified, Ms. Ina DeLong, has offered an affidavit in other cases which provide that:

“The properly handled claim at State Farm is the exception, not the rule. Claim representatives have little or no training and are rewarded for keeping costs down.”

She further provided that:

“State Farm knows that the key to underpaying claims is to provide little or no training and keep claims representatives separated from anyone with real knowledge of what [the] damage looks like or what an appropriate repair is. The claim representative is incompetent by design and is given minimal draft authority until they prove to State Farm management that they understand the importance of the ‘bottom line’, the goal of being the ‘most profitable claims service in the industry and prove that they won’t let anything get between State Farm and their money.’ Most training is ‘on the job’ where the untrained claim representative is accompanied by another equally untrained claim representative and if they are successful, their approach, they assume it is correct and continue to do it. The only gauge for determining the accuracy of their assessment is the policy holder that has been rocked by disaster and has not been warned that the adjuster is either untrained or reaps huge rewards for keeping costs down. The policy holder isn’t provided with any information regarding steps they could take to protect themselves against such abuses.”

As if that was not enough, Ms. Ina DeLong further offers that:
“The claim representatives that inspect the losses have little or no authority to make a coverage decision, or make payment, and can only report back to others that will be making the decisions regarding coverage and payment. This means that the decision makers can only view the claim through the eyes of the untrained adjuster and are free from any emotional involvement, or the real facts of the loss. Not exactly what the public expects when they hear the ‘good neighbor’ jingle.”

“The real agenda at State Farm regardless of the slogan of ‘pay what we owe; nothing more, nothing less’, and the ‘good neighbor’ advertising, is to do all in their power to pay as little as possible, as late as possible, if ever at all. This frequently works because the insurance buying public has bought into the warm fuzzy ‘good neighbor’ advertising. State Farm has contested to see who can close the most files without any payment, referred to as ‘CWP’. State Farm’s management refers to these sayings as ‘claims profit.’ To calculate profit, State Farm subtracts the amount they paid on the claim from the amount they should have paid. An insurance company is not suppose to make its profits in the claims handling, but rather in the underwriting and actuarial process.

Now with respect to these findings and accusations against State Farm, other states are beginning to present the issues with respect to conflicts of laws and principles as they relate to State Farm by reviewing the law in the State of Illinois, where the defendant is incorporated and the principal place of business for the defendant is in Illinois. Moreover, arguments are in some cases being successfully made that the conception of the deceptive business practice occurred in Illinois. It is also pointed out that the refinement of the deceptive business practice occurred in Illinois because the strategy of how to implement the deceptive business practice originated and is managed from Illinois.

The persons who dictated, created and implemented the deceptive business practices have, at all times, been located in Illinois as will be attested to by James Mathis and Ina DeLong, experts who testify in this kind of cases.

It should be noted that all local offices of State Farm act only insofar as permitted by the corporate offices in Illinois. Marketing decisions originate and are premised on approval from corporate office in Illinois. Further, the decision in determining why a deceptive business practice was needed was a corporate decision from Illinois. Moreover, the training of the adjusters is through a training program which originates in and is more often than not taught in home offices in Illinois. The application of Illinois principals of law therefore can easily be argued as available and the question has to be raised as to whether or not Illinois punitives would be helpful.

Illinois case laws on punitive damages note that the limited punitives that might be available for insurance company violations in Illinois, do not preclude the application of Illinois Consumer Fraud Act to actions of insurers. A case on this issue is seen in the action of Fox v. Industrial Casualty Insurance Co., No. 80-1480, 98 Ill.App.3d 543, 4245 N.E.2d 839, 54 Ill.Dec.89). In that case the court found that:

“We do not read these cases to hold that an insured is limited to filing actions against insurers based only on violations of the insurance code, nor does the careful reading of the code warrant this conclusion. .... The sale of insurance is clearly a service and insureds are thus consumers and within the protection of the Consumer Fraud Act. Private causes of action are also authorized under the act.”

For instance, the Consumer Fraud Act was applied against State Farm in a claim for refusing to use original equipment of manufacture’s as oppose to low cost generic replacement parts. Both compensatory and punitive damages were awarded in that case.

§658. Payment and adjustment of claims, policies other than life and health and accident; personal vehicle damage claims; penalties; arson-related claims suspension

A. (1) All insurers issuing any type of contract, other than those specified in R.S. 22:656, R.S. 22:657, and Chapter 10 of Title 23 of the Louisiana Revised Status of 1950, shall pay the amount of any claim due any insured within thirty days after receipt of satisfactory proofs of loss from the insured or any party in interest.

