Panama Canal Expansion Update

The Panama Canal Expansion is the largest project at the Canal since its original construction in 1914. The project will create a new lane of traffic along the Canal through the construction of a new set of locks, doubling the waterway’s capacity. The existing locks allow the passage of vessels carrying up to 5,000 TEUs. After the expansion, “Post-Panamax” vessels will be able to transit through the Canal, with up to 13,000 TEUs. The expansion will double the Canal’s capacity. As of August 31, 2015, the project was reported to be just over 93% complete, with a target completion date of August 2016.

The race is on among American ports to handle the added container cargo capacity and significantly deeper drafts of “Post-Panamax” vessels. On the Gulf Coast, Gulfport, New Orleans, Mobile, and Houston have maximum berth depths of -45 feet (-14 meters) or less. None of these ports are currently funded to be deepened to -50 (-15 meters) feet, the expected draft depth accommodated by the Panama Canal Expansion. The U.S. Army Corps of Engineers is studying the feasibility of a potential $300 million effort to deepen the lower Mississippi River by as much as 5 feet for the Port of New Orleans, ideally situated for intermodal transport as the only seaport in the U.S. served by six Class I railroads, in addition to 50 ocean carriers, 16 barge lines, and 75 truck lines. Should the lower Mississippi River be deepened, the Port of New Orleans estimates an increase in container traffic by as much as 7 percent locally, and Gulf Coast ports could expect traffic to pick up by as much as 15 percent over the next decade.

Eric Winder Sella

DOT Rule Change Proposals

On September 15, 2015, the U.S. Department of Transportation (“DOT”) issued a monthly update of its Significant Rulemakings Report. The DOT provides the Report to inform the public regarding its regulatory activities. Two proposed rules in the Report warrant consideration.

One joint rulemaking with the National Highway Traffic Safety Administration (“NHTSA”) would respond to petitions from the American Trucking Association (“ATA”) and Roadsafe America to require the installation of speed limiting devices on heavy trucks. In response to the petitions, NHTSA requested public comment and received positive feedback. The DOT believes the rule would have minimal cost, as all heavy trucks already have these devices installed, although some vehicles do not have the limit set. This rule would decrease the estimated 1,115 fatal crashes annually involving vehicles with a gross vehicle weight rating of over 26,000 lbs on roads with posted speed limits of 55 mph or above. Two federal agencies had projected that their final rule would be published in August, triggering another comment period. However, as of September 1, 2015, the review period had been extended, with no reason given.

The second is a Federal Motor Carrier Safety Administration (“FMCSA”) proposal to increase the minimum levels of financial responsibility for motor carriers, including liability coverage for bodily injury or property damage in the case of freight and passenger motor carriers. The FMCSA has determined that the current financial responsibility minimums are inadequate to fully cover the costs of some crashes in light of increased medical costs and DOT´s revised value of statistical life estimates. The FMCSA is also considering a proposal to extend the financial responsibility requirements to private motor carriers. In addition, FMCSA is considering financial responsibility requirements for passenger carrier brokers, implementation of certain MAP-21 provisions concerning broker and freight forwarder financial responsibility, and revisions of the rules concerning self-insurance and trip insurance. No timeline for the proposed rule change has been given.

Eric Winder Sella

Social Media Discovery Has Its Limits

In a marine personal injury action, the defendant requested from plaintiff in discovery “all Facebook activity” since the accident date, as well as plaintiff’s Facebook password and log-in information. Plaintiff objected to the breadth of the discovery requests, and defendant moved to compel the production. Defendant essentially argued in its motion that anything posted by a litigant on social media is discoverable, and the broad Facebook discovery is relevant because plaintiff placed both his physical and mental condition at issue by filing suit.

