December 2, 2013

Court Throws Out Lafayette Parish Case As Plaintiff Fails To Deliver Service of Process Before Deadline

It is vital to know proper court procedures at the outset of litigation or else an otherwise valid claim might be thrown out of court without ever being heard. One prime example is the need to send initial court documents to a defendant within a set deadline (sending such documents, such as a citation or summons, is known as service of process). Case in point, the Lafayette Parish Court of Appeal, in Boka v. Oller, recently upheld the dismissal of a claim without even considering the merits because service of process was delivered too late. Therefore, it is important to know the rules before bringing a lawsuit or a good claim might be lost due to a mere technicality, such as delivering papers too late. For a non-lawyer, an attorney can be instrumental in making sure proper procedures are followed so that the party has a chance to present their case in court.

In Lafayette Parish, Louisiana Code of Civil Procedure Article 1201 requires that service of the citation must be requested within a deadline of ninety days from commencement of the action. Article 1201 also notes that service of process on defendants is “essential” and “without them all proceedings are absolutely null.” The deadline for service is to ensure that defendants are aware of an action and have enough to prepare. Therefore, as a delay in service is deemed unfair to the defendant, a court may dismiss a claim if service of process is sent too late.

There are some limited exceptions to the rule, but, due to the risks involved in these exceptions, generally a party should attempt to serve process on time. For example, one exception permits late service if there is good cause for the delay. However, as the court is unlikely to accept run-of-the-mill excuses for delays, proving a good cause for failure to serve process on time can be difficult. As noted below, the court in Lafayette Parish found that there was no good cause for late service as the plaintiff knew the defendant’s address.

Another exception is that the defendant may waive the requirement that process be served on them, but this should by no means be expected. As the plaintiff in Lafayette Parish learned the hard way, a defendant will often choose not to waive the requirement as they can avoid all liability if they successfully object to late service. Article 1201 does require a defendant to expressly assert thier defense of late service or else the defendant will be deemed to have waived such defense. However, the Lafayette case shows a defendant was able to successfully assert such a defense nearly two years after the case was underway. In this way, a plaintiff can invest much time, money, and effort into litigation, and have it all lost by a simple procedural rule that was overlooked at the beginning.

Another way out might be to attempt an appeal, but the standard to appeal a decision dismissing a claim for late service is high as it requires the party to prove that the trial judge made a manifest error or applied a clearly wrong standard. The difficulty of an appeal is compounded by the fact that losing an appeal can be costly as the party that loses, as occurred in the Lafayette case, can be ordered to pay the other party's costs of defending the appeal. One might be tempted to think that a court may be forgiving, but, as the Lafayette case shows, an appeal on such an issue can be very hard to win.

In Lafayette Parish, the trial court dismissed the plaintiff’s claim of fraud because the plaintiff had failed to request service of his original petition to be made on the defendant. After roughly two years, the defendant finally asserted that he had never been properly served, and the trial court agreed. The trial court found that the plaintiff had missed the deadline for service and that there was no good cause for the delay.

The plaintiff then appealed the decision, but failed to convince the appeals court. The plaintiff could not prove that the trial judge made a manifest error or applied a clearly wrong standard, and so the plaintiff did not meet the high burden for appealing a dismissal for failure to timely serve process. The appeals court found that the court record showed that no service of process was ever requested by the plaintiff and that, even though the defendant was eventually served after nearly two years by the clerk of court, such service was long after the ninety days required by law. The appeals court also found that there was no good cause for the delay in service as the plaintiff knew the defendant’s address. Therefore, the appeals court upheld the decision dismissing the claim for late service of process. On top of that, the appeals court ordered the plaintiff to pay the defendant’s costs for the appeal.

The case in Lafayette Parish presents a stark reminder of the importance of properly following court procedures, as the entire case was dismissed after nearly two years merely for the failure to send service of process on the defendant on time. It is important to note that the deadline for service is only one of a many technical procedural rules that can completely bar a claim regardless of whether a person was actually injured. A case can and often will be dismissed if a party fails to comply with technical requirements of the court. Overcoming the hurdles of court procedures can be a daunting task for the uninitiated and lead to serious consequences.

If you are unfamiliar with the ins and outs of the complex legal procedure facing your case, call the Berniard Law Firm today to speak with an attorney immediately.

November 28, 2013

Appeals Court Upholds Jones Act Claim for Seaman Injured Off Gulf Coast

The Jones Act is a law that provides seamen the chance to bring personal injury suits against the owners and operators of vessels they are working on in cases where the owner or operator was negligent or in some other way at fault for the injury. One of the types of damage allowable under the Jones Act is that of maintenance and cure. In maritime law, maintenance is the employee’s daily living expenses and cure is the employee’s medical bills. If an employer has to pay maintenance and cure, they will only have to pay such costs until the seaman is either fit for duty, or at a point where added medical treatment will not improve his condition. This case goes into further detail about what is necessary for a plaintiff to receive an award for maintenance and cure in a Jones Act case, and the relationship between maintenance and cure and worker’s compensation in Louisiana.

In this case, the plaintiff was performing sandblasting and plating work on an offshore rig. While performing this work, the plaintiff slept and ate aboard the M/V Howard McCall, stored equipment on the vessel, and used the vessel as a work platform on several occasions. After the initial work on the rig was done, the plaintiff was brought back to the vessel to perform sandblasting work on the vessel itself. During this period of work, the plaintiff sustained injuries while exiting the ship’s wheelhouse. The plaintiff soon began receiving payments from the Louisiana Worker’s Compensation Commission who was the employer’s insurer.

Subsequently the plaintiff filed suit against both of the owners and the operator of the vessel under the Jones Act. The plaintiff made three basic claims: 1) the owners and operator of the vessel were negligent in maintaining the safety of the vessel, 2) the vessel was unseaworthy, and 3) the owners and operators owed him costs for maintenance and cure. During the jury trial, the negligence and unseaworthiness claims were dismissed, and the remaining claim of maintenance and cure was the only claim left. The jury found in the plaintiff’s favor and awarded him awards of maintenance and cure. The defendants appealed the jury’s award.

The appellate court took up the case on two claims: 1) the plaintiff was not a seaman under the Jones Act, and therefore his claim should be dismissed, and 2) the trial court erred in not offsetting the maintenance and cure award by the amount the employer had previously paid the plaintiff under its workers compensation policy.

In order for a worker to succeed in a Jones Act claim, he must first meet the requirements set out in the Jones Act that classify who is considered a seaman. In order to be classified as a seaman under the Jones Act, the court will look towards such issues as: the worker’s duties aboard the vessel, the length of time the worker is connected to the vessel, and whether or not the worker performs work onboard the vessel or whether his work is performed on land and he only travels on the vessel. The penultimate inquiry is whether or not the worker in question is whether is actually a land-based employee who just happens to be onboard the vessel at the time of injury, or whether the worker is actually a member of the vessel’s crew.

The appellate court looked at the totality of the facts of the case and determined that the plaintiff was a seaman under the Jones Act. The court pointed to several facts to backup its decision. First, the majority of the plaintiff’s work for his employer was sea-based and a good percentage of that work was performed on the vessel. Second, the plaintiff and other members of the crew slept, ate, and stored equipment on the vessel. Finally, the plaintiff was brought back aboard the vessel to perform further work on the vessel itself. These facts led the appellate court to determine that there was no merit to the defendant’s argument that the plaintiff was not a seaman under the Jones Act.

Having determined that the plaintiff was indeed covered by the Jones Act, the appellate court turned to the argument regarding the jury’s award for maintenance and cure. The employer claimed that the jury erred by not offsetting the award for maintenance and cure by the employer’s previous payment to the plaintiff under its workers’ compensation policy.

The court pointed out that the Supreme Court has held that an action for damages under the Jones Act is the seaman’s exclusive remedy for personal injury during his employment. Consequently, any recovery of damages under the Jones Act must be reduced by any payments the plaintiff received from a state workers’ compensation law.

In this case, the appellate court found that the employer had not paid anything to the plaintiff except through its insurer, and was therefore not entitled to any offsets for funds it had not paid. The appellate court pointed out that the Louisiana Workers’ Compensation Commission, which sought to intervene in this case, might have a claim for some type of offset, but that was not an issue in this particular appeal.

As the above case shows, Jones Act claims can be extremely complicated, and require high quality legal representation.

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September 27, 2013

Fifth Circuit Sides with Plaintiff in Jones Act suit for Injuries Sustained on Sea Vessel

The Jones Act deals with injuries suffered by employees working on American sea-going vessels and their rights to workers' compensation for those injuries. The Act requires employers to "maintain a reasonably safe work environment." Another important feature of the Jones Act is that not only is the employer liable for the negligence of their employees, but also any amount of negligence on the employer's part will result in some level of liability. In other words, in a Jones Act case, if one employee negligently injures another, both the offendin employee and their employer are liable.

The case of Martinez v. Offshore Specialty Fabricators, Inc. deals with a Jones Act claim and really brings to light how important it is to obtain quality legal representation. Mr. Martinez was a seaman employed by Offshore Specialty Fabricators as a mechanic. On May 26, 2008, he and his supervisor, Mr. Smith, went aboard a ship owned by Offshore to repair a defective winch. Both Martinez and Smith testified that the work space was very cramped and required them to bend over while swinging a sledgehammer for almost an hour when suddenly Martinez felt a pop in his neck. Smith testified that he saw Martinez visibly twitch and asked what was wrong. Martinez informed him that something was wrong with his neck, and Smith immediately told him stop working.

Shortly after the injury he told an on-board medic about soreness in his arm due to using the sledgehammer. Two days later Martinez visited another medic and told him that he was unable to move his head or jaw without shooting pain in his neck and shoulder. He was also interviewed by a claims adjuster hired by Offshore and told the adjuster that his injury was due to the cramped working conditions and hammering.

Martinez visited several other doctors and they reached the conclusion that the incident on May 26th had led to a degenerative disc disease. An orthopedic surgeon determined that Martinez would be unable to do any activities that would require repetitive "bending, stooping, lifting, and carrying," and a rehabilitation specialist concluded that Martinez's chances of being able to return to his previous job as a mechanic or deckhand were poor.

Martinez brought a Jones Act suit against Offshore, and after a bench trial, the judge concluded that Offshore was negligent, that negligence contributed to Martinez's injury, the ship he was working on was unseaworthy, and that unseaworthiness contributed substantially to Martinez's injury. The district court found that Martinez was entitled to damages for both past and future lost wages and future pain and suffering. The district court also held that Martinez also contributed to his injury and found him to be contributorily negligent and decreased his award by 20%.

Under appeal, the 5th Circuit found that there was no clear error in the district court's finding that Offshore negligently provided Martinez a workplace that was too cramped to safely work in and that actually increased his chance of injury. Both Martinez and his supervisor, Smith, testified about the cramped working conditions, but Offshore failed to call any witnesses to rebut their testimony.