(2) All insurers issuing any type of contract, other than those specified in R.S. 22:656, R.S. 22:657, and Chapter 10 of Title 23 of the Louisiana Revised Status of 1950, shall pay the amount of any third party property damage claim and of any reasonable medical expenses claim due any bona fide third party claimant within thirty days after written agreement of settlement of the claim from any third party claimant.

(3) Except in the case of catastrophic loss, the insurer shall initiate loss adjustment of a property damage claim and of a claim for reasonable medical expenses within fourteen days after notification of loss by the claimant. In the case of catastrophic loss, the insurer shall initiate loss adjustment of a property damage claim within thirty days after notification of loss by the claimant. Failure to comply with the provisions of this Paragraph shall subject the insurer to the penalties provided in R.S. 22:1220.

(4) All insurers shall make a written offer to settle any property damage claim within thirty days after receipt of satisfactory proofs of loss of that claim.

B. (1) Failure to make such payment within thirty days after receipt of such satisfactory written proofs and demand therefor, as provided in R.S. 22:658 (A)(1), or within thirty days after written agreement or settlement as provided in R.S. 22:658 (A) (2) when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of ten percent damages on the amount found to be due from the insurer to the insured, or one thousand dollars, whichever is greater, payable to the insured, or to any of said employees, together with all reasonable attorney fees for the prosecution and collection of such loss, or in the event a partial payment of tender has been made, ten percent of the difference between the amount paid or tendered and the amount found to be due and all reasonable attorney fees for the prosecution and collection of such amount.

(2) The period set herein for payment of losses resulting from fire and the penalty provisions for nonpayment within the period shall not apply where the loss from fire was arson related and the state fire marshal or other state or local investigative bodies have the loss under active arson investigation. The provisions relative to time of payment and penalties shall commence to run upon certification of the investigating authority that there is no evidence of arson or the there is insufficient evidence to warrant further proceedings.

(3) The provisions relative to suspension of payment due to arson shall not apply to a bona fide lender which holds a valid recorded mortgage on the property in question.

(4) Whenever a property damage claim is on a personal vehicle owned by the third party claimant and as a direct consequence of the inactions of the insurer and the third party claimant’s loss the third party claimant is deprived of use of the personal vehicle for more than five working days, excluding Saturdays, Sundays, and holidays, the insurer responsible for payment of the claim shall pay, to the extent legally responsible, for reasonable expenses incurred by the third party claimant in obtaining alternative transportation for the entire period of time during which the third party claimant is without the use of his personal vehicle. Failure to make such payment within thirty days after receipt of adequate written proof and demand therefor, when such failure is found to be arbitrary, capricious, or without probable cause shall subject the insurer to, in addition to the amount of such reasonable expenses incurred, a reasonable penalty not to exceed ten percent of such reasonable attorneys’ fees for the collection of such expenses.

C. (1) All claims brought by insureds, worker’s compensation claimants, or third parties against an insurer shall be paid by check or draft of the insurer to the order of the claimant to whom payment of the claim is due pursuant to the policy provisions, or his attorney, or upon direction of such claimant to one specified; provided, however, that the check or draft shall be made jointly to the claimant and the employer when the employer has advanced the claims payment to the claimant. Such check or draft shall be paid jointly until the amount of the advanced claims payment has been recovered by the employer.
(2) no insurer shall intentionally or unreasonably delay, for more than three calendar days, exclusive of Saturdays, Sundays, and legal holidays, after presentation for collection, the processing of any properly executed and endorsed check or draft issued in settlement of an insurance claim.

(3) Any insurer violating this subsection shall pay the insured or claimant a penalty of two hundred dollars or fifteen percent of the face amount of the check or draft, whichever is greater.

D. (1) When making a payment incident to a claim, no insurer shall require that as a condition to such payment, repairs be made to a motor vehicle, including window glass repairs or replacement, in a particular place or shop or by a particular entity. Any insurer violating the provisions of this Subsection shall be fined not more than five hundred dollars for each offense.

(2) A violation of this Subsection shall constitute an additional ground, under R.S. 22:1173 [fn1], for the commissioner to refuse to issue a license or to suspend or revoke a license issued to any agent, broker, or solicitor to sell insurance in this state.

