Insurance Defense - Case Results

Julie Bickett v. Walgreens

(July 2011)

Devin Fadaol and Heather Nagel won a victory for Walgreens in a one day bench trial before Judge William Morvant in Baton Rouge. The plaintiff incurred $24,000.00 in medical bills and underwent an open reduction and hardware placement surgery to repair a fractured radius. Walgreens tried the case on liability and the Judge returned a defense judgment finding Walgreens not at fault.

Reno Gregoire, Jr. v. RSUI/Landmark American Insurance Company

(May 2011)

Michael Sistrunk and Devin Fadaol won a victory for RSUI and Landmark American Insurance Company in this personal injury lawsuit.  Michael Sistrunk successfully argued in the Motion for Summary Judgment hearing that there is no coverage or duty to defend under the assault and battery exclusion in the Landmark American Insurance Company policy. Judge Kirk Vaughn in Chalmette granted the MSJ dismissing RSUI and Landmark American Insurance Company from the lawsuit. 

Amy Ochello v. RSUI/Landmark American Insurance Company

(April 2011)

Michael Sistrunk and Devin Fadaol won a victory for RSUI and Landmark American Insurance Company in this personal injury lawsuit alleging brain damage to the plaintiff.  Michael Sistrunk successfully argued in the Motion for Summary Judgment hearing that there is no coverage or duty to defend under the assault and battery exclusion in the Landmark American Insurance Company policy. Judge Rosemary Ledet in New Orleans granted the MSJ dismissing RSUI and Landmark American Insurance Company from the lawsuit.

Glenn D. Schurr and Lori Schurr v. Christopher M. Gagnon, Milton L. Gagnon,
United States Automobile Association (USAA) and Liberty Mutual Fire Insurance Company
(January 2010)

Donna Wood succeeded in obtained a summary judgment dismissing the claim against USAA on the basis of lack of coverage, and, with the assistance of Lannie Gwartney, successfully defended an appeal of that judgment. The Louisiana Fourth Circuit affirmed the dismissal of the claim against USAA, finding that the non-owned truck's Rated Load Capacity exceeded the amount allowed under the USAA personal automobile policy, and thus, was specifically excluded.

One River Place Condominium Association, Inc. v. Axis Surplus Insurance Company

(June 2009) 

Peter Wanek, Kyle Kirsch, Sid Hardy, and Kevin Kress recently obtained a favorable jury verdict for Axis Surplus Insurance Company following a seven day trial in federal court in New Orleans.  Axis insured One River Place, a luxury condominium high-rise building in downtown New Orleans on the Mississippi River, under a property insurance policy issued to its condo association.  The property suffered damage during Hurricane Katrina.  Axis adjusted the claim and made payments for damages that it found to be caused by the high winds of Hurricane Katrina. 

One River Place filed suit against Axis, alleging that the property suffered additional damage that should have been covered under the policy.  One River Place also alleged that Axis failed to pay for “business interruption” damages for two months of condominium assessments which the Board of Directors had waived following Hurricane Katrina.  One River Place further alleged that Axis had acted in bad faith during the adjustment of its claim, entitling it to penalties under Louisiana law.  Finally, One River Place alleged that Axis violated Emergency Rule 23 for failing to renew the insurance policy beyond June 1, 2006, entitling it to additional penalties.

One River Place presented testimony from members of its Board and from its insurance agent regarding the issues of coverage under the policy, claims handling, and the decision of the Board to seek replacement coverage from a different insurer.  Regarding the extent and cause of property damage, One River Place presented testimony from its general contractor, its roofing contractor, and the architect who designed and managed an extensive renovation project following Hurricane Katrina. 

Axis argued that the extensive renovations to the building were not related to Hurricane Katrina, but rather were improvements to the property that made it better able to withstand future hurricanes and corrected fundamental problems present since the construction of the building.  In support of this argument, Axis presented testimony from the engineers who inspected the property following Hurricane Katrina, contractors who performed the renovations to the property, and an expert architect who called into question the opinions of One River Place’s expert architect. 

Regarding the issues of “business interruption” damages, Axis presented testimony and evidence which showed that the collection of two months of condominium fees was waived by a voluntary act of the Board, and also that the property was habitable and that unit owners had returned to the property during that two month period.  Finally, regarding the issue of the alleged Rule 23 violation, Axis presented evidence to show that One River Place was actively shopping the market for alternative replacement coverage in 2006, that Axis extended coverage under the existing policy every time that One River Place requested it do so, and that One River Place chose to purchase replacement coverage from a different insurer in June 2006.

