Louisiana Personal Injury Lawyer Blog

A common litigation strategy employed by savvy plaintiffs is choosing the most favorable jurisdiction in which to file a complaint. Favorability can turn on a number of factors including geographical convenience, the perception that a "local" jury may be more sympathetic, or that certain judges are more welcoming to the plaintiff's particular cause of action than others. The choice of forum is governed by a series of procedural rules, but in many instances a plaintiff's case may be properly filed in more than one parish. Or, in a case involving multiple defendants, there may be a need to decide between filing in state or federal court. Generally, state court is preferred by plaintiffs in tort actions, but federal court may be the only available forum when one or more defendants is not a resident of Louisiana. Accordingly, a critical part of the forum selection strategy is deciding whom to name as a defendant. Federal civil procedure rules seek to limit the parties' unfair manipulation of defendants to affect forum choice.

The term "complete diversity" refers to the situation where none of the plaintiffs in a case is from the same state as any of the defendants; this results in jurisdiction by the federal court. A plaintiff who prefers to have his case heard in state court may attempt to name a defendant who resides in his own state in order to destroy complete diversity. The concept of "improper joinder," however, can be employed by a defendant who favors federal court to challenge the plaintiff's inclusion of the in-state, or "non-diverse," defendant. To do so, the objecting defendant must demonstrate either

(1) actual fraud in the pleading of jurisdictional facts, or
(2) [the] inability of the plaintiff to establish a cause of action against the non-diverse party in state court. See Smallwood v. Ill. Cent. R.R. Co.

In the second method, the test is whether "there is no reasonable basis for the district court to predict that the plaintiff might be able to recover against [the] in-state defendant." The federal court is permitted to engage in a summary judgment-style analysis to decide whether the plaintiff has a reasonable basis of recovery under state law. The court may also, through a "simple and quick inquiry," determine the presence of "discrete and undisputed facts that would preclude the plaintiff’s recovery against the in-state defendant."

A recent example of this process can be found in Kemp v. CTL Distribution, Inc. in the U.S. Court of Appeals for the Fifth Circuit. The case involved a wrongful death action filed by the family of Martin Young. Young was employed by the Delta Trailer Company in Geismar, Louisiana where he worked in a truck terminal owned by CTL Distribution. Young died from exposure to toxic fumes that came from chemicals that were improperly left in a tanker trailer. The lawsuit was originally filed in state court and named as defendants CTL, a Delaware corporation with its principal place of business in Florida, and Roger McLelland, a Louisiana citizen and manager of the CTL terminal where Martin Young died. CTL removed the case to the U.S. District Court for the Middle District of Louisiana, alleging that McLelland was fraudulently joined. The district court agreed, concluding that the plaintiffs' executive-officer negligence and
spoliation-of-evidence claims against McLelland would fail in state court. On appeal, the Fifth Circuit conducted its own review of the pleadings and determined that "Plaintiffs have no possibility of prevailing on either claim against McLelland, [and] the district court did not err in finding that McLelland was improperly joined to defeat federal jurisdiction."

If you have been injured by someone's negligence, you need an experienced attorney to help you navigate the complex waters of tort litigation, including the quesion of which court to bring your action.

Continue reading " Geismar Wrongful Death Action Focuses on Choice of Litigation Forum " »

Louisiana law reflects the state legislature's interest in protecting the health and safety of residents of rental property. For instance, landlords are required to warrant that a house is "suitable for the purpose for which it was leased" and that it is "free of vices or defects that prevent its use for that purpose." La. C.C. art. 2696. The warranty extends even to problems that are not personally known to the landlord, though there is an obligation on the part of tenants to report any unsafe conditions. La. C.C. art. 2697. Some limited waivers of this warranty are permitted, but only by "clear and unambiguous language that is brought to the
attention of the lessee." La. C.C. art. 2699. So strong is the state's intent to protect tenants that the law imposes strict liability on a landlord for damages that arise from defects to the property. To prevail against a landlord, the tenant must only prove that the landlord had control over the thing that caused injury; the thing that caused injury suffered from a condition that created an "unreasonable risk of harm"; and that the condition caused the tenant's injury. In fact, the landlord's liability is based entirely on his status as the landlord, not his personal fault. Thus, a landlord's "lack of knowledge regarding a [particular] defect is inconsequential."

A case that recently came before the Second Circuit Court of Appeal demonstrates the operation of this statutory warranty. In 2000, Antonio Wells, Sr. signed a lease to rent a house on Julia Avenue in Bossier City from William Norris. Wells's family, who lived with him in the house, included his wife, Amanda, and three children: Amber, Antinio Jr., and Arquisia. When the family moved in, several electrical outlets were not working. Wells and his wife got into the habit of using extension cords to power lights and other appliances in the home that were not located near working outlets. Discovered later was the fact that many of the 20-amp fuses in the home's fuse panel had been replaced with 30-amp fuses to prevent overloads; this caused excessive heat to build up in the circuits. Around lunch time on July 1, 2001, the house caught fire when an air conditioner overloaded a circuit with an altered fuse and ignited. The Bossier City Fire Department responded and extinguished the fire, but, tragically, not before Arquisia was killed and both Amber Antonio Jr. were severely injured. Wells filed suit against the landlord, Norris, in June of 2002. Wells alleged that Norris was strictly liable for the damages sustained by him and his family in the fire. A trial was held in March, 2010 in which the trial judge, without oral or written reasoning, ruled in favor of Wells and awarded $207,572.79 in damages. Norris appealed.

Norris's primary argument on appeal was that the trial judge misapplied the Louisiana code related to landlord liability. He pointed to the provision in Wells's lease that required him to "keep and maintain the House and appurtenances in good and sanitary condition and repair during the term of this Lease.” Norris argued that this language was "clear and unequivocal" and therefore served as a waiver of strict liability on his part under La. C.C. art. 2699. The court disagreed. In its view, Wells’s agreement to “maintain the house in good repair” did not "equate to his assumption of responsibility for the condition" of the entire premises. In addition, the court found that "no language existed anywhere [in the lease] amounting to a clear and unambiguous waiver of the warranty against vices and defects." Accordingly, the court upheld the trial judge's award of damages to the Wells family.