Similarly, the right of recovery against insurers includes claims settlement practices abuses which give rise to punitive damages under the provisions of La. R.S. 22:1220:

§ 1220. Good faith duty; claims settlement practices; cause of action; penalties

A. An insurer, including but not limited to a foreign line and surplus line insurer, owes to his insured a duty of good faith and fair dealing. The insurer has an affirmative duty to adjust claims fairly and promptly and to make a reasonable effort to settle claims with the insured or the claimant, or both. Any insurer who breaches these duties shall be liable for any damages sustained as a result of the breach.

B. Any one of the following acts, if knowingly committed or performed by an insurer, constitutes a breach of the insurer’s duties imposed in Subsection A:

(1) misrepresenting pertinent facts or insurance policy provisions relating to any coverages at issue.

(2) Failing to pay a settlement within thirty days after an agreement is reduced to writing.

(3) Denying coverage or attempting to settle a claim on the basis of an application which the insurer knows was altered without notice to, or knowledge or consent of, the insured.
(4) Misleading a claimant as to the applicable prescriptive period.

(5) Failing to pay the amount of any claim due any person insured by the contract within sixty days after receipt of satisfactory proof of loss from the claimant when such failure is arbitrary, capricious, or without probable cause.

C. In addition to any general or special damages to which a claimant is entitled for breach of the imposed duty, the claimant may be awarded penalties assessed against the insurer in an amount not to exceed two times the damages sustained or five thousand dollars, whichever is greater. Such penalties, if awarded, shall not be used by the insurer in computing either past or prospective loss experience for the purpose of setting rates or making rate filings.

D. The provisions of this Section shall not be applicable to claims made under health and accident insurance policies.

E. Repealed by Acts 1997, NO. 949, § 2.

F. The Insurance Guaranty Association Fund, as provided in R.S. 22:1375 et seq., shall not be liable for any special damages awarded under the provision of this draft as Division could have had rights against insurer for reimbursement of medical services furnished to insured. Nelson v. Ardoin, App. 3 Cir. 1979, 367 So. 32d 1233.

The claims adjustment period of thirty (30) or sixty (60) days begins with notice and a proof of claim. The specific allegations in pleadings and the assessment of the factual basis upon which to base a claim for punitives under these statutes has lead many insurers to file motions for summary judgment on these claims early in the litigation. State Farm for instance, has instructed its counsel to file motions for summary judgment without delay on any petition where the allegation for punitives has been made.

The purpose of this paper is not to review that which all of you are familiar with but to point out that neither 22:658, nor 1220 provides that either is the exclusive means for recovery where another set of punitive statutes may be available.

For instance, the punitive damage’s laws in the state of Illinois may well apply to activities of State Farm and Allstate Insurance Companies which find their home offices located in Illinois. Seeking to apply Illinois punitive damages under the conflicts of laws principles has been found to be meritorious in several states. In Louisiana, there is no reported case on this issue, but it was recently raised in a fire case we handled and served to provide additional leverage to promote settlement.

The theory is the application of Louisiana’s general conflicts of laws statue enacted in its current form in 1991, and now found at La. Civil Code Articles 3515 to 3549, comprising Book 4 of the Civil Code. The comments to the 1991 changes in the conflicts of laws principle show that “the objective of the choice of law process.... is to identify ‘the state whose policies would be most seriously impaired if its law were not applied to that (particular) issue,’ that is, the state which in light of its relationship to the parties and the dispute and its policies rendered pertinent by that relationship, would bear the most serious legal, social, economic, and other consequences, if its laws were not applied to that issue.”

You should note that this is not a governmental interest analysis or a reference to the analysis based upon interstate competition. It is instead identified as a means of problems resolution by promoting interstate cooperation in avoiding conflicts. Pertinent to the commentators was the objective that “the choice of law process should strive for ways to minimize impairment of the interests of all of the involved states, rather than to maximize the interests of one state at the expense of the interests of the other state.” See Symeonides, “Problems and Dilemmas in Codifying the Choice of Law for Torts: the Louisiana Experience in Comparative Perspective”, 38 Am. J. Comp. L. 431, 436 - 41(1990).

Beginning with identification of the resources of statutory interpretation in each state, the commentator suggests then, an evaluation of the “strength and pertinence” of such policies in view of “the relationship of each state to the parties and the dispute.”

Finally, the comments provide that the evaluation of state policies is also to be conducted “in the light of .... the .... needs of interstate and international systems.” It is noteworthy that the commentators indicate that “this admonition goes beyond the self-evident requirement of complying with the limits prescribed by the federal constitution for state choice of law decisions. See, e.g., Allstate Insurance Company v. Hague, 449 U.S. 302 (1981).

