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Servicing drilling platforms is big business in the Gulf of Mexico.  To transport pipes and other supplies out to the oil platforms ships or large vessels are often used. Unfortunately not all vessels are in “shipshape” as a recent case out of the Eastern District of Louisiana shows.

On May 28, 2013, the RICKY B, a boat operated by D&B Boat Rentals (“D&B”), began taking on water in its engine room while servicing drilling platforms in the Gulf of Mexico. The following day, after several attempts to stop the flooding, the RICKY B contacted Crosby Tugs, L.L.C. (“Crosby”) for assistance. At this point, the RICKY B had lost power and its crew was abandoning ship. Crosby agreed to dispatch a tug to tow the RICKY B to shore. When the tug arrived several hours later, RICKY B was sitting low in the water. The tug, following the owner and operator of D&B’s instructions, attached a tow line and towed the vessel to shallower waters at speeds of no more than five knots without pumping the water in engine room. However, after about 13 minutes into the towing, the RICKY B completely submerged and sunk to a rest on the bed of the Gulf of Mexico.

D&B filed suit against Crosby to recover expenses incurred in the boat sinking, alleging that Crosby negligently towed the RICKY B without pumping the water first, and at too high speeds, causing the boat to sink. After conducting a bench trial, the district court ruled in favor of Crosby. The Court found that D&B presented insufficient evidence to establish that Crosby acted with either negligence or gross negligence. The district court held that the nature of the services provided by Crosby were salvage, not towing; and because the damage ultimately suffered by the D&B was indistinguishable from the purpose of the salvage operation (i.e., to prevent the sinking), a gross negligence standard applied in determining Crosby’s liability instead of ordinary negligence. The standard of ordinary negligence is conduct that deviates from the proverbial “reasonable person,” whereas grossly negligent conduct is that which has fallen so far below the ordinary standard of care that one can expect, to warrant the label of being “gross.” Moreover, in this case, the district court held that even if the court applied an ordinary negligence standard that D&B presented insufficient evidence to prove Crosby’s ordinary negligence. Furthermore, under the Pennsylvania Rule, D&B is required show that the statutory violations of the RICKY B were not the cause of the accident, which they did not. The Pennsylvania Rule creates a rebuttable presumption of causation against an entity involved in a maritime accident if that entity is in violation of a maritime rule or regulation intended to prevent that type of accident.  See Pennzoil Producing Co. v. Offshore Express, Inc., 943 F.2d 1465, 1472 (5th Cir. 1991).

sugar-cane-harvesting-1553007-1024x768On  September 24, 2006, New Iberia, Louisiana held its annual Sugar Cane Festival (“Festival”). Festival goers tend to enjoy, among other things: sugar cookery contests, photography shows, art shows, music, and a wide variety of food. However, on this particular day, those in attendance were exposed to tear gas deployed by local officers responding to vehicles blocking the street, causing traffic standstills. At around the time that the officers dispatched, Delphina Walker, owner of Gator’s Barbecue (“Restaurant”), was hosting quite a few patrons. Walker had hired a DJ for the event and to accommodate the hundreds of people gathered around the Restaurant, the DJ played loud music. The Restaurant is located on the 600 block of Hopkins Street near the intersection of Hopkins Street and Robertson Street, the area where the police were dispatched.

As the crowd, comprised of adults as well as children, proceeded to dance and enjoy the Festival in a possibly rowdy fashion, tear gas was deployed by the police officers. Many of those effected by the gas claimed that the police deployed it with no warning. The police, however, claim that they had issued numerous warnings through a public address system. The facts recalled by the police and some of those in the area where the gas was used are in conflict in other instances as well. For example, there is dispute as to whether or not there was fighting amongst individuals in the crowd and whether or not motorcycle riders revved their engines in response to police warnings.

In response to the events, five individuals filed for certification of a class-action suit for damages. At the trial level, the court granted the certification but the Defendants, a Sheriff and five of his deputies, appealed the certification. Ultimately, while the issues raised by the Defendants were valid, Louisiana’s Court of Appeal for the Third Circuit (Court of Appeal) found them to insufficient to decertify the class, as it affirmed in part and remanded in part.

crash-test-dummies-1251143-1-768x1024Car accidents are among the most common reasons for a lawsuit. An average car accident is often difficult to conclude which party is at fault. Issues are further complicated if insurance claims are involved. Who is truly at fault for the accident if a vehicle malfunctioned?  A trial becomes increasingly complex if a Plaintiff claims that a company is at fault for his injuries. Specific elements are required for a successful trial.