Offshore also argued that they were not negligent as there was no evidence that they did no, or should have known, about the cramped working conditions. The Court points out that in Jones Act cases, the negligence of an employee is imputed to their employer. In this case, Smith testified as to the cramped working conditions and that he failed to fill out proper safety forms that might have prevented Martinez's injury. This was enough for the 5th Circuit to determine that the district court did not err in finding Offshore negligent.

The 5th Circuit then moved to the issue of contributory negligence. Offshore argued that the district court erred in finding Martinez only 20% liable for his own injury. However, the Court states that none of the cases that Offshore cited or mentioned actually establish or led to the conclusion that the district court erred. This element, or lack thereof, led the 5th Circuit to uphold the district court's finding of contributory negligence.

The final issue addressed by the 5th Circuit was Offshore's argument that the district court had clearly erred in calculating Martinez's lost wages. Offshore argued that there was no actual basis for determining that Martinez would be unable to return to his previous mechanic's job and that he would be able to return to the same type of work. Martinez pointed out that several doctors had determined that he would be unable to peform certain repetitive physical activities that would be required of a mechanic or similar types of work. The Court concludes that Martinez provided enough proof to overcome Offshore's argument.

Offshore also argued that the method the district court used to calculate Martinez's lost wages is clearly erroneous. They argued that an average of several years should be used, instead of the amount Martinez earned in the previous year. This was important because Martinez had gone from an average salary of about $8,400 the previous forty years to about $45,000 the year before his injury. The Court again sides against Offshore and state that the cases cited by Offshore did not actually back up their arguments, and thus were not persuasive to the Court at all. The Court finally determined that the district court's reasoning was not clearly erroneous and affirms the judgment of the district court in favor of Martinez.

The big takeaway from this case is that quality representation is absolutely vital. Offshore had several major legal gaps in their case that heavily influenced the Court's decision. While it's unclear why Offshore did not feature these elements, it demonstrates the complexity within a case and why hiring an attorney that reviews each angle is inherently necessary.

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September 17, 2013

Proper Service Essential for Successful Legal Remedy

Under Louisiana law, there are very specific rules about how to properly serve someone, and one of the important aspects of service that an attorney has to get right is the timing of it. Furthermore, not only does the service have to be carried out in a timely manner, but it also has to be perfected properly.

This particular Supreme Court of Louisiana case dealt with service on a state entity, and it is important for your attorney to be aware of any differences that exist with regard to service requirements depending on who the other party is. According to the applicable state law, La. R.S. 13:850, "perfecting" a service request requires that the appropriate filing fees and transmission fees have been received by the clerk of the court and that the original signed document has been received by the clerk. All of this must be received within the proper timeframe. As stated in La. R.S. 13:850, the proper timeframe for perfection in this case is seven days.

In this case, the service request was received within the required ninety-day timeframe (ninety days since the filing of the petition), and the service request was perfected five days later once the requisite documents and fee payments were received by the clerk of the court. The question then is whether or not this counts as proper request for service: Was the request for service properly received within ninety days even though perfection of the request was outside of that ninety-day timeframe?

Surprisingly, the Supreme Court went against what both the district court and the court of appeals had decided. According to the Supreme Court, because the actual request for service was received within the proper ninety-day timeframe, and because it was perfected within the proper seven-day timeframe set out in La. R.S. 13:850 (it was perfected in five days), the request for service was proper and timely.

In coming to this decision, the Supreme Court analyzed the finding in Tranchant v. State of Louisiana, Louisiana State University Health Sciences Center, 08-0978, p. 7 (La. 1/21/09), 5 So. 3d 832, 836. In that case, the court found that "[a] valid request for service under La. R.S. 13:6107(D)(1) is made when the clerk receives the request for service and can then act on it." While the Court of Appeals used this finding to argue that the request for service was not proper (because the clerk could not act on it until five days after the ninety-day requirement), the Supreme Court argues that this is not the case. According to the Supreme Court, because the request for service was received within ninety-days and was perfected according to the statutory requirements, the requirements of La. R.S. 13:6107(D)(1) were met. The appellate court erred because it was comparing the current case with the case in Tranchant, while the request for service in Tranchant was not even received by the clerk until after the ninety-day time period.

Based on the Supreme Court's ruling in this case, it appears that as long as your request for service is received within the proper statutory timeframe and that it then perfected properly and timely that the service request should be deemed proper.

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September 14, 2013

The Role of Court-Appointed Experts in Complex Litigation

In order to aid the court, a judge might occasionally appoint an expert to help with specific aspects of the case. Court-appointed experts are different from a specific party's experts because the court-appointed experts do not favor one side or the other, but rather, help the judge with certain tasks or analyses.

A trial court-appointed expert can be especially useful in a class action lawsuit in which several people have a claim against the defendant and there is no way that the court can hear each individual person's case. In that instance, a court-appointed expert can help properly group the members of the class action lawsuit and help bring order to an otherwise unwieldy case.

In a recent case from Orleans Parish, the appellate court had to determine when a court-appointed expert is proper and what the limits of such an expert's duties should be. Before getting into the applicable Louisiana law and how the appellate court ultimately ruled, some knowledge of the background facts is useful: The case from Orleans Parish was a class action lawsuit in which several employees were suing over medical problems they experienced from working in a building that had serious mold damage. Over 600 individuals had claims in the suit, and in order to deal with the case in a more organized and manageable manner, the class was to be broken up into various groups. In order to help with this enormous task, the trial court stated that it wanted to appoint an expert to help group individuals according to damages. Each party was allowed to submit nominations and discuss any issues they felt might arise if such an expert was appointed. Ultimately, an expert was appointed to help with the necessary tasks, and after the case was decided at the trial court level, the State argued that the court-appointed expert had outstepped his appropriate boundaries.

Overall, the State argued that the expert had overextended his appropriate duties in several ways and that the court had improperly relied too heavily on the expert. Specifically, they claimed three main "errors" of the court with regard to the court-appointed expert. The State argued that the trial court was improper in allowing the expert to offer opinion testimony and that his report should not have been admitted to evidence; it argued that the awards of damages to the plaintiffs were improper and that they relied on the expert's misinterpretation of the law; and it argued that the test employed by the expert to decide how to award damages was improper. So the question before the appellate court is whether or not the expert was appropriately appointed and whether or not the tasks he completed were within his jurisdiction.

In Louisiana law, La. Code Evid. art. 706 deals explicitly with the limitations of experts in the court setting. While the State argued that the expert was utilized improperly, the appellate court found that according to article 706, it was well within the trial court's discretion to appoint the expert and that it was proper for the expert to group claims for the class action and make recommendations.

In addition to finding that the expert acted appropriately in his role, the appellate court further found that the judge had issued proper instructions to the expert as well. Specifically, the judge at the trial court level told the expert that he was not to engage in any judicial functions or be a trier of fact.

And most importantly, the judge did not just issue proper instructions and warnings to the expert, but the expert also did not try to improperly extend his employment to cover any of those functions. The expert limited his role to creating a method for breaking up the class into specific groups, submitting an expert report detailing his findings and opinions, and properly coming up with awards of damages for the plaintiffs as he was instructed to do. None of these jobs involved the expert taking over any judicial functions or necessitated him being a trier of fact. Because of this, the appointment of the expert witness and the tasks he completed were appropriate.

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August 19, 2013

Appeal Dismissed Because of Late Payment, Abandonment

In a recent case, Johnson v. University Medical Center in Lafayette, the Louisiana Court of Appeal for the Third Circuit reversed a trial court decision to dismiss a plaintiff's case for abandonment due to her failure to timely pay the costs of appeal. The plaintiff in the case, Lela Johnson, originally filed a medical malpractice action against both the University Medical Center in Lafayette and the Medical Center of Louisiana in New Orleans. The case has proceeded through courts since the original petition for damages was filed on March 15, 2006.

Both defendants, whose principal places of business correspond with the last word of their names, are operated by the State of Louisiana. After a dismissal of her original suit by the Supreme Court of Louisiana due to her failure to properly notify the defendants of the action because she had requested service of process on individuals who had not been individuals who were authorized to accept such information on behalf of the defendants, Ms. Johnson's decided to re-file the original suit in trial court. Once again, Ms. Johnson's service of process was held insufficient by the trial court and she moved to appeal that judgment.

Service of process is a legal term of art which essentially describes the process in which plaintiffs notify defendants of a pending suit. When the plaintiff files a complaint with a court, any defendant in the case must be given notice of the pending case and an opportunity to be heard and defend themselves against the complaint. This requirement is a basic constitutional right conferred upon everyone who has been accused of some wrongdoing and it is the accuser's responsibility to ensure that the constitutional right of the accused is protected. The importance of service of process to our legal system and the rights of defendants makes it necessary for trial courts to dismiss actions, without regard to the merits of the plaintiff's claims, if service of process is deficient in some way or another.

Thus, the trial court dismissed Ms. Johnson's suit for those reasons and Ms. Johnson filed a motion to appeal. The Louisiana Code of Civil Procedure Article 2126 explains what is required of a party appealing a decision by a state trial court. Under the law, when a plaintiff files a motion to appeal a trial court's decision and an order of appeal has been granted by the court, the clerk of the trial court must estimate how much it will cost to prepare the record and the filing fee required by the court hearing the appeal. The clerk then must notify both parties of the costs by mail and the person appealing the trial court decision, the "appellant," must then pay the estimated costs within twenty days of the mailing. An extension may also be granted for an additional twenty days for good cause if requested by the appellant. Alternatively, the appellant may also apply for a reduction in the costs if they are shown to be excessive and the application is filed within the first twenty day period. If there is any difference between the actual and estimated costs after preparation is complete, then the difference must be paid to the appellant if the estimate was excessive or paid to the clerk if the costs were insufficient.

Ms. Johnson, however, failed to pay the costs within the twenty day period or request an extension. Under Louisiana law, if the appellant fails to pay the estimated costs in a timely fashion or request the necessary extension, the trial court may either (1) dismiss the case as abandoned, or (2) grant a ten day extension and dismiss the appeal as abandoned if the costs are not paid within that extension. Both the trial court and the other party in the suit can file a motion to dismiss the appeal on grounds of abandonment under that law. In the instant case, Ms. Johson failed to pay the estimated costs, failed to request and extension and failed to request a reduction in the estimated costs due to excessiveness. As a result, the defendants moved to dismiss the appeal and the trial court granted the motion to dismiss the appeal as abandoned.