At the close of trial, One River Place asked the jury to award it over $8 million in damages, including payment for its renovation project, payment for additional planned renovation, payment for two months of business interruption damages, bad faith penalties, and damages under Emergency Rule 23.  Axis asked the jury to find that it had paid for all covered damages under the policy and to award no additional monies.

After over six hours of deliberation, the jury returned a verdict finding that Axis had not acted in bad faith, had not violated Emergency Rule 23, and did not owe penalties to One River Place.  The jury awarded a minimal amount in comparison to the demand for business expenses and property damages.  After the Court subtracted the deductible on the policy, the net Judgment awarded One River Place under $200,000 in total damages.

Ankesheiln v. USAA
(March 2009)

Peter Wanek and Thomas P. Anzelmo tried a case in the Civil District Court in New Orleans, LA. The case involved a rear-end auto accident and liability was stipulated to. Representing the Uninsured/Underinsured Motorist Carrier (USAA), the defendant argued that the accident was a minor one and could not have caused the serious low back injuries alleged by the plaintiff, and also that the plaintiff’s back complaints, which gradually became worse in the years following the accident, were related to his degenerative disc condition and not the accident. The plaintiff eventually had a two level fusion of the lower two vertebrae in his back and claimed related medical expenses in excess of $200,000. Incidentally, prior to trial, the excess UIM carrier settled two days before trial for $200,000.

In closing, the plaintiff requested that the jury award $1,010,000.00 including approximately $209,000 in medical expenses. The jury returned a verdict in favor of the plaintiff but awarded only $47,000 in general damages and $20,000 in past and future medical expenses. USAA had tendered $10,000 prior to trial and with a credit for payment made by the primary carrier ($10,000), the net judgment was $47,000.

Deborah Jackson v. Allstate Insurance Company, et al.
(October 2008)

Thomas P. Anzelmo and Kyle P. Kirsch won a victory in favor of Landmark Insurance Company in Jackson v. Allstate Ins. Co., 07-7904 in the Eastern District Court of Louisiana. Plaintiff sued Landmark arguing that it provided Errors and Omission coverage for an insurance agent whom they alleged negligently procured her a flood insurance policy without advising her about the proper limits of insurance needed. Judge Lemmon granted Landmark’s Motion to Dismiss dismissing plaintiff’s claims against Landmark finding that Landmark’s “Claims Made” policy did not provide coverage since the alleged acts occurred prior to the retroactive date of the policy.

House Call Home Health Care v. Rodco Worldwide, et al.
(March 2008)

Michael R. Sistrunk and Kyle P. Kirsch won a victory in favor of Axis Surplus Insurance Company in the case entitled House Call Home Health Care v. Rodco Worldwide, et al., Docket No. 07-9088 in the United States District Court for the Eastern District of Louisiana where plaintiff attempted to assert a Hurricane Katrina claim against Axis. Judge Lemelle granted Axis’ Motion to Dismiss finding that Axis had no coverage for plaintiff’s claims.

Cairn Curran, LLC v. Axis Surplus Insurance Company, et al.
(February 2008)

Michael R. Sistrunk and Kyle P. Kirsch won a victory in favor of Axis Surplus Insurance Company in the case entitled Cairn Curran, LLC v. Axis Surplus Insurance Company, Docket No. 07-8826 in the United States District Court for the Eastern District of Louisiana where plaintiff attempted to assert a bad faith claim against Axis after settling their property damage claim which was the result of Hurricane Katrina. Judge Porteous dismissed plaintiff’s claims finding that the settlement agreement barred plaintiff’s bad faith claims.

Bayou Medical Care, Inc. v Rodco Worldwide, et al.
(February 2008)

Michael R. Sistrunk and Kyle P. Kirsch won a victory in favor of Axis Surplus Insurance Company in the case entitled Bayou Medical Care, Inc. v. Rodco Worldwide, et al., Docket No. 07-10966 in the Civil District Court for the Parish of Orleans where plaintiff attempted to assert a Hurricane Katrina claim against Axis. The Court granted Axis’ Motion for Judgment on the Pleadings find Axis had no coverage for plaintiff’s claims.