The analysis of conflicts is in terms of issues rather than cases. One issue in a case may be governed by the laws of a particular state, although all other issues are governed by the laws of the forum state. This issue by issue analysis is generally referred to by its French name of “dépeçage”. An example of the issue by issue interpretation with respect to damage claims is seen in Shell Oil Company v. Hollywood Marine, Inc., No. 97-106, 97-611 (La. App. 5th Cir. 10/15/97) 701 So.2d 1038, which held that Texas law, rather than Louisiana law, would apply to govern the interpretation of a liability insurance policy because Texas had compelling interest in regulating its insurance policies contracted for in Texas and issued to companies doing business in Texas, although the injury occurred in Louisiana.

When preserving HVAC coil material, the Court requires you document on the a floor plan of the property exactly where it was removed from and you photograph the HVAC coil. You should also preserve the entire HVAC coil or do one of the following: a. preserve at least 8 copper U-bends (4 from each side) or b. preserve at least 8 sections (at least 6-10 in. long) of refrigerant line. All samples must be dry and stored separately in double-bagged zip-lock bags and not grouped together. They should be stored in a climate controlled area. All samples should be labeled on the outside of the bag with the name, address of the property, the sampling date, type of sample and where on the property it was taken from.

When preserving plumbing components, the Court requires you photograph the fixtures while they are still in place and identify their location on a floor plan of the property. If there are multiple fixtures, only one complete allegedly affected fixture is required to be preserved. All samples must be dry and stored separately in double-bagged zip-lock bags and not grouped together. They should be stored in a climate controlled area. All samples should be labeled on the outside of the bag with the name, address of the property, the sampling date, type of sample and where on the property it was taken from.

When preserving electrical component samples, the Court requires you preserve at least three affected electrical receptacles and three affected electrical switches. All samples must be dry and stored separately in double-bagged zip-lock bags and not grouped together. They should be stored in a climate controlled area. All samples should be labeled on the outside of the bag with the name, address of the property, the sampling date, type of sample and where on the property it was taken from. If smoke detectors, carbon monoxide detectors or intruder alarm devices are affected, the Court requires at least two of each type of device be preserved.

If you have a claim for personal property, you are required to preserve all items allegedly affected by the Chinese-manufactured drywall for which you intend to pursue recovery.

Defense – Coverage Not Obtainable

Sometimes, the defendant in an action against an insurance agent or broker for failure to procure insurance coverage will attempt to avoid liability by showing that the client's failure to obtain the desired coverage was not caused by any wrongdoing on the defendant's part because the desired coverage was not obtainable from any source. Where such a claim is made, the defendant generally will bear the burden of proving it as an affirmative defense. Stevens v Wafer. The burden of proof is said to be placed on the defendant because an insurance agent or broker is in a better position than the client or the intended beneficiary to determine the availability of insurance coverage.

Amount of Recovery

In many cases, proof of the amount a successful plaintiff is entitled to recover in an action against an insurance agent or broker for failure to procure insurance will present no particular difficulty because the plaintiff's recovery will be based primarily on the amount of benefits the plaintiff would have received from the insurer if the coverage had been properly procured. Where property insurance is involved, the amount that would have been recoverable under the policy (and consequently the amount recoverable from the defendant) frequently will depend, within the limits of the policy, on other factors such as the value of the property lost by the person who desired coverage, or the extent of that person's liability. Thus, it may be necessary for the plaintiff to present evidence of that amount.

Several possibilities may be open to the plaintiff who is attempting to establish the value of property and the amount which would have been recovered if a property insurance policy had been properly procured. As a general rule, the owner of property is a competent witness as to its value. See, Stinson v Cravens, Dargan & Co. However, in some circumstances it may be necessary or advisable to present the expert testimony of an appraiser.

Conclusion

Accordingly, it appears that Texas supports, and has rendered several decisions imposing liability upon insurance agents and brokers for failing to procure appropriate insurance per the insured’s instruction. General negligence principals will apply in imposing such liability, as Texas has determined that the agent owes the insured a general duty of reasonable care to place them with the requested insurance. The major hurdle the insured must overcome is the presumption that the insured has read and understands the policy given.

Defense - Contributory Negligence; Failure to Examine Policy

The Texas Supreme Court in Colonial Savings Association v. Taylor addressed the law on this point. Colonial involved a suit brought by an insured against a party that was deemed to have essentially assumed the role of an agent for the insured. The court stated that while some jurisdictions have held that an insured has a legal duty to read his policy, the prevailing view--joined by this State--is as follows: "[A]n insured who accepts a policy without dissent, is presumed to know its contents, but the presumption may be overcome by proof that 'he did not know its contents when it was accepted, as by showing that when he received it he put it away without examination, or that he relied upon the knowledge of the insurer and supposed he had correctly drawn it.'