Recently, a multiple car accident occurred in near St. Tammy’s Parish. Mr. Bordelon allegedly caused the accident by swerving into multiple lanes and colliding with two vehicles. The second crash involved Mr. Reynolds who sustained serious injuries when his car landed in a ditch. However, Mr. Reynolds did not simply blame Mr. Bordelon for the accident, but additionally filled a lawsuit against Nissan- the company who designed and manufactured his vehicle under Louisiana Products Liability Act (“LPLA”). Mr. Reynolds sued Nissan due to his air bags’ failure to deploy. The trial court denied Mr. Reynolds’ claim and granted Nissan summary judgment.

However, Mr. Reynolds appealed the trial court’s decision to the Supreme Court of Louisiana. In reviewing the trial court’s decision, the Supreme Court utilized a de novo standard- using the criteria as the trial court. Overall, the Plaintiff took issue with the trial court excluding certain evidence. According to the Supreme Courts’ analysis, the trial court properly excluded evidence. Largely, evidence was excluded due lack of verification. Mr. Reynolds presented pictures of the alleged accident, but no verification of the date, time or address to prove pictures where in fact of the accident.  See La.Code Evid. Art. 401. and La.Code Evid. Art. 803.

blacksmith-1500444-1024x768Accidents occur in daily life. Often, severe injuries result. However, prison accidents rarely are discussed. Prisoners who are victims of  accidents while serving time  are often provided with the same legal protections as an average person.

Mr. Fisher was serving time in Louisiana. During his time incarnated, Mr. Fisher worked within the prison where he was in charge of keeping the gas furnace running. On the day in question, Mr. Fisher followed the same procedure as he did daily for lighting the gas furnace. Unfortunately, upon lighting the furnace, an explosion occurred which caused Mr. Fisher’s severe injuries.

In his first trial, the Court concluded that Mr. Fisher did not meet the requirements to bring a lawsuit against prison officials for his injuries. In order to recover for this injury—much like an average person—Mr. Fisher was required to prove both of the following: vice or defect and actual or constructive notice. See La.R.S. 9:2800La. Code Civ. P. arts. 966 and 967. The trial court held that Mr. Fisher did not meet his the standard for both elements. Therefore, the Court concluded summary judgment for the prison officials was appropriate. This decision dictated that Mr. Fisher could not recover for his injuries.

truck-1422454-1-1024x683What happens if the trial court makes a mistake? The case can work its way through the court of appeals and even the state supreme court just to be sent back to trial court to begin again. This case involves a lawsuit filed in Louisiana court by a transportation company (“Star”) against another corporation (“Pilot”). Star is a national trucking company and Pilot owns a collection of truck stops that supply fuel to Star.

In 2014, the trial court decided to deny Pilot’s motion to dismiss the case for forum non conveniens, to grant Star’s motion in limine to exclude a certain promissory note from evidence, and to deny Pilot’s exception of prematurity and motion to stay proceedings pending arbitration. Forum non conveniens is a power the court can decide to use to dismiss a case where another court would be better suited to hear the case. A motion in limine is a motion filed by a party to a lawsuit which asks the court for an order or ruling limiting or prevent certain evidence from being presented in the case. Pilot appealed these decisions as well as applying for a supervisory writ challenging the rulings. A writ of supervisory control is issued to correct an erroneous ruling made by a lower court either when there is no appeal or when an appeal cannot provide adequate relief and the ruling will result in gross injustice.

In 2015 the Louisiana Fourth Circuit Court of Appeal denied Pilot’s writ application and Pilot sought a review of this decision in the Louisiana Supreme Court. The appeal was continued pending the decision of the Louisiana Supreme Court. The issue was then sent back to the court of appeals for an opinion.

quito-capital-of-ecuador-1227335-680x1024Not just any court can hear any case. Depending on certain factors, your local court may not be the right choice to bring your matter. A New Orleans attorney found this out the hard way in a recently decided case.

The matter arises out of a situation where the court affirmed a workers’ compensation judge’s ruling granting Mr. Feingerts’ attorneys $10,000 upon Mr. Feingerts’ $50,000 settlement. Mr. Bruce Feingerts was at one time represented by James Babst for the case that resulted in a settlement. After two requests for payment from Mr. Feingerts’ attorneys who actually settled his case, Mr. Babst petitioned for concursus regarding the the disputes and submitted the settlement funds to the concursus proceedings in the Orleans Parish Civil Court.  However, this was not the court in which the case was currently being litigated.  At the time Babst filed the concursus the case was still pending with the Office of Workers’ Compensation Administration.

