Who’s to blame for Louisiana’s high insurance rates? Opinions are split.

It’s a term familiar among personal injury attorneys, and you’ll hear it more in the coming months as state officials and lawmakers look for ways to reduce the cost of insurance in Louisiana. 

The Housley presumption is frequently mentioned in debates over insurance rates in Louisiana, and opinions are split over whether it’s actually a factor in soaring premiums for auto coverage and other policies. Those differences of opinion can become heated. 

That was definitely the case Wednesday during a meeting of the House Committee on Civil Law and Procedure, whose chairman had to call a brief recess after a state lawmaker heatedly challenged two lawyers who appeared before the committee.   

In short, the Housely presumption involves the level of proof needed to blame harm or an injury on an accident or responsible party. The standard is used in auto accidents, medical malpractice, toxic exposure and other types of injury cases.  

For example, a plaintiff attorney will put a medical expert on the witness stand who will presume it’s more than probable that a victim’s injuries are the result of the defendant’s actions or negligence, barring a pre-existing condition. The defense will likely counter with an expert of their own if they feel their client is not responsible and the Housley presumption doesn’t apply.

The standard has its roots in a 1991 decision from the Louisiana Supreme Court in the case Housley v. Cerise. William and Vickie Ann Housley rented a New Orleans-area townhome from Dr. Elmo Cerise. Vickie Ann Housley was six months pregnant when she slipped on a wet spot on the apartment’s stairway. A leaking air conditioner Cerise had failed to repair was blamed for the water on the steps. 

Housley’s water broke four days after her fall, requiring her to undergo an early term cesarean delivery. The final judgment in the case found the Housleys’ unborn daughter’s injuries, which have turned out to be lifelong, were more than likely caused by her mother’s fall. 

Since the 1991 ruling, plaintiffs’ attorneys have cited the Housley presumption to back their injury claims, especially in cases where a defendant might argue a prior injury or medical condition could have been a factor. 

Opponents of the principle favor a new law that would require injury victims to provide more tangible proof of harm. Put another way, rather than say their injury can more than likely be blamed on the defendant, they would need to prove it through a preponderance of evidence — a legal term meaning the claim is more likely true than false.

Any such shift in the burden of proof will pit personal injury attorneys against insurance companies, with the latter in favor of a stricter standard to limit their exposure to injury claims.

Rep. Michael Melerine, R-Shreveport, an attorney whose clients include insurers, sits on the committee. He challenged plaintiffs’ lawyers Jared Dunohoe of Natchitoches and Bob Kleinpeter of Baton Rouge about whether the Housley presumption needs to exist at all after both lawyers said it’s seldom been used in their practices. 

Dunahoe said the standard should be available for rare instances such as the Housley child’s injury.      

Melerine peppered Kleinpeter with questions about his instructions to medical experts before they testify in depositions or at trial, honing in on whether they are told to use legal terms to sway jurors rather than use medical terminology.     

“The fact that (medical experts) aren’t trained in legal terms doesn’t mean they don’t understand English when it’s effectively communicated to them,” Kleinpeter responded 

“Oh! I understand English …” Melerine sharply replied before Rep. Nick Muscarello, the committee chairman, interrupted and told the representative to “calm down.”

Still emphatic, Melerine insisted that Kleinpeter gave a misleading answer “under oath,” although legislative committees don’t apply that courtroom standard to anyone who testifies.

“They’re arguing out of both sides of their mouth,” Melerine told the chairman.

Kleinpeter calmly apologized for any confusion he might have caused during what he called the “hurly-burly” between him and the legislator. But Melerine soon went on the offensive again, trying to get Dunahoe to admit he has steered clients to specific doctors. 

Before Dunahoe could answer, Muscarello called a five-minute recess, after which Melerine apologized to the attorneys.

“I got out of order,” Melerine said “ … Y’all did not deserve that. I got heated.”    

The House Civil Law Committee was one of five that convened Wednesday morning and will meet again monthly through December with the goal of crafting legislation to lower insurance costs. 

“Insurance companies need to take a haircut, lawyers need to take a haircut, medical providers need to take a haircut — everybody who’s making money off of this process,” Muscarello said. “If we don’t have uncomfortable conversations and get uncomfortable, we will never move the needle.”