Recently a Texas Appeals Court added to this notion, opining:
“An insured's reading of certain policy provisions will often result in nothing more than an exercise of the eyes. In other words, the fact that an insured has made himself cognizant of the existence of certain terms in his policy does not necessarily mean that the insured has thus acquired an understanding or appreciation of those terms. This is because policy provisions may be simple or complex, and the insured reading the provisions may be an experienced business person who is insurance savvy or an unsophisticated individual who knows nothing about insurance. It thus behooves an insured to not only read his policy, but to also question his agent on terms and conditions that are not understood; the agent's reiteration as to what is covered under the policy will assist the insured in any later lawsuit. Though it clearly advantages an insured to explore any confusion over terms read but not understood, it is not clear that an insured is always negligent in failing to do so.”

Kloesel ultimately concluding:

“Accordingly, we believe a fact-finder should be able to determine that an insured is not negligent for failing to question or investigate the policy terms he reads, but does not understand. In order to arrive at this determination, the fact-finder must find that (1) it was reasonable for the insured to have not understood the import of the terms read, and (2) the insured's failure to acquire an understanding of the terms was directly related to the insured's reasonable reliance on the agent's knowledge and the assumption that the agent had correctly drawn the policy in conformance with said knowledge. Given the varying complexity of insurance terms and provisions, the varying degrees of insurance knowledge possessed by insureds, and the varying communications that may exist between an agent and insured, a fact-finder should assess what is reasonable on a case-by-case basis.”

Because "[a]n insured who hires and pays a professional [agent] does so to reduce, if not eliminate, the risk that an inadequate policy will be procured," it stands to reason that "[i]nsurance consumers who instruct their [agents] to provide coverage [should be] entitled to have those instructions followed without regard to the insured's failure to detect the [agent's] negligent conduct."

Causation – Negligence

In an action against an insurance agent or broker for failure to procure insurance coverage brought under a negligence theory the plaintiff must show that the defendant's negligence was the cause of a loss which the plaintiff sustained as a consequence of being without suitable coverage. The means of establishing causation may vary according to the nature of the plaintiff's breach and other circumstances of each case. In many cases, it will be necessary to show that the desired coverage was available and thus would have been obtained if the defendant had been exercising reasonable skill, care, and diligence to procure it.
Otherwise stated, an insurance agent’s or broker's failure to obtain the coverage expected by the client may not be the cause of a loss sustained due to lack of coverage if the coverage in question would not have been issued by any insurer under any relevant circumstances. Establishing causation may also require proof that the person who requested coverage had an insurable interest in the subject matter of the desired insurance. Proof that the plaintiff sustained a loss, or that some other event occurred, so that, under the terms of the policy which the defendant was to have procured, the plaintiff would have been entitled to benefits if the policy had been in effect may also be necessary.

Causation – Property Insurance

However, more substantial issues may arise in actions for failure to procure property insurance or liability insurance. In order to establish that the plaintiff would have been entitled to benefits if a property or liability insurance had been procured, it will be necessary to show that the plaintiff sustained a compensable loss or injury. This will often involve a two-step procedure.
First, it will be necessary to present evidence of the fact that a loss or injury occurred. See, Stevens v Wafer . Second, it will be necessary to establish that the plaintiff's loss or injury would have been compensable under the terms of the desired insurance policy by showing that the policy applies to and covers the loss or injury in question, and that any conditions upon which coverage was contingent had, or would have, been satisfied.

Failure to Procure Coverage as Requested by Client

In an action against an insurance agent or broker for failure to procure insurance coverage, the plaintiff will be able to establish the defendant's breach of duty if it can be shown that the defendant failed to procure coverage as requested by the client. Failure to procure coverage may involve a failure to obtain any policy whatsoever, obtaining a policy which does not cover a particular risk for which the client desired coverage, or obtaining a policy which did not provide a sufficient amount of coverage to fully compensate the client in the event of loss.
Generally, an insurance agent or broker will be able to discharge his or her duties to a client by procuring coverage as requested or, alternatively, by advising the client within a reasonable time that the requested coverage has not been procured. This means that the defendant may not be liable where he or she makes reasonable efforts to procure coverage as requested and fails to do so, unless the plaintiff can also show that the defendant failed to advise the client that coverage had not been procured, or failed to adequately explain the limitations or exceptions contained in any policy which was obtained.