Fenkel v. St. Paul Mercury Insurance Company et al
(November 2007)

Michael Sistrunk, Kyle Kirsch, and Matthew Garver secured a summary judgment in favor of United Services Automobile Association (USAA), which was upheld on appeal by the Fifth Circuit. In Fenkel, the plaintiff, a Colorado resident who was in Louisiana for a trade show and operating a rental vehicle, was severely injured by a drunk driver in an automobile accident when his vehicle was struck by a vehicle operated by an Illinois resident. Fenkel sought benefits from USAA under his UM coverage. The issue in this case was the choice of law to be applied to the USAA policy. If Colorado law was applied to the USAA policy, Fenkel would not be entitled to any UM benefits because Colorado law allows an insurer to offset any funds paid to the insured up to the underlying UM limits. If Louisiana law applied to the USAA policy, USAA would be liable for its policy limits. Michael Sistrunk, Kyle Kirsch, and Matthew Garver successfully argued in brief and oral arguments that Colorado law applied to the USAA policy and summary judgment was properly granted to USAA. The Fifth Circuit agreed, holding that the USAA policy was written and delivered in Colorado, Fenkel was a Colorado resident, the parties to the policy contemplated application of Colorado law, and that it was equally clear that neither party contemplated that another state’s laws would apply to the policy.

Wilbert Johnson v. U-Haul Company of Louisiana
(August 2007)

Mark Hanna, Devin Fadaol, and Frank Catalano won a victory for U-Haul before the Louisiana Court of Appeals for the Fourth Circuit. The issue was whether U-Haul is liable to plaintiff for an accident in which its lessee failed to return the rental truck, and the rental truck was involved in a hit-and-run accident three weeks later. After briefing and oral argument, the Fourth Circuit Court of Appeals affirmed the summary judgment granted in favor of U-Haul holding that U-Haul was not liable under the circumstances as it made sufficient attempts to recover the vehicle, and the Court refused to establish any time frame under Louisiana law by which rental companies were required to recover a vehicle to avoid liability to third parties.

Barbara Lopicolo v. USAA
(August 2007)

Peter Wanek and Devin Fadaol won a victory for USAA in this four day jury trial before Judge Hand in 24th JDC for the Parish of Jefferson. After stipulating to liability, the case was tried on the issue of damages and a loss of earning capacity claim. Plaintiffs asked for $275,000.00 in closing argument, and were awarded a total of $8,000.00 plus $16,000.00 for medical bills. The jury awarded zero for the loss of earning capacity claim, loss of consortium, loss of enjoyment of life, and future pain and suffering/mental anguish.

Sheri Newcomer v. Louisiana Insurance Guaranty Association, et al
(May 2007)

C. Devin Fadaol won a victory for LIGA in a two week jury trial before Judge Ethel Simms Julien in Civil District Court for the Parish of Orleans. As a result of an automobile accident, Sheri Newcomer alleged various injuries including brain damage and herniated discs against the various individual defendants and insurers involved in the litigation. At the close of plaintiff’s case in chief, Judge Julien granted a Directed Verdict in favor of LIGA dismissing it from the lawsuit with no exposure.

Burnette Armstrong v. HMC Hotel Properties II Limited Partnership
(March 2007)

Michael R. Sistrunk, Kyle P. Kirsch and Eugene T. Rhee secured a summary judgment dismissal, with prejudice, for the Baton Rouge Marriot Hotel and its General Manager, Janet Schwartz, in the case entitled Burnette Armstrong v. HMC Hotel Properties II Limited Partnership, which was pending in the 19th Judicial District Court in Baton Rouge, Louisiana. Ms. Armstrong filed suit against the Marriott claiming she suffered serious injury as a result of a trip and fall in the Marriott parking lot. Ms. Armstrong underwent one shoulder surgery, had a second surgery recommended, and had received $34,217.52 in worker's compensation benefits. The trial court granted the summary judgment motion finding same to be well-founded, specifically noting that none of the alleged defective joints or crevices in the parking lot were over 2" in depth and thus, there was no unreasonably dangerous condition.

Melanie McGrath v. Donald L. Davis, ET AL.
(December 2006)

Michael R. Sistrunk and Kyle P. Kirsch won a victory in favor of Amica Mutual Insurance Company in Civil District Court for the Parish of Orleans. Plaintiff sued Amica arguing that she had $300,000.00 in Uninsured Motorist Coverage because the UM rejection form had the words Not Available typed next to the economic only provisions of the UM rejection form; thus, precluding her from making a meaningful selection. Amica argued the rejection form was valid because: (1) the UM rejection at issue was on the form prescribed by the Louisiana Insurance Commissioner; (2) the UM statute specifically indicates that economic only coverage is a type of coverage that an insurer may offer, in contrast to other provisions in the statute in which the word shall indicates that a provision is mandatory rather than permissive; (3) the UM statute does not require that the form prescribed by the Louisiana Insurance Commissioner afford an insured the option of selecting economic only coverage; rather, the statute simply requires that, when an insured makes a selection concerning UM coverage, that selection must be made on the prescribed form; and (4) to the extent an insured need be made aware that economic only coverage is available from other insurers the prescribed form so advises the insured. The district court granted Amica’s summary judgment motion finding that the UM rejection validly rejected UM coverage.