The third circuit, however, reversed and reinstated the appeal on review. Ms. Johnson appealed the trial court's decision to dismiss the appeal mentioned above. The appellate court analyzed the law described above, particularly the law's desired purpose and effect. In essence, the Louisiana law which requires appellate costs to be paid in a timely fashion by appellants serves two main purposes. The primary purpose of the law allows a court or a party to dismiss an appeal because the appellant has filed an appeal but has decided to abandon it. This protects the integrity of the court by making the appeals process efficient for parties who truly wish to appeal a trial court's decision. The trial court's decision might be erroneous, and the party seeking appeal may have a desperate need for relief and a reversal of the earlier decision. Appeals which lack merit and were filed out of temporary frustration with the holding might later be reconsidered later and abandoned. Without the law requiring the timely payment of fees, the system would have difficultly ensuring the timely and efficient resolution of appeals which are honestly filed and meritorious.

Conversely,the victorious party in trial court (the "appellee") should not be forced to wait anxiously for the disposition of an appeal which has been in fact abandoned by the appellant. The appellant, by necessity, files an appeal because he or she believes that the trial court has either misapplied the correct legal standard, applied the wrong legal standard, or has relied on clearly erroneous findings of fact in reaching his legal conclusions. If the appellant then later abandons his claim but does not formally notify the court or the appellee, then neither the court nor the appellee have any notice that the claim has been abandoned. This could allow a losing party to file an appeal with no intention of appealing the trial court's decision use the appeal to temporarily threaten the winning party at trial. To prevent appeals that lack merit or are based on ill motive, the Louisiana Code of Civil Procedure requires the appellate to pay the estimated costs to the clerk and provides the appellate with the opportunity to both contest the amount of the estimate or request an extension if good cause is shown.

The secondary purpose of the law requiring timely payment of the costs of appeals is to provide an incentive for tardy appellants to pay the costs of appeal in a timely fashion. The Code also clearly states that the focus of trial courts deciding motions to dismiss for abandonment under the provision to focus on securing payment of the costs of appeals to promote the efficient movement of appeals through the courts. The Code also expressly states that the purpose of such motions to dismiss is not to punish those who do not pay the costs of appeal in a timely fashion by dismissal due to abandonment. The court, interpreting both prior case law and the Code's provision discussed above, ultimately decided that Ms. Johnson's failure to pay did not represent the type of circumstances which the provision was designed to prevent.

The court reasoned that the dual purpose of the provision was ultimately to weed out claims which had been actually abandoned and to incentivize the timely payment of costs of appeal by appellants. It is true that Ms. Johnson failed to pay the costs of appeal within the twenty day period or request an extension or reduction in costs. However, Ms. Johnson did pay the costs, albeit slightly late, a little over a month after the defendants filed a motion to dismiss for abandonment. The court held that the purpose of the law was not to punish tardy payment of the costs of appeal by dismissing the appeal. Rather, the provision was designed to rid the court system of appeals which had been truly abandoned by the party who filed the appeal. Ms. Johnson had not decided to abandon her appeal, and although her payment had been slightly delayed, the dismissal of her appeal would result in the misapplication of the law governing the payment of the costs of appeals. Since one of the purposes of the law is to bring justice to the parties before the court, the dismissal of an appeal due to a slight delay in payment by the appellant would be an unduly harsh penalty and contravene the purpose of the legislature in developing the Code and the rules governing the payment of costs of appeal.

The intricate rules of civil procedure are daunting and can be fatal to an otherwise meritorious case. The rules are different in every state as well as the federal system. It is essential that all deadlines are met at every stage of litigation to ensure that a valid claim ultimately results in compensation rightfully owed to the victim of another's wrongful acts. Attorneys are "doctors of the law" and can assist a worthy plaintiff in obtaining compensation for his or her injuries and make certain all costs and filing are completed in a timely fashion to avoid disaster, up to and including dismissal due to a procedural error. Legal representation can be employed to avoid dismissal of what could be a victorious claim.

July 29, 2013

Injury at Sea and Signed Release Key Components of Lawsuit

The appellate court differed with the trial court on the validity of a compromise when Louisiana company D.R.D. Towing was sued by a crew member on D.R.D.’s ship.

Mr. Randy Rudolph was a crew member of the M/V RUBY E, which was struck by another ship while he was on board. The collision threw him from his bunk, causing injuries to his back. Additionally, Mr. Rudolph lost his personal computer, cell phone, car keys and other items when the ship sank. He filed suit against D.R.D. Towing, the operator of the M/V RUBY E.

The issue for the court was whether Mr. Rudolph’s signing a release settling all claims for $3,000 a few days after the incident precluded him from collecting further money for his injuries. He argued that he understood the $3,000 was offered to compensate him for what he lost on the boat, but not to cover his future claims, including medical expenses and loss of earning potential associated with his injuries.

Before executing the release, Mr. Rudolph had told an attorney representing D.R.D. that his neck and back had been hurting and he had an appointment with a doctor later that day. The trial court found no requirement that Mr. Rudolph see a doctor prior to executing the release. All that was required was that he be aware that medical advice was available. However, the appellate court emphasized that Mr. Rudolph’s status as a seaman required careful scrutiny of the release. Here, the appellate court found that the release was not valid.

First, the court reasoned that $3,000 could not be sufficient to cover the property that Mr. Rudolph lost on the boat in addition to any medical expenses caused by injuries from the collision. Another problem was that Mr. Rudolph was not represented by counsel during the settlement negotiations, and the legal rights Mr. Rudolph was giving up were not explained to him. Given these circumstances, the court found that the release was not executed by Mr. Rudolph with a full understanding of his rights, as is required by federal law. The court also highlighted that Mr. Rudolph was having medical issues after the accident and had not yet seen a doctor or received medical advice, which supports his claim that he did not believe he was giving up all medical claims for injuries he may have sustained.

This case shows how reasonable minds can differ when it comes to proving that a contract or compromise is valid. Assembling the best legal team possible is especially important in such cases.

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July 19, 2013

Ruling in Sabine River Authority Wrongful Death Action Clarifies Boundaries of Federal Preemption

In the fall of 2012 the Louisiana Third Circuit Court of Appeals handed down a decision clarifying the rights of plaintiffs in personal injury claims resulting from the opening of the flood gates. In Jeanie Hurst Simmons, et al., v. Sabine River Authority of LA, et. al., the court denied a writ submitted by Associated Electric and Gas Insurance Service. Associated is the excess insurer of the Sabine River Authority of Louisiana.

In 2001 the Sabine River Authority made the decision to open the flood gates of the Toledo Bend Dam, flooding the land downriver. As a result of the flooding, Kyle Simmons and his family were forced to use a 14 foot aluminum boat as their only means of transportation to dry land. After dropping his daughters off at school, Kyle and his young son Christopher began the return trip home in their boat. The Plaintiffs allege that the current of the swollen flood waters left Kyle unable to control the small boat. Both Kyle and Christopher were thrown from the boat and died. The Plaintiffs, Kyle’s wife and two daughters, filed a wrongful death action.

The Plaintiffs settled their claims against two other defendants to the action, the Sabine River Authority of Louisiana, and its primary insurer. The action against Associated, the Sabine River Authority’s excess insurer, remained unsettled. Associated filed a motion for summary judgment in the trial court. The motion stated that the claims filed by the Plaintiffs were preempted by federal law. Associated made the contention that preemption was proper because the Sabine River Authority was operating under the federal licensure of the Federal Power Agency and its successor agency, the Federal Energy Regulatory Commission. Associated also argued, in the alternative, that the Sabine River Authority neither owed nor breached any duty to the plaintiffs because of the obvious danger of releasing the floodwaters. The trial court denied Associated’s motion.

Associated then sought a supervisory writ from the Louisiana Third Circuit Court of Appeals. The court reviewed Associated’s argument for summary judgment and denied the writ. In their decision the court clarified the ways in which federal preemption applies to Louisiana tort claims. First, the court affirmed that federal preemption is a question of congressional intent. Secondly, the court cited Frank v. Delta Airlines Inc., stating, “…‘[f]ederal law will override state law under the Supremacy Clause when (1) Congress expressly preempts state law; (2) Congressional intent to preempt may be inferred from the existence of a pervasive federal regulatory scheme; or (3) state law conflicts with federal law or its purposes.” (314 F.3d 195, 197 (5th Cir. 2002). Finally, the court analyzed whether the doctrine of field preemption applies to the facts of Simmons.

In their Supremacy Clause argument Associated noted that the United Stated District Court for the Western District of Louisiana found that property damage claims arising out of purposeful flooding by federally licensed agencies were preempted under 16 U.S.C. § 803(c). In their decision, the Louisiana Third Circuit Court of Appeals stated that although property damage claims were preempted, Congress had not expressed similar intent in state tort claims. Therefore, the court found that the requirements for preemption under the Supremacy Clause were not met.

Associated also raised the issue of field preemption. The court stated, “Field preemption exists when Congress ‘has legislated so comprehensively in a field that it has left no room for state regulation.’” If field preemption is found to exist, federal law preempts the issue and the case must be brought in federal court. Although it seems as if field preemption is the strongest argument Associated was able to muster, the court found that there were questions of fact regarding whether the decision to open the flood gates were governed by the Sabine River Authority’s statutory obligation.

The court answered the second issue, whether Associated owed a duty to the Plaintiffs, by citing the 1991 Louisiana Supreme Court decision in Socorro v. City of New Orleans, “… a defendant’s ‘duty [is] separate and apart from any knowledge the plaintiff had or should have had of the danger he was encountering.’” Instead, ‘the plaintiff’s knowledge and conduct is considered only to determine the extent of his comparative negligence.’” (579 So. 2d 931, 941 (La. 1991)). Applying this reasoning, the court found that Associated’s “obvious dangers” argument is not conclusive as to whether the defendants owed a duty.

Overall, the decision in Simmons provides clarity when dealing with federal preemption issues in regard to personal injury cases. If you or a loved one has been injured or even died as a result of catastrophic flooding, please contact the Berniard Law Firm.

June 29, 2013

Louisiana Court of Appeals Affirms Judgment in Favor of Defendant Companies in Property Damage Lawsuit

On February 27, 2012, a district court for the Parish of Lafayette ruled in favor of two defendants being sued by plaintiffs C.F. Kimball II and Linda R. Kimball for property damage. The first defendant, Luhr Bros. Inc. d/b/a Construction Aggregate, owns a shell yard across from the Kimballs' property on the Vermilion River. The second defendant, Omni Marine Transportation, Inc., owns a vessel that made deliveries to the Luhr Bros. The Kimballs had asserted that both defendants had engaged in business activities that resulted in the destruction of a bulkhead belonging to and located on the Kimballs' property. The defendants responded by saying that an exception to res judicata prevented the Kimballs from filing a lawsuit against both parties for such damages.

An exception to res judicata signifies that proceedings related to the same occurrence had already taken place and been concluded. Specifically, the defendants claimed that the parties had previously executed a Receipt, Release and Indemnity Agreement in 2002. The Kimballs acknowledged that such an agreement had been executed but claimed that the Release did not pertain to the bulkhead, which the Kimballs had only acquired in 2008. The Kimballs asserted that a Release could not be agreed to for property that was not even in existence at the time of the agreement.