Liability was imposed in the Burroughs and Scott cases because the agent induced the plaintiff to rely on his performance of the undertaking to procure insurance, and the plaintiff reasonably, but to his detriment, assumed that he was insured against the risk that caused his loss. Unlike the plaintiffs in the Burroughs and Scott cases, however, the Mays were not misled into believing that a policy in their name existed. Moreover, they were not led wrongly to believe that their policy provided protection against a particular risk that was in fact excluded from the policy's coverage. See Rainey-Mapes v. Queen Charters, Inc ., (agent gave assurances that shipowner's contemplated trip from the Virgin Islands to Houston would be covered, when in fact policy contained a territorial exclusion clause encompassing points along that route); see also Pete's Satire, Inc. v. Commercial Insurance Co ., (agent misrepresented that policy covered bar against risks relating to patrons' consumption of alcoholic beverages). See also Couch on Insurance, (the law imposes on the agent the duty to perform the task of procuring or renewing insurance if he has promised to do so or given assurances “ ‘under circumstances which lull the insured into the belief that such insurance has been effected”). See Also Powell v. Narried , (“The failure of an agent ..., even after the exercise of reasonable diligence to procure insurance, to notify the insured of the agent's inability to obtain insurance, will likewise impose liability upon [the agent].”).

Prescription and peremption place limits on the amount of time a claimant is given to file their claim and the Court has recognized exceptions to the rules in the case of prescription, namely interruption, suspension, acknowledgment, and renunciation. Therefore, prescription is interrupted when the claim is filed, suspended when there is a relationship such as spouses or parent and minor child, acknowledged when the defendant agrees they were at fault before prescription has accrued, and renounced when the defendant agrees they were at fault after prescription has accrued . Recently the Louisiana Supreme Court issued an opinion regarding the issue of prescription interruption. The decision in Warren v. LA Medical Mutual Insurance Co., 2008 WL 5158226, examined whether a claimant, a mother and a daughter, could amend their wrongful death claim regarding their husband and father’s death, respectively, to add another daughter as a claimant. It is in the insurance company’s best interest to keep the number of plaintiffs low, as in Thornhill Law Firm’s experience, a claim for loss of consortium is a piece of a wrongful death claim. Loss of consortium damages will be determined for each individual claiming it, so the insurance company would rather only pay two people for loss of consortium instead of three. The Court decided that the second daughter could be added as a plaintiff in the above case because the amendment relates back to the date of the original filing of the complaint. While normally the second daughter would have been barred due to prescription, she was able to take advantage of the fact that her mother and sister had timely filed a complaint.

Frequently a suit may be dismissed once it has been commenced. When a judge dismisses the claim involuntarily, which means the claimant has not chosen to drop the suit, it will be dismissed either with or without prejudice. The distinction is very important in the matter of prescription or peremption. If a claim is dismissed with prejudice, the period of prescription or peremption picks up from where it was the date the suit was filed. For example, if the suit were filed three months after the claim, then it is dismissed with prejudice, the day it is dismissed would theoretically recommence the running of time a claimant has left to file another suit arising from the same incident. This is said in theory because another legal doctrine, res judicata, would bar the claimant from bringing another suit when the claim is dismissed with prejudice. However, if the suit were involuntarily dismissed without prejudice, the period of prescription starts anew. When the time starts to run on either prescription or peremption it is like a clock counting down. In the second case, once the suit is dismissed involuntarily without prejudice the countdown clock is going to be reset to the original amount of time and the claimant has that length of time to file another suit arising from that claim.

Prescription or peremption rules can vary, such as in the case of fraud, criminal matters, or when the state is involved, so it is very important to have accurate legal counsel to determine whether prescription or peremption have indeed run. In the case where time has run out, the claim can be the best example of a legal claim around, such as if Dr. Smith decided to get drunk before performing Aunt Sally’s surgery and due to his intoxication, he killed her, but if the period of prescription has run, you will be out of luck. Thornhill Law Firm firmly believes in seeking justice for our clients, but we need your help to file your claim in a timely manner. If you have any questions regarding whether your claim has been voided due to prescription please contact us, toll-free, at 1-800-989-2707 or visit our website at http://www.thornhilllawfirm.com.

