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Supreme Court Emphasizes “Error-Correcting” as Proper Role of Appellate Courts

In a 68 page decision, the Louisiana Supreme Court in Hayes Fund for the First United Methodist Church of Welsh, LLC, et al. v. Kerr-McGee Rocky Mountain LLC, et al. forcefully explained the role of an appellate court. It is axiomatic that Louisiana appellate courts are courts of review.  Louisiana law specifically sets the standard of review an appellate court must apply when reviewing a trial court’s factual decisions (manifest error) or its legal decisions (de novo). According to Hayes Fund, a failure to faithfully apply the “manifest error” standard of review where applicable causes an appellate court to function as a “choice-making court” when its proper role is to serve as an “errors-correcting court.”

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LESS THAN OBVIOUS STATE OF “OPEN AND OBVIOUS” DEFENSE

The “open and obvious” defense remains alive and well in Louisiana according to an article penned recently by  Professor John M. Church of the LSU Law Center for the Louisiana Association of Defense Counsel. In April 2013, the Louisiana Supreme Court announced Broussard v. State of Louisiana, 2012-1238 (La. 4/5/13), 113 So.3d 175, which muddied the waters regarding use of the “open and obvious” defense. Some read Broussard as a pronouncement that the “open and obvious” defense was essentially dead in Louisiana. However, as reflected in Professor Church’s article, subsequent Louisiana Supreme Court decisions have given new life to the defense.

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When No Higher Court Remains

On April 20, 2010, BP’s Deepwater Horizon rig exploded at a cost of eleven lives. What followed was the largest accidental marine oil spill in history.  In the aftermath, BP looked for a solution, ostensibly to cap its exposure and address a swirling PR disaster. BP began to actively negotiate a settlement.

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Keogh Cox Maintains Its Victory at the U.S. Supreme Court

Keogh Cox obtained dismissal of the suit asserted against the Sabine River Authority of Louisiana and Entergy by numerous plaintiff landowners alleging flood damages.  Plaintiffs alleged their state law negligence and constitutional claims were preserved under Section 10(c) of the Federal Power Act [16 U.S.C. § 803], which provides that the licensee is liable for “all damages occasioned by the … operation of the project works.” Because the Toledo Bend Dam was not designed or licensed as a flood control dam, Keogh Cox argued on behalf of its clients that this provision does not permit claims based on conduct not required under the FERC license. To do so, Keogh Cox argued, amounts to a collateral attack of the FERC license and wrests operational control of the licensed project away from the Federal Energy Regulatory Commission [FERC] and places it in the hands of a trial judge.

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Volunteer Firemen “On the Hook” in Louisiana

The Louisiana Supreme Court recently held that the workers’ compensation tort immunity provided by LSA-R.S. 23:1032 does not apply to suits by one volunteer fireman against another volunteer. See Champagne v. American Alternative Insurance Corp., 12-1697 (La. 3/19/13), — So.3d —. LSA-R.S. 23:1036 provides that workers compensation is the sole and exclusive remedy provided to a volunteer fireman against a fire company. Champagne clarified that this immunity does not similarly apply to claims for personal injury brought by one volunteer fireman against another.

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Sentencing Juveniles in Louisiana after Miller v. Alabama

The Louisiana Supreme Court recently held that a district court must reconsider a case involving a seventeen year old who was sentenced to life in prison without the possibility of parole for second degree murder under a mandated penalty provision of a statute. See State of Louisiana v. Darrius R. Williams, 12-1723 (La. 03/08/13), –So.3d—. The defendant’s application for review to the Louisisna Supreme Court was pending when, Miller v. Alabama, 567 U.S. ___, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), was decided by the United States Supreme Court.

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Case on a Wire – Last Minute Fax Filing

The Louisiana Supreme Court recently held that a request for service of process made by facsimile filing within ninety days from the filing of the petition, but not perfected until after the ninety days has passed, is a timely request for service of process under LSA-C.C.P. art. 1201. See Brenda Morales and Jerson Rodriguez v. State of Louisiana Through the Board of Supervisors of LSU Through Earl K. Long Medical Center, 12-2301 (La. 1/11/13), –So.3d—.

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Oil & Gas Clean-Up Not “Capped”

Louisiana’s long relationship with oil and gas has been profitable for both the oil and gas industry and Louisiana’s citizens. However, the nature and extent of the duty to restore the land after drilling has often been a disputed and litigated issue. Recently, the Louisiana Supreme Court’s decision in State v. Louisiana Land and Exploration Co., 2012-0884 (La. 1/30/13), – So.3d – added clarity to the law by establishing that the presence of a Court-approved remediation plan does not create a “cap” on damages.

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Louisiana Supreme Court Rejects Mental Anguish Claim

The Louisiana Supreme Court recently held that an insurance agent’s negligent handling of a claim did not justify an award for mental anguish in Prest v. Louisiana Citizens Property Corp., 2012-0513 (La. 12/4/12). In Prest, it was alleged that the agent negligently failed to process a request for increased insurance sent more than 10 days prior to Hurricane Katrina.

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