A number of the cases we have examined on this blog have turned on the language of a controlling document, such as an insurance policy. Although the court's reading of the lease in the Wells case turned out favorably for the Wells family, it would not be difficult to imagine another, similar case where a landlord had inserted a provision that was sufficiently "clear and unequivocal" to waive his liability for life-endangering defects in the property.

Continue reading " Bossier City House Fire Tragedy Prompts Court's Review of Landlord's Duty to Tenants " »

Is the Failure to Observe a "Do-Not-Resuscitate" Order Medical Malpractice?
A common element in medical malpractice cases we have previously examined on this blog is the role of Louisiana's medical review panel. As a brief review, claims brought against healthcare providers under Louisiana's Medical Malpractice Act ("MMA") must be reviewed by a medical review panel before proceeding to court. The panel's purpose is limited to determining whether the evidence supports the plaintiff's allegation that the healthcare provider failed to observe the appropriate standard of care. If the board determines the standard was not met, it must then decide whether that failure contributed to the plaintiff's injury. The panel's report, though not conclusive, is admissible in any subsequent litigation.

A plaintiff who believes he has been a victim of medical malpractice must first determine whether a particular claim is even subject to the MMA, and therefore whether it must be submitted to a medical review panel prior to litigation. This is an important matter, because a medical malpractice claim against a health care provider is "subject to dismissal on an exception of prematurity if such claim has not first been presented to a medical review panel." The Louisiana Supreme Court, in the case of Coleman v. Deno, identified six factors which are to be considered when determining whether a claim falls under the medical malpractice umbrella. But even with these factors as a guide, the decision may not necessarily be straightforward. A recent case that demonstrates the "grey area" of medical malpractice claims involved a hospital's ignoring a patient's Do-Not-Resuscitate Order ("DNR"). Agnes Liles was admitted to the Northern Louisiana Medical Center ("NLMC") in Ruston on July 10, 2009. A few days later, he went into cardiac arrest. Despite NLMC's knowledge of Liles's DNR, hospital employees resuscitated Liles. The process left him with physical disabilities until his death two months later. Liles's two daughters filed suit against NLMC for recovery of the medical expenses attributable to Liles's post-resuscitation care as well as physical and mental pain and suffering, loss of enjoyment of life, and cognitive decline. They also asserted a claim for bystander recovery. NLMC filed an exception of prematurity in the trial court arguing that the plaintiffs’ claims must be reviewed by a medical review panel prior to litigation. The trial judge overruled the exception after a hearing and NMLC filed for supervisory review of the judgment with the Second Circuit Court of Appeal. The court relied primarily on two cases to ultimately conclude that "the actions by the nursing personnel in failing to honor the DNR order were not covered under the MMA as medical malpractice, but instead should be governed by Louisiana negligence principles of law." The first case contained the Louisiana Supreme Court's pronouncement that

"While clearly an act of malpractice can occur in the
rendition of professional services, the patient must still be in the process of receiving 'health care' from the doctor or hospital when the negligent rendition of professional services
occurs. This means that the act or omission must have occurred 'during the patient’s medical care, treatment or confinement.'" Richard v. Louisiana Extended Care Centers, Inc.

The other case was the Second Circuit's own prior decision involving an ignored DNR in which it concluded that

"the problems [the deceased] experienced were not 'treatment related' because the problems came as a result of [the nursing home’s] failure to abide by [the deceased’s] wishes not to be resuscitated by CPR. The fact that they 'treated' her after they negligently acted does not bring this case under the MMA." Terry v. Red River Center Corp.

Accordingly, the court found that the plaintiffs' "lawsuit was not premature, and the trial court was not in error in so finding."

This case shows, once again, the complexity of medical malpractice litigation and makes clear the need for a plaintiff to obtain counsel from an experienced attorney.

Continue reading " Medical Malpractice Case in Louisiana Shows Importance of Panels " »

Our previous post discussed the various principles of contract law at work in the Mendoza case, which can be viewed here. This case involved a dispute between an injured worker's employer and another company with which that employer had a contract. A provision of this contract provided for indemnification, the assuming by one entity of the liability of another.

Companies often assume the liabilities of other entities with which they hold contracts. This is seen as a cost of doing business. Indemnification makes up part of or the entirety of the consideration for some corporate contracts. Contracting away your liability can be extremely valuable. The dispute in this case was when the contract actually became effective. The court used various principles discussed in its opinion and the previous post on this topic to determine that the trial court was correct in denying summary judgment to one party and granting it to the other. Mid South, Mr. Mendoza's employer, was to be indemnified and held blameless by EXCO as per their 2008 agreement.

In general, this dispute really came down to an issue of timing. The two companies in question signed an agreement in December 2008. The incident that created Mr. Mendoza's cause of action occurred in October 2007. He filed suit in August of 2008. Mid South did not file an answer to the complaint until July of 2009. After this filing Mid South demanded defense from EXCO; this defense was promptly denied. Mid South again attempted to illicit indemnification and defense from EXCO in September 2009 based on a 2004 contract that Mid South held with Anadarko, a company whose interests were subsequently absorbed by EXCO. EXCO did not respond until after Mid South filed a cross-claim against EXCO. EXCO filed an exception and answer in April 2010 along with a motion for summary judgment. In July 2010, Mid South filed its cross-motion for summary judgment. The former motion for summary judgment was denied and the latter granted in August of 2010. When the trial court denied EXCO's motion to designate the judgment as appealable, EXCO sought aid from a higher court. The Court of Appeal for the Second Circuit of Louisiana granted EXCO's writ application but ultimately sided with the trial court.