Thomas Sharbono v. Michael Shipes, ET AL.
(July 2006)

Michael R. Sistrunk and Kyle P. Kirsch won a victory in favor of Cincinnati Insurance Company in the 14th Judicial District Court for the Parish of Calcasieu. Plaintiff sued various defendants as a result of an automobile accident which aggravated his multiple sclerosis condition. The district court granted Cincinnati’s summary judgment motion finding that the tortfeasor was not employed by Cincinnati’s insured and as a result Cincinnati could not be held liable for plaintiff’s injuries.

Theresa Perkins, et al. v. Timothy Edwards, et al.
(March 2006)

Michael R. Sistrunk and Kyle P. Kirsch won a victory in favor of Axis Insurance Company in the 31st Judicial District Court for the Parish of Jefferson Davis involving an 18 wheeler accident where the 18 wheeler rear ended a John Deere tractor carrying several bales of hay and killed the driver. Plaintiffs (decedent’s wife and his five children) agreed to voluntarily dismiss their claims against Axis Insurance Company, the 18 wheeler’s excess carrier, a week prior to trial.

Elaine Tate and Keisha Lemar v. Michelle Hand and USAA Insurance Company
(March 2006)

Devin Fadaol won a victory in favor of United Services Automobile Agency (USAA) Insurance Company in the case entitled Elaine Tate and Keisha Lemar v. Michelle Hand and USAA Insurance Company, Docket No. 04-10683, Division “E” in Civil District Court for the Parish of Orleans.
The lawsuit arose out of an automobile accident at the intersection of Tulane Avenue and South Claiborne. Both drivers claimed they had a green light but only Michelle Hand was issued a citation. The police report and traffic citation were not admitted into evidence and the plaintiffs were successfully impeached on cross examination with evidence of prior convictions and moving violations.
Judge Madeleine M. Landrieu ruled in favor of defendants, Michelle Hand and USAA on the issue of liability and returned a zero judgment against the plaintiffs finding them 100% liable for the accident.

Debra Brown v. State Farm Insurance Company
(January 2006)

Mark E. Hanna won an appeal in favor of State Farm Insurance Company in the case entitled Debra Brown v. State Farm Insurance Company in the 4th Circuit Court of Appeals. The Court of Appeals reversed the trial court completely and entered judgement in favor of the defendants. 

Rosamond Nicolosi, et al. V. Jerry Chastain, et al.
(December 2005)

Michael R. Sistrunk and Kyle P. Kirsch won a victory in favor of Landstar Inway, Inc. in the 18th Judicial District Court for the Parish of Iberville in an 18 wheeler accident when their summary judgment was granted based on the fact that the tractor trailer was not hauling at the time of the accident despite the fact that the vehicle was being operated with a Landstar placard.

Reginald Simon, et al. v. BASS, LLC
(December 2005)

Michael R. Sistrunk and Kyle P. Kirsch won a victory in favor of Anheuser Busch, Inc. in the case entitled Reginald Simon, et al. v. BASS, LLC, et al. in 17th Judicial District Court for the Parish of Lafourche. Plaintiffs sued Anheuser Busch, Inc. and other defendants for a severe back injury which required surgery that he sustained in a boating accident during the 2003 Bassmaster Classic. Plaintiffs’ claims against Anheuser Busch, Inc. were based on Anheuser Busch, Inc. being a promoter/sponsor of the 2003 Bassmaster Classic. The Motion for Summary Judgment was opposed by not only the plaintiff but also the defendants. However, the trial court ruled in favor of Anheuser Busch, Inc. placing stringent guidelines on when a promoter/sponsor of an event can be held responsible.

Dina Azar, et al. V. Taryn L. Alfortish, et al.
(October 2005)

Michael R. Sistrunk and Kyle P. Kirsch won a victory in favor of Landstar Ranger, Inc. in the 15th Judicial District Court for the Parish of Lafayette in an 18 wheeler accident when the plaintiff agreed to voluntarily dismiss their wrongful death claim and personal injury claims against Landstar for an alleged defective DOT/ICC bar when their vehicle was rear ended by another vehicle pushing plaintiff’s vehicle into Landstar’s trailer.

