Galloway, Johnson, Tompkins, Burr, & Smith
Galloway Johnson : Motion Practice Experience
 
 
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Motion Practice Experience

With more than 90% of cases resolving prior to trial on the merits, success in most instances is the result of discovery efforts that are precise and aggressive, coupled with a motion practice by counsel who possess superb oral and written advocacy skills.  At Galloway Johnson, we understand that, and our clients have realized numerous victories as a result.  Here are a few recent examples:

Galloway Johnson defeats a $1.5M Jones Act and unseaworthiness toxic exposure claim.  The plaintiff was a safety representative assigned to an offshore drilling rig and had worked with the company for more than twenty-five years.  He claimed total and permanent disability as a result of alleged exposure to unknown toxic substances.  Galloway Johnson obtained summary judgment on the Jones Act and unseaworthiness claims, resulting in a dismissal of all of the plaintiff's claims.

Arbitrator returns favorable award. In Mississippi, a business owner contracted with Galloway Johnson’ client, a design-build firm, for the construction of a half-million dollar storage warehouse. Four years after occupancy, the owner noticed waving and cracking in the tilt-up concrete wall panels. The contractor was notified, a remedial plan was agreed upon and repair work commenced, in good faith, pursuant to the contract. After the building was fully repaired, the owner sued for significant consequential damages – even though they were precluded by the contract – arguing that there was a separate verbal contract. The owner also claimed diminution in value.

After suit was filed, Galloway Johnson moved for arbitration pursuant to the contract and the court stayed proceedings pending arbitration. The arbitrator’s award was favorable to Galloway Johnson’ client, stating that the remedial work was performed pursuant to the original contract, and thus, consequential damages were not recoverable. The arbitrator rejected the owner’s expert’s building valuation and accepted the contractor’s expert’s valuation, thereby reducing the amount of recoverable diminution in value. Finally, the arbitrator ruled that the owner was responsible for his own attorney’s fees, expenses and costs of the arbitration.

Galloway Johnson Obtains Denial of Katrina Class Action filed by Residents of Jefferson Parish.  Following Hurricane Katrina, a class action lawsuit was filed on behalf of business owners, property owners and residents of a portion of Jefferson Parish alleging flood damage, economic losses and personal injuries as a result of the storm. The representative Plaintiffs argued that the number of potential claimants was in the thousands and sought certification of the claims on a class-wide basis. The Defendants in the case included various state and local government entities. Tim Hassinger and Joe Hassinger of our firm filed a Motion for Partial Summary Judgment to have the class action denied, arguing that the Plaintiffs failed to satisfy the requisite class certification criteria—commonality, typicality, predominance, superiority and adequacy of representation. The Court agreed and denied the class action in one of the first state court decisions involving class action claims for flood damage following Hurricane Katrina. See Maurice de la Houssaye, et al. v. The Parish of Jefferson, et al., No. 624-894, 24th Judicial District Court, Parish of Jefferson, State of Louisiana.

Assault & Battery exclusion bars coverage.  Wagner v. Inn of Lake Charles and USF Insurance Company, 2010 WL 4318877 (La. App. 3 Cir. 11/3/10). Here a guest who was assaulted in his hotel room, brought suit against the hotel and its CGL carrier, alleging that owners failed to warn him of the dangers associated with high crime rate on the premises, failed to protect him from or warn him of a known threat and failed to provide adequate security. Our client, the insurer, filed a motion for summary judgment on the issue of coverage. The trial court denied our motion, finding that this assault and battery exclusion was ambiguous: This insurance does not apply to Bodily Injury or Property Damage arising from: 1. Assault and Battery committed by any insured, any employee of any insured, or any other person; 2. The failure to suppress or prevent Assault and Battery by any person in A. above; or 3. Any Assault or Battery resulting from or allegedly related to the negligent hiring, supervision or training of any employee of the insured.

The Court of Appeal reversed, holding that, “when read in its entirety, the exclusion relied on by USF is not ambiguous. The first clause clearly establishes that USF is not obligating itself for any assault and battery by a non-owner or employee, as occurred in this case. The second clause precludes coverage for the insured's failure to suppress or prevent such an assault and battery, i.e., failure to warn, as alleged in this case. Finally, the third clause excludes coverage for negligent hiring, supervision, or training by the insured. While they may overlap to some extent, each of these three clauses precludes coverage for specific action or inaction by the insured. Together, they encompass all of plaintiff’s allegations against the hotel.

Client trounces claim of unreasonably dangerous condition.  Bias v Scottsdale Insurance Company, 2010 WL 4482105 (La. App. 3 Cir. 11/10/10). Plaintiff slipped and fell in a restaurant parking lot in Evangeline Parish, Louisiana. He asserted that 10-20 pieces of pea gravel in the client’s parking lot constituted an unreasonably dangerous condition sufficient to establish liability under Civil Code Article 2317.1. The trial court granted summary judgment in favor of our client and the Court of Appeal affirmed, reasoning that “property owners are not insurers of the safety of visitors, but only owe a duty to keep their premises in a safe condition for use in a manner consistent with the purposes for which the premises are intended. Furthermore, not every minor imperfection or irregularity will give rise to strict liability. The defect must be of such a nature to constitute a dangerous condition, which would reasonably be expected to cause injury to a prudent person using ordinary care under the circumstances. In other words, the owner of the premises cannot be held responsible for any risk posed by his property, only those presenting an unreasonable risk of harm to others. In determining whether a given condition is unreasonably dangerous, the degree to which the danger may be observed by a potential victim who may then provide self-protection is a major factor.