The crux of the appellate court's decision was its interpretation of the "Effective Date" provision of the contract which indicated that the agreement was in full force and effect "on the date first above written or on the date on which CONTRACTOR (Mid South) first commenced the performance of any services for COMPANY (EXCO) or first provided goods, equipment or facilities to COMPANY, whichever first occurred, and even though this Agreement may not then have been reduced to writing." There was conflict among the parties whether this clause or the type-written date "December 16, 2008" should take precedence. The court determined after its de novo review of the trial court record that EXCO should have known that it was assuming liability for events earlier than December 16, 2008 because it drafted the 2008 Agreement. EXCO also alleged error because the type-written date was not given precedence over the pre-printed contract language. The court found this allegation to be without merit. The "Effective Date" provision of the contract was drafted with the potential of the occurrence of a situation like this one in mind. It specifically contemplates an incident like Mr. Mendoza's in its language. It was the opinion of the appellate court he phrase "December 16, 2008" being type-written was not as important as influential as the type-written provisions in the precedential cases making up the common law in this area.

A court's interpretation of a contract can make a crucial difference to the parties involved. EXCO tried to get out of a contract that it had drafted itself. This is a difficult position from which to argue. Almost all of the interpretation tools that a court may use will caution against giving undue deference to the drafter of the contract. Companies must strive to write contracts containing language by which they intend to be bound. Courts must strive to fairly and equitably interpret contracts but they do not have to interpret them according to unexpressed intentions for which the contracts contain no basis.

Continue reading " Second Circuit Case Demonstrates Importance of Proper Contracts " »

A well-written contract can not only solve most problems, it can prevent most problems from becoming problems in the first place. For a contract to have its maximum problem eliminating effect, however, all parties to the contract must agree as to what it mean. Contract law is filled with cases that could have been avoided if the entities involved had simply expressed their terms more clearly or asked the right questions before, during and after the drafting of the contract. While this ambiguity may be intentional by one side or both in the event they think a benefit can be attained, the truth is the best contract is often the one where both parties are simply looking to achieve the main goal fairly. Those instances where ambiguity dominates, however, cause problems. The case of Mendoza v. Grey Wolf Drilling Co., discussed in an earlier post, is one such case.

The Mendoza case was two-fold. It involved questions as to whether and when one company assumed liability for another company. Several contract law principles were implicated in this dispute from which this opinion resulted. Contracts get drafted under the assumption that the parties have reached an agreement. This alleged agreement is nowhere to be found when there is a dispute over the meaning of a contract. When adverse parties give contradictory interpretations of the same contract language a suit often ensues. It is because of the relative frequency of this occurrence that the courts have come up with various rules for interpreting contracts when the parties themselves cannot.

The Court of Appeal for the Second Circuit of Louisiana applied Texas contract law in this case. This was due to an agreement between the parties which was most likely part of the contract itself; there was no dispute over this portion of the contract. For guidance, Texas law contains several well-established principles for evaluating disputed contracts:

First and foremost when interpreting the true meaning of a contract comes the intent of the parties. The parties to the contract presumably know best about what the contract was intended to accomplish and how. This cannot be the only factor in the analysis because when there is a dispute about the meaning of the contract, the parties likely had different intentions in entering into said contract.

The language of the contract is also important. Words can have a myriad of meanings in various different contexts. Courts seek to give the words in a contract one meaning that best suits the occasion. Texas courts seek to "harmonize and effectuate" all of the provisions of a contract. This aim towards harmony is shared in many jurisdictions. Disjointed and unwieldy interpretations of contracts serve none well and only exacerbate disagreements between contracting parties. Courts must seek to interpret the contract as a cohesive document in order to best achieve the ends of the parties. The signatories signed the entire contract so it follows that no portion of the contract was meant to be meaningless.

Theoretically, and in common practice, a court should not edit a contract under Texas law but must seek to enforce the contract as it is written. If a court was free to delete or add provisions to a contract it would be exponentially easier for that court to come to a conclusion as to what the contract was supposed to mean. Despite this added ease, the parties to that contract would be robbed of the contract that they intended. They agreed to the words on the pages of the contract, regardless of their current dispute, at one time. A court must come to a conclusion based on the language that was actually included within a contract, not the language that a court thinks, feels or believes should be included.

It might seem like it would not have to be expressed that a court should seek to avoid a construction for a contract that is "unreasonable, oppressive, inequitable or absurd" but the Texas Court of Appeals made it official. The law of contracts is, at its core, a law of fairness and equity. All language in a contract is supposed to be given its normal grammatical meaning unless otherwise stated in the contract. This too may seem like a meaningless pleasantry that should not bear expressing but in a world where jargon and technical terms are becoming increasingly common, words do not always mean the same thing. One particularly amusing contract dispute once arose out of the meaning of the word "chicken" for purposes of a contract for the sale of certain poultry products.

Our next entry will conclude coverage on this Mendoza principle as well as fleshing out the need for close review of contract provisions and stipulations.

Continue reading " Texas Contract Law Informs Second Circuit Decision " »

A defendant who wishes to challenge a jury's damages award can petition the court for a new trial. As this is often an undesirable path for both the defendant and the plaintiff, Louisiana law offers an alternative approach: when the trial court believes that the verdict is "so excessive ... that a new trial should be granted for that reason only,” La. Code Civ. Proc. art. 1814, it can order remittitur. This option is available only if the plaintiff agrees to it, under the assumption that accepting a lower amount of damages may prove preferable to another trial. The trial court is permitted to order remittitur "only if the issue of quantum is clearly and fairly separable from other issues in the case." The recent case of Great West Casualty Co. v. AAA Cooper Transport offers an instructive example of Louisiana's remittitur statute as applied by the Court of Appeals for the Fifth Circuit. On November 27, 2006, a tractor-trailer which operated by Juan Rodriguez-Salas was struck by another tractor-trailer; the second truck was being driven by Ray Johnson and was owned by AAA Cooper Transportation. Rodriguez-Salas's truck rolled over, and he suffered injuries to his right shoulder as a result. Rodriguez-Salas sued Johnson and AAA Cooper in the U.S. District Court for the Middle District of Louisiana. He sought to recover for his medical expenses and damages for pain and suffering and lost wages. After a trial, the jury awarded Rodriguez-Salas $38,000 for lost wages; $120,000 for pain, suffering, and mental anguish; and $10,000 for loss of enjoyment of life. AAA Cooper, objecting to the damages award, filed a motion for a new trial. The district court entered judgment on the verdict and denied AAA Cooper’s motion. AAA Cooper appealed, seeking a reduction in Rodriguez-Salas's $130,000 general damages award on the theory that Rodriguez-Salas's injuries were to only one shoulder and only required treatment for eight months; in AAA Cooper's view, $40,000 was an appropriate amount.

