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Louisiana Supreme Court

SUDDEN EMERGENCY DEFENSE:  NOW MORE DISPOSITIVE

On August 28, 2015, the Louisiana Supreme Court denied a Writ Application in Leandro Carias v. Vernon A. Loren, et al.  This denial signifies that the “sudden emergency” defense may be properly applied at the summary judgment level. The defense in the Carias litigation was handled by Keogh Cox attorneys Gracella Gail Simmons and Collin J. LeBlanc.

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Claims for Negligent Spoliation of Evidence Not Supported by Louisiana Law

In Reynolds v. Bordelon, 2014-2362 (La. 6/30/15), — So.3d—, 2015 WL 3972370, the Louisiana Supreme Court definitively ruled that Louisiana law does not recognize a cause of action for negligent spoliation of evidence. This resolved a disputed issue of Louisiana law.

The Reynolds plaintiff was involved in a multi-car accident in which his airbag failed to deploy. His insurance company paid what was owed for the totaled vehicle under its policy and, in the normal course of business, disposed of the vehicle by auctioning it to a salvage yard. Plaintiff’s petition included a claim against the auto manufacturer for the airbag failure. It also included a claim against his insurance company and the salvage yard for failure to preserve the vehicle as evidence likely to be used in litigation.

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Back to the Beginning – Veil Piercing

The longstanding rule that the analysis for “piercing the corporate veil” of an LLC is substantially the same as the analysis for piercing the veil of corporations has been called into question by the recent Louisiana Supreme Court decision in Ogea v. Travis Merritt and Merrit Construction, LLC, 2013-1085, — So.3d —. In Ogea, the Court addressed “the extent of the limitation of liability afforded to a member of an LLC” and the statutory basis for exceptions to this limited liability.

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Fraud Just Got More Expensive – Equity as a Factor in Attorney Fee Awards

The Louisiana Supreme Court recently held that the New Home Warranty Act (“NHWA”) is not the exclusive remedy for a purchaser of a new home where the builder fails to disclose known defects in the Residential Property Disclosure Act (“RPDA”). Stutts v. Melton, 2013-0557, — So.2d. —-. The Court also upheld an award of damages and attorney fees for fraud victims who elect not to seek rescission of a sales contract despite no Civil Code article expressly allowing for attorney fees in such instances.

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The Results Are In

Keogh Cox’s recent blog entry “Did I pass?” looked at recent changes to the Louisiana attorney’s “bar” examination and discussed the negative impact these changes seem to be having on the bar passage rate. Since that post, the results from the July, 2013 exam were released, and they are not good. In fact, the overall passage rate (53.34%) was among the lowest ever for a July examination.

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Did I pass? – A Terrifying Question Gets More Terrifying

The July 2013 Louisiana Bar Examination results are set to be announced on October 11, 2013. Until then, applicants have but a few remaining hours to ponder whether the recent changes to the bar examination will have the same negative effect on passage rates as they did last year.

On October 19, 2011, the Louisiana Supreme Court ordered the implementation of the first changes to the grading standards of the Louisiana Bar exam since the exam was instituted. These changes: began “compensatory scoring;” eliminated essay portions of the test; included “multiple choice” format portions; doubled the score value of the “Code subjects;” ended the “conditional failure” status; and, placed a five-time limit on unsuccessful attempts to pass. Under the new rules, an applicant must score a 650 or higher or will be required to retake the nine (9) section, week-long test encompassing over twenty one (21) hours of testing.

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An Exercise in Inaction

I never worry about action, only inaction.”

– Winston Churchill

The Louisiana Supreme Court’s decision not to take up a case is sometimes just as important as a decision to grant Writs and issue a ruling. Recently, much attention has been given to the Court’s decision not to grant a Writ filed by Louisiana State University.

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To Err is Human, To Rescind-Declined

The Louisiana Supreme Court recently addressed the impact of contractual “errors” in Cynthia Fry Perionnet and Elizabeth Fry Franklin v. Matador Resources Company, 2012-2292, 2012-2377, — So. 3d –.

The Perionnet case involved a dispute over the intent of a contract to extend a mineral lease. The property owners believed that the lease was extended as to only 168.95 acres of nonproducing land. The defendant/lessors argued that the contract contemplated that the lease would extend to the entire 1850.34 acres to include producing wells.  Plaintiffs/property owners argued that their unilateral error regarding the terms of the contract was ground for rescission. The jury ruled in favor of the defendant/lessors. The Court of Appeal reversed. The Supreme Court granted writs.

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Modern Problems: Paternity in a New Age

Can a child have more than one father? Yes, according to Louisiana law which allows for “dual paternity.”

Louisiana’s “family law” has undergone many changes in an attempt to react to the challenges presented by new medical technology and a breakdown of the traditional family structure. The recent Supreme Court decision in Derek Alan Pociask v. Kera Mosely is the latest effort to address these “modern problems.”

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“Cash Balance” Retirement Plan Bounces

The Louisiana Supreme Court recently held that the enactment of the “Cash Balance Plan” was unconstitutional. See The Retired State Employees, Association et. al v. The State of Louisiana et. al., 2013-0499, – So.3d -. The Cash Balance Plan is a 401-k style retirement plan that was to be put in place for state employees, including teachers, hired after July 1, 2014.

The key issues in The Retired State Employees litigation were: 1) whether the Cash Balance Plan was a new retirement plan or merely a modification of an existing retirement plan; and 2) whether the Cash Balance Plan had an “actuarial cost.” If the Cash Balance Plan was a new plan or had an actuarial cost, a two-thirds vote would be required to pass the legislation rather than a mere majority of votes under Louisiana Constitution Article X, § 29(F).

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