The trial court ruled in favor of the defendants and dismissed the Kimballs' lawsuit with prejudice, meaning that the Kimballs could not bring a new case on the same basis as the dismissed case. When a trial court rules in favor of the defendants on an exception of res judicata, any issue whose determination was essential to the judgment and already litigated is extinguished. Thus, the trial court found that the issue of destruction of property such as the bulkhead was essential to the proceedings that had already been litigated between the parties, that is, the proceedings that led to the production of the Receipt, Release and Indemnity Agreement.

The Kimballs appealed the trial court's decision to the Louisiana Third Circuit Court of Appeal on the grounds of manifest error. The Kimballs claimed that res judicata did not apply under Louisiana state law because "the cause or causes of action asserted in the second suit did not exist at the time of the final judgment in the first litigation." The Court of Appeal stated that whether the cause of action asserted in the present lawsuit had in fact existed at the time of the final judgment in the first lawsuit turned on the language of the Release of 2002.

The Release of 2002 provided that the plaintiffs would release the defendants from liability for property damage caused in exchange for a determined sum of money, $150,000. The defendants were released from any claims that the Kimballs asserted or could have asserted "for restoration of and/or protective measures for the Kimballs' bank on the Vermilion River." The Kimballs' cause of action encompassed the installation of protective measures and stated that the Kimballs would now assume the obligation to implement any protective measures for the Kimballs' bank on the Vermilion River." The Court of Appeals noted that, since the Kimballs had accepted that they would be responsible for implementing any protective measures, the Kimballs were now barred from asserting a claim for damages of said protective measure, the bulkhead. The 3rd Circuit affirmed that the Release signed in 2002 preempted the Kimballs from now filing suit against the defendants on the grounds of res judicata.

With complicated procedural issues such as an exception of res judicata, a lawyer can help you determine whether or not to file a lawsuit.

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June 25, 2013

Tragic Workplace Accident Provides Insight Into Duty of Care

A former employee of the Mansfield, LA, branch of the International Paper Company, met with a fatal accident while on the job. While repairing a valve on the platform surrounding the top of a whitewater tank, he fell through the access opening and into the tank.

Access opening covers are not rooted firmly to the tank and are known to become dislocated if the tank contains overpressurized liquid, or if the liquid and debris overflow. Evidence in the form of photographs show that debris had accumulated around the access opening that the deceased had fallen into, indicating that the opening may have been dislodged before he had fallen into the tank. As a result of the incident, the widow of the deceased filed suit against the manager of the Mansfield paper mill and the engineering company that designed and constructed parts of the whitewater tank that the employee fell into.

The engineering company, Stebbins, had a contract with International Paper Company to inspect the durability of its whitewater tanks at many of its locations worldwide. The inspections conducted by Stebbins brought knowledge that some whitewater tanks were over-pressurized and were overflowing. The victims' family contended that Stebbins' knowledge of this hazard created a duty on the part of Stebbins to inform the International Paper company of the unsafe practice. The issue, however, was that Stebbins had no such inspection contract with the Mansfield paper mill where the deceased met with his accident.

The problem in this case for the victim's family was that the duty of care on the part of Stebbins did not involve the material issues in this particular case. This distinguishing factor between what Stebbins' contract with the International Paper Company actually required the engineering company to do, and what the plaintiff was filing suit against Stebbins for, prevented Stebbins from liability for the unfortunate death.

Because of this gap in liability, Stebbins was found to have no duty to the employee. A duty of care is a legal obligation which is imposed on an individual, requiring that they adhere to a standard of reasonable care while performing any acts that could foreseeably harm others. In this case, the plaintiff argued that Stebbins owed a legal obligation to the employee because Stebbins knew of the hazardous conditions imposed by the dislodging of access opening covers when the tanks became over-pressurized or overfilled. Generally, a duty of care to another is only present within direct relationships such as that between family members: a mother has a duty to her child to make sure the child crosses the street safely. A duty of care is also present in contractual relationships, as of that between an employer and an employee. There is also a duty of care that is formed when a third party begins to help another in need. Once the third party begins to help, he cannot leave the scene until he finishes aiding the person in need. If these direct relationships are not present, a duty may be imposed by the law. In this case, Stebbins did not have any direct relationship to the victim as there was not a contractual relationship between Stebbins and the International Paper Company in Mansfield.

There was also no duty imposed by the law. A Louisiana Supreme Court case had held that in order to find a duty in such a situation, "some proof of positive undertaking" for work place safety is required, stating that "neither mere concern with nor minimal contact about safety matters creates a duty to create a safe working environment for employees of a subsidiary corporation." In other words, a parent corporation must clearly undertake the goal of providing work place safety for its subsidiary corporation as its primary concern, in order for a duty of care to be found.

In this case, there is no evidence that Stebbins positively undertook any duty to ensure the safety of the employees of the International Paper Company. Stebbins was merely responsible for inspecting the structure of whitewater tanks when requested by the International Paper Company to do so, after a plant had shut down.

Therefore, the Court held that Stebbins had no duty of care to the employee, leaving the family with no relief in this particular case. This is an incredibly difficult situation and is extremely saddening for the victim's family. It does, however, help explain key components of the law that must be met for recovery to take place. In finding out how the law handles situations, we can explore the nature in which responsibility is apportioned and, in all instances possible, get justice for those impacted.

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June 19, 2013

Jones Act Negligence and Unseaworthiness Explored in Louisiana Maritime Case

The Jones Act is officially titled the Merchant Marine Act of 1920 and was passed by Congress in response to concerns about the health of the Merchant Marine and to establish protections for sailors. Before the Jones Act, seamen who were injured had few options for recovering damages for their injuries, but now the Jones Act allows you, as an injured seaman, to obtain damages from your employer for the negligence of the ship owner, the captain, or fellow members of the crew.

A federal statute (46 U.S.C. § 688) extends the Federal Employer’s Liability Act (FELA), which originally only applied to railway workers to seamen and it reads, in part, "[a]ny sailor who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right to trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply..."

According to the Fifth Circuit Court of Appeals for the State of Louisiana, “an employer is held to the standard of care of ‘ordinary prudence under the circumstances.’” Admiralty and maritime law can become increasingly complicated and it is important that you sufficiently prove to the court that your employer has breached the standard of care that is owed to you. In Lett v. Omega Protein, Inc., a recent case decided by the Fifth Circuit, the importance of having quality representation with experience in admiralty and maritime law is evident.

In this case, James Lett filed a lawsuit against his former employer, Omega Protein, Inc., and two of Omega’s fishing vessels. Mr. Lett asserted negligence claims, unseaworthiness claims, and claims for maintenance and cure. From 2007 to 2009, Mr. Lett worked for Omega Protein as a seaman and an engineer aboard several of Omega’s fishing vessels. Specifically, Mr. Lett was responsible for maintaining the engine room, which included chipping off rust from the floor for several hours using a needle gun. According to Mr. Lett, he sustained several injuries to his back and neck from this activity. The district court below dismissed all of Mr. Lett’s claims and granted summary judgment in favor of Omega Protein.

According to the Fifth Circuit, to establish a claim of unseaworthiness under general maritime law, an injured seaman must prove “that the owner has failed to provide a vessel, including her equipment and crew, which is reasonably fit and safe for the purposes for which it is to be used.” Lastly, to be successful on a claim of unseaworthiness, a seaman “must prove that the unseaworthy condition played a substantial part in bringing about or actually causing the injury and that the injury was either a direct result or a reasonable probable consequence of the unseaworthiness.”

On appeal, the Fifth Circuit affirmed the judgment of the district court and dismissed Mr. Lett’s claims. The Court concluded that Mr. Lett failed to create a genuine issue of material fact regarding his unseaworthiness claim because Lett failed to provide any evidence that the use of the needle gun aboard the vessel was unsafe. Rather, Mr. Lett pointed to the availability of safer rust-removing equipment, but the Court said that this evidence alone – without evidence indicating that the needle gun is unsafe – was not enough to create a genuine factual dispute regarding unseaworthiness. According to the Court, “a plaintiff must present sufficient evidence to raise a jury question whether a method of operation is unsafe, before a fully equipped vessel, with all its gear in good working order, can be rendered unseaworthy.”

This case illustrates the critical elements that must be established sufficiently to successfully bring an unseaworthiness claim. Experienced attorneys can help determine what evidence to use and how to apply it to your situation in admiralty cases.

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June 15, 2013

Personal Jurisdiction Key Component to Dismissed Property Case in Louisiana

Susan Michelle Canon brought suit in Calcasieu Parish, Louisiana, when her boat caught fire while en route from North Carolina back to Louisiana. The trial court ruled in favor of the sellers, who were from North Carolina, and dismissed them from the suit because of lack of personal jurisdiction. The appellate court upheld this decision. This case is an excellent example of why every lawsuit must be examined for proper jurisdiction to make sure that it is filed properly and that the expected outcome isn't cut short from the very beginning.

To determine whether personal jurisdiction existed, the court considered a number of factors indicating whether it would be proper to draw the sellers into court in the state of Louisiana. These factors included where the sellers reside, where they do business, where they have registered offices, and whether their business targets a particular region. Their contact with Louisiana must also have been continuous and systematic, to support an assertion of general jurisdiction.

Sellers Raeford and Jennifer Millis here did not have sufficient contacts with Louisiana. They did not live there, do business there, or have a registered office in that state. The boat they sold Ms. Canon was simply listed on the internet, accessible and available to people all over the world. Ms. Canon made the initial contact, and mailed the sale proceeds to a bank in North Carolina, where the Millises live. Ms. Canon also went to North Carolina to execute the bill of sale, using a North Carolina notary, and took possession of the boat in that state. Based on these facts, she could not establish meaningful contacts, ties, or relations between the Millises and Louisiana.

Based on these grounds, the appellate court affirmed the judgment of the lower court, agreeing that the Millises did not have minimum contacts with Louisiana.

An important part of litigation strategy is filing in the proper jurisdiction. It is thus essential to find experienced lawyers who can advise on such matters which can make or break a case, and which clients might not even consider.

June 4, 2013

Legal Concepts: Louisiana Code of Civil Procedure and Hearsay

The law has a wide variety of rules in place to force a clean route to evidence, especially from authorities on the topic, like people present or involved with the case's topic. Hearsay is a statement, other than one made by the person themself while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted. Article 802 of the Louisiana Code of Evidence states “Hearsay is not admissible except as otherwise provided by this Code or other legislation.”

Understanding Legal Terms
Assertive Conduct:
Words, either oral or written, can constitute hearsay if intended as an assertion or detail to be considered factually correct. Also, action or conduct could be considered as assertion even when technically, no words have been spoken. When wordless behavior has expressive and communicative intent or purpose, it too is subject to hearsay. One example of assertive action or conduct is nodding one’s head in answer to a question as it is a wordless statement that is offered to prove what it asserts.