The new law, Article 136.1 of the Louisiana Civil Code, requires parents granted by court order a schedule of visitation, custody, or time to be spent with a child to actually see the child during this time, which offers legal protection to the other parent if the second parent does not obey. In the above scenario, Mrs. Smith could petition the Court to hold Mr. Smith in contempt for not seeing Amanda during the agreed upon time.

The exception to the rule is if the parent facing the contempt order can demonstrate good cause. This would stop the Court from holding Mr. Smith in contempt if he is able to demonstrate a good reason as to why he did not follow the schedule. This statute also allows Mrs. Smith to interfere with the schedule if she can also demonstrate good cause. Good cause is a fairly new concept in Louisiana family law, and will be reviewed on a case to case basis at the Court’s discretion.

The second change regards divorce procedure. When spouses decide to seek divorce, one spouse, known as the petitioner, will file for divorce. The other spouse, the defendant, can answer the petition for divorce by filing an answer within the requisite time period. If the defendant chooses not to answer, referred to as default, the petitioner can move for final judgment. The new change only effects instances where the defendant defaults. Previously, if the defendant did not answer, the petitioner only needed to submit an affidavit testifying to the truth of the allegations found in the petition and the original plus one copy of the proposed final judgment. In addition to submitting the previously required documents, the petitioner will now also need to enter a certification stating the type of service made on the defendant, the date of service, the date of preliminary default was entered, and a certification by the clerk that the record was examined by the clerk, including the date of the examination, and a statement that no answer or other opposition has been filed.

Thornhill Law Firm understands that matters regarding divorce and child custody are sensitive, and strives to best meet the needs of our clients. The experienced attorneys at Thornhill Law Firm have successfully helped many clients through divorce and negotiate and enforce child custody agreements, and will work with the same dedication to serve you when seeking divorce or an arrangement in the best interest of your child(ren). To learn more about representation by Thornhill Law Firm in child custody matters please visit http://www.thornhilllawfirm.com/ or call us, toll-free, at 1-800-989-2707.

Roadways are traveled by numerous types of vehicles, from small cars to large eighteen wheelers. Accidents caused by eighteen wheelers can invoke especially horrific damage, causing greater injury. Our firm has represented clients who were obvious victims of an eighteen wheeler driver’s negligence as well as those whose accidents were less obviously caused the driver’s negligence. In one instance a man was driving on the interstate in the left lane when an eighteen wheel truck suddenly and without warning shifted from the right lane to the left lane, striking the plaintiff’s car, forcing it into the median. The man suffered debilitating injuries to his spine, which incurred medical costs not only for the treatment at the time of accident, but also for the future treatment of the injuries. Furthermore, he suffered losses of consortium, enjoyment of life, wages, and future earning capacity, not to mention his pain and suffering from the time of the accident to the future. If the truck driver had used more care when changing lanes, the plaintiff would have been able to lead a completely different life. It was only fair for the cause of the negligence, in this case the driver who did not show care or warning when changing lanes, to pay for the consequences of his actions. While it may have been obvious that the truck driver was the cause of the accident, for the plaintiff to fully recover he needed the assistance of an attorney to help prove the true amount of loss sustained.

At other times the cause of negligence is less obvious. Our firm has represented plaintiffs that collided with an eighteen wheeler truck that was stopped in the left lane of traffic. The driving conditions were not good, as logging debris was burned in the area, causing excessive smoke which greatly obscured visibility. The large truck had stopped on the roadway, and not placed flares or any signal as to warn other motorists that it was stopped there. Plaintiffs hit the truck at a moderate speed, and sustained injuries. The driver of the truck was at fault in addition to those burning the logging debris which caused the initial obstruction. Legal representation can help determine all the factors of the accident and determine the true negligence of the parties involved, helping plaintiffs recover from all sources at fault.

There may be other contributing factors in addition to the negligence of the driver, such as lack of maintenance to the roadway. Recently Tom W. Thornhill and Mitch Palmer tried a case for a family injured in an intersectional collision. The family had the right of way, but the party that collided with their car could not see a stop sign governing the road she was on due to its improper size and the fact the sign was bent towards the ground. The state of the sign had been reported to officials, but no action had been taken. Had the sign been maintained as it ought to have been, the collision, which caused substantial injuries, could have been avoided. Therefore, not only was the driver who ran the stop sign at fault, but also the Louisiana Department of Transportation for its negligence in failing to properly maintain the stop sign.

Louisiana law only allows personal injury victims one year to file their claim, so it is important to obtain the proper legal representation as soon as possible to ensure your case is pursued. Thornhill Law Firm is dedicated to seeking justice in personal injury matters. To learn more about representation by Thornhill Law Firm with regards to personal injury, please visit our website at http://www.thornhilllawfirm.com or call us, toll-free, at 1-800-989-2707.

