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Latest Articles
| “Two if by Sea”: Punitive Damages Reinvade American Shores |
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Relying in part upon British opinions from near to the time of the Revolutionary War, this past June the U.S. Supreme Court made it clear in Atlantic Sounding Co. v. Townsend (1), that punitive damages are still very much available under the general maritime law of the United States. This decision follows in the wake of another Supreme Court decision just one year ago related to the EXXON VALDEZ oil spill (2), wherein the Court, relying in part on British common law cases from as far back as 1763, held that a Plaintiff can add a claim for punitive damages under the general maritime law to a lawsuit based upon the Clean Water Act (3). These two decisions, taken together, suggest that for the future, in the lower courts, punitive damages may become a regular part of any suit based in whole or in part upon the general maritime law for certain types of claims or claimants. This could be a major cause for concern for the marine industry. Up until recently, punitive damages had been for the most part a problem of the past, particularly in Louisiana. This was because here in 1996, in the era of “tort reform”, the Louisiana Legislature had repealed Louisiana Civil Code article 2315.3 (4), which had allowed for recovery of punitive damages in actions involving toxic or hazardous substances. Since its original passage in 1983, that codal article had resulted in hundreds of class actions for accidental spills and releases as well as countless “legacy site” cases related to remediation of abandoned oilfield sites. Once that article was repealed, however, much of that litigation dried up. At the same time, in the maritime context, the Supreme Court opinion in Miles v. Apex Marine Corporation (5) had similarly suggested that the courts should shy away from punitive damages, particularly in the context of seamen’s claims. But now that the punitive damages “spigot” has been reopened by the U.S. Supreme Court, a reverse trend can be expected insofar as the maritime world is concerned. At first blush, the two recent Supreme Court opinions seem to be related to narrow types of claims. The Townsend opinion, written by Justice Thomas, concerned the availability of punitive damages where a seaman’s employer “willfully and arbitrarily” denies the seaman “maintenance”, a required daily stipend while injured, and “cure”, the necessary medical treatment until the seaman reaches a point of maximum medical improvement. Similarly, the Exxon opinion, written by Justice Souter, arose in the limited context of an oil spill, and allegations of “willful, wanton and reckless conduct”. But the contents of both decisions make multiple references to the availability of punitive damages in a variety of other marine contexts, and also recount the history of punitive damages beginning with English common law through the present in non-maritime contexts, suggesting perhaps, broader application in the future. Prior to these decisions, the U.S. Court of Appeals for the Fifth Circuit, which governs appeals from federal courts in Texas, Louisiana and Mississippi, had seemed somewhat unsure as to how to deal with punitive damages, which led to a variance in outcomes not only at the Fifth Circuit level but also in the U.S. District Courts. In New Orleans, as recently as February and April of this year, at least two federal District judges had found punitive damages unavailable for the failure to pay maintenance and cure (6), just before the Supreme Court ruled in Townsend they were available. Meanwhile, another local Judge denied the right to recover punitive damages to a woman who was allegedly wrongfully confined on a diving vessel following her father’s disappearance (7). But in the Katrina “Barge Case,” local residents are attempting to recover punitive damages in the litigation associated with damage allegedly caused by a breakaway barge in the Industrial Canal in New Orleans during Hurricane Katrina (8). Finally, another local Judge has ruled punitive damages are available to the dependents of two deceased tank cleaning employees. At this point in time, it will simply be a matter of “waiting out the storm” as the Supreme Court’s recent rulings filter down through the lower federal courts as well as the state courts which, at times, also apply maritime law where they exercise admiralty jurisdiction. Batten down the hatches….
1 ___ U.S. ___ , 129 S. Ct. 2561(June 25, 2009) |
| Commercial Leasing in a Down Market |
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The commercial leasing market in the New Orleans area, never particularly robust compared to some other cities in the southeast and the nation generally, is often described as being down, or even depressed, as a result of the twin traumas of Hurricane Katrina in 2005 and the economic and financial crisis which hit the country three years later. But down markets are like up markets in some ways: both have winners and losers, and sometimes it’s not so easy to tell who are the potential beneficiaries and victims in today’s changed market. In some cities with recently booming economies – Miami comes to mind – a great rush of development, both commercial and residential, led to a large inventory of vacant space that went begging when the economic downturn and credit squeeze gripped the country. This exerted a strong downward pressure on rents and a weak market for developers and landlords, although a very good market for tenants. There were reports of first class, never-lived-in condos and apartments in high rises in very desirable sections of the Miami area going for $1,500 a month, a fraction of their rental value a year or two earlier. There were similar reports of declines in the commercial leasing markets in other southern cities such as Atlanta and Houston. The situation in New Orleans is a little more complex. The commercial leasing market was always smaller and less expensive, at least for Class A office space. Then Hurricane Katrina dealt its catastrophic blow to the City in 2005, scattering a large part of the population and dealing a serious blow to the inventory of commercial leasing properties in the area. While it is true that some tenants downsized or simply disappeared after the storm, in time there was also something of an influx of businesses and people trying to participate in the rebuilding and recovery of the area. That limited movement of new people and businesses into the city, plus the reestablishment and in some cases modest expansion of existing businesses, all occurred in an environment of reduced property inventory and little or no new construction, certainly not of Class A office space, where the cost of a new project would dictate an initial rent well in excess of market rate for New Orleans. So the bottom line for the New Orleans area is that this might indeed be a troubled market for developers trying to get new projects going in a hostile credit and economic environment (leading to a decided lack of all the construction cranes that were supposed to be dotting our skyline long before now). The situation is also a little dicey for tenants, looking for suitable space and good deals in a reduced inventory of available properties. But landlords of existing properties, especially existing Class A properties, are the beneficiaries of these same trends. They certainly have credit and other economic concerns of their own, but they are in a better negotiating position compared with recent years, and can look forward to the future with a measure of optimism. |
