power-2-1315569-683x1024When a person is injured, a countdown begins. If you think you have a lawsuit, you need to file that lawsuit within a certain amount of time or else you will lose the right to that claim. Similar to what some states would call a statute of limitations, Louisiana uses something called “liberative prescription” or just “prescription.”  Under this legal doctrine, after a certain amount of time has passed, a plaintiff can no longer bring their claim.  The claim is treated as if it never came into being. In some cases, this period is one year. See La. C.C. art. 3492.  A defendant can avoid a claim that has passed this period under the defense of peremptory exception, which dismisses a claim for being untimely filed. For some plaintiffs, there is relief in the form of the legal doctrine contra non valentum Under this idea, the time period to bring a claim does not begin on the day the injury occurred but rather when the person realizes what has happened with enough certainty to file a lawsuit. See Bailey v. Khoury, 891 So.2d 1268 (La. 2005). Prescription exists to keep parties from being surprised by claims from events that have happened years in the past.  Contra non valentum likely exists to help people who have been prevented in some way from discovering exactly who or what has caused their injury.

The Louisiana Fifth Circuit Court of Appeal recently applied these legal theories on a work-related illness. Natividad Tenorio worked from 1981 to 1988 in his employer’s (Alpha Technical Service) yard removing radioactive substances (oilfield-generated radiation or OGR) from oil and gas pipes.  In November  2009, Mr. Tenorio was diagnosed with throat cancer.  In 2013, a former co-worker informed Mr. Tenorio about the dangerous airborne radiation to which the workers had been exposed during that period of years. One year later, Mr. Tenorio brought a lawsuit against numerous gas and oil companies that had used the radiation-generating pipes. The Defendants asserted their affirmative defense of peremptory exception under the notion that the time period for prescription had passed.  The Trial Court sided with the Defendants and dismissed the lawsuit; Mr. Tenorio appealed.

On appeal, Mr. Tenorio argued that the Trial Court should not have deemed his lawsuit “prescribed” after only one year.  He claimed that the grace period should have been extended under the theory of contra non valentum since he did not discover that his work put him at risk of cancer until four years after his diagnosis.  Defendants argued that Mr. Tenorio should have known the cause within the year following his diagnosis and that he did not show any evidence of anything that may have prevented him from discovering that the radiation from his former job led to his cancer.  The Court of Appeal noted that under these circumstances, the burden of proving that his claim was not prescribed rested with Mr. Tenorio.  As such, he offered evidence that showed he only found out about the radiation in 2013.   However, the Court of Appeal found for the Defendants, reasoning that when a person fails to realize that he or she has a potential claim through only his or her own neglect or ignorance, that person should not be granted a grace period.  Moreover, a year-long prescription period in a personal injury case such as this one is deemed to begin when a plaintiff knows or should know the relevant facts.  The Court of Appeal believed that Mr. Tenorio should have researched possible causes of his cancer immediately after the diagnosis in order to be able to begin his lawsuit within that first year. But because he did not, the Court of Appeal found that Mr. Tenorio was unreasonably late in filing his lawsuit and the Trial Court’s dismissal of his claim was upheld.

chemicals-1240490-1024x688Bringing a mass tort claim is an extremely complicated task, even for the best of lawyers. Luckily, the attorneys for a group of Plaintiffs in a suit against Evans Harvey Corp. and its insurer, Lexington Insurance Co., knew exactly what they were doing. In the end, each Plaintiff was awarded damages ranging from $2,500 to $13,500. The following discussion serves as an example of one of the rare successes in the mass tort context.

On March 31, 1998, Evans Harvey Corp. was doing maintenance work on a drum reconditioning unit at its facility in Harvey, Louisiana. During the work, there was a chemical release for approximately ten minutes. In those ten minutes, multiple people were exposed to hydrogen chloride and hydrogen sulfide released into the air in the immediate and surrounding area. As a result of the exposure to the chemicals, many people reported itchy eyes, trouble breathing, nausea, vomiting, and itchy skin.

Ten people exposed to the chemicals brought suit against the corporation. Three of them were never seen by a doctor and treated themselves with over the counter remedies, while the remainder were treated either on-site or at a nearby hospital. After being certified as a class for a class-action lawsuit, the case was tried before a district court judge in July 2013. At trial, the Plaintiffs won their case and were awarded between $2,500 and up to $13,500 plus special damages for each Plaintiff. In September 2013, three additional Plaintiffs who were not in the original class were awarded damages.

stonehenge-spb-ii-1213824-1024x682Good news for professionals; potentially bad news for consumers. Affixing a professional seal to a document does not alone expose a professional to liability if the professional does not directly offer any services to the consumer. The Louisiana Fourth Circuit Court of Appeal recently heard a case that dealt with this very issue.

