In two decisions rendered in the last two days, two Louisiana Appellate Courts issued head-shaking judgments. Neither case involved reported allegations of Insurer Bad Faith. Insurance practitioners will appreciate knowing about both of these decisions in any case.
In State of Louisiana Patricia Bourque v. Essex Insurance Co., 2012 WL 832748 (La. Ct. App. 3d Cir. March 14, 2012), Download State of La. Patricia Bourque (La. Ct. App. 3d Cir. Opinions Filed 03.14.12) PUBLIC ACCESS, a Louisiana Appellate Court was fractured in its differing views. Two judges dissented, and a third wrote a special concurrence. The case was the fourth appearance on appeal; there were three previous Jury Trials. In the present appeal, the Jury found against the Plaintiff.
The dispositive issue on this appeal was whether the Plaintiff suffered an injury as a result of an accident in the first place. The majority held that the following Interrogatory Verdict was ambiguous, did not manifest the Jury's intent, and all in all was a nullity not to be considered even though the Plaintiff did not object to it in the case at bar:
Do you find, by a preponderance of the evidence, that an accident occurred on or about August 19, 2002, injuring the plaintiff, Patricia Bourque?
YES _______ NO _______
In both trials, the jury selected “NO.”
The deciding majority of the appellate panel in this case held that this was fundamental error, so that the Plaintiff's failure to object did not preclude appellate review. Having reviewed the quoted Interrogatory Verdict, the majority, as noted, held in effect that it was a nullity and that it furnished no assistance in divining the Jury's intent.
So the Appellate panel majority issued its own Judgment in this case.
The panel majority reviewed the record from the three previous Jury Trials, to the extent that the record had been transmitted to the Court of Appeals. The Appellate panel majority announced their Verdict, er, Judgment upon announcing that they completed their review of the record on appeal. Their Judgment is for the Plaintiff, which they announced as follows:
JURY VERDICT VACATED AND JUDGMENT RENDERED.
In another case decided in a second Louisiana Court of Appeals, Mason v. Bankers Insurance Group, 2012 WL 833364 (La. Ct. App. 5th Cir., March 13, 2012), Download Mason v. Bankers Ins. Grp. (La. Ct. App. 5th Cir. Opinion Filed 03.13.12) PUBLIC ACCESS, a Homeowner's Insurance Company defended a Coverage case brought on account of damages and expenses caused to and by ruptured plumbing.
First, the Defendant contended that there was no Coverage under the Homeowner's Policy in the first place, because the Policy only covers damage to a structure attached to a dwelling and a covered attached structure does not include plumbing, it said. The Appellate Court disagreed. Id. at *2-.
Returning to a position presenting greater lucidity, the Defendant also argued that an Exclusion should apply to preclude all Coverage under the Homeowner's Policy in that case. The Louisiana Appellate Court held that there were factual issues to be tried concerning the application of that Exclusion, and reversed the Trial Court's entry of a Summary Judgment of no Coverage accordingly. Id. at *3-*4.
As noted, neither of these decisions involved reported allegations of Insurer Bad Faith. They are posted here because you will certainly find them interesting and you will also likely find them useful in any case.
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