Isn’t It Time To Start Filing Sanctions For Dumbass…Frivolous Claims?
Curious? Have you ever requested sanctions for a frivolous lawsuit or meritless defenses?
In Louisiana, the Code of Civil Procedure article 863(B)(1) states that no pleading should be presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.
Furthermore legal assertions must be warranted by existing law. Code of Civ. Proc. Art. 863 (B)(2).
Recently I took over the prosecution of a plaintiffs’ claim for defective construction in a new home. The claim had been pending since June 2012. The insurance company had filed a summary judgment motion in April 2013. The motion was denied, writs were requested and denied in 2013.
As we were preparing for mediation, the defense filed another motion for summary judgment. Nothing had changed in the case except that a few subcontractors admitted that they did not have an indemnity contract with the contractor.
When raising the summary judgment, the insurance carriers did not make the court aware of Louisiana’s Anti-Indemnity statute when if filed the initial motion in 2013 and it failed to bring the statute to the court’s attention again several years later despite the fact that the anti-indemnity statute was applicable in 2013. Consequently, the legal assertions raised were not and are not warranted by existing law.
The Code of Civil Procedure Article 863 places the onus on the party asserting the defense to do so based on existing law. Not only did the adverse praise raise the argument once, it raised it twice and nothing had changed in the facts that would make the mandatory indemnity agreements of the insurance policy unenforceable.
They were unenforceable when the house was being built. They were unenforceable when the plaintiffs put the insured on notice of defects in construction. They were unenforceable when the arguments were made in 2013 and they are unenforceable now.
The Louisiana Code of Civil Procedure Article 863(D) provides:
“If, upon motion of any party or upon its own motion, the court determines that a certification has been made in violation of the provisions of this Article, the court shall impose upon the person who made the certification or the represented party, or both, an appropriate sanction which may include an order to pay to the other party the amount of the reasonable expenses incurred because of the filing of the pleading, including reasonable attorney fees.”
Do you think the plaintiffs would have been correct in requesting that the court sanction the adverse party, and/or its legal counsel, for asserting a legal argument that was clearly in violation of public policy and specifically prohibited by statute?
Who has had the guts to file a sanctions motion? Please share your experience.