Martha Hohensee wished to build a new home in New Orleans, Louisiana.  She discussed her plans to construct a residential home with Raymond Bergeron of Raymond C. Bergeron, Jr., Architects, LLC (“Bergeron Architects”). Mr. Bergeron informed her that he did not provide residential architectural services and referred Ms. Hohensee to an architectural designer, Sean Turner of Turner Design Collaborative (“TDC”), who was not a licensed architect. After consulting with Mr. Turner, Ms. Hohensee hired him to design her house. Turner drew up plans for the new home, but the plans could not be submitted to the City of New Orleans without the seal of a licensed architect.

As a favor to Mr. Turner, Raymond Bergeron affixed his seal to Turner’s plans regarding Ms. Hohensee’s home and the plans were submitted to the City for approval. Mr. Turner was told by city officials that certain modifications to the plans needed to be made for City before approval could be given.  Accordingly, Mr. Turner made the necessary modifications but never consulted with Mr. Bergeron. As it turns out, the changes to the plans both increased the cost of construction and produced a structurally unsound home.  Parts of the house were not up to code and the floor buckled from the addition of a crawlspace under the home.

martian-mold-1556041-1024x768Class action lawsuits are nontraditional litigation procedures. The ultimate purpose is to not only get relief for a defined class of persons but also a relief for all others similarly situated. See Brooks v. Union Pacific R.R. Co., 13 So.3d 546 (La. 2009). Oftentimes, the issue of who is in the defined class can be complicated in its own right, apart from the substantive issues of the particular case. The trial court has broad authority in deciding whether to certify a class. See Chiarella v. Sprint Spectrum LP, 921 So.2d 106 (La. Ct. App. 2005).

Recently, the Housing Authority of New Orleans (HANO) was facing a class action lawsuit for breach of contract. HANO failed to uphold its responsibilities and duties to the tenants of a housing development pursuant to a lease agreement. The District Court defined the class to include all leaseholders and permanent residents under HANO’s jurisdiction who were adversely affected by the presence of toxic mold in their apartments. The class action plaintiffs asserted that HANO’s failure to keep the apartments and common areas free of mold violated its contractual duty to the federal government, specifically the Department of Housing and Urban Development (HUD).

This case centers on whether plaintiffs, Janice Claborne and Sheryl Jones, could rightfully bring a class action under Louisiana law. In other words, were Claborne and Jones part of the defined class of persons. There are several requirements that must be satisfied before a class action can be brought under Louisiana law: (1) numerosity, (2) commonality, (3) typicality, (4) adequacy of representation, and (5) predominance and superiority.

areopagus-1214742-1024x657One important process in our legal system is the ability to petition a higher court to review a lower court’s decision that you feel was wrongly decided. This appellate process is vital in making sure justice is upheld because it allows a losing party in a lawsuit to get a second opinion on how the particular issues of their case were handled. However, as with most other court procedures, the process of appealing a case can be complicated. Seeking counsel from an excellent attorney can make all the difference in whether your case succeeds or fails.

The Louisiana Fourth Circuit Court of Appeal recently heard a case that dealt with what the proper appeal procedures were. In this case, Mr. Ramirez and Iokon, LLC were appealing a partial summary judgment in favor of their opposition, Mr. Bagot and Evonir, LLC. Their appeal was dismissed as their failure to recognize certain procedures resulted in their forfeiting their right to appeal. Before the appeal process is available, the lower court must issue a final judgment. Here, the judgment was not finalized and instead, the proper procedure was to file for supervisory relief, which Ramirez and Iokon did not do.

One prerequisite before you’re able to appeal a decision in your case is that the case must be decided. This seems common sense – if a case is still ongoing, you can’t claim that the case has been wrongly decided. On the other hand, it is not always obvious whether a judgement from the court is final. Sometimes, as in this case, the judge will give a non-final judgement and it will take a good attorney to know the difference between this type of judgment and a final judgement.

golden-delicious-on-white-1584628-1024x934When entering into a contract it is important to read all the terms, especially the general provisions near the end of the agreement. Oftentimes those provisions state that a party must waive their right to a jury trial and settle all disputes arising from the contract by arbitration. Arbitration is an alternative to the judicial system when it comes to settling disputes. Each party chooses an arbitrator, which is usually a lawyer or former judge with experience in the subject matter, and then agree on a third, neutral arbitrator to comprise a panel. Generally, their decision is binding and final. It pays to hire a good attorney if you find yourself on the wrong end of an arbitration decision.