Non Assertive Conduct:
Usually, conduct does not necessarily assert anything and where conduct is apparently non-assertive, it is likely to be treated as non-hearsay. Conduct is hearsay if the person engaging in the conduct probably intended it to assert a fact observed. For example, a woman testifies that her mother complained of a smell in her home and had health troubles, pointing at her throat like it was difficult to breathe. If the mother is unable to testify at trial, the pointing is (potentially) hearsay since it is meant to assert a fact observed - that the health problem was in the throat/upper head area. Such issues are easily applicable in Chinese drywall cases, mesothelioma, asbestos-concerns, etc.

While these items seem simple and obvious, the reality is there are very unique reasons for why hearsay can be excluded. The four important hearsay risks are misperception, faulty memory, misstatement/ambiguity/faulty narration and distortion. There are key reasons as to hearsay is excluded from evidence are as follows. Firstly, there is an absence of cross-examination. This one is the most important because credibility of the statement cannot be tested by cross-examination. In State v. Brown, the Louisiana Supreme Court stated that “the value of the statement rests on the credibility of the out-of-court asserter who is not subject to cross-examination and other safeguards of reliability.” Absence of demeanor evidence- the meaning of a person’s assertion can change depending on the person’s demeanor while making the assertion. Thus, without being able to see a person’s demeanor when an assertion was made, the meaning may be lost or confused. Lastly, the fact that the absence of oath in hearsay statements is another reason for exclusion. Granted, there are exceptions to the rule against hearsay and cross-examination and oath are sometimes requirements for an assertion to fall within one of these exceptions. One can refer to the Louisiana Code of Civil Procedure to see the exceptions to the hearsay rule and assertions that are not considered hearsay.

When hearsay is ruled admissible or inadmissible in trial court, this is considered a ruling on the admissibility of evidence. Such a ruling is a question of law and is not subject to the manifest error standard of review. Parties to a suit cannot complain on appeal about an evidentiary ruling in the trial court unless the trial judge was given the opportunity to avoid the perceived error, and the ruling “affected” a “substantial right” of the party. For example, in the Louisiana Supreme Court Case, Trascher v. Territo, the defendants argued that their substantial right was affected when in the district court, a video deposition was deemed admissible. In that case, the substantial right that was affected by the evidentiary ruling was the defendants' right to cross-examine the witness against them.

All of this is rather dense content for most people and is provided more as a way to navigate the content than anything else. Hearsay is a very important component to consider when any elements of the case involve testimony from a third-party regarding an experience of the defendant or plaintiff. Whether in a civil or criminal case, these statements need to be examined carefully by a qualified attorney who is sure to get information across in a manner that avoids hearsay exclusion.

May 20, 2013

Statements Made at End of Trial Reviewed for Propriety in Workplace Lawsuit

The case of Williams v. C&E Boat Rental shows how important it is to hire attorneys who navigate court proceedings in line with judicial expectations. This post's case arose out of a maritime injury claim and centered around comments made by the defense attorney during closing arguments.

In 2007, Williams was a deckhand on a boat owned by C&E. He alleged that he was injured by fumes while cleaning out the vessel's lube oil tanks. Later that year, he hired an attorney and filed suit against C&E. The suit was voluntarily dismissed the day after it was filed. In 2009, Williams re-filed his suit against C&E alleging negligence and unseaworthiness. After the defense made its closing statement, Williams moved for a new trial claiming that statements the defense made during its closing argument were inappropriate and prejudicial. The defense made six different statements that Williams argued were prejudicial, specifically regarding the fact the statements alleged various types of misbehavior on the part of Williams' attorney.

When discussing closing statements, an important evidentiary requirement is that statements made during closing argument must have some basis in evidence that was presented to the court. This is an issue of fundamental fairness as the opposing side would not be able to challenge the validity of such statements.

Williams' attorney objected to two of the statements at trial, and the other four statements on appeal which required the Fifth Circuit to use two different standards of review when determining whether the statements were prejudicial. For the objections that were raised at trial, the Fifth Circuit used an abuse of discretion standard. When looking at an abuse of discretion claim, the trial court is given deference in determining what the impact of the statement was. The Fifth Circuit held that the statements characterizing Williams' attorney's action had some basis in evidence that had been presented to the court.

The higher court will also look at any jury charges or court statements to see if they mitigated the impact of the statement in question. In this case, the Fifth Circuit held that a jury charge from the trial court judge telling the jury that they can disregard attorney statements if they do not agree with the attorney's interpretation of the evidence. The Fifth Circuit holds that between giving deference to the trial court and the jury charge, there is simply not enough evidence to overturn the lower court's denial of a new trial.

For the objections raised on appeal, the Fifth Circuit applied a plain error standard. To demonstrate reversible plain error, Williams would have to show that 1) there was an error, 2) it was plain, and 3) it affected his substantial rights. Basically, this means that an error is prejudicial, and a lower court decision reversible, if it is reasonably probable that the outcome of the trial would have been different had the error not been made. In this case, the Fifth Circuit simply states that they felt the evidence provided by Williams did not rise to the level of a reversible error.

In sum, the Court's decision boils down to holding that Williams simply did not provide strong enough evidence showing that the statements the defense attorney made rose to the level of reversible error or prejudice that would have required the Fifth Circuit to overturn the lower court's decision.

This case shows the necessity of having top notch legal representation during trial and appeal. If you have any legal questions or need assistance, please do not hesitate to call the Berniard Law Firm for your legal needs.

May 17, 2013

Understanding Comparative Fault/Negligence and How it Impacts Judgments

You have probably heard the phrase “accidents happen.” But if you are in an accident, the first thing that you want to ask is who is at fault. With all of the chaos that can be part of an accident, sometimes the answer to this question isn’t always clear. This is when comparative fault, also known as comparative negligence, comes into play. In general, negligence refers to conduct that falls below the standards of behavior established by law for the protection of others against unreasonable risk of harm. Comparative negligence is different from ordinary negligence in that ordinary negligence is a failure to exercise the care that a reasonable person would exercise in similar circumstances whereas comparative negligence describes conduct that creates an unreasonable risk to one’s self.

In 1979, Louisiana Civil Code Article 2323 was amended to provide for a pure comparative negligence regime where a plaintiff’s own contributing negligence did not bar the recovery of damages, but merely reduced it by his or her own portion of fault. The Louisiana Legislature, in 1996, further amended the Code, making Louisiana a “true” comparative fault jurisdiction and the language of that amendment provided:

In an action for damages where a person suffers injury … the degree or percentage of fault of all persons causing or contributing to the injury … shall be determined, regardless of whether the person is a party to the action, and regardless of such person’s insolvency, ability to pay, immunity by statute …

Therefore, the fault of all persons who contributed to the injury must be accounted for by the judge or jury and in every accident, the allocation of fault must total 100% amongst the parties.

An example of comparative negligence can be seen in Williams v. Asbestos Defendants, a recent case out of Orleans Parish. In 2009, Mr. Williams passed away from asbestos-related lung cancer and other complications. Before his death, Mr. Williams and his wife filed a claim for damages alleging that Mr. Williams was exposed to various sources of asbestos at his workplace between 1980 and 1998. The Williams’ filed their claim against Dow Chemical Company, Entergy Louisiana, LLC, General Electric Company, Shell Oil Company, and Union Carbide Corporation among others.

The trial court, in this case, found that the exposures allegedly caused by the various Defendants could not be separated in order to apply comparative negligence principles and, further, that “due to the nature of asbestos-related disease, th[e] court [found] that the damages caused by any one defendant [could not] be separated from the entire harm that the plaintiffs allegedly suffered.” However, the Louisiana Fourth Circuit Court of Appeals held that the law of comparative negligence does apply here and that after weighing the testimony presented at trial, such as the length of time Mr. Williams was alleged exposed by each defendant, the jury would be able to determine how to divide Mr. Williams’ injuries so that fault may be apportioned.

According to Watson v. State Farm, a Louisiana Supreme Court case, the jury will have to consider several factors in assessing and allocating fault amongst the parties in Mr. Williams’ case. These factors include: (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.

Comparative negligence is an important legal doctrine and it is important to seek legal representation even if you think that you are partly at fault for your injuries. Facts are especially important in cases of comparative negligence because when the victim is partly responsible for his or her own injuries, a defendant is less likely to fully compensate the victim. As such, the manner in which all of the facts and evidence is presented is very important in trial and appellate court proceedings and to assure fault is apportioned fairly among the parties. Not having the legal representation that you deserve may lead to an unfavorable ruling.

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May 7, 2013

Abandonment Examined by Appellate Court in Construction Lawsuit

A Saint Martinville, Louisiana, construction company, Cole's Construction Crews, Inc., recently had a judgment against it reversed and remanded back to the trial court. Back in 2007, Cole's had filed a lawsuit against J-O-B Operating Company. A few months after filing suit, Cole's requested production of documents and sent interrogatories (or a list of probing questions) to JOB. Almost two years later, in July of 2009, JOB finally answered the requests. Then, in June of 2011, JOB filed a motion to dismiss the suit, claiming that Cole's had abandoned the lawsuit. Ultimately, the motion to dismiss was signed, and Cole's then attempted to get the motion set aside. The trial court denied this attempt, and Cole's appealed the case to the appellate court to get it reviewed.

Cole's claims that granting the motion to dismiss was an error that should be reversed. First, JOB had just answered the interrogatories less than two years earlier, and second, JOB did not file the requisite affidavit with its motion to dismiss. Ultimately, the appellate court disagreed with the trial court's ruling and decided that granting the motion to dismiss had been done in error. They came to this conclusion by considering the various aspects of the complex Louisiana abandonment law, which is discussed below.

In Louisiana, Article 561 of the Louisiana Code of Civil Procedure imposes three requirements on plaintiffs in order for their lawsuit to not be considered abandoned. The first requirement is that the plaintiff has to take some sort of formal action before the court with regard to the lawsuit. Next, this action needs to take place during a court proceeding and must be in the suit's record, unless it is part of formal discovery. Finally, this action has to take place in the requisite amount of time. If three years have passed without an appropriate action as described above taken by either party, then the suit is automatically abandoned. Even though abandonment is self-executing, defendants are encouraged to get an ex part order of dismissal, just like JOB did in this case, to make sure that their right to assert abandonment is not waived.

However, there are two exceptions to the above abandonment rule. One is when a plaintiff is unable to prosecute or take necessary action because of circumstances beyond his or her control. The other exception is if the defendant takes some sort of action that is inconsistent with the intent to abandon. If a defendant takes an action in a case that is contrary to asserting abandonment, he or she in effect waives the right to assert abandonment. Furthermore, deference is giving to the plaintiff and, when at all possible, a case should not be granted dismissal. This is because the plaintiff should be given his or her day in court in order to address any grievances.