In deciding the motion to compel, United States Magistrate Judge North noted that “[n]o doubt the proliferation of activity on social networking sites (‘SNS’) is affecting what have been fairly well-established conventions when it comes to formal discovery in federal-court litigation. Smart, opportunistic lawyers are now routinely seeking to exploit the ‘brave new world’ feel of this ever-evolving aspect of how many average Americans go about their daily lives to gain an advantage in litigation.” However, the discovery requests must still be relevant to the subject claims or defenses. “Simply placing [plaintiff’s] mental and physical conditions at issue is not sufficient to allow [a defendant] to rummage through [plaintiff’s] social media sites.”

Accordingly, the court limited defendant’s discovery requests to Facebook postings and/or photographs that refer or relate to the accident in question, plaintiff’s claimed injuries, any physical or mental capabilities inconsistent with the alleged injuries, and any other unrelated injuries.  The court ordered that all of plaintiff’s SNS postings be made available to plaintiff’s counsel to be reviewed by counsel to determine if said postings fit into one or more of the aforesaid categories and thereafter produced to defendant. Additionally, plaintiff was ordered to execute a declaration affirming that he has provided to his counsel all SNS information for review and preservation.

Farley v. Callais & Sons LLC

Adam P. Sanderson

Motel 6 Franchisor Dismissed on Summary Judgment

Following a shooting at a Motel 6 in New Orleans East that left the plaintiff a paraplegic, suit was filed against the national and local franchises, alleging responsibility because the armed robber entered the motel’s parking lot through a broken security gate. The national franchise moved for summary judgment arguing that it owed no duty to plaintiff, as it did not control the day-to-day operations of the local motel. The trial court agreed and granted summary judgment.

On appeal, plaintiff asserted that the national franchise had actual or constructive knowledge of the missing section of security fence and failed to repair this “unreasonably dangerous condition.” Additionally, plaintiff argued that the doctrines of actual and/or apparent authority imposed a duty on the national franchise to protect against criminal acts of a third party. The Louisiana Fourth Circuit Court of Appeal reasoned, however, that the national franchise did not have custody or garde over the fence, and moreover the missing section of fence was not an unreasonably dangerous condition because there were alternate access points of entry and exit. Similarly, the national franchise did not have actual authority over the local motel, which was responsible for security. The Court also held that plaintiff failed to prove that he relied on the reputation of the Motel 6 franchise as a basis for staying at the motel. The decision to dismiss the national franchise on summary judgment was upheld.

Espinosa v. Accor N. Am., Inc.

Adam P. Sanderson

Changes Coming to Louisiana Motions for Summary Judgment

Louisiana Code of Civil Procedure article 966 has been amended. Changes to the briefing schedule are among the most significant changes in the new rule. The new rule provides that in the absence of a case management order, a motion for summary judgment must be filed in accordance with the following:

• The motion must be served on all parties not less than sixty-five days before trial.

• The motion must be set for hearing not less than thirty days from filing (formerly fifteen days).

• An opposition and supporting documents are to be filed not less than fifteen days prior to the hearing date (formerly eight days).

• A reply memorandum, if filed, is required to be filed five days before hearing (formerly two days). Also, no additional documents may be filed with the reply memorandum.

As before, the motion will be set for contradictory hearing. A judgment is required to be issued not less than twenty days prior to trial (formerly 10 days). The new rule goes into effect on January 1, 2016.

Simone H. Yoder

Girl Power: ABA Elects Two Females to Serve as President and President-Elect

The American Bar Association has elected Paulette Brown, a labor and employment law partner and co-chair of the firm wide Diversity and Inclusion Committee at Locke Lord LLP in Morristown, N.J., as the new ABA President. For the first time in its 136 year-old history, the ABA has elected a woman of color to this position. At the forefront of Ms. Brown’s goals for her term is eliminating bias and enhancing diversity within the justice system.

Ms. Brown was a past member of the ABA House of Delegates and is a former member of the ABA Board of Governors and its Executive Committee. Ms. Brown has an extremely diversified career path sure to contribute to her reign as President. She has served as in-house counsel to a number of Fortune 500 companies and has sat as municipal court judge.

