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Second FEMA Extension of National Flood Insurance Program Time For Sending Proofs Of Loss Related to Louisiana Mid-Summer Severe Storms

Under normal circumstances when flooding is not severe, the National Flood Insurance Program (NFIP) requires a policyholder to send the insurer a complete, signed, and sworn-to proof of loss within sixty (60) days after the date of loss. However, when flooding is extensive, the time period may be extended by FEMA pursuant to 44 C.F.R §61.13 (d).  For certain August, 2016 Louisiana flooding, FEMA granted a 60 day extension and is now granting a second 60 day extension. To allow policyholders additional time to finalize their claims, FEMA issue an additional limited waiver of the 60-day proof of loss requirement by extending the period another 60 days. With this extension, a National Flood Insurance Program (NFIP) policyholder will have a total of 180 days following the date of loss to provide the completed, signed, and sworn-to proof of loss to the insurer. This waiver is issued pursuant to 44 CFR § 61.13(d) and the SFIP. This waiver does not alter any other terms or conditions of the NFIP. The limited waiver applies to all NFIP claims associated with FICO Number 679,4 whether the NFIP issued the policy directly or through the Write Your Own (WYO) Program. For more information about the extension see the full announcement about the new deadline at WYO Company Bulletin W-16089. Properly and timely filing the Proof of Loss (and any Supplemental Proof of Loss) and any necessary supporting documentation is critical for getting paid and for preserving a policyholder’s right to file a NFIP flood insurance lawsuit should […]

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Louisiana Supreme Court Holds Trampoline Park’s Agreement to Arbitrate is Unenforceable

The Louisiana Supreme Court recently addressed whether an indoor trampoline park could compel arbitration according to an agreement signed by the parent of a minor injured while jumping on a trampoline.  In this decision, the court reviewed rules of contract law and examined the specifics of the location and the wording of the arbitration clause to find that in fact it was adhesionary and unenforceable. Sky Zone Lafayette is an indoor trampoline park, and patrons must complete a “Participant Agreement, Release and Assumption of Risk” before participating in the facilities at Sky Zone.  The Agreement has a clause that compels arbitration and waives the participant’s right to a trial. The plaintiff in this case completed the Agreement before her husband took their son to Sky Zone. Their son was injured on a trampoline, and the family brought a lawsuit against Sky Zone, individually and on behalf of their son.  They alleged that Sky Zone had been negligent and that this caused their son’s injuries.  Sky Zone responded and sought to compel arbitration under the Agreement. The plaintiffs contended that they did not knowingly consent to arbitration and that the Agreement was ambiguous and adhesional. The district court overruled the exception, and the court of appeal denied Sky Zone’s writ application.

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Louisiana Court Finds Plaintiff Continued to Receive Workers’ Compensation But Not Credit for Sick and Annual Leave After Termination from New Orleans Police Department

Recently, the Fourth Circuit Court of Appeal for Louisiana addressed whether a disabled former New Orleans Police Department officer should have accrued sick and annual leave after he was discharged from the Department. The plaintiff in this case worked as a New Orleans Police Department officer until he was found to be disabled as a result of depression resulting from an investigation into payroll fraud by the Department. In 1988, Plaintiff filed a Petition for Workers’ Compensation, naming as defendants the City of New Orleans and the Police Department.  The parties entered a consent judgment, which became the subject of the litigation before the appellate court. The main issue before the court was whether the consent judgment could be enforced against the City. Plaintiff contended that his claim was a workers’ compensation matter, and since he still received workers’ compensation disability payments, he was an employee of Department.  As an employee, Plaintiff argued that he continued to accrue annual and sick leave, making that portion of the consent judgment enforceable.

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Louisiana Court: Plaintiffs’ Claim That Infection Resulted from Hospital’s Failure to Properly Sterilize Surgical Instruments Falls Under Louisiana Medical Malpractice Act

In a case before the Louisiana Supreme Court, the issue was whether the plaintiffs’ claims that a hospital did not properly maintain and service equipment used to sterilize surgical instruments fell under the Louisiana Medical Malpractice Act (MMA). The district court had held that it was a tort claim, so it was not within the MMA. The significance for the plaintiffs was that under the MMA, the claim must first be presented to a review board, and it could therefore be dismissed on procedural grounds.   The plaintiffs were a husband and wife who sued The Spine Hospital of Louisiana on the ground that the husband had developed an infection after spine surgery. They alleged that the Hospital had not properly sterilized or cleaned their instruments, and the staff and employees did not use proper aseptic technique before surgery.  They sought to recover damages for medical expenses, pain and suffering, and the wife’s loss of society and companionship. The Hospital argued that as a “qualified health care provider” under the MMA, the plaintiffs’ claims had not been first presented to a medical review board, as required by Louisiana law.  The plaintiffs contended that coverage under the MMA must be strictly construed, and their allegations were centered on tort liability.

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