Because this case involves a question of law, instead of fact, the appellate court gets to review the case de novo or as if the trial court has not already tried the case. However, the appellate court needs to read the law as stated and apply it as such; it cannot rewrite or reinterpret the law. So, in this instance, the appellate court had to decide whether or not the fact that the defendant answered the interrogatories within the past three years counts as a waiver of its claim of abandonment. This is a tricky question because when the defendant answers the interrogatories, that action does not get recorded on the official court record and it does not take place during a court proceeding. However, it is still part of the discovery process.

While Cole's argues that answering the interrogatories is clearly an action that contradicts a claim for abandonment, JOB contends that it does not count as part of formal discovery. JOB answered the interrogatories voluntarily, though, without being compelled to do so. Because of this, the appellate court found that JOB's actions were not consistent with treating the case as abandoned. Answering the plaintiff's interrogatories and serving them on all relevant parties constitutes a step or sufficient action to keep the case from being classified as abandoned, according to the appellate court. Thus, the trial court's judgment was reversed.

From this case, you can see how important it is to have someone who is adept at researching and interpreting the relevant law on your case.

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March 19, 2013

Lead Berniard Law Firm Attorney Demonstrates Expertise with CLE Instruction

The Berniard Law Firm’s principal attorney, Jeffrey Berniard, recently taught an Introduction to Personal Injury course. Having been an active part of Continuing Legal Education (CLE), Mr. Berniard was selected to teach the topic due to the firm’s specialization in medical malpractice, first party insurance disputes, and premises liability claims. Some of the topics covered included: Personal Injury Protection and First Party Benefits in auto policies; medical records disclosure including mental health and substance abuse treatment records; recoverable personal injury damages.

Under many state’s no-fault insurance laws, a claimant’s insurance company will only pay for Personal Injury Protection, or the first $10,000 out-of-pocket expenses. The remainder of expenses must be recovered from the Defendant. Many auto insurance companies do offer First Party Benefits packages, an optional supplement that will cover all medical expenses in the event of an accident for the policyholder or anyone else listed on the plan. However, many auto insurance companies also use a computer program that performs a calculation to value the severity of a victim’s injury. The program does not take into consideration the stress, pain, inconvenience, loss of enjoyment of life that a victim may have suffered.

Medical records unrelated to a victim’s injury, but pertaining to his/her health, are discoverable if “good cause” can be shown. Both state law and the federal Health Insurance Portability and Accountability Act (HIPAA) apply to a consent for release of medical records. The consent must contain ten items, including a statement that the health care provider cannot condition treatment upon the signing of the consent for release. However, because of the broadness of the item language requirements, HIPAA, and state law, a health care provider may refuse to honor the consent. If a consent cannot be obtained from the patient, HIPAA continues to allow health care providers to release information with a court order or a subpoena. If an attorney issues a subpoena without a court order, the health care provider will not release information unless certain assurances are made.

HIPAA also applies to mental health and substance abuse treatment records. If such records are sought by an attorney not representing the patient, the consent must be accompanied by a "subpoena duces tecum" because a consent does not necessarily compel release. To obtain psychotherapy notes, an attorney should obtain both a consent for the release of mental health records as well as one specific to the psychotherapy notes.

Some of the damages that a victim can recover are pain/suffering, medical bills, compensatory, and loss of consortium. Pain and suffering damages include compensation for physical pain as well as emotional distress. Medical bills may include past and future medical care or rehabilitation. Compensatory damages seek to restore the victim financially, physically, and emotionally to his/her status prior to the accident. Loss of consortium are the damages that a spouse may seek when the victim’s injuries prevent the victim from being the companion he/she once was.

Mr. Berniard's lecture summarized personal injury legislative considerations, subrogation, expert testimony and trial procedure for his fellow attorneys. While the purpose of the lecture was to educate his peers, those that have been injured in an accident can also speak to Mr. Berniard about their options.

March 8, 2013

Expert Testimony Key in Industrial Incident Resulting in Injuries

It is no secret that evidence and witness testimony are arguably the two most important aspects of injury litigation and the impact that each has on the outcome of an adjudication can either make or break your case. In order to understand these effects more fully, it is important to note that there is a difference between an ordinary and an expert witness. Ordinary, factual witnesses provide knowledgeable accounts of the facts of the case through either their direct participation or observation of the intricacies of the case, whereas expert witnesses hold specialized knowledge in a particular educational field and use this advanced knowledge to clarify or explain a piece of information. Ordinary and expert witnesses are viewed differently in the eyes of the court system and are governed under separate sections in the Federal Rules of Civil Procedure due to this distinction.

Unlike an ordinary witness, an expert witness is only permitted to testify at trial once an expert report has been filed with the opposing party. This is necessary to alleviate any future misunderstandings concerning the nature and purpose of the expert’s review and this extra measure fosters preparation, awareness and allows the parties to put their best foot forward during trial. Harmon v. Georgia Gulf Lake Charles, LLC, a recent opinion handed down from the United States Court of Appeals for the Fifth Circuit, illustrates the importance of complying with the mandatory standards regarding expert witnesses and the permissibility of their testimony and how not doing so can cause a party to conclude that it has insufficient evidence upon which to proceed to trial. This case involved injuries caused by an industrial accident in Westlake, Louisiana.

In this case, the Court held that Harmon did not properly comply with Federal Rule of Civil Procedure 26(a)(2)(B) and therefore, it decided to uphold the exclusion of imperative expert testimony. In 2006 and 2007, Ms. Harmon and four others claimed to have been injured when toxic chemicals were released into the air due to a fire and an explosion at the Georgia Gulf’s chemical facility in Westlake, Louisiana. Before trial was set to begin, the magistrate entered an order requiring Ms. Harmon and the other four plaintiffs, respectively, to provide an expert report within a timely manner for each expert witness to both Georgia Gulf Lake Charles L.L.C. and American International Specialty Lines Insurance Company.

Before the deadline, Ms. Harmon and plaintiffs filed what purported to be their expert reports. In particular, they filed a two-page letter discussing some of the plaintiffs’ medical records and then a three-page memorandum signed by two physicians. After the deadline had passed, plaintiffs submitted three documents with additional information to supplement the already filed expert reports. Georgia Gulf and American International both filed motions to the court attempting to exclude the reports, alleging that they failed to comply with the requirements of expert reports under Federal Rule of Civil Procedure 26(a)(2)(B).

Federal Rule of Civil Procedure 26(a)(2)(B) requires that expert reports must contain the following:

(1) "a complete statement of all opinions the witness will express and the basis and reasons for them"; (2) "the facts or data considered by the witness in forming them"; (3) "any exhibits that will be used to summarize or support them"; (4) "the witness's qualifications . . ."; (5) a list of cases in which the expert testified during the previous four years; and (6) a statement of the compensation received by the expert for his study and testimony.


Both the District Court and the Appellate Court found that plaintiffs initial expert reports fell short of meeting these criteria and further provided citation to a case (Metro Ford Truck Sales, Inc. v. Ford Motor Co.), decided in 1998, to suggest that the supplementary provisions submitted after the deadline “ … are not intended to provide an extension of the expert designation and report production deadline.” Based upon this decision, plaintiffs were forced to concede that they could not prove their case without this expert testimony and that they had insufficient evidence upon which to proceed to trial.

Because procedural matters such as require detailed and meticulous consideration and can ultimately affect the outcome of a case, it is essential to have legal representation that is able to provide both competence and diligence for you.

Continue reading "Expert Testimony Key in Industrial Incident Resulting in Injuries" »

February 18, 2013

Workers' Compensation is One of the Only Remedies for Injured Employees

In Louisiana, an employee can only be compensated for a work related injury through workers' compensation. This means that if an employee is negligently harmed during the course of work, the only remedy available is what is provided through the workers' compensation act. This is true unless the injury was as a result of intentional conduct. In the business world, many general contractors contract out work to subcontractors. Legally the issue in such a case becomes how to define who the employee is employed by in case of an injury. In Louisiana, there is a doctrine called the two contract theory. The basic outline of this theory is that in a situation where there are three parties in a contract which includes a general contractor, subcontractor, and subcontractor's employee, the subcontractor's employee is considered an employee of the general contractor. This mean that if the subcontractor's employee is injured while performing work for the general contractor, the employee will only be able to receive workers' compensation, not any damages based on negligence or any other branch of tort law. This may, at first glance, seem like a harsh result. However, in the modern business world, there are so many employment contractual relationships that liability must be limited to what is reasonable under the circumstances. The two contract theory should not be viewed as a way to protect business, but rather as a means for the judicial system to not be able to overreach.

In a recent case, Mason v. Waste Management Inc. Et Al., the law concerning employee rights is discussed in such a circumstance. Lamare Kindle and Wallace Bradley, were employed by Waste Management Inc. Mr. Bradley was employed directly by Waste Management. Mr. Kindle was employed by CPST Inc. CPST was a subcontractor which had contractually agreed to supply Waste Management with employees in an effort to help Waste Management collect trash it was required to contractually pick up. Waste Management had agreed to pick up trash in a contract with the Morehouse Parish Police Jury. So the contractual relationships are broken down as follows: Morehouse Parish Police Jury needed a company to come pick up trash in its area. Waste Management agreed to pick up the trash and signed a contract with Morehouse Parish to do so. Mr. Bradley was employed by Waste Management. In an effort to fulfill its obligation to Morehouse Parish, Waste Management needed to hire temp workers. CPST contractually agreed to supply Waste Management with employees. Mr. Kindle was employed by CPST.

Mr. Bradley was driving a truck registered to Waste Management. Mr. Kindle was a passenger in the truck driven by Mr. Bradley. Upon coming to a train track Mr. Bradley made the tragic mistake of crossing over the tracks as a train passed the intersection. Both Mr. Bradley and Mr. Kindle was sadly killed as a result of the collision with the train. Mr. Kindle's parents sued Waste Management alleging that it was liable for any negligence that was attributed to Mr. Bradley while he was driving the garbage truck. The police report stated that the accident was likely the result of Mr. Bradley's inattentivness. Waste Management argued that under the two contract theory, Mr. Kindle was its employee and because there was negligence and not intentional conduct, the only remedy available was workers' compensation. Because Waste Management held a position as a general contractor in relation to Morehouse Parish, and CPST held a relationship with Waste Management as a subcontractor, the circumstance of the contractual relationships fell under the definition of the two contract theory. Therefore, Mr. Kindle was considered an employee of Waste Management and the only remedy available was workers' compensation.

If you have been injured on the job, please call the Berniard Law Firm to ask an attorney what your rights are in the workplace.

February 12, 2013

Laissez les Bon Temps Rouler!

The Berniard Law Firm is proud to be a New Orleans-based organization and nothing says NOLA better than Mardi Gras!

We wish all of our readers a happy, and safe, Mardi Gras holiday!