The Fifth Circuit, in applying Louisiana law, first reviewed the district court's finding that a new trial was unnecessary. The district court determined that sufficient evidence of Rodriguez-Salas’s "injuries, medical treatment and recovery, and the effect of both on his work and daily activities" had been presented at trial "to reach a fair determination of his general damages and lost wages.” The Fifth Circuit agreed, noting that the record included such evidence as Rodriguez-Salas's testimony about his injuries, testimony from doctors about Rodriguez-Salas's condition, and Rodriguez-Salas's medical records. Accordingly, in affirming the trial court's judgment, the Fifth Circuit concluded that "the district court did not abuse its discretion" and that "the award [was] not against the great weight of the evidence."

Although remittitur offers the parties in litigation a more efficient means by which to resolve a dispute over a damages award, it is still subject to many of the same limitations that apply to appeals in general -- that is, that great deference must be afforded a jury's award of damages. Only through a showing of abuse of discretion by the trial court can a defendant prevail on a remittitur action.

Continue reading " Tractor-Trailer Accident on I-20 Leads to Court's Consideration of Request for Remittitur " »

Gambling is a tricky form of entertainment that has very serious legal implications surrounding it despite all of the fun, lights and glamour surrounding these games of chance. One legal issue that is intrinsically tied to gambling is the idea of borrowing and/or the financial backing of a player in a game. Often, casinos extend lines of credit to individuals who are regular patrons at their establishment. This line of credit, however, must be used for gambling purposes at the issuing casino's establishment. The purpose in doing this is to increase the amount of money in play and in return, so the casino hopes, result in higher winnings for the house. Because casino markers are often made for large amounts and are typically interest free, strict laws are in place to protect lending casino's rights to collect on such markers.

These laws came to light when Ms. Strong, a Texas resident, was issued markers at a Shreveport riverboat casino totaling $60,000. After losing the entire amount, the casino tried to collect on the markers owed. However, the markers were returned to the casino by Ms. Strong's bank marked "Not Sufficient Funds." Louisiana law treats casino markers like checks, requiring the collector to make a written demand, sent through the mail, for payment to be made within fifteen working days after receipt of the demand before a suit can be filed. In this case, Ms. Strong failed to make payment within the fifteen days and suit was brought. Ms. Strong's defense relied on her claim that the markers were not enforceable upon several grounds.

The first issue to consider in determining whether or not a casino marker is enforceable is to ask which state's law applies, as some states do not recognize markers as a valid form of payment. This is especially relevant in the riverboat casino context, where several patrons come from out of state. Louisiana law provides that the issue is to be governed by the state whose policies are most seriously affected if its state laws are not applied. Here, if Texas law were used, the casino would not be able to collect its debt because Texas has strong policies against the enforcement of gaming debts. This would be more severe to Louisiana's pro-gaming policies as it would allow those from states with policies similar to Texas to incur gaming debts in Louisiana and avoid them by returning to their home state. This would cause negative implications for both casino profits and state economic development. For this reason, in Ms. Strong's case, Louisiana law applies.

Next, the issue of the markers' enforceability comes to light. Louisiana courts tend to view casino markers as a type of loan rather than a "gambling debt." The reasoning behind this distinction is simple. Whereas a gambling debt accrues when one places a bet and then fails to pay on that debt, a marker is simply an instrument given in exchange for a patron's promise to repay the amount on the marker. The casion does not require that the entire marker amount be spent on gambling, only that if that money is to be used, then it must be used in the casino. In essence, the patron has the option to use the marker funds or not and is the sole decision maker in whether or not to gamble with those funds. Because of Louisiana's pro-gaming laws, casinos are allowed to extend these loan-like lines of credit, thus making the casino markers in this case enforceable.

In addition, in order for a casino marker to be enforceable it must be a negotiable instrument. A negotiable instrument is a writing that promises to pay a fixed amount of money that is payable at the time it is issued, payable on demand or at a specified time, and does not state any further undertaking to be performed by the one promising payment in addition to the payment of money. In other words, a typical marker is enforceable because a patron is promising to pay the casino the amount of the marker at a specified. Nothing else is promised. Yet, even these rules are somewhat relaxed. For example, if a marker does not state a payee, then it is payable to the bearer, which in a casino case would be the casino itself. Also, if a marker does not specify a date of repayment, it is to be repaid upon demand. This deference towards casinos and gaming regulations make it extremely difficult to claim that a marker is not a negotiable instrument, and thus not enforceable.

Though casinos may extend high-end clientele large lines of credit, as in Ms. Strong's case, one need not accept such a line. In fact, casinos allow individuals to personally limit his/her line of credit. However, whether you limit your credit or not, be aware that casino markers are enforceable in most cases.

Continue reading " Louisiana's Second Circuit Holds Shreveport Casino Markers Enforceable Against Texas Gambler " »

When apportioning fault between two or more parties in a negligence action, the finder of fact is given great deference on review. An appellate court may not set aside a trial court's finding unless there is "manifest error" or it is "clearly wrong." Cole v. Dept. of Public Safety & Corrections. In order
to reverse the trial court's apportionment of fault, the appellate court must "find from the record that a reasonable factual basis does not exist for the finding of the trial court and that the record establishes that the finding is clearly wrong." The Louisiana Supreme Court has provided extensive guidance on the trial court's responsibility for allocating fault. The court is "bound to consider the nature of each party's wrongful conduct and the extent of the causal relationship between that conduct and the damages claimed." Watson v. State Farm. Furthermore, in assessing fault, the trial court can consider several factors related to a party's conduct, including:

"(1) whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought."Watson

Although the allocation of fault is "not an exact science," and it is fairly rare for a trial court to commit reversible error in the process, it does happen. One example is the recent case of Burdine v. Robertson, in which the Second Circuit Court of Appeal modified the trial court's apportionment of fault in an auto accident.