The ABA also appointed Linda Klein, the managing shareholder in Baker Donelson’s Georgia office, as president-elect. In addition to electing Ms. Brown as incoming President, and Ms. Klein as President-Elect, the ABA has taken on two new goals for the upcoming year: assessment of mental health inquiries for bar admissions; and transparency related to law school financing.

Caitlin R. Byars

United States Leads World in Windstorm Damage Claims

On the eve of the tenth anniversary of Hurricane Katrina’s landfall on the U.S. Gulf Coast, insurer Allianz Global Corporate & Specialty (AGCS) has released a report analyzing the impact of windstorm damage worldwide and the effect on business insurance claims. The report shows that windstorms are the fifth leading cause of loss for businesses. From 2009 to 2013, nearly half (49%) of the windstorm claims over $110,000 analyzed for the report were located in the United States. Europe was second with 19%, followed by South East and Far East Asia in a distant third with 6%. Hurricane Katrina accounts for the largest total of insured windstorm losses at $62.2 billion, more than doubling those of Hurricane Sandy, which came in second with $29.5 billion.

The insured losses for the top-10 costliest North American hurricanes combined ($185 billion) is three times that of the top-10 European and top-10 Asian windstorm losses combined. With the effects of global warming and sea level rise having significant impact on future potential losses, AGCS assessed that by 2070 Asian cities would dominate the top-10 list of cities with assets exposed to coastal flooding. In 2005, this exposure list was comprised of cities located in the United States, Netherlands, and Japan. AGCS noted that the lessons learned from Hurricane Katrina such as the impact of storm surge, business continuity, and insurance coverage, have better prepared the Gulf Coast for future storms by improving education, construction, risk-assessment, and claims handling.

Pierce C. Azuma

Sanctions Awarded for Failing to Appear for Deposition

Due to injuries allegedly suffered in an automobile accident, plaintiff filed suit against the driver, the driver’s employer and insurance company. During discovery, plaintiff sought the deposition of the driver, and the parties mutually agreed upon a date for the deposition. However, the driver failed to appear on the date of the previously scheduled deposition. As a result, plaintiff filed a motion to compel the driver’s deposition, but again the driver did not appear for the deposition.

Next, plaintiff moved for sanctions against the driver for failing to appear for the deposition. The United States Magistrate Judge denied plaintiff’s motion. On appeal to the District Court, however, the Magistrate’s order denying sanctions was overruled. District Judge Lemmon reasoned that the order denying sanctions erroneously relied upon Rule 37(b) of the Federal Rules of Civil Procedure requiring a “meet and confer” certificate. The Court held that Rule 37(d) permits the imposition of sanctions when a party fails to appear for its deposition, and the “meet and confer” certificate is not required. In the end, the Court granted plaintiff’s motion for sanctions and prevented the driver from testifying at trial.

Steel v. ARI Mut. Ins. Co.

Kirby Paul Blanchard

Jordan G. McFaull


Expenses Awarded for an Unrelated Medical Condition

Plaintiff filed suit following a head injury that allegedly occurred as a result of an automobile accident. The trial court awarded the plaintiff special damages related to the evaluation and ultimate treatment for seizures. On appeal, however, the Louisiana Third Circuit Court of Appeal disagreed with the trial court and found that plaintiff did not prove by a preponderance of the evidence that his seizures were related to the underlying accident. The court further concluded that special damages were not warranted for non-diagnostic expenses related to the seizures.

Nevertheless, the court did allow plaintiff to recover medical expenses he incurred during the hospital visit four days post-accident wherein he first complained of seizure-related activity. According to the appellate court, it was certainly reasonable for the plaintiff to seek medical consultation and undergo related diagnostic testing to determine the nature and cause of the seizure-related activity, even though it turned out later that the seizure-related activity was not related to the subject automobile accident.

Reed v. LaCombe

Kirby Paul Blanchard