Fourth Circuit upholds dismissal based on retroactive application of peremptive statute.  Third Party Plaintiff filed suit in Civil District Court for the Parish of Orleans against certain defendants claiming that they were responsible for damages to an under-slab sanitary system. On motion by defendants, the trial court dismissed third party plaintiff’s claim holding that the 5 year peremptive period found in LA R.S. 9:5607 applied retroactively to bar any claims against Defendants. Third Party plaintiff appealed the dismissal, and following oral argument before the Fourth Circuit Court of Appeal, the trial court’s ruling was affirmed, upholding dismissal for the defendants.

Galloway Johnson obtains summary judgment on behalf of a vessel owner in an offshore injury case.  The plaintiff tore ligaments in his knee and muscles in his hip when his leg was pinned against an offshore rig as he worked off the end of the client's vessel.  The plaintiff sued the vessel's owner under 905(b) of the Longshore and Harbor Workers' Compensation Act asserting negligence in the vessel's operation and management.  Based on the plaintiff's deposition testimony, the court dismissed all claims, finding no breach of duty under the Act.

Galloway Johnson secures the dismissal of a plaintiff's claims against an oil company who owned a gas compressor station and its contractor who was performing post-hurricane repairs.  The plaintiff claimed that he was struck in the head by a 40-foot pipe that rotated down when it was knocked loose by a crane from an adjacent barge.  The plaintiff sued the owner in federal court in Galveston, Texas, but had his claims dismissed when it was shown that the owner did not supervise or control the details of the plaintiff's work.  He then sued his employer/contractor in the same court alleging negligence in its operation of the crane and crane barge.  Summary judgment for the contractor was granted when we demonstrated that the plaintiff did not have standing as a longshoreman to proceed against his employer/vessel owner and that the incident never occurred on a covered site.  The Plaintiff recovered nothing in either lawsuit.

Galloway Johnson defeats a $15M wrongful death claim brought by the heirs of a construction worker killed on a construction site.  In this case, the decedent was struck by a bulldozer he had been operating.  The decedent's widow and six children brought claims against the premises owner and another contractor alleging premises liability, negligence, and gross negligence.  Galloway Johnson obtained summary judgment for the premises owner, resulting in the dismissal of all claims.

Galloway Johnson defeats a bad faith first-party property claim stemming from Hurricane Katrina in which the plaintiff sought in excess of $800,000.  The federal district court granted summary judgment on all claims and the Fifth Circuit Court of Appeals affirmed.

Tort action against Galloway Johnson client defeated.  In this case, an electric company employee, who was injured while performing work for a company at a university campus, brought a negligence action against  the university.  The trial court granted summary judgment and the appellate court affirmed, holding that the employee did not rebut the presumption of statutory employment created by the applicable worker's compensation law and by the terms of agreement between the company and the university.

Client's roofing exclusion precludes coverage. Here, the homeowner's insurer brought a subrogation action against a roofing company, its president, and its CGL insurer to recover funds the homeowner's insurer paid to its insured for damage to a home caused by fire.  The trial court granted our motion for summary judgment on behalf of the CGL insurer and the appellate court affirmed, holding that the roofing exclusion in the CGL policy precluded coverage for damages caused by the use of a torch in the roof of the home.

Hurricane Ivan punitive damages claim.  This lawsuit arose out of damages to a Florida office building caused by Hurricane Ivan.  Over the course of the adjustment, controversies arose between the parties concerning the appropriate scope of the remediation protocols.  The insurer made payments on what it thought were reasonable losses under the policy.  The insured disagreed with the amount paid and the claim was sent to appraisal.   The umpire "split the baby" and calculated an award in favor of the insured, which the insurer timely paid.  The insured then filed a claim for bad faith, which was removed to federal court.  In its initial pleadings, the plaintiff sought over $3.5 million in damages exclusive of its claim for punitive damages.  The court, however, granted our Motion for Judgment on the Pleadings, dismissing the plaintiff's claim for punitive damages with prejudice.  Subsequently, the court granted our Motion for Summary Judgment, dismissing the plaintiff's claim for bad faith and remaining damages as a matter of law.

Louisiana Court of Appeal reverses denial of summary judgment.  In this first-party property claim, Galloway Johnson filed a motion for summary judgment after the plaintiff intervened in a pending action and named our client as an additional defendant.  When the trial court denied our motion for summary judgment, we filed an application for supervisory writs with the Court of Appeal.  After conducting a de novo review, the appellate court reversed the trial court, granted summary judgment, and dismissed all claims against our client.

Product manufacturer dismissed from construction defect litigation.  The plaintiff, a hotel owner, brought suit in Orleans Parish against the general contractor, numerous subs and several product manufacturers, contending that each company's work and/or product contributed to water and moisture infiltration.  Galloway Johnson was able to demonstrate, through focused and deliberate discovery efforts, that its client's product was supplied in perfect condition and that the product was damaged after installation by other trades.  When the trial court granted the dismissal of all claims, the plaintiff attempted to overturn that dismissal through a motion for new trial, writ application to the court of appeal, and writ application to the Louisiana Supreme Court.  Those efforts failed, however, and our client prevailed.

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