Late in the evening on October 24, 2006, Garold Burdine, then 19, was driving his Ford Ranger pickup truck south on Woolworth Road in Caddo Parish. The road had no street lighting. At the same time, L.C. Robertson was driving a very large and heavily loaded log truck on a side road approaching Woolworth Road. When Robertson attempted to turn out into the southbound lane of Woolworth, he realized he was unable to complete the turn without backing up. As he began to make this maneuver, Burdine's truck struck Robertson's log truck. Burdine was injured in the crash, and Robertson was cited by the local policy for failure to yield while entering the roadway. In October of 2007, Burdine filed suit against Robertson and his employer, Bedsole Wood Corp., the owner of the log truck. The defendants responded that Burdine caused the collision and, at the very least, failed to mitigate damages. The trial court assessed 85 percent of the fault to Burdine and 15 percent to Robertson; Burdine's award of $37,985.71, therefore, was reduced by 85 percent. From this judgment, Burdine appealed.

The Second Circuit, mindful of its obligation of deference to the trial court, reviewed the record and performed its own analysis of the Watson factors. The court noted that Robertson "had an awareness of the danger caused by his actions in obstructing the entire road." The length of the log truck and the width of the road "required him to perform a complicated maneuver to enter the roadway." The risk created by this maneuver was "great, especially considering the diminished visibility" given the late hour of the day. In addition, the court found that, relative to Burdine, Robertson's "capacity was certainly superior," and that there were no extenuating circumstances requiring [Robertson] to proceed hastily and without thought." The court reasoned that Robertson could have made use of a safer procedure for entering Woolworth Road (he made "no attempt to warn motorists that he was blocking both lanes of traffic") and, accordingly, it found that "a greater degree of fault must be attributed to Robertson, a professional driver." The court did not relieve Burdine of all fault, though; it concluded that Burdine "failed to exercise sufficient caution and vigilance" when he realized there was "some activity" involving another vehicle in the roadway ahead. In the court's view, Burdine would have been in a better position to avoid the collision entirely if he had braked earlier. The court concluded that "the trial court was manifestly erroneous in its allocation of fault." Thus, it adjusted the percentages of fault by raising Robertson's responsibility to 60 percent and reducing Burdine's to 40 percent.

This case shows, once again, the importance of establishing a solid record of evidence in the trial court. An appellate court can rely only on the trial record when determining whether the trial judge committed error in apportioning fauly. For this reason, a skilled attorney will ensure that all relevant evidence is presented at trial.

Continue reading " Second Circuit Second Guesses Trial Court's Apportionment of Fault in Caddo Parish Car Wreck " »

Transferring from the deck of your boat to an offshore platform in the Gulf of Mexico to begin your day’s work should not be a terrifying experience. While the transfer involves getting into the personnel basket that transfers you onto the platform and little else, the process itself is not as simple as one plain act. Tragically, this simple transfer does not always occur as planned.

In Michael Channette v. Neches Gulf Marine, Inc. and Seneca Resources Corporation, injured seaman Michael Channette was being transferred from the M/V GOLIAD, operated by Neches Gulf Marine, to an offshore platform operated and owned by Seneca Resources. When the transfer went wrong and Channette was injured, Neches Gulf Marine sought indemnity from Seneca Resources. Indemnification is

"The act of making another "whole" by paying any loss another might suffer. This usually arises from a clause in a contract where a party agrees to pay for any losses which arise or have arisen."

In this case, this is exactly what Neches Gulf Marine asserted – that Seneca Resources was contractually obligated to indemnify them. Unfortunately for Neches Gulf Marine, the district court granted a summary judgment motion for Seneca Resources, thus ruling they had no duty to indemnify Neches Gulf Marine. On appeal, the United States Court of Appeal for the Fifth Circuit noted that a maritime contract "should be read as whole, and a court should not look beyond the written language of the contract to determine the intent of the parties unless the disputed language is ambiguous."

Although Neches Gulf Marine attempted to use parole evidence (essentially evidence laying outside the four corners of the contract) during the appeal to show that Seneca Resources had a duty to indemnify, the Fifth Circuit held that since the contracts introduced were unambiguous on their face, Neches Gulf Marine would not be allowed to introduce parole evidence. The court held that the first contract put forth by Neches Gulf Marine was clear and unambiguous in its expiration before Channette’s injury, and held that the second contract asserted by Neches Gulf Marine clearly and unambiguously failed to identify Neches Gulf Marine as a party that could lead to a duty to indemnify by Seneca Resources.

While the transfer from personnel basket to platform is a complicated one, it is not the only maritime process that can go awry. Accidents at sea happen all too often and workers in this dangerous field of offshore activity should know their rights in the event of an incident or injury on the job.

Continue reading " Injury At Sea & Indemnification: Who Pays? " »

The United States Court of Appeals for the Fifth Circuit recently affirmed in principal part, the trial court's ruling granting a longshoreman damages for a workers' compensation claim. Benjamin McCuller and his wife, Miranda McCuller, sued Nautical Ventures, L.L.C., under the Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. § 905(b), after Benjamin, who was working as a longshoreman, was injured when he fell while descending a ladder on a ship owned by Nautical. Mr. McCuller was working for Halliburton Energy Services at a marine terminal in Fourchon, Louisiana when he was injured after one of the ladder rungs broke during his descent.

