KELLY BURKENSTOCK v. CERTAIN UNDERWRITERS AT LLOYD LONDON AND CENTRAL CLAIMS LLC (2026)

Writ application granted. See per curiam.

JLW

JDH

JBM

PDG

JMG

CRC

Supreme Court of Louisiana May 27, 2026

SUPREME COURT OF LOUISIANA

No. 2026-C-00311

KELLY BURKENSTOCK, M.D.

VS.

CERTAIN UNDERWRITERS AT LLOYD'S, LONDON, AND CENTRAL CLAIMS, LLC

On Writ of Certiorari to the Court of Appeal, First Circuit, Parish of St. Tammany

PER CURIAM

Writ granted. The court of appeal abused its discretion in striking plaintiff's claims for loss of income and for expert costs, attorney's fees, and other expenses. Although La. C.C.P. art. 1471 provides for dismissal of the action, or part thereof, as an available sanction against a party who fails to comply with a discovery order, this court has held that dismissal is reserved for the most culpable conduct, and in those cases in which the client, as well as the attorney, is at fault. Horton v. McCary, 635 So.2d 199, 203 (La. 1994). Moreover, the record must support a finding that the failure was due to wilfulness, bad faith, or fault. Id.

In Horton, this court adopted four factors to consider before taking the drastic action of dismissal: (1) whether the violation was willful or resulted from inability to comply; (2) whether less drastic sanctions would be effective; (3) whether the violations prejudiced the opposing party's trial preparation; and (4) whether the client participated in the violation or simply misunderstood a court order or innocently hired a derelict attorney. Horton, 635 So.2d at 203; see also Hutchinson v. Westport Ins. Corp., 04-1592, p. 3 (La. 11/8/04), 886 So.2d 438, 440. Although the court of appeal recognized the Horton factors, it did not perform an analysis of the facts pursuant to those factors. Notably, in finding the district court's dismissal of the entirety of plaintiff's claims was erroneous, the court of appeal specifically found that the appellate record was devoid of any evidence that plaintiff herself willfully ignored the district court's order and that there was no sworn testimony in the record with which to assess any of the Horton factors.

The party seeking sanctions bears the burden of proving, by a preponderance of the evidence, a violation of the discovery order or breach of a duty imposed therein. Johnston v. Vincent, 17-391, p. 14 (La. App. 3 Cir. 12/13/17), 258 So.3d 687, 696. Here, although defendant failed to formally introduce evidence into the record proving plaintiff violated the discovery order by submitting insufficient discovery responses,¹ counsel for plaintiff effectively admitted on the record at the hearing on the motion for contempt that the discovery responses were dated one day past the court-ordered deadline. This is sufficient proof of a violation of the district court's discovery order. However, proof of violation alone is insufficient to support the sanction of dismissal. Such sanction is not supported by the record here, where no evidence was introduced by which a court could properly consider the Horton factors. The same record deficiency that caused the court of appeal to reverse the district court's dismissal of plaintiff's suit in its entirety should have prevented the court of appeal from dismissing plaintiff's claims for loss of income and for expert costs, attorney's fees, and other expenses. The ruling of court of appeal striking these claims is therefore reversed and the matter is remanded to the district court for further proceedings.

FOOTNOTES

1.   See Denoux v. Vessel Mgmt. Servs., Inc., 07-2143, p. 6 (La. 5/21/08), 983 So.2d 84, 88.

Penzato, J., recused.