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Mr. Kerrigan and Mr. Walsh successfully defended and resolved a five-person burn/fatality case on behalf of an environmental services company. The driver of the environmental services vehicle was allegedly intoxicated at the time of the subject accident. Five individuals ages 2-65 died either shortly after the explosive impact or within a few days.
Mr. Kerrigan and Mr. Walsh successfully argued motions for summary judgment to eliminate the plaintiffs' claims for exemplary damages under Civil Code Article 2315.4 and their claims for impairment of a civil action in a personal injury case pending in the 40th Judicial District Court, Parish of St. John the Baptist. The plaintiffs based their argument for exemplary damages on a theory that the insured driver's history of alcoholism made it more likely than not that he was intoxicated at the time of the accident. They based their claims for impairment of a civil action on the unexplained loss of the driver's pre-employment physical and drug-screen. In briefs and at oral argument, Mr. Kerrigan and Mr. Walsh argued that the plaintiffs would not be able to meet their burden of proof on the exemplary damages claim because there was no evidence that the driver was intoxicated at the time of the subject accident and there was no showing that he acted recklessly or in wanton disregard for public safety. The court granted summary judgment on the impairment of a civil action claims because there was no showing that the employer or the driver deprived the plaintiffs of any evidence intentionally. Furthermore, the court noted that the evidence plaintiffs were seeking could not be used at trial to prove conduct in conformity therewith under the Code of Evidence.
Candace Dauphin, et al. v. Larry Bickford, et al.
, No. 55852, Division A, 14th JDC, Parish of St. John the Baptist.
Mr. Kerrigan and Mr. Walsh obtained a dismissal on summary judgment for a destination services company in a case where damages of $600,000 were being sought. The plaintiff in the case alleged that she fractured both her shoulder and left foot descending a shuttle bus owned by the client and operated in a reckless manner by an employee of the client. Mr. Kerrigan and Mr. Walsh filed and argued a motion for summary judgment proving that the bus was in fact not owned by the client, nor was the driver an employee of the client. The Honorable Mary Ann Vial Lemmon granted the motion.
The plaintiff appealed to the United States Fifth Circuit and argued a number of bases for reversal, including that removal to federal court had been improper and that she was the beneficiary of a stipulation pour autrui in our client's contract. She argued that USA Hosts breached its duty to provide her with "curbside" service. In addition to his appellee brief, Mr. Walsh filed a separate motion under FRAP 38 to recover attorney’s fees and double costs on the basis that the plaintiff’s appeal was frivolous. The Fifth Circuit agreed that Ms. Hernandez's appeal was frivolous, affirmed the district court's ruling and assessed double costs against Ms. Hernandez for her frivolous appeal.
Letty Hernandez v. Creative Group Inc.
, USA Hosts Inc., et al.