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Firm Successes
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Yur-Mar, LLC, et al v. Jefferson Parish
(November 2011)
Tommy Anzelmo, Kyle Kirsch, Lannie Gwartney, and Kevin Kress successfully defended Jefferson Parish in a number of state and federal lawsuits challenging the constitutionality of a new zoning ordinance establishing regulations and design standards for the “Fat City” area of Metairie, Louisiana. The ordinance was passed following a multi-year study and drafting process, and was intended to address problems of crime, blight, urban decay, and declining property values in Fat City. The ordinance set closing hours for stand-alone bars and nightclubs in Fat City of midnight during the week and 1:00 a.m. on weekends. Prior to the passage of the ordinance, no closing hours existed for these businesses, and many operated late into the night or did not close.
Yur-Mar, LLC, along with several other owners and operators of bars and nightclubs in Fat City, filed several lawsuits in federal court challenging the ordinance as violation of their due process rights, a violation of their right to equal protection, and a 5th Amendment “taking” of their property. The lawsuits also claimed that the new zoning requirements were arbitrary and capricious and lacked a rational basis. Multiple lawsuits were also filed in state district court seeking injunctions that would prevent the ordinance from going into effect in general or as applied to a particular establishment.
Our firm’s attorneys successfully defeated these challenges, obtained a dismissal of all claims against Jefferson Parish, and had the ordinance upheld as constitutional. The federal lawsuits were consolidated and the bar owners appealed the dismissal of their claims to the United States Fifth Circuit, which heard oral argument on these appeals in October 2011. Tommy Anzelmo argued before the Fifth Circuit on behalf of Jefferson Parish, and the court issued a decision affirming the dismissal of all of the bar owners’ claims (Yur-Mar, LLC, et al v. Jefferson Parish Council, et al, 2011 WL 5840265 (5th Cir. 2011)).
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Loconte Partners, LLC v. Montgomery & Associates, Inc. and Landmark American Ins. Co.
(October 2011)
Peter J. Wanek received a defense verdict in the defense of a commercial roofing contractor who applied a sprayed polyurethane foam roofing system in contiguous warehouse buildings owned by the plaintiff. Plaintiff claimed that the roofs were defective and caused damage to the interior, as well as caused certain economic losses to its business. The plaintiff claimed damages to the roof in the amount of approximately $540,000, as well as additional incidental damages of just under $200,000. The jury in St. Bernard parish deliberated less than an hour before rendering a verdict for the defendants.
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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.
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Michael R. Duncan v. Ford Motor Company
(June, 2011)
Plaintiff sued Ford Motor company, alleging the failure of his vehicle’s airbag to deploy in an accident caused his injuries. Keith McDaniel successfully obtained summary judgment in the trial court. On June 10, 2011, the Louisiana First Circuit Court of Appeals affirmed the summary judgment, providing written reasons. Read Decision
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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.
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Maloney Gaming Management, LLC v. St. Tammany Parish
(May 2011)
Maloney Gaming Management, LLC sued St. Tammany Parish, alleging that the Parish violated its due process rights under the Louisiana Constitution in enacting an ordinance that prohibits video bingo in the unincorporated areas of St. Tammany Parish. Plaintiff also alleged that it relied to its detriment on the state of the law prior to the ordinance, and expended significant sums in renovating properties that it planned to lease to charitable organizations that would have operated video bingo parlors. The Parish filed a motion to dismiss the action on the grounds that the ability to operate video bingo parlors is a revocable privilege, and not a protected property right. The Parish further argued that plaintiff, as a commercial lessor, was prohibited by law from operating video bingo, and could not reasonably rely that a third party would be allowed to conduct video bingo in the future. Although the district court denied the motion to dismiss, Tommy Anzelmo, Kyle Kirsch, and Kevin Kress, with Lannie Gwartney assisting on the appeal, successfully appealed the ruling to the Louisiana First Circuit Court of Appeal, who overruled the trial court and ordered the dismissal of the plaintiff’s claims against the Parish.
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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.
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Aluminum Fabrications v. St. Charles Gardens Association
(April 2011)
Donna Wood of McCranie Sistrunk represented the defendants in a case that after the plaintiffs rested their case, Judge Landrieu granted defendant’s Motion for Directed Verdict, dismissing plaintiff’s breach of contract claim.
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Weiss V. Mazda
(November 2010)
The Louisiana Fifth Circuit Court of Appeal has upheld a grant of summary judgment for Mazda Motor of America, Inc. and Royal Oldsmobile Company, Inc. The opinion can be found at http://www.fifthcircuit.org/Opinions.aspx by searching for Case No. 10-CA-608.
