Certificate of Insurance and Better Business Bureau “F” Rating Admissible to Prove Negligence in Casino Accident, Holds Fifth Circuit

In Echeverry v. Jazz Casino Co., LLC, No. 20-30038 (5th Cir. Jan. 12, 2021), the Fifth Circuit affirms liability – but vacates damages – in a negligence case involving a casino and one of its contractors, holding “that none of the objected-to evidence was erroneously admitted at trial.”

“Jazz Casino Company … hired Alabama Wildlife Removal (‘AWR’) as an independent contractor in January 2017 to remove birds from palm trees near the Casino. On February 16, 2017, during the second week of the project, Echeverry stood near the worksite in front of the Casino as she waited to cross an adjacent street. AWR was using a manlift to reach the treetops. As it was being moved from one group of trees to another, it struck Echeverry, running her over and causing a comminuted fracture in her lower right leg and ankle. The AWR employee serving as the flagman had not alerted Echeverry to the movement of the manlift as he passed her.”

At trial, “Echeverry presented three theories of negligence to the jury: negligence in hiring, in operational control, and in authorization of unsafe work practices.” The jury found the Casino and AWR liable. The jury awarded “$1,000,000 for future pain, suffering, mental anguish, disability, scarring, and disfigurement.” The Casino alone appealed.

The Fifth Circuit affirms liability, finding that there was sufficient evidence to support each theory. In particular, the panel upholds that the Casino was negligent for hiring AWR as a contractor.

“The relevant evidence includes that a bird-control company named Bird-X recommended AWR to David Stuart, Director of Business and Process Improvement for the Casino. Stuart contacted some of AWR’s references and received no negative information about AWR. The BBB, though, had given AWR an ‘F’ rating. The Casino’s internal policies required that before beginning work, an independent contractor had to provide a certificate of insurance with a minimum amount of coverage that identified the Casino as an additional insured. AWR provided a certificate of insurance to the Casino at about the time it began work on the project, February 6-7, 2017, but the identified policy had expired in October 2016.”

The Casino appealed the admissibility of various evidence, but the Fifth Circuit affirms.

First, the Casino challenged admission of “AWR’s ‘F’ rating by the BBB.” While “not very probative of the safety and competency of AWR … , it might have been properly used by jurors as evidence of the Casino’s failure to investigate AWR adequately … The evidence of the BBB rating at least added to the jurors’ understanding that the Casino missed another of the markers that could have led to further inquiry, even if the inquiry would not have led to much of significance,” thus passing the Fed. R. Evid. 401 bar.

Second, the Casino challenged admission of AWR’s expired certificate of insurance under Fed. R. Evid. 411, which makes inadmissible “the existence or nonexistence of insurance for purposes of proving or disproving a party’s negligence … Here, AWR’s lack of insurance was not admitted on the issue of AWR’s negligence but to prove the Casino’s negligence in hiring AWR. Rule 411 was not violated.”

Finally, the Casino argued that “the district court abused its discretion by admitting the Casino’s internal policies into evidence,” relying on Dragna v. KLLM Transportation Services, LLC, 638 F. App’x 314, 319 (5th Cir. 2016). “While Dragna (which is not precedent) held that internal policies did not establish the applicable standard of care, that panel did not go so far as to say that evidence that a principal violated its internal policies is irrelevant to the question of negligence. Id. at 320. We conclude that failure to follow internal policies can be relevant. The district court did not abuse its discretion by admitting the evidence.”

While affirming liability, the panel vacated the damage award as excessive under Louisiana law. At most, plaintiff would suffer “chronic, ‘toothache’-like pain for the rest of her life, as well as scarring. Further, part of her cartilage is permanently damaged. Echeverry returned to work in January 2018 as a pharmacy technician, standing for about eight hours a day, and had her third surgery in August 2018. She takes over-the-counter pain medication throughout the workday to help with her pain.” Compared with Louisiana case authority upholding $40,000 to $220,000 for comparable injuries, “Echeverry’s award is far greater.” The panel remands for a new trial on damages or a remittitur.

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