Previous administrations and the FDA considered tort litigation to be an important part of an overall regulatory framework for drugs and devices; product-liability litigation by consumers was believed to complement the FDA's regulatory actions and enhance patient safety. Margaret Jane Porter, former chief counsel of the FDA, wrote, "FDA product approval and state tort liability usually operate independently, each providing a significant, yet distinct, layer of consumer protection."Persons who are harmed have the right to seek legal redress. Preemption would erase that right. Gregory D. Curfman, M.D., Stephen Morrissey, Ph.D., and Jeffrey M. Drazen, M.D., Why Doctors Should Worry About Premption, Vol. 359: 1 New Eng. J. Med. (2008).

It is important for these types of lawsuits to be heard in court, as everyone deserves their day in court when gross negligence occurs, regardless of whether or not a federal agency has established requirements.

Thornhill Law Firm is dedicated to seeking justice in product liability matters. To learn more about representation by Thornhill Law Firm with regards to product liability, please visit our website at http://www.thornhilllawfirm.com or call us, toll-free, at 1-800-989-2707.

Hurricanes contain at least two meteorological forces, high speed winds and water. Therefore, the losses are typically attributed to wind, water, or a combination of the two. Wind is typically covered under a standard Homeowners Policy or Commercial Policy on a business building, so when the event occurs, the private insurance companies and government are responsible for paying for the loss, as dictated by the facts. Initially courts decided the allocation between policies by applying the efficient proximate cause doctrine, which requires the loss to be attributed in percentages to each event, assigning to the homeowners’ policy a percentage for the covered loss, and recognizing exclusions for the non-covered loss. However, anti-concurrent causation clauses were developed by insurers specifically in response to court decisions that apply the efficient proximate cause doctrine to allow coverage for concurrently caused perils. See, 7 Couch on Insurance § 101:57; Preferred Mut. Ins. Co. v. Meggison, 53 F. Supp. 2d 139, 142 (D. Mass. 1999); Garvey v. State Farm Fire & Cas. Co., 48 Cal. 3d 395, 257 Cal. Rptr. 292, 770 P.2d 704, 710, n. 6 (1989). Anti-concurrent causation clauses state that if an event is not covered, or a specifically excluded risk occurs at the same time as a covered peril or loss, then the insurance company is not responsible for paying the claim. An uncovered peril/loss which occurs in any sequence relative to the covered peril/loss is defined as a concurrent cause.

Obviously, this issue is encountered after a hurricane strikes- i.e., the wind versus water damages debate. Private insurance companies are businesses, and like many other businesses, they are motivated by profit. If it is determined that a loss was strictly caused by the water element of the hurricane, then the homeowners’ or business insurance company may not have to pay under the homeowners or business policy, reducing claims and enhancing profits. Hopefully there is flood coverage, and the federal government pays under the flood insurance policy written through NFIP/FEMA because flood coverage does not depend on private insurance interests; flood coverage is underwritten by the government. However, where a portion of the occurrence is attributed to wind damage, the coverages- named perils or all risks- and the anti-concurrent causation language or other exclusions are interpreted in light of known facts by a company with a profit motive. The policyholder who procures insurance through both NFIP flood insurance and a homeowners’ or commercial insurance policy who attempts to recover all of his losses after a natural disaster, like a hurricane, may find it next to impossible for them recover his losses, without an experienced lawyer and experts. At times like these, an attorney with experience in property and casualty/flood insurance litigation is an invaluable tool to obtain maximum recovery.

For instance, loss of use is a term of art generally not clear under the policy. This coverage requires an experienced lawyer to fully recover. A very important ancillary coverage for businesses under their policies is business interruption coverage. Accounting expertise and economist expertise are required to properly analyze and pursue claims under business interruption coverage.

Thornhill Law Firm has the experience and experts needed to handle claims for property damages, loss of use, business interruption and related coverages. Thornhill Law Firm is dedicated to protecting the rights of the homeowner and business to receive their insurance benefits at a time of loss. In all of these cases, time is of the essence, so acting quickly to timely file the claim, with proper proof of loss documentation is critical. That is where the experience of Thornhill & Collings and the experts we engage become most helpful to claimants. To learn more about representation by Thornhill Law Firm in the event of a Hurricane Claim, please visit our website at http://www.thornhilllawfirm.com or call us, toll-free, at 1-800-989-2707.