Recently, Medistar Home Health of Baton Rouge (“Medistar”) contracted to buy from Lakeview Home Care, LLC (“Lakeview”) the property rights and assets used in the operation of a home health agency. The parties agreed on a purchase price of $4,250,000. Lakeview financed a portion of the price through a $1,250,000 promissory note. The note required Medistar to make five annual payments of $250,000 with a seven percent interest rate.

Medistar did not make its first payment and claimed that Lakeview owed it for breaching their Asset Purchase Agreement and causing Medistar to suffer losses. An arbitration panel awarded Medistar $350,000 in costs and attorney’s fees. However, in Louisiana there is a law that permits parties to request a court to confirm an arbitration award or vacate or modify the award within one year after an arbitration decision. The court will only vacate an arbitration award if it was procured by corruption or misconduct of the arbitrators.

railroad-in-firenzi-1214429-768x1024If you are the victim of a tort, sometimes the damages can have lasting effects. For example, a toxic chemical spill can have negative health effects on anyone drinking contaminated water far beyond the time and date of the actual spill. There is a legal doctrine called continuing tort theory that can provide some relief in such a case. However, some Fisherville neighborhood residents in Lake Charles, Louisiana recently discovered in their negligence suit against Union Pacific Corporation (“Union Pacific”) that continuing tort theory does not apply to injuries suffered from a past accident where reasonable remedial efforts have been made. The Louisiana Third Circuit Court of Appeal affirmed the Trial Court’s decision to grant Union Pacific’s motion for partial summary judgment, thereby dismissing the case.

The circumstances surrounding the lawsuit dealt with a chemical spill that took place on April 20, 1983. A railcar carrying approximately 11,000 gallons of perchloroethylene (PCE) released the chemical through an open valve while parked at the Lake Charles Rail Yard. Southern Pacific Transportation Company (“Southern Pacific”), a predecessor-in-interest of Union Pacific, owned the rail yard and railcar; PPG Industries (“PPG”) owned the chemicals. Southern Pacific and PPG cleaned the area, allegedly eliminating all of the PCE from the ground surface level by mid-July 1983. However, roughly 1,150 gallons of PCE remained underground and cleaning and remediation efforts continued through monitoring and extraction of the groundwater and through the installation of monitoring wells at the release site and in the neighborhood.

On March 3, 2003, five lawsuits were filed and consolidated into this case. At the Trial Court level, the Plaintiffs initially experienced success when the Trial Court granted them class action status. The Trial Court also stated that the Plaintiffs could pursue their claim on a continuing tort theory. However, the Defendants filed a motion for partial summary judgment on April 28, 2014, in which they sought dismissal of the claim based on prescription and the Plaintiffs’ alleged failure to provide discovery responses. The Trial Court granted the Defendants’ motion for partial summary judgment. Subsequently, the Plaintiffs appealed the decision.

roadman-1395447-695x1024No one wants to be injured at work and thus be unable to continue working to pay one’s bills.  Worker’s compensation exists to assist employees who may have been badly injured in the workplace. Among the benefits that may be paid after an employee has suffered a debilitating injury are temporary total disability benefits, (TTD), and supplemental earnings benefits (SEB). TTD benefits are awarded on an employee’s proof that he or she cannot work at all following injury, equal to two-thirds of the pre-injury wages. La.R.S. 23:1221(1)(c).  Supplemental earnings benefits are paid out when an employee is limited in his or her earning capability following an injury, payable at two-thirds of the difference between wages before the injury and those earned after returning to work. La.R.S. 23:1221(3)(a)(i).  Upon proof of an employee’s ability to work productively, an employer may be able to change the higher TTD payments to SEB payments.

In Louisiana, just because an employee has suffered from conditions that predate an incident of injury does not mean that that employee is to be prevented from recovery under worker’s compensation for that work-related injury.  If some accident in the workplace aggravates or reinjures a part of the body that has been previously injured, and this aggravation is to the point of disability, then an injured employee may bring a claim for disability.  The plaintiff still must prove that the workplace injury in question caused the disability.  However, it is enough to show that the injury could be factored into the chain of events that created the disability.  In this situation, the employee must show only that the disability did not exist before the accident, that the symptoms arose after the accident, and evidence that tends to show that it is possible that the disability could have resulted from the alleged incident.