Lance B. Williams and Quincy T. Crochet of McCranie, Sistrunk, Anzelmo, Hardy, McDaniel & Welch, LLC obtained the judgment for Mazda and Royal in March of 2010 in the case of Elizabeth L. Weiss and John Weiss v. Mazda Motor Corp, et al., in the 24th Judicial District for the Parish of Jefferson, Case No. 536-515. The plaintiffs filed the product liability action seeking damages against Mazda and Royal for injuries allegedly sustained when the airbag deployed after Elizabeth Weiss struck a parked vehicle in her 1994 Mazda MX3 in Metairie, Louisiana. The plaintiffs claimed that the impact was minor and at an offset angle and thus the airbags should not have deployed. They alleged that the supplemental restraint system was defective in design and for failure to provide adequate warnings. The summary judgment argued that plaintiffs had failed to develop any evidence to prove that the vehicle was defective pursuant to the Louisiana Product Liability Act, and absent expert support all claims should be dismissed. Judge William “Chuck” Credo, III, agreed and granted the defendants’ motion on March 30, 2010. In his written reasons, Judge Credo explained that “Mazda provided adequate warnings regarding the activation and any potential dangers associated with airbag deployment.”
The plaintiffs subsequently appealed the dismissal of their claim to the Louisiana Fifth Circuit Court of Appeal. The Appellate Court determined that Mazda adequately warned the plaintiffs that the air bags could deploy in a frontal or near frontal accident of moderate impact, and that Mr. & Mrs. Weiss failed to produce any evidence that the subject accident resulted in less than a moderate impact. Thus, the plaintiffs were unable to establish proximate cause. In addition, the Fifth Circuit determined that the only proposed alternative warning presented by the plaintiffs’ counsel would be inapplicable to the subject accident. After noting that a plaintiff prosecuting a failure to warn claim cannot prevail based on a mere allegation of inadequacy, the Fifth Circuit affirmed the ruling of the trial court and upheld the summary judgment in favor of Mazda and Royal.
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Unum Wins Summary Judgment on Accidental Death Claim
On June 8, 2010, Lauren A. Welch and Hilliard "Trey" Kelly prevailed on a motion for summary judgment on behalf of Unum Life Insurance Company of America ("Unum") in an ERISA suit in the United States District Court for the Eastern District of Louisiana. Plaintiffs, beneficiaries of decedent Timothy D. Letter, were seeking in excess of $200,000 Accidental Death and Dismemberment (AD&D) benefits under an Employee Life Insurance Plan owned by Pepsi Americas, Inc. and administered by Unum. Prior to his death, Mr. Letter had been declared disabled and was receiving disability benefits under a separate employee benefit plan. In addition to disability benefits, this plan provided that a disabled employee was entitled to have his life insurance premiums waived. Plaintiffs argued that the waiver should have also included the premiums necessary to continue his AD&D coverage. Unum disagreed on the grounds that the AD&D coverage was separate and distinct from the standard life insurance. Furthermore, the terms of the policy did not provide for an AD&D waiver of premium. Judge Carl J. Barbier came down squarely on the side of the insurer noting that "the Life Insurance and the AD&D benefits contain separate and distinct sections relating to eligibility, coverage and payment amounts.... Therefore, it is unclear to the court how Letter to have believed that the clause applied to both the Life insurance and the AD&D provision." Accordingly, plaintiffs' case was dismissed with prejudice.
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Goodluck Edibiokpo v. Peterman, et al
(May 2010)
Michael Sistrunk, Kyle Kirsch, and Craig Canizaro recently won a victory for Winn Dixie Montgomery, LLC in the case entitled Goodluck Edibiokpo v. Peterman, et al, 2010 WL 1930081 (E.D.La. 5/10/2010), where plaintiff sought damages from Winn Dixie under 42 U.S.C. 1983 and La Civil Code article 2315. The plaintiff, a commercial truck driver, claimed Winn Dixie violated the Federal Motor Carriers Act by asking him to leave its premises following the completion of his delivery and that Winn Dixie was liable for the injuries he allegedly sustained as a result of alleged actions by police officers when they arrived to escort plaintiff from the property. The Court granted Winn Dixie’s F.R.C.P. Rule 12(b)(6) Motion to Dismiss, agreeing with Winn Dixie that plaintiff failed to state a claim under either 42 U.S.C. 1983 or Louisiana law. Specifically, the Court held Winn Dixie did not have a duty to prevent plaintiff’s injury at the hands of police officers. Accordingly, the Court found that Winn Dixie could not be found to be the legal cause of plaintiff’s injuries.
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