February 4, 2013

Kentucky Supreme Court Case Shows Need for Excellent Representation

A recent case within the Kentucky Court of Appeals demonstrates very extremely the need for quality counsel in all court proceedings. Regardless the subject or reasons you may find yourself in court, it is important that the lawyer you hire is not only able to represent you well in the courtroom and past it. While you would like to think the courts have the rule of law well established in the minds of their judges, a qualified attorney will also review the matters at hand to make sure all 'facts' are correct in the proceedings.

In the case of Bramer Crane Servs., LLC v. Structure Builders & Riggers Mach. Moving Div., LLC, a lien issue was reviewed by the superior court of the state. While the actual facts of the case are not important for this post, what is important is that the findings of the court were inherently flawed. Cited in the case was a fact that was severely outdated, as much as 20+ years and two revisions.

As the blog Zlien notes, instead of a clean finding, the court had lapsed in its research and failed to note updated law. The issue was that the ruling relied on judicial precedence rather than a review of legislation passed during this time. While one would like to consider the issue a simple lapse in judicial research, the fact remains that this unpublished decision could very easily have gone unnoticed without people stepping up.

All of this boils down to one genuine reality: the need for qualified representation. An attorney with significant experience and a passion for their work will make sure that all of the proceedings, whether it their own research or that of the other party, even the court itself as shown in this instance, are followed properly and effectively within the rule of law. While precedent is easy to rely upon, a qualified attorney also reviews dynamic arguments and application of various laws to make sure the best information is presented.

The fact remains, regardless on if the case is a personal injury issue, a lien or a variety of other matters, the judicial process requires methodical, step-by-step review of subject matters and facts to make sure the proper ruling is found.

January 28, 2013

Louisiana Liability Lawsuit Against Sand Supplier for Silicosis Dismissed

In nearly all cases, sand on a beach is enjoyable and safe. Sand used for sandblasting, however, creates dust that, upon being inhaled by an unprotected worker, increases the risk of lung disease or other lung-based medical concerns. The Louisiana Court of Appeal decided in Bates v. E. D. Bullard Co., that the possibility of problems does not make the sale of a product like sand unreasonable, especially when that use is outside the normal, non-technical purpose.

Wilbert Bates worked for the SBA Shipyards during the 1980s doing tasks that included cleaning and sandblasting. Both types of duties exposed him to silica dust -- pieces of sand so small that he inhaled them and they stuck in his lungs that led to silicosis. Silicosis is an industrial disease that leaves its victims short of breath due to small sand particles becoming lodged in the lungs. The presence of particles encourages the growth of fibrous tissue in the lungs, reducing lung capacity. A lifetime of work can result in wheezing and body strain in an attempt to get air.

Bates and his wife sued Specialty Sand Co. and Southern Silica of Louisiana, Inc., which provided sand to the shipyard. The Bateses claimed that the sand was unreasonably dangerous or defective because the sand companies failed to warn and instruct him and the shipyard of the potential hazards.

These types of cases are known as product liability claims. Companies cannot sell products that are unreasonably dangerous or defective; if a product's danger can be reduced through education, the manufacturer may protect itself with proper warnings and instructions addressed to the person who uses the product directly. In their response to this case, the sand suppliers claimed they had no duty to warn Bates or the shipyard of the dangers of using sand for sandblasting. The 31st Judicial District Court, Parish of Jefferson Davis agreed, leading the Bates' to appeal.

In 1998's Damond v. Avondale Industries, Inc., the court concluded that a sand supplier had no duty as a matter of law to warn its customer, who used the sand for sandblasting, of potential harms that could come about from extraordinary usage. The sand that was sold was ordinary sand and, thus, not unreasonably dangerous. The target concern for court analysis, then, came from how the sand was used.

Regulations under the Occupational Safety Health Act (OSHA) provided enough warning by requiring respiratory protection during sandblasting, the Damond court explained, and the sand purchaser would know those rules. In fact, the purchaser was a sophisticated user, skilled in using the product, to whom there is no duty to warn. Finally, the supplier could not control employee use of the sand and had no practical means to warn them. The court held that the sand supplier had no duty to warn the end user.

The Bateses gave four reasons why the district court was wrong to dismiss the sand suppliers. Using Damond and related cases, the Court of Appeal disagreed with them. The Louisiana Court of Appeal in other cases came to similar conclusions and declined to review those decisions, thus making the ruling/case standing as good law.

If you believe you have been harmed by a product, it is important to seek advice from a lawyer skilled in product liability cases. Challenges in these matters are abundant in claims seeking recovery for injuries from diseases contracted from long-term exposure as an employee because it may take years to notice the injury. A lawyer skilled in product liability law will help you obtain the best recovery possible.

Continue reading "Louisiana Liability Lawsuit Against Sand Supplier for Silicosis Dismissed " »

January 24, 2013

Admissibility of Photos One Part of Drive-Through Accident Involving Ambulance

In the case of Johnson v. Smith, an ambulance driver drove his vehicle into the rear panel of another driver's vehicle. This occurred in the drive-through lane of a Taco Bell. The defendant ambulance driver was determined to be at fault and lost at trial. On appeal, the defendants urged that certain pictures that had been deemed inadmissible at trial were crucial to their case. They claimed that it constituted reversible error on the part of the trial court not to admit the photographs in question. The appellate court disagreed and affirmed the trial court's opinion.

The first reason for the appellate court's decision on the matter of the admissibility of the photographs was that the photographs were not properly authenticated. While the law does not require photographs to be perfect representations of what they stand for, there is a standard that must be met. Photographs must be "sufficiently correct" before being admitted at trial. A trial court is permitted to admit photographs that have inaccuracies as long as the inaccuracies are explained. In this case, the police officer who was attempting to authenticate the photographs as taken by him may or may not have appeared in one of the photographs. This put the true origin of the photographs into question for the trial court. Because evidentiary rulings of a trial court are given great deference on appeal, the appellate court would only have disturbed this finding if it had found an abuse of discretion. Finding no such abuse of discretion, the court did not reverse on these grounds.

Another interesting reason for the appellate court's decision in this case is that the court did not find that the photographs, if admitted, would have been at all helpful to the defendants who were urging the admission of those photographs. The court noted that the photographs may have been helpful to the plaintiffs in this case but found that the photographs would not have advanced the cause of the defendants. This type of harmless error is not going to result in a new trial for an aggrieved party. The appellate court found that the only real purpose that these photographs served was to establish the identity of the vehicles involved in this accident. None of the parties to the suit disputed the identity of the vehicles involved in the underlying accident.

Because evidence is how a case is proven, it is important to argue any evidentiary rulings in a case zealously at trial. There are many cases in which a particular piece of evidence can make or break one side or the other's theory of the case. These photographs were not truly crucial to the defendants' case and perhaps it was not even worth appealing the case on that issue. However, had the trial court been deemed to have misapplied the law or the rules of evidence to the detriment of the losing party, a new trial would have been granted at which the law could be applied correctly. This case did not turn on the admissibility of these particular photographs. The result likely would have been the same had they been admitted. However, authenticating evidence correctly is important because the same principles of evidence apply to unimportant photographs as apply to key documents or testimony.

Getting the evidence that proves your theory of the case in front of the jury or to be considered by the judge is necessary in order to be successful at trial. The only way to do this is by laying the appropriate foundation for both your testimony and your exhibits. Properly authenticating testimony and exhibits is crucial to successful trial strategy.

Continue reading "Admissibility of Photos One Part of Drive-Through Accident Involving Ambulance" »

October 17, 2012

Importance is What, Not Who, in School Mineral Lease Case

Recently, the Vermillion Parish School Board sued various oil, gas, and mineral companies based on mineral leases that were established over a period of nearly 70 years. The companies included Union Oil Company of California, The Pure Oil Corporation, and ConocoPhillips Company. After the school's argument was rejected at the lower level in separate lawsuits, the school filed to appeal the trial court's decision. The State of Louisiana Court of Appeal for the Third Circuit reversed the lower court's findings and its justification for doing so is quite interesting. That court addressed the mineral leases generally, the use of Section 16 lands, and the school's role in the use of Section 16 lands.

This case involved several unique concepts under the law. First, the dispute centered around mineral leases, which are an curious concept themselves. Basically, mineral leases allow another person or company the ability to mine or take the minerals that are on or underneath a portion of land. In order to take those minerals, the person or company has to pay for their use as if they are renting the entire property. The land above ground might also be used for another purpose that is completely unrelated to mining of minerals, oil, or gas underneath the surface. In addition to a specified rent, many times the person or company who owns the land may also require that they receive a portion of the profits that the land produces. This profit portion is commonly referred to as royalties. These royalties are the topic of discussion in the Vermillion Parish School Board case.

In this case, a school owned lands that they had leased to various oil, gas, and mineral companies. The school was situated on Section 16 land. This concept is also unique and deserves some historical explanation. The State of Louisiana Court of Appeals for the Third Circuit provides some background on the status of this land. It explains that in 1806, the United States government set aside some land for the use of public education. Therefore, when Louisiana joined the Union in 1812, the land that was set aside was passed to the State to establish public education. These lands are separate from other public lands because they are completely under the control of the state school authorities; therefore, they are held in trust for the benefit of Louisiana school children. The court further explains that although the school authorities control the use of the land, the land is actually owned by the State of Louisiana.

These two concepts are merged because agencies of the state can lease their land for the development and production of minerals. The Louisiana statutes define a “school board” to be an agency of the state; therefore, the school board can lease their land for development and production of minerals. The contested issue in this case, however, is not whether the school board could lease their land, but whether the school board could bring suit against the oil, gas, and mineral companies for failing to pay royalties on the land.

The major obstacle to bringing suit is that there is a three-year prescriptive period to bring suit for this purpose. That is, if the complaining party waits too long (past three years) to bring the case to the court's attention, then they may lose their right to be able to sue. In this case, the contracts that the school is bringing their complaint on were created at various points, with the earliest being 1935 and the latest being 2000. Therefore, all of these suits would be barred based on the prescriptive period of three years.

In order to combat this restriction, the school pointed out that the three-year prescriptive period does not apply to “state-owned properties”. However, the wrinkle in this argument is that the law states that agencies must be subject to prescriptive periods. The court goes on to explain that although the school board would be subject to prescriptive periods, because the mineral leases involve Section 16 lands and those lands are “state-owned properties,” then those lands are not subject to the prescriptive period. It follows then, that the contracts involving the Section 16 lands are not subject to the prescriptive period even though it was the school authorities who entered into that contract. The State still owns the land; therefore, those lands cannot be subject to prescriptive periods. As a result, the court concludes that the issue of whether or not the school is a state entity is irrelevant because the lands are “state-owned.”

