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Kristin Lausten Lawyer

Defending NORM/TENORM Litigation: Prescription Periods and Contra Non Valentem

Complexity and high risk are the defining aspects of cases based on claims related to naturally occurring radioactive materials (“NORM”) or technologically enhanced NORM (“TENORM”)[1]. Here in New Orleans and elsewhere in Louisiana, NORM and TENORM litigation most often involves the oil and gas industry. Naturally occurring radioactive materials are commonly brought to the surface […]

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Kristin Lausten Lawyer

Fifth Circuit: “Information on the Internet” is not “In and of Itself” “Constructive Knowledge,” Which Would Defeat an Argument of Contra Non Valentem

The courts are — finally — beginning to acknowledge the proposition that a vast wealth of information is available to plaintiffs on the internet via simple and quick web-based search inquiries. Frankly, it should be more difficult for a plaintiff to allege ignorance with respect to the cause of some injury or wrongful death given […]

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Kristin Lausten Lawyer

Another Federal Circuit Takes Broad View of Issue Class Certification Under Rule 23(b)(3) and 23(c)(4)

Recently, another federal circuit adopted the “broad view” of federal issue class certification under Rule 23(c)(3) and (c)(4). This leaves only the Fifth Circuit (Louisiana, Mississippi & Texas) and the Eleventh Circuit (Alabama, Florida & Georgia) as courts holding to the “narrow view” of class certification. The “board view” makes it easier for classes to […]

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Kristin Lausten Lawyer

Louisiana Defenses: Strategies for Avoiding Waiver of Claims Defenses

 Insurance policies are contracts. As such, contract law doctrines apply to insurance policies, including the doctrine of waiver. Here in New Orleans and elsewhere in Louisiana, waiver can apply to policy provisions and with respect to rights, privileges, and protections provided by Louisiana statute. This article will discuss waiver issues with a discussion of a […]

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Kristin Lausten Lawyer

Louisiana Insurance Defense: Corporations/LLCs Can Recover Loss of Use Damages

A recent Court of Appeals decision in New Orleans held that Louisiana limited liability companies and by extension, Louisiana corporations can sue for and be awarded loss of use damages with respect to real property. See FIE, LLC v. New Jax Condo Association, Inc., Case No. 2016-CA-0843 (consl w/ No. 2017-CA-0423) (La. App. 4th Cir. […]

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Kristin Lausten Lawyer

Louisiana Maritime Law: What is the “Physical Injury to Proprietary Interest” Rule?

Under some circumstances, a maritime negligence claim can be defended/defeated by invoking the rule that a plaintiff cannot recover for economic loss unless the loss was accompanied by a physical injury to property in which the plaintiff had some proprietary interest. Throughout the United States, this rule is often called the Robins Dry Dock rule […]

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Kristin Lausten Lawyer

Louisiana Environmental Defense: Passive Breach of Contract Not Tortious

A recent case from the US Federal Court for the Eastern District of Louisiana presents a real-world example of the difference between a passive breach of contract, allowing only a breach of contract remedy, and an active breach of contract, which might allow both contract and tort claims. See La.Civ.Code Art. 2315. In general, here […]

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Kristin Lausten Lawyer

Louisiana Defenses: What is a Valid Assignment of a Right to Sue?

In New Orleans and in Louisiana, the right of a landowner to sue for environmental contamination is a personal right. That is, the right to sue does not “run with the land.” If a given landowner sells the real property, the right to sue for past contamination remains with the former owner and does not […]

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Kristin Lausten Lawyer

Defending Louisiana Environmental Litigation: Grace Ranch (Part II) — Defeating Assignments as Efforts to Avoid the Subsequent Purchaser Doctrine

 In part one of this series, we discussed direct challenges made to the subsequent purchaser doctrine in the recent decision from the Louisiana Court of Appeal captioned Grace Ranch, LLC, v. BP America Production Co., Case No. 17-1144 (La. App., 3rd Cir. July 18, 2018). As noted in part one, the Court of Appeals rejected […]

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Kristin Lausten Lawyer

Defending Louisiana Environmental Litigation: Louisiana Court of Appeals Rejects Several Legal Challenges to the Subsequent Purchaser Doctrine with Respect to Mineral Leases

A recent case from the Louisiana Court of Appeal confirms that the subsequent purchaser doctrine is applicable to bar claims of environmental contamination caused pursuant to oil, gas and mineral leases. See Grace Ranch, LLC, v. BP America Production Co., Case No. 17-1144 (La. App., 3rd Cir. July 18, 2018). The Court of Appeals also […]

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