Other Considerations Regarding the Louisiana Direct Action Statute:
First of all, be sure to file your lawsuit within a year of the accident.
Also be aware that if you file suit in the
wrong venue, then your suit may be deemed not filed for purposes of this time limit, and if you have to
refile after a year has passed, you may be barred from doing so. In short, make sure you file your suit
timely and make sure it is in the
You should also be aware of a recent amendment to the statute that requires you to name the insured as well as the insurer in the lawsuit, unless some specific exceptions are met.
rule of thumb is to sue the insurer and the insured, unless you are certain that one of the exceptions is met. Those exceptions may be found in
Insurers may have several defenses to your lawsuit.
While this list is not exhaustive, and you will have to do more research, Louisiana courts have recognized certain defenses that arise from clauses inserted into the insurance contract by the insurance company. These defenses arise from the phrase near the bottom of Paragraph A,
“within the terms and limits of the policy . . . .” One prominent example is a duty to notify the insurance company of the accident. While courts have been less willing over time to sustain this defense, you should nip the defense in the bud by promptly informing the insured’s insurance company of the accident. Another defense raised by insurance companies is the failure of their insureds to cooperate in their defense. Courts have been generally unwilling to sustain this defense.
Another confusing aspect of litigation under the statute is the principle that the insurer may not raise any defense “personal” to its insured, but it may raise a defense that it could raise against its insured.
As an example of a
“personal” defense, consider that a parent may not sue their child, but they may sue their child’s insurer. On the other hand, the insurer may raise non-personal defenses, such as res judicata and the limitation of liability granted to health care providers. These defenses will require much more research than the cursory explanation here provided.
There may be some additional research required under the circumstances of your case, but this article has provided the basics of the direct action statute. We recommend that you use this article as a starting point for further research, as all of the above has been thoroughly interpreted in reported Louisiana decisions.