The Louisiana Code of Civil Procedure defines a concursus as a proceeding where multiple parties having competing or conflicting claims to money can combine their cases and present their claim against the other claiming parties (La. C.C.P. art. 4651). Not being happy with having to litigate a separate case in a new court, Mr. Feingerts lawyers sought to implement the judgment and sought a penalty against Mr. Babst for their time and effort with the Office of Workers’ Compensation Administration (“OWCA”) stating that they were the only court that should hear the concursus proceedings. The OWCA agreed and heard the case.

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Is  arbitration the best choice even if you don’t think you chose it? In this case out of Orleans Parish the Louisiana Fourth Circuit Court of Appeals decided on an appeal for a declaratory judgment action seeking a decision that the parties had not agreed to arbitrate in their contract. A declaratory judgment is a decision by the court resolving a matter that was uncertain for the parties. Delta Administrative Services (“DAS”) brought this action against Limousine Livery, Ltd. (“LLI)”) and they are seeking not only a declaratory judgment saying that they did not agree to arbitration but an injunction against LLI to prevent them from moving forward with the arbitration it had already begun. An injunction is an order by the court telling a party to stop or to keep from beginning an action that could be harmful to another party.

In 2010, DAS and LLI entered into a contract for DAS to provide payroll and human resources services to LLI. The contract was a basic contract that was being used by DAS in its business at the time it made the agreement with LLI. The owner and manager of DAS customized the contract to fit the agreement before sending it to LLI. Neither DAS or LLI discussed that dispute resolution clause in the contract. The dispute resolution clause in this contract required choosing between and “either/or” provision and neither party made any indication that a choice was made. Both parties had representatives sign the agreement making both provisions of the alternative dispute clause an effective part of the contract.

When the contractual relationship between DAS and LLI ended, both parties invoked the contract. LLI attempted to follow the provision of the alternative dispute clause by going to mediation before resorting to arbitration. Mediation involves both parties meeting with a neutral third-party in hopes of settling the matter. Arbitration is an out of court dispute resolution where the parties agree to be bound by the arbitrator’s decision. DAS was aware and did not object to LLI’s attempt to set up mediation. LLI and DAS had two unsuccessful mediations, both of which DAS participated in without objection. LLI then filed for arbitration with the American Arbitration Association (“AAA”). At this point, DAS objected, stating that it had never agreed to arbitrate. AAA decided that the dispute met the requirements for them to move forward with the arbitration. DAS then filed a petition for declaratory judgment and a preliminary and permanent injunction. The basis for this petition is that DAS believed the “either/or” provisions that had been made a part of the contract were in conflict with each other and that because no choice was made there was never an agreement to arbitrate. The parties agreed to wait on the arbitration until the court could come to a determination. The District Court of Orleans Parish decided that DAS showed consent to arbitrate by signature and by participating in the mediation as a step of the arbitration agreement.

openly-sky-1227535-1-1024x768In  Louisiana, the objection of prescription extinguishes a legal right of recovery when a party fails to exercise it over a given period of time. It is essentially a time limit on a claim, which can be raised in a couple of ways. Typically, it is raised by a peremptory exception, but it can also be raised by way of a prescriptive motion for summary judgment. One defense to the objection of prescription is the doctrine of contra non valentem. This doctrine is used to “soften the occasional harshness of prescriptive statutes.” Carter v. Haygood, 892 So.2d 1261, 1268 (La. Ct. App. 2005). A 2015 case from the Louisiana Fourth Circuit Court of Appeal discusses the operation of contra non valentem when pleaded in opposition to a peremptory exception or prescriptive motion for summary judgment.

The dispute in this case arose out of a construction project in which Plaquemines Parish sought to rebuild a parish-oriented drainage pumping station damaged by Hurricane Katrina. Shortly before the project’s completion, M.R. Pittman Group, L.L.C. filed a lawsuit against Plaquemines Parish and several of the parish’s engineering firms. Plaquemines Parish answered, bringing a reconventional demand (or counterclaim as it is known in other states) against Pittman, alleging a tort-based property claim for damages to the pumping station’s wing wall, and a third-party direct action claim against Pittman’s insurer, Gray Insurance Company. Both Pittman and Gray sought to have Plaquemines Parish’s tort claim dismissed on the basis of prescription. Gray filed a peremptory exception of prescription while Pittman filed a motion for summary judgment adopting the reasons put forward by Gray in support of its exception. Plaquemines Parish argued that the doctrine of contra non valentem should apply to toll the one-year prescriptive period.

