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Posts Tagged ‘New Orleans’

Coronavirus Lawsuit Seeking Coverage is Filed in Louisiana

Posted on: March 18th, 2020

By: Philip W. Savrin and Erin Lamb

The first in what is bound to be a virtual tsunami of coverage lawsuits arising from the spread of the Coronavirus was filed in New Orleans this week by a restaurant in the famed French Quarter. In its complaint, Oceana Grill seeks a declaration that the government’s orders to close down the business will trigger coverage for losses it anticipates it will sustain as a result of a government-mandated suspension of its operations. As in many policies, coverage is provided for the loss of net income that results from a “direct physical loss” to the insured’s property. In the lawsuit, the restaurant alleges that “any effort … to deny that the virus causes physical damage and loss would constitute a false and potentially fraudulent misrepresentation that could endanger policyholders and the public.”

This argument, which we predict will become central to insurance coverage disputes throughout the country, was supported by the Mayor of New Orleans who publicly stated that she will be “very aggressive” when it comes to business interruption claims.  Indeed, in her emergency declaration, Mayor Cantrell stated explicitly that Covid-19 “causes property loss and damage in certain circumstances.”

Whether interruptions to business operations are covered by policies that require a direct physical loss to property will depend on the particular language of each policy and the application of the terms may vary as well depending on the jurisdiction. In addition, policyholder advocates are turning to state legislatures for assistance in mandating insurers to cover losses particularly where closures are mandated by local governments. The only thing that is certain at this point is Covid-19 is going to impact virtually every industry and on a global scale, with many lawsuits being filed by businesses asserting novel arguments to cover their mounting losses.

Additional information: 

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues every day for the next week. We will discuss the impact of Coronavirus for companies in general, but also for business in insurance, healthcare, California specific issues, cybersecurity, and tort. Click here to register.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients. Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the Coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments. For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

Fault Not Attributable to US Army Corps of Engineers in Hurricane Katrina Death: A Lesson in Apportionment

Posted on: November 1st, 2017

By: Cheryl H. Shaw

82-year old Frances Robinette died in a New Orleans nursing home four days after Hurricane Katrina struck. Robinette had been a resident of the facility for two years and suffered a host of medical issues including congestive heart failure and dementia.  Shortly after Katrina made landfall, water entered the nursing home and the facility lost all electrical power. Temperatures soared to over 100 degrees with no running water or working toilets. Staff moved residents to the second floor and attempted to keep them cool with damp washcloths and cardboard fans, but efforts were unsuccessful. Robinette died of heat stroke and dehydration.

Robinette’s family filed a wrongful death action against the nursing home, alleging the facility violated a mandatory evacuation plan by leaving Robinette and more than 100 other residents behind in “extreme conditions.” Following a two-week trial, the jury found the nursing home 100% at fault for Robinette’s death and awarded the family over $1.3M in damages.

On appeal, the nursing home argued the US Army Corps of Engineers (who was not named as a defendant in the lawsuit) should have been listed on the verdict form and the jury should have been allowed to assign a percentage of fault to the Corps for negligent design, construction, and maintenance of the city’s hurricane protection system. It was wrong, the nursing home argued, for the trial court to exclude evidence of the Corps’ alleged negligence and to refuse to allow the jury to assign fault to the Corps for the role it played in Robinette’s death.

Noting Louisiana’s pure comparative fault system creates a mandatory right to quantify the fault of “all persons” who caused or contributed to a plaintiff’s damages, the Court agreed with the nursing home that evidence of the Corps’ alleged fault should have been admitted at trial. However, the Court went on affirm the jury’s verdict, concluding that any negligence by the Corps was not the “cause in fact” of Robinette’s death. The Court reasoned that Robinette did not die because storm water flooded the building, but because of sweltering heat caused by the nursing home’s failure to evacuate and the inadequacy of its back-up generators: “We cannot say that but for the conduct of the Corps of Engineers, Mrs. Robinette would not have died from heat stroke on the second floor of the [nursing home] five days after the City of New Orleans had issued a mandatory evacuation order.” Robinette v. Lafon Nursing Facility of the Holy Family, 223 So. 3d 68 (2017).

Georgia’s apportionment rules are different from Louisiana’s and do not contemplate a “cause in fact” standard, but Robinette serves as a good reminder of some basic principles. In Georgia, a notice of non-party fault must be filed at least 120 days before trial and state why the non-party is believed to be at fault. O.C.G.A. § 51-12-33.  Additionally, a defendant seeking to apportion fault to a non-party must be prepared to shoulder the burden of proof regarding the applicable standard of care. If the non-party is a professional (like an architect or an engineer), expert testimony may be required. See Union Carbide Corp. v. Fields, 315 Ga. App. 554 (2012).

Apportionment is an important tool in a defendant’s arsenal.  Every percentage of fault the jury attributes to another entity is a percentage of damages you do not have to pay. FMG’s team of experienced Construction Law litigators can help you in defending—and avoiding—liability claims.  If you have questions or would like more information, contact Cheryl H. Shaw at [email protected].