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Scott v. American Tobacco Co.11/15/2002
not apply to such a situation:
We therefore need not, and do not, express any opinion in this case as to whether, or in what situations, if any, victim fault should be compared to the fault of an intentional tortfeasor. Id. at 719, n.10.
Finally, in Banks v. New York Life Ins. Co., 98-0551 (La. 7/22/99), 737 So. 2d 1275, this Court held that comparative fault can be used as a defense in an intentional tort case involving claims of fraud and misrepresentations, claims which are also alleged in this case. In Banks, this Court held that defendants could raise comparative fault based on plaintiffs' failure to properly review a life insurance policy, even though defendants allegedly deceived plaintiffs regarding the benefits of the policy. This Court explained that:
The conduct of many of the named plaintiffs in this case demonstrates their own comparative fault could reduce or even eliminate the potential for recovery. Some were sophisticated life insurance buyers, while others admitted they failed to read their policies and pay attention to the illustrations given to them by their agents. 737 So. 2d at 1283.
In fact, the comparative fault of the plaintiffs was one factor the Court relied on in decertifying the class because there were too many individual issues affecting defendants' liability to find that common issues predominated. 737 So. 2d at 1283.
For all of the above reasons, I respectfully concur in part and dissent in part.
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