According to the Fourth Circuit, Louisiana recognizes four situations where contra non valentem applies to prevent prescription: “1) where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiff’s action; 2) where there was some condition coupled with the contract or connected with the proceedings which prevented the creditor from suing or acting; 3) where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action; and 4) where the cause of action is not known or reasonably knowable by the plaintiff, even though this ignorance is not induced by the defendant.” In determining whether any of these categories apply, Louisiana courts will look at the individual circumstances of each case. Marin v. Exxon Mobil Corp., 48 So.3d 234, 245 (La. Ct. App. 2010).

megalong-landscape-iii-1542182-1-1024x712A land dispute in Evangeline Parish once again highlights the intricacies of Louisiana property law, and the need for an experienced lawyer if you ever find yourself involved in a property dispute. The dispute in question involves the title to 18 acres of a 23-acre tract of immovable property located in Evangeline Parish. Acme Land Company purchased the full 23 acres in 1910. In 1910, the property purchased by Acme was located in what was then St. Landry Parish, but the property was subsequently carved out with other immovable property to establish what is today Evangeline Parish, and the deed of acquisition is duly recorded in the conveyance records of Evangeline Parish.

From the time of its purchase of the 23 acres, Acme annually paid the property taxes on the land but did not do much else with the property. In 1975, Acme granted Louisiana Gas a pipeline right-of-way across the tract. In 1990, Acme leased the 23 acres to Devco Explorations for oil, gas, and mineral exploration. At some time during Acme’s leasing of the land, someone constructed a fence traversing the tract from east to west along the northern portion of the tract. The 18 acres at issue lie to the south of this fence.

In 1998, a married couple began possessing this 18 acre portion of the property, after they purchased a 23-acre tract of immovable property shaped similarly to the property owned by Acme and located immediately southeast of the Acme property. The cash sale deed for the couple’s purchase was recorded in the Evangeline Parish conveyance records in 1998. The couple acknowledged their title does not encompass the 18 acres owned by Acme, but the husband asserted he walked across both tracts of land and assumed the fence line on the northern portion of the Acme property would be his northern property line. Thus, a fence line built by an unknown third party led to the married couple believing they had a right to possess land which legally belonged to Acme.

church-1442139-1024x768Suppose a pedestrian is hit by a driver who is leaving a poorly-maintained parking area in rural Louisiana that is little more than a partially cleared grassy area. The pedestrian sues the property owner and its insurers, among other defendants. Now suppose that this plaintiff, on being questioned in a deposition taken by the defendants’ attorneys, cannot articulate anything at all that the property owner did or did not do to cause this accident. Suppose also that the pedestrian fails to refute evidence that this type of unpaved, unmarked “clearing in the woods” parking area is common in rural Louisiana and that there have never been any parking problems or collisions in this particular lot before. Will the case go to the jury, or will the judge find for the defendants due to a lack of disputed facts for the jury to consider, leaving the injured pedestrian without a chance to prove she has suffered damages and deserves compensation from the property owners?

The Supreme Court of Louisiana has considered just this issue in several recent cases; the latest was Allen v. Lockwood, decided in 2015. In that case, the Wesley Chapel United Methodist Church which is located in a rural area of St. Helen’s Parish, off Louisiana Highway 448, was sued by a pedestrian who was hit by an elderly church member driving in reverse at a high rate of speed through the church parking area, an unmarked grassy clearing in the woods. In her deposition, the pedestrian said “not really” when asked if she could think of anything the church did wrong that caused the accident. The plaintiff also failed to refute evidence from a church member’s affidavit that parking areas in this condition are common in rural Louisiana and that there had never been any accidents in the church lot before.

Most personal injury cases are tried under a negligence theory. To prove that the defendant was negligent, the plaintiff must show that the defendant had a legal duty toward him or her and caused the accident or injury by failing to fulfill that duty. When a court grants summary judgement in a case, the case does not go to the jury. Instead, the judge decides the case on the basis of the law because he or she has determined that there are no disputed issues of fact for the jury to consider. In its recent personal injury cases involving summary judgement, the Supreme Court of Louisiana has decided that the question of whether the defendant had a legal duty toward the plaintiff is a question of law that the judge decides. If the judge decides there was a legal duty, the case goes to the jury, who decides, based on the evidence, whether the defendant fulfilled the duty. If the judge decides that there was no legal duty toward the plaintiff because the dangerous condition that caused the accident was “open and obvious,” the defendant can be granted summary judgement, which is an “automatic win.”