In support of their reasoning, the court points out a statement included in the Louisiana Constitution, Article 9, section 4B that states, “[l]ands and mineral interests of the state, of a school board, or of a levee district shall not be lost by prescription.” The court also makes a distinction between lands the school board owns itself and Section 16 lands, where the school board does not own it, but has authority over it. It also points out that the school needs to include the State in the suit and in their mineral contracts because otherwise the prescription would apply. In this case, the school correctly brought the suit on behalf of the State of Louisiana.

Land ownership, specifically when it involves mineral leases, can be very complicated.

Continue reading "Importance is What, Not Who, in School Mineral Lease Case" »

October 13, 2012

Jones Act and Seaworthiness Claims Heard by Court of Appeals

Being located on the coast, many southern Louisiana residents work aboard vessels in the Gulf of Mexico. While these jobs may pay well, they can also be extremely dangerous. Fortunately, maritime laws seek to protect ocean and river-going workers from conditions that pose health and safety risks. A recent case out of the Court of Appeals for the Fifth Circuit highlights some of these protective laws. In that case, an engineer aboard a diving vessel brought suit against his employer for numerous violations he claimed caused new and exacerbated already existing health conditions. The engineer first made three claims under the Jones Act.

The Jones Act essentially allows a maritime employee to sue his employer for personal injuries that result from negligence. The first claim the engineer made under this Act was that his employer failed to give him adequate rest periods. According to the Jones Act, every individual in charge of an engineer watch is to receive a 10 hour rest period in a 24-hour period. This regulation seeks to ensure that employees are properly rested and therefore attentive in their duties. In this case, though the engineer testified he worked 16 to 18-hour days, he failed to provide any objective evidence supporting his claim.

The second claim made under the Jones Act was that the engineer's employer failed to provide qualified personnel to relieve the engineer from duty. When a qualified individual is available to cover another employee, fully rested and attentive employees remain on post. This ensures that conditions onboard the vessel remain safe. Here, however, the engineer testified that the other personnel aboard the vessel were qualified, capable and competent. In addition, the court held this section of the Jones Act to apply only when the work being performed is specialized. If the work being conducted is routine and simple the qualifications of the relieving person are inconsequential.

The final claim the engineer made under the Jones Act was that his employer failed to post a watch schedule. The argument was that by failing to post a watch schedule, the engineer did not know when he was supposed to take his rest time. However, the court found that it was up to the engineer to get his rest and the posting of a watch schedule could not compel him to rest. Therefore, a failure to post a watch schedule did not directly correlate to the engineer's injuries. The court also found that the small size of the vessel exempted it from this requirement.

Employees harmed while working onboard a vessel can also bring suit for unseaworthiness. To be seaworthy, a vessel must be reasonably fit for its intended use. This means that a crew shortage, an unqualified crew or a physically damaged vessel can be reason for suit. Yet, to succeed on an unseaworthiness claim, a plaintiff must prove that the unseaworthiness was played a substantial part in bringing about the claimed injuries and the injury was a direct result or a reasonably probable consequence of the unseaworthiness.

When an individual succeeds on a Jones Act or seaworthiness claim, he can obtain compensation for numerous harms. Medical costs, pain and suffering and lost wages can all be recovered and can, thus, receive the best care possible without the stress of mounting debt. Victims should be able to focus on their physical and emotional recovery - a successful lawsuit allows this to happen.

Since employment aboard sea-going vessels can be dangerous, the law does its best to protect employees from unsafe conditions. Employers are well aware of the Jones Act's requirements and the need for seaworthiness. When these companies fail to protect their employees, they should pay for the harm they have caused. Yet, these cases are often very complex and best left to an experienced maritime attorney.

Continue reading "Jones Act and Seaworthiness Claims Heard by Court of Appeals" »

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October 9, 2012

Chlorine Gas Leak Case Offers Lesson on Products Liability Claims

Four workers who were employed by the Prairieville-based Proserve Hydro Co. were working on at a Honeywell International facility when a hose carrying chlorine gas ruptured, causing them injury. The workers sued Triplex, Inc., the company that had sold the hose to Honeywell, under the theory that it was liable for their injuries as the manufacturer of the hose. The U.S. District Court for the Middle District of Louisiana, applying the Louisiana Products Liability Act (LPLA), granted summary judgment in favor of Triplex, and the workers appealed.

In its review, the U.S. Court of Appeals for the Fifth Circuit noted that The Louisiana Supreme Court has identified four elements that a plaintiff must establish in a products liability suit under the LPLA. It focused particualrly on the requirement that the defendant must be the "manufacturer" of the product according to the state's definition. The lower court's summary judgment was based on Triplex's position that it was not a manufacturer of the hose within the meaning of the LPLA. The hose in question was a "Resistoflex Chlorine Hose Part # HB30HB30HB-1560." It consisted of a Teflon inner-core surrounded by a braided material jacket. The core and jacket were assembled by the Crane Resistoflex Company and shipped in bulk to Triplex for distribution. Upon receipt of an order from Honeywell, Triplex cut the hose to the requested length, installed Resistoflex-approved fittings to either end, and pressure-tested the hose. Triplex recorded the specifications of this work on an assembly test certificate which listed "Resistoflex" as the manufacturer of the hose.

The court looked to the LPLA to determine whether, based on its cutting the Resistoflex hose and installing the end fittings, Triplex fit the definition of "manufacturer." It noted that the workers' expert conceded that the hose rupture occured a significant distance away from any end fitting and did not appear to result from the modifications Triplex performed. It also affirmed the point that "the simple act of testing a product after modifications," as Triplex did, "does not transform a seller into a statutory 'manufacturer.'” The court was not persuaded that Triplex exercised any “control over... a characteristic of the design, construction or quality of the product," given that Honeywell specified the exact Resistoflex part number and the end fittings it required. Accordingly, the court concluded that Triplex was not a manufacturer under the state law definition, and therefore could not be found liable for the workers' injuries under the LPLA.

Although the workers presented a sympathetic case -- on-the-job injuries are a serious matter that no one wants to have to face -- their defeat at summary judgment demonstrates the importance of choosing a theory of recovery carefully. Louisiana's product liability law, while certainly intended to protect innocent people from dangerous and defective items, does not aim to create liability where it does not exist. The requirement under the LPLA for a plaintiff to prove a defendant's status as a manufacturer seeks to permit recovery only from parties who are truly responsible for creating a product.

Continue reading "Chlorine Gas Leak Case Offers Lesson on Products Liability Claims " »

October 7, 2012

Louisiana's Third Circuit Upholds Prescription Finding in Kinder Property Contamination Case

In 1960, Hunt Petroleum Corporation ("Hunt") entered into a surfaces lease with the Reynolds family. In 1997, Kinder Gas Processing Corporation ("Kinder Gas"), one of Hunt's successors in interest, notified the Reynolds of an environmental study "that showed a few things [Kinder Gas] wanted to clean up," and that it was "in the process of cleaning them up." Over several years, Kinder Gas discussed with the Reynolds the possibility of buying part of the property and cancelling the entire lease. On January 14, 2008, the Reynolds (through a real estate appraiser) offered to sell the entire property to Kinder Gas. The offer referred to environmental problems on the property caused by Kinder Gas or its predecessors.

In 2010, Kinder Gas brought suit for a declaratory judgment against the Reynolds to avoid liability for damage to the Reynolds' property. In turn, the Reynolds sought damages against Kinder Gas and other successors ("the Gas Companies") in connection with toxic wastes that were spilled or disposed on the property. The Reynolds relied on theories of strict liability, nuisance, continuing trespass, and breach of contract. They asserted that the lease was cancelled as a result of the Gas Companies' breach of contract. The Gas Companies countered that the tort claims had prescribed, and that the breach of contract claim was premature.

The Kinder Gas v. Reynolds trial court agreed with the Gas Companies, finding that the Reynolds' had constructive knowledge of possible contamination prior to the real estate agent's January 14, 2008 offer. Citing Marin v. Exxon Mobil Corp. and Hogg v. Chevron USA, the court held that the Reynolds' failure to file their tort claims within a year from this date resulted in prescription. The court also found that the lease was still in effect. Relying on Dore Energy Company v. Carter-Langham, Inc., the court held that the Reynolds' contract claim for restoration of land on which operations were ongoing was premature.

The Reynolds appealed to Louisiana's Third Circuit Court of Appeals. The Reynolds asserted that they had no knowledge of the environmental damage, other than a few surface oil stains, until Kinder Gas's 2010 lawsuit. The Reynolds also contended that the doctrine of contra non valentem should apply to suspend the prescriptive period, as the Gas Companies had allegedly withheld information on the severity of the contamination. Finally, the Reynolds argued that their contract claim was based on a surface lease, rather than the Louisiana Code provisions related to mineral leases considered in the Dore case.

The appeals court's February 1, 2012 decision upheld the lower court's ruling on prescription, citing evidence that the property contamination was discussed on numerous occasions during the course of negotiations for the sale of the property. Knowledge of this contamination triggered a duty to investigate the damage and "the legal requisite of filing suit within one year of acquiring that knowledge." The court found that there was no evidence of information being withheld and nothing to prevent the Reynolds from filing suit as early as 1998.

The appeals court also agreed with the lower court's rule on prematurity. Citing Corbello v. Iowa Production, the court held that the duty to restore leased property does not arise until the expiration of the lease.

Since the evidence on record showed that the trial court's rulings on prescription and prematurity were not manifestly erroneous, the appeals court affirmed the trial court's dismissal of the Reynolds' claims.

Continue reading "Louisiana's Third Circuit Upholds Prescription Finding in Kinder Property Contamination Case" »

October 5, 2012

Louisiana's Third Circuit Overturns Decision Limiting Landowners' Recovery of Damages in Vermillion Parish Pollution Case

In Louisiana v. Louisiana Land and Exploration, the State of Louisiana and the Vermilion Parish School Board brought suit against Union Oil Company of California ("Unocal") and other oil companies for remediation of polluted state property in Vermilion Parish. Unocal admitted that it was responsible for environmental damage on the property and filed a motion to refer the case to the Louisiana Department of Natural Resources (LDNR) pursuant to Act 312 of 2006, La.R.S. 30:29. Plaintiffs objected, arguing that such a referral could not take place until all Defendants admitted responsibility and the private claims were tried to the jury. The trial court agreed with Plaintiffs.

Unocal filed a motion for partial summary judgment limiting Plaintiffs' remediation damage claims to the amount determined by LDNR to be "the most feasible plan to evaluate or remediate the environmental damage" under La.R.S. 30:29(c)(3). Unocal argued that this language served as a cap on remediation damages resulting from a tort or the implied restoration obligation of a mineral lease. The trial court agreed.Plaintiffs appealed to the Louisiana Third Circuit Court of Appeals, which issued a decision on the case on February 1, 2012.

In considering whether La.R.S. 30:29 limited Plaintiff’s recoverable remediation damages to the cost of a "feasible plan,” the appeals court first looked to the language of the statute. The court quoted the first sentence of La.R.S. 32:29