Shirley Kimble, et al. v. East Jefferson General Hospital
(September 2004)

Thomas P. Anzelmo and Andre Lagarde recently won an important victory for East Jefferson General Hospital (“EJGH”) in the 24th Judicial District Court in the case entitled Shirley Kimble, et al. v. East Jefferson General Hospital. The plaintiff suffered injuries as a result of a fall off a hip adduction machine at the East Jefferson General Hospital Wellness Center. The court found the plaintiff 100% at fault and did not assess damages against EJGH.

Eric Costello v. Yvette Hewitt, et al
(July 2004)

Thomas P. Anzelmo won a victory in favor of State Farm in the case entitled Eric Costello v. Yvette Hewitt, et al before Ad Hoc Judge Paula Brown in Civil District Court in Orleans Parish. Our insured, Yvette Brown, rear ended the vehicle driven by the plaintiff. The court found the plaintiff cut in front of our insured, creating a sudden emergency, for which she was not at fault.

Ernest and Marina Howells v. Cincinnati Ins. Co.
(July 2004)

Michael Sistrunk and Peter Wanek won a victory in favor of Cincinnati Insurance Co in the case entitled Ernest and Marina Howells v. Cincinnati Ins. Co. in the 24th Judicial District Court before the Honorable Judge Benge. Plaintiffs were involved in a motor vehicle accident on January 1, 2000. The defendant driver was an employee of Cincinnati’s insured. Cincinnati contended the employee was driving the van without permission because he was on his way home from a New Years Even party. The defendant driver’s blood alcohol content was .194%.

Plaintiffs requested $100,000 in general damages and $200,000 in punitive damages. The jury returned a verdict finding the employee was driving with implied permission, but the jury only awarded $12,395 to Ernest and $11,000 to Marina, including medicals, which alone totaled $25,000. The jury also found the plaintiff to be at 5% fault. No punitive damages were awarded.

Anthony Hill v. Amica Mutual Ins. Co.
(June 2004)

Donna Wood won a victory in favor of Amica in the case entitled Anthony Hill v. Amica Mutual Ins. Co. in Civil District Court for the Parish of Orleans. Amica field an Exception of No Cause of Action and No Right of Action to Plaintiffs’ Claims for additional damages under LSA-R.S. 22:658 and 1220 as the surviving heirs of their deceased mother against her UM carrier. Plaintiffs were the major, non-resident children of the insured and the limits of the mother’s UM policy were paid to them and two other siblings. Plaintiffs claimed the payments were untimely. Amica claimed that only an insured has the right to file this action and this action is not heritable. The Court granted Amica’s Exception.

Barbarin v. Kramer and USAA
(May 2004)

Peter Wanek won a victory in favor of USAA in the case entitled Barbarin v. Kramer and USAA in Judge DiRosa’s court in CDC. The plaintiff sustained injuries when our insured hit her as she correctly exited a parking lot. Plaintiff agreed to stipulate damages were under $50,000, even though they originally demanded well over $100,000. After a two day trial, the judge returned a verdict awarding the plaintiff $10,000, plus his medicals.

N. Abramson v. N. Jurkovic/United States Automobile Assn.
(May 2004)

Peter J. Wanek won a victory in favor of USAA in the case entitled N. Abramson v. N. Jurkovic/United States Automobile Assn. in the Civil District Court for the Parish of Orleans in May 2004. Plaintiff, who was a lawyer himself, sued USAA claiming 5 years of medical treatment and future neck surgery resulting from a motor vehicle accident. Plaintiff demanded $186,000, including $6,200 in past medicals, and $30,000 in future medicals. Although USAA had the plaintiff on surveillance video playing softball and other sports, the judge would not allow the tape into evidence. Even so, the jury, after 1 ½ hours of deliberation, awarded only $6,000 in general damages and $1,100 in past medicals. They rejected plaintiff’s claim for future medicals in its entirety. The jury also found the plaintiff to be 5% at fault.

Lathers v. U-Haul
(April 2004)

Donald Palmisano won an important victory in favor of U-Haul in the case entitled Lathers v. U-Haul before Judge Robert Murphy in the 24th Judicial District Court in Jefferson Parish in September 2003. The plaintiff stored his property at a U-Haul storage center. He completed a rental agreement and purchased insurance. The plaintiff allegedly later entered the space to find $14,000 worth of property missing. U-Haul filed a Motion for Summary Judgment and the trial court dismissed the suit concluding the terms of the rental agreement were a bar to the suit. Interestingly, neither U-Haul nor the plaintiff possessed a copy of the rental agreement. The court permitted U-Haul to prove the terms and conditions of the contract by an affidavit of the facility manager.