The bulk of the appeals court opinion discussed whether Halliburton, Nautical, or Mr. McCuller was at fault for the injuries suffered by Mr. McCuller. First, the appeals court agreed with the trial court that Nautical had breached its "turnover duty" when it deployed a defective ladder, which had been damaged during a sea deployment several weeks before Mr. McCuller's fall. "The 'turnover duty' relates to the condition of the ship upon the commencement of stevedoring operations" and "requires a vessel to exercise ordinary care under the circumstances to turn over the ship and its equipment in such condition that an expert and experienced stevedoring contractor, mindful of the dangers he should reasonably expect to encounter will be able by the exercise of ordinary care to carry on cargo operations with reasonable safety to persons and property." This specific duty is the statutory basis for the McCullers' claim as codified in the Longshore and Harbor Workers' Compensation Act. In other words, this tort statute places upon the ship owner the duty to discover and fix potentially dangerous ship defects after a ship returns from sea. In the case at hand, the court found that an expert inspecting the ship should have discovered the crack in the ladder. Therefore, the appeals court affirmed the trial court's ruling that Nautical was at fault for Mr. McCuller's injuries because it was negligent in breaching its turnover duty by providing a faulty ladder for his use. However, it should be pointed out that the damages were reduced because Mr. McCuller was found to be 30% at fault for carrying a clipboard down the ladder when he was injured. But, the appeals court made clear that Mr. McCuller in no way had a duty to discover and fix the defective ladder.

However, the appeals court also made clear that there are certain circumstances when Mr. McCuller and/or Halliburton (his employer) would have a duty to discover potentially dangerous ship defects. In other words, there is one significant exception to the “turnover duty.” That is, if the defect causing the injury is or should be "open and obvious" to a reasonable longshoreman or stevedore-employer, than the ship owner cannot be held liable for the resulting damages. However, in the instant case the trial court found, and the appeals court agreed, that the crack in the ladder was not, and should not have been "open and obvious" to a reasonable stevedore and/or longshoreman.

The fact is, determining what constitutes an "open and obvious" defect can be a difficult factual question, which takes lots of time and resources to discover. In the instant case, it took scores of witness and expert testimony to convince the court that the defect was not “open and obvious.” Moreover, in addition to the “open and obvious” exception, there are countless other exceptions to tort laws that could potentially prevent an injured individual from recovering the damages he/she deserves. Therefore, if you have been injured at work it is important you contact an attorney or law firm that has the legal expertise and resources to determine if your injuries were the result of negligence; and if so, to get you the legal compensation you deserve.

Continue reading " Court of Appeals Upholds Trial Court Ruling Granting Longshoreman's Workers Compensation Claim " »

The Louisiana Second Circuit Court of Appeals recently affirmed a $550,840 jury-verdict award based on a medical malpractice claim. The verdict accounted for both wrongful death and survival damages, all of which were awarded for the benefit of the decedents 8 surviving children.

In order to prevail in a medical malpractice lawsuit, the plaintiffs must show by a preponderance of the evidence that the hospital, their doctors, nurses and/or staff breached the applicable "standard of care," and that this breach of care was a substantial factor in contributing to the patients injury or death. The applicable standard of care is "the degree of skill ordinarily employed, under similar circumstances, by members of the health care profession in good standing in the same community or locality, and to use reasonable care and diligence, along with his or her best judgment, in the application of his or her skill to the case." The standard of care for medical malpractice claims is a comparative one; that is, a member of the medical profession is required to conduct themselves with the same amount of care as would a professional of equal status, under equal circumstances, and within the same community. For example, a nurse practicing medicine in a state-of-the art hospital in New Orleans would be subjected to the standard of care used by similarly situated nurses in similar hospitals, and a doctor would be held to the standard of a similarly situated doctor, etc., etc. Moreover, hindsight or subsequent events cannot be considered when determining whether the standard of care was breached. Instead, the judgment and conduct of medical professionals must be evaluated under the then existing circumstances.

In the instant case, the 75-year-old decedent underwent a colectomy and was recovering in the intensive care unit. She was recovering "fairly well" until December 2, 2003, at which point her condition began to deteriorate. She reportedly was having trouble breathing throughout the day and was pronounced dead at 6:28 P.M. The direct cause of her death and whether or not the hospital was at fault was an issue decided by the jury. The jury returned a 9-3 verdict in favor of plaintiffs, finding that Christus Schumpert Medical Center breached the standard of care in its treatment of the decedent, and the breach in the standard of care was a substantial factor in contributing to the death of the decedent. In reaching this verdict the jury heard testimony that the patient was having significant difficulty breathing throughout the day, and that the children of the decedent had brought this to the attention of the medical staff on several occasions. Moreover, that the attending physician ordered a number of medical tests to better assess the decedent's breathing troubles, and that these tests were not administered by the attending nurse. To be sure, there was some testimony that the attending nurse maintained the standard of care, and that the decedent may have died from a pulmonary embolism, which would have been sudden and unexpected, relieving the hospital of any fault. However, in the end the jurors weighed the volumes of testimony and 9 of the 12 jurors sided with the plaintiffs.

On appeal, the Second Circuit found no error in the trials court's ruling that would have had any substantial impact on the case. Moreover, the Second Circuit found that the jury verdict was reasonable in light of the evidence. It is important to point out that on appeal, the court will not reweigh the totality of the evidence. Instead, the court will only overturn a jury verdict on appeal if the evidence is so overwhelming that no reasonable jury could have decided the case the way that it did.

In fact, the jury verdict was a close 9-3 result - one less juror and the plaintiffs would have lost the trial. Moreover, the standard of review on appeal makes it very difficult to overturn jury verdicts. Thus, if you have been the victim of substandard care or negligent medical treatment, it is important to contact experienced legal representation so that complex matters such as these can be handled properly the first time, and you can secure the financial award you deserve.

Continue reading " Second Circuit Appeals Court Upholds Caddo Parish Wrongful Death Ruling " »

One of the first things that must be determined in any potential tort claim is whether the statute of limitations bars the claim. An otherwise legitimate lawsuit may be invalid simply because the injured party waited too long to file the claim. In the State of Louisiana, the statutory period in which a claim must be filed is referred to as the "prescriptive period." If a case is "prescribed", it is beyond the statutory period. Louisiana has a one-year prescription period for tort claims, which "commences to run from the day injury or damage is sustained." La. Civ. Code art. 3492.

