Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ainsworth v. American Home Assurance Co.

Court of Appeals of Louisiana, Fourth Circuit

February 21, 2018

YVONNE AINSWORTH, INDIVIDUALLY AND ON BEHALF OF HER DECEASED MOTHER, SYLVIA TAYLOR
v.
AMERICAN HOME ASSURANCE COMPANY, HEALTHCARE CASUALTY INSURANCE LIMITED, AGGREKO, LLC, AND TOURO INFIRMARY

         APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2014-00889, DIVISION "J" HONORABLE Cherrell Sims Taplin, PRO TEMPORE

          Joseph M. Bruno Melissa A. Debarbieris BRUNO & BRUNO LLP COUNSEL FOR PLAINTIFF/APPELLANT

          Franklin D. Beahm Christopher G. Otten BEAHM & GREEN, LLC COUNSEL FOR DEFENDANTS/APPELLEES

          Court composed of Judge Terri F. Love, Judge Joy Cossich Lobrano, Judge Dennis R. Bagneris, Sr., Pro Tempore.

          Terri F. Love, Judge.

         Yvonne Ainsworth ("Ms. Ainsworth"), individually and on behalf of her deceased mother, Ms. Sylvia Taylor ("Ms. Taylor"), filed the instant lawsuit, alleging that the conditions at Touro Infirmary ("Touro") during Hurricane Katrina caused or contributed to the injuries Ms. Taylor sustained while under its care. Ms. Ainsworth seeks appellate review of the trial court's granting of summary judgment in favor of Touro and Healthcare Casualty Insurance Limited ("HCIL"). In light of the environmental conditions at Touro and Touro's admitted failures to adequately care for its patients, expert testimony is not required to prove claims of temporary suffering. However, we find expert testimony necessary to establish whether the conditions at Touro contributed to or caused Ms. Taylor's death. Therefore, as to plaintiff's wrongful death claims, we find summary judgment premature. Pursuant to La. C.C.P. art. 966(A)(3), we reverse the trial court's ruling granting summary judgment and remand to allow Ms. Ainsworth to conduct additional discovery.

         PROCEDURAL HISTORY AND FACTUAL BACKGROUND

         Ms. Taylor, an 82 year old woman, who had undergone radiation therapy for lung cancer, was admitted to Touro on August 26, 2005. According to Touro's medical records, Ms. Taylor presented with complaints of nausea and vomiting for three days with an episode of hematemesis but was found not to be in any "acute distress." She was diagnosed with hematemesis, nausea, vomiting, dehydration, digoxin toxicity, COPD, and lung cancer.

         On August 29, 2005, Hurricane Katrina struck the City of New Orleans, causing severe damage, power outages, and a lack of clean water. Ms. Taylor was not evacuated prior to the hurricane making landfall and remained at Touro, whose generators had failed. On August 31, 2005, Ms. Taylor was evacuated from Touro. A discharge summary from Touro in UT Southwestern's records for Ms. Taylor noted her "long term prognosis poor." Medical records show Ms. Taylor was admitted to University of Texas-Southwestern Medical Center/St. Paul University Hospital ("UT Southwestern") in Texas on September 1, 2005. However, her medical records fail to indicate what transpired between the time she was evacuated from Touro and her admission at UT Southwestern the following day.

         A radiological consult on September 2, 2005, indicated that Ms. Taylor's lung cancer had metastasized to her brain, and it was recommended that "she undergo palliative radiation therapy to the brain." On September 17, 2005, Ms. Taylor was discharged from UT Southwestern in "guarded" condition and was placed in a hospice facility. Ms. Taylor passed away on October 14, 2005.

         Although initially a putative class member in a class action suit against Touro, Ms. Ainsworth timely filed suit individually against Touro on January 23, 2014, after the denial of the class. Ms. Ainsworth sought damages for Touro's negligence, alleging Touro breached its duty to its patients to evacuate them safely or to provide a safe and adequate environment for them in the wake of Hurricane Katrina. Touro and HCC filed a motion for summary judgment, and a hearing was held, after which the trial court granted summary judgment.

         After Ms. Ainsworth's appeal was lodged with this Court, the parties filed a joint motion to remand the matter on the basis that the trial court's judgment lacked the necessary decretal language in order for this Court to have proper appellate jurisdiction. This Court granted the joint motion and the record was supplemented with a "Reformed Judgment." Ms. Ainsworth seeks this Court's reversal of the granting of summary judgment.

         STANDARD OF REVIEW

         Courts of appeal review de novo a trial court's ruling on a motion for summary judgment, applying the same standard as the trial court. Klutz v. New Orleans Pub. Facility Mgmt., Inc., 05-0327, p. 2 (La.App. 4 Cir. 12/21/05), 921 So.2d 1021, 1023 (citing Schmidt v. Chevez, 00-2456, p. 4 (La.App. 4 Cir. 1/10/01), 778 So.2d 668, 670).

         "After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law." La. C.C.P. art. 966(A)(3); Klutz, 05-0327, p. 3, 921 So.2d at 1023. The burden rests with the mover, unless the mover will not bear the burden of proof at trial. La. C.C.P. art. 966(D)(1). In which case, "the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim…but rather to point out…the absence of factual support for one or more elements essential to the adverse party's claim…." Id. The burden shifts to the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.