November, 2007
- Louisiana law provides that a claim against a parent for negligent supervision exists only when the child is not old enough to appreciate the danger and take steps to avoid it. In accord with this law, the Louisiana 1st Circuit of Appeal recently dismissed a negligent supervision claim against the parent of a 10-year old girl who was fatally injured when she was struck by a car while crossing a street. Rideau v. State Farm Mut. Auto Ins. Co., 06-0894 (La. App. 1 Cir. 8/29/07), 2007 WL 2429851.
- While a third party claimant's rights against an insurer are limited as proscribed by the Louisiana statutory penalty provisions, La. R.S. 22:658 and 22:1220, the U.S. 5th Circuit recently reaffirmed that those statutes are not the sole basis of recovery an insured has against its own insurer. Because of the relationship existing between the insured and the insurer, an insured's claim for breach of the implied covenant of good faith and fair dealing could relate to an insurer's conduct beyond those prohibited acts specified in the penal statutes. Stanley v. Trinchard, 2007 WL 2669828, - F.3d - (5th Cir. 9/13/07).
- The legislative amendment increasing the statutory penalty to fifty percent of the amount due from the insured plus reasonable attorney fees and costs, as set forth in La. R.S. 22:658B, does not contain an express statement of retroactive application; thus, its effective date should be August 15, 2006. While Louisiana Federal Courts have consistently refused to award enhanced penalties for insurer conduct arising prior to that date, a few Louisiana State trial courts have applied the higher percentage rate - either by finding a legislative intent to apply the enhanced rate to Katrina-related claims or by having it apply in instances where the insurer's conduct continues past the amendment's effective date. This issue is currently on appeal at the Louisiana 4th Circuit Court of Appeal.
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