However, there are some exceptions to this strict prescriptive period. One such exception is referred to as the "Theriot test," which originated in the 1979 Louisiana Supreme Court case Allstate Ins. Co. v. Theriot. In Theriot, the Louisiana Supreme Court stated that where a "subsequent claimant is a different person than the original plaintiff then to interrupt prescription (1) the first suit must ... be based upon the same factual occurrence as is the subsequent claim by amended petition or intervention;" and "(2) the subsequent claimant must also be closely connected in relationship and identity of interest with the original plaintiff."

In the recent Fifth Circuit United States Court of Appeals case Southern Pain & Anesthesia, et al v. RF Medical, the court further clarified what is necessary to stop prescription under the Theriot test. In RF Medical the trial court granted summary judgment in favor of the defendants on the grounds that the prescriptive period had run, and the Court of Appeals recently affirmed by refusing to allow the Theriot exception. The facts of the case are rather simple; Dr. Paul Hubbell unsuccessfully performed an annuloplasty procedure on Toni Peavy in February 2004. The procedure used the defendants' medical product "discTRODE" and resulted in significant injury to Mr. Peavy. Mr. Peavy subsequently filed a lawsuit against Dr. Hubbell and the product manufacturer defendants. While Mr. Peavy's suit was pending, Dr. Hubbell filed a separate lawsuit against the product manufacturers.

In affirming the trial courts summary judgment ruling the Court of Appeals determined that Mr. Hubbell's claim was not consistent with the requirements of the Theriot test, and therefore not eligible for an interruption of prescription. First, it found that his claim was not filed by amended petition or intervention as required by the test; instead, he filed an entirely separate lawsuit. Secondly, the court found that Mr. Hubbell did not share a sufficiently close "relationship and identity of interest with" Peavy. The court explained that such an interest is sufficiently close only when the two parties' interests are aligned, such as a decreased defendant and his survivors, or an employer's insurer and employee. Similarly, the court found that the "plaintiffs do not 'share a single cause of action' with Peavy that would warrant interruption." In other words, although each suit is based in part on common facts, the factual basis for each suit is not identical, since each party is attempting to recover for different types of harm, one economic and the other personal injuries. For these reasons, the court of appeals affirmed the trial court's ruling granting summary judgment for the defendants, in effect squashing Mr. Hubbell's claim.

This case demonstrates how important it is to file a claim within the prescribed time period. In Louisiana this period is relatively short, only one year. Therefore, if you are contemplating contacting an attorney regarding any alleged tortious conduct, it is important to contact an attorney sooner rather than later because otherwise legitimate lawsuits are lost for no other reason but procrastination.

The attorneys at the Berniard Law Firm are experienced in dealing with medical malpractice, product liability, and many other types of tort claims. Call the Berniard law firm at 1-866-574-8005 to determine the potential strength of your claim.

When an accident occurs as a result of poor road conditions the question arises whether or not those responsible for the road's upkeep can be held liable. This was the issue at hand when Jesse Brooks was killed after the backhoe he was driving on Highway 30 in Iberville Parish hit a depression in the shoulder and rolled on top of him. The appellate court held that the Louisiana Department of Transportation and Development owed a duty of care to all motorized vehicle operators on state highways and that that duty was breached by a failure to maintain the highway in a safe operating condition. The Supreme Court of Louisiana, on the other hand, reversed the ruling and laid out an outline of when and to whom the DOTD owes a duty of care.

In deciding these types of negligence cases, the court invokes an unreasonable risk of harm criterion in an attempt to balance possible harm with social utility, including costs to the defendant of avoiding the harm. Thus, the risk of injury or death, which was high in the Brooks case, will be weighed against factors such as the legality of the vehicle being driven on the highway, the social good that was coming from the highway's use, and the cost of highway maintenance.

Since state funding is limited, it is almost fiscally impossible to require the DOTD to maintain highways in such a state as to be safe for all vehicles, even those not designed for highway use. Thus, the court will first determine if the vehicle involved in the accident was designed for highway travel. In the Brooks case, the backhoe he was driving was not designed for the highway. This fact, along with his excessive speed for such an unbalanced vehicle, outweighed his social good, which was simply moving a backhoe from one business to another. In addition, the cost to fix such minimal highway shoulder defects would burden the DOTD in an unacceptable manner when the risk could have been minimized by Brooks himself through his speed and choice to drive an unsuitable vehicle on the highway. Essentially, the court reasoned that Brooks was taking a more unreasonable risk than the DOTD, and thus ruled the DOTD is not liable for Brooks' death.

Further, the Supreme Court of Louisiana holds that the DOTD is not a guarantor of the safety of all motor vehicle drivers under every circumstance. It is for this reason that it is important to analyze the type of vehicle that was being driven on the highway at the time of an accident. This is crucial because the DOTD only authorizes certain vehicles to travel on state highways and highway shoulders, meaning that a case may hinge on this fact. Amongst acceptable vehicles are cars, trucks, vans, and 18-wheelers. These vehicles are stable and therefore less likely to be affected by minor flaws in the road. The only off-road vehicles that are allowed on highways are those that are used solely for the purposes of farm related activities and that are being used within a five-mile radius of the farm. Under certain circumstances, statutory law allows farm tractors on state roads. Yet, these tractors are defined as a vehicle designed primarily as a farm implement for drawing plows, moving machines, and other implements of husbandry. In the Brooks case, the backhoe fell into neither of these categories and was therefore not permitted on state highways. This fact, coupled with the high speed and minimal social utility highly outwieghed the risk of injury posed by a minor depression in the highway shoulder. For these reasons Brooks illegal use of the highway denied him the duty of care owed by DOTD to other motorists.

If you are injured on a state roadway, be sure to keep the above factors in mind. One should consider who took a more unreasonable risk. If an accident or injury occurred because of a flawed road while driving a proper highway vehicle reasonably, then there may be a justifiable suit. On the other hand, if the injury occurred while driving an improper vehicle, then it is likely that there will be no duty of care owed to you by the state.