As people age, their bodies become frailer and prone to injury.  Medical procedures necessary to restore one’s abilities to function in daily life as well as the workplace have beneficial effects but can also leave a person vulnerable to an increased risk of injuries.  These factors, alone or combined, can mean that an injury that does not sound very serious can prove debilitating to a person, as Cathy Turner discovered.  In December 2011. the 60-year-old Ms. Turner was a full-time admissions coordinator at the Lexington House nursing home in Alexandria, Louisiana.  On December 12th, she was accidentally struck on the hip by a swinging door.  This injury just so happened to be at the same location as her recent total hip replacement surgery in September of 2011.  This was the site of two previous hip surgeries as well.  After this incident, she experienced a tremendous amount of pain and inability to walk or even stand on the injured hip.  Multiple doctors concluded that Ms. Turner had become disabled due to the injury and the additional surgery required to help ease the constant pain. The extent of her injuries necessitated that she obtain a motorized scooter in order to get around when before she had been able to walk.  As such, the evidence tended to show that the disability stemmed from the work injury rather than the several pre-injury operations.  Most people who undergo these varieties of surgeries, according to the medical evidence, generally see improvement.  Regardless, Lexington House refused to pay the disability payments, claiming that her preexisting condition the three previous surgeries. The company also did not pay any supplemental earnings or for necessary medical tests.  Ms. Turner filed a worker’s compensation claim.  The Office of Worker’s Compensation (OWC) ordered her employer to pay her disability payments, an award for reconstructive surgery and medications, and penalties for failing to pay out certain specified benefits.

supermarket-1575072-1024x692If you slip and fall on a pile of food left on the floor of a supermarket and evidence shows that an employee observed the hazard a minute earlier but failed to warn you, it may seem obvious that the store was at fault and owes you full compensation for your injuries. However, as Sheneatha Stevens of Lake Charles, Louisiana learned, the situation may not be so clear cut. The amount of compensation you are awarded will depend on whether you had knowledge of the hazard at the time you were injured, personal characteristics or distractions in the environment affecting your ability to avoid the hazard, any risks you took and why you took them, and whether the trial court finds the evidence you present on these factors to be convincing. An aspect of the situation that may not seem important to you can wind up having a major effect on your credibility and, ultimately, on the amount of damages awarded to you, as Ms. Stevens learned. Her case shows why it is important to have an experienced attorney representing you when you have been injured in a retail store and both sides have strong evidence supporting their positions.

On January 5, 2012, Sheneatha Stevens slipped and fell in a pile of rice that had spilled onto the floor near a  drink cooler she was walking toward in the Market Basket supermarket in Lake Charles, Louisiana. She was taken by ambulance to Lake Charles Memorial Hospital, released and underwent chiropractic treatment between February 2012 and April 2012. Her medical exam showed no tenderness, just soreness and bruising that the trial court believed was from an earlier injury.

Ms. Stevens filed suit against Market Basket in December 2012.The trial court evidence included a surveillance video that showed her entering the store while talking on her cell phone, walking straight toward the drink cooler, slipping but not falling on the spilled rice near the cooler, pulling a drink out of the cooler and, about 22 seconds later, slipping and falling in the rice as she retraced her steps down the same aisle and headed toward the store entrance. Evidence also included Ms. Stevens’ testimony that she had filed more than 20 personal injury claims since 2003, as well as a finding that a Market Basket employee had seen the spilled rice less than a minute before Ms. Stevens entered the store but failed to warn her about it.

home-sweet-home-1228389-1024x768Insurance is such a lucrative business because while almost everyone will purchase some form of it, very few will ever make a claim against the insurance company, and even fewer will be successful. This allows insurance companies to generate huge profits on premiums paid by policyholders. Unsurprisingly, those who do make claims against insurance companies can count on being challenged at every turn, as the insurance companies will hire some of the best attorneys in order to avoid shelling out a dime to cover the policyholder. That is exactly what happened when Shelter Mutual Insurance Company became a party to a suit brought by a University of Louisiana Lafayette student after her professor, the insured, went on a tirade in class.

The incident began in 2004 when UL Lafayette student Kacie Renee Spears attended a class taught by Dr. Louis Houston. During that class, Dr. Houston became extremely agitated and, in a fit of rage, threatened to kill Ms. Spears if she attempted to leave the classroom, spat in her face, and physically struck one of her fellow students. Ms. Spears was so severely distressed by the experience that she sued for damages associated with emotional and physical trauma and medical expenses, naming Dr. Houston, his homeowner’s insurer Shelter Mutual Insurance Company, and the Board of Supervisors for the University of Louisiana System as defendants.

In her complaint, Ms. Spears alleged that the University of Louisiana System was liable due to its negligent hiring, retaining, and supervising of Dr. Houston, given that he had a history of delusional and outrageous acts and had a previous delusional episode while employed by the University. Ms. Spears also asserted that Dr. Houston suffered from bipolar disorder, a mental illness that causes delusions and that, at the time that Dr. Houston exhibited the aforementioned behavior, he was suffering a delusion that may have manifested from his mental illness.