| Bystander Damages: Lejeune And Its Progeny |
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Imagine an elderly woman visiting her ill husband at the hospital only to find him lying in bed covered with fresh rat bites. This happened when Mable LeJeune visited her husband, Rayo, at Rayne Branch Hospital. She filed a lawsuit against the hospital alleging mental anguish from the hospital’s failure to provide a safe and clean environment for her husband. The hospital requested a dismissal arguing that Louisiana law did not compensate for mental anguish damages when injuries affected someone else. In other words, under the old law, a person physically injured in an accident could sue for mental anguish, but not the person witnessing the accident. After Mrs. LeJeune’s case, however, the law changed. When LeJeune v. Rayne Branch Hospital, 556 So.2d 559 (La. 1990) finally reached the Louisiana Supreme Court, Justice Calogero wrote an opinion specifically recognizing, with restrictions, a bystander’s rights to sue for damages. In order to file suit, the claimant had to (1) view the accident or come upon the accident soon thereafter; (2) suffer foreseeable and serious mental anguish; and (3) have a relationship with the victim. It did not take long for the Louisiana Legislature to codify LeJeune and by 1991, Louisiana Civil Code article 2315.6 became effective. Presently, any bystander simply viewing a traumatic accident is not free to file suit for mental distress. The claimant must actually view the accident or see its aftermath, the victim must be closely related (siblings, parent/child, or grandparent/grandchild), and the mental anguish must be “severe and debilitating”. When bystander cases became an integral part of Louisiana tort law, it was feared that flood gates of litigation would open, however, with judges refusing to expand the restrictive language of the statute, cases have not multiplied as expected. Clever attorneys continuously challenge article 2315.6, producing noteworthy decisions. Take for example, a father and stepmother who watched their son fall to the ground after an oncoming horse struck him in the head. Would both parents be able to sue for mental anguish? In a similar case entitled Daigrepont v. La. State Racing Commission, 663 So.2d 840 (La. App. 4th Cir. 1995), the court allowed the father to maintain his case against the racing commission, but stopped short with the stepmother, indicating that she was not a “mother” under the statute. In Wartelle v. Women’s and Children’s Hospital, Inc., 704 So.2d 778 (La. 1997), the plaintiff’s stillborn fetus was deemed not “a person” for purposes of the bystander action and as a result, LeJeune damages were not recognized. Defining “severe and debilitating” mental anguish is more challenging as it is subjective and requires fact based conclusions. Courts will look to facts such as job loss, inability to function and prescription medication for anxiety or depression. The Second Circuit has taken a tough stand in analyzing the extent of mental anguish. For example, in Nelson v. Ruston Longleaf Nurse Care Center, 751 So.2d 436 (La. App. 2nd Cir. 2000), the court refused to allow bystander damages to a claimant who was still able to function after the injury causing event and did not seek psychological counseling. In Blair v. Tynes, 621 So.2d 591 (La. 1993), the Louisiana Supreme Court awarded damage to a claimant who watched a car strike and kill his wife. Before the accident, he had an active life and a good employment record, but became withdrawn and did not work in the three years that had passed since the accident. While it is impossible to ignore a heart-stopping calamity and not feel empathy toward someone witnessing a tragic event, the law remains firm in its restrictions. The LeJeune case and its progeny have ensured that doors remain closed to claimants outside the confines of the strict statutory language. Only the legislature can expend the language if certain groups are denied causes of action. |
Latest Attorney News
| David Bienvenu was recently honored for his service as President of The Louisiana Supreme Court Historical Society |
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David Bienvenu was recently honored for his service as |
| Simon, Peragine attorneys featured in New Orleans Magazine's list of Best Lawyers |
The New Orleans Magazine list of Best Lawyers in New Orleans came out Thursday, November 5, 2009 and our firm did extremely well. The following made the list, in these categories:
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| Claire Durio accepted into New Orleans CREW |
M. Claire Durio was accepted into the New Orleans CREW, (Commercial Real Estate Women) in 2008. Ms. Durio is also a member of AECRE, (International Association of Attorneys and Executives in Corporate Real Estate). |
Latest Firm News
| Simon, Peragine is an Active Member of Legus |
Simon, Peragine, Smith & Redfearn is an active member of Legus, a network of international law firms. As a member of this organization, Simon, Peragine is able to provide clients with access to quality legal representation throughout the United States, South and Central America, Europe, Asia and the Far East. We at Simon, Pergaine, Smith & Redfearn are honored to have been selected as network member. |
| Noteworthy Cases: Montgomery v. Tulane |
SPS&R recently filed a motion for summary judgment on behalf of Susan Henderson Montgomery, asking the state district court in New Orleans to rule that Tulane University violated the charges and conditions contained in the will of Josephine Louise Newcomb when it closed Newcomb College and ended its 119-year history as the first coordinate women's college in the United States, and to direct Tulane to reopen Newcomb and restore its endowments. |
| Simon, Peragine renews lease |
Our firm was the first tenant in the Energy Centre in July 1984. We have renewed our lease and are happy to call the Energy Centre home for the next 15 years. |