Though the information in this post may be helpful it should in no way replace the advice of a practicing attorney. If you have been injured while driving on a state roadway, please contact the Berniard Law Firm for a consultation.

The Louisiana Supreme Court recently clarified rules of service of a medical malpractice lawsuit against State of Louisiana officials. The Court's conclusion recognizes that some notice requirements are more flexible than others. The case is also a warning about difficulties in knowing whether all parties to a lawsuit receive proper service of the opposing claim.

Whitley v. State Board of Supervisors of Louisiana State University Agricultural Mechanical College, ex rel. Medical Center of Louisiana at New Orleans-University Campus, No. 2011-CC-0040 (La. 7/1/11) resulted from medical care to Regina Whitley after she had been injured in an automobile accident when five months pregnant. She later delivered a stillborn infant. Whitley sued the hospital located in New Orleans for medical malpractice regarding its care of her and her unborn child.

Whitley's lawsuit was timely served on the Chairman of the University's Board of Supervisors. Two and a half years later, Whitley's lawyer faxed a copy of the citation and petition to the Attorney General (AG) and the Office of Risk Management (ORM). The University sought to have the case dismissed because it argued that the AG and ORM did not receive timely service. The argument failed at trial court and the court of appeals.

The Court explained that service to State officials is unusually complicated. Two statutes are involved, and the effect between the two was unclear. Louisiana courts had made different conclusions about the effects of the statutes. State defendants had recently begun to regularly use these statutes to argue lack of service.

La. R.S. 13:5107(A) permits lawsuits filed against a State agency to be served on the AG or proper officer or person "and on the department, board, commission, or agency head or person." The court admitted that this is a confusing statute. However, the use of the word "may" is permissive, and the use of the term "or" indicates alternatives. In effect, the statute specifies service may be made on the defendant government and its legal counsel. The statute does not require that service be made. A few paragraphs down, La. R.S. 13:5107(D) requires that failure to serve the State agency as a party within 90 days shall result in dismissal. This requirement, the Court said, means that La. R.S. 13:5107(A) could be read in two ways, including required dismissal. The Court considered such a result too harsh and against a policy favoring the maintenance of actions. Because Whitley had properly notified the University, the University knew about the case and had the opportunity to obtain a lawyer. She had complied with the statute.

In contrast, La. R.S. 39:1538 requires claims against the State "shall be served upon the head of the department concerned, the office of risk management, and the attorney general, as well as any others required by R.S. 13:5107." The Court said that this statute applied, but the University could not get the case dismissed based on it. The statute did not incorporate all the requirements and penalties of La. R.S. 13:5107 or the Code of Civil Procedure. All the statute requires is that "the AG, the ORM, and the department head" receive notice of tort actions. It does not specify a time, and it does not authorize dismissal for failure to effect service under the statute. Whitley's subsequent fax to the AG and ORM was, therefore, sufficient.

The Court's decision is just but not the only conclusion that could have been made about the statutes. La. R.S. 13:5107 requires service within 90 days from naming the state as a party, and if service is not made, the state "shall be dismissed," as long as proper motion for dismissal is made under the Code of Civil Procedure. The Court made an equitable choice based on the typical policy to avoid harsh results. After all, a State official knew about the lawsuit, so the State knew. Without the interpretation in this case, one could have anticipated such an error of service would result in dismissal. Similarly, although the Court is correct that La. R.S. 39:1538 does not mention dismissal as a penalty, one could have read the statute as supplemental to the prohibitions in La. R.S. 13:5107(D). Poor legislative drafting justifies the Court's interpretation. The results are not entirely consistent with the text of the statutes and rules, but the Court's decision clears away potential traps for the unwary.

This case demonstrates the complexities of properly serving parties. La. C.C.P. art. 1201(A) warns that citation and service of the citation "are essential in all civil actions. . . . Without them all proceedings are absolutely null." The applicable statutes in Whitley were not user friendly. Failure to properly serve opponents can result in dismissal. Therefore, it is crucial to make sure that all parties that need to know about the lawsuit receive service on a timely basis. It is for these questions that a lawyer is an investment to ensure that one's case gets heard and resolved on the merits.

Continue reading " Supreme Court Finds Sufficient Service in New Orleans MedMal Case " »

At times accidents on bodies of water are governed by a unique set of federal laws called admiralty laws. The court will thus apply admiralty law as opposed to federal or state law. This law of the water plays an important part in the administration of justice in Louisiana because of the great amount of water-based industries operating out of the state, and the high potential for lawsuits to occur within these industries.

Whether or not admiralty law can or need be applied can be very important to cases because the different set of laws can actually change a party’s rights. For example, under admiralty law if you make a Rule 9(h) declaration designating your maritime claims as claims governed by admiralty jurisdiction, then there is no right to a jury trial, even where you could get a jury trial under state or federal law.

The application of admiralty law was recently at issue in the case Apache v. GlobalSantaFe Drilling Company. In this case, a mobile offshore drilling unit, owned by GlobalSantaFe, collided with an offshore oil and gas production platform, owned in part by Apache Corporation. Apache sued GlobalSantaFe to recover the damages caused to the platform. Apache asserted that the suit could be under both admiralty law and federal law.

Even though both parties requested a jury trial for the suit, GlobalSantaFe later decided it did not want a jury trial. Thus, GlobalSantaFe attempted to strike the requests for a jury trial by arguing that Apache had made a Rule 9(h) declaration, designating the claim for admiralty jurisdiction and losing the right to a jury trial.

Despite the fact that Apache had asserted the claim under both admiralty and federal law, the parties later stipulated to the fact that: “Apache did not make a 9(h) declaration.” In situations where it is not clear whether a party made a 9(h) declaration, courts look to the totality of the circumstances, considering, for example, whether the claim is viable under any other sector of law.

Here, not only is the claim viable under federal law, but the parties also stipulated to the fact that Apache did not make a 9(h) declaration. When a party stipulates to a fact it has made a formal concession. Thus, GlobalSantaFe is bound by its stipulation, and cannot strike the requests for a jury trial on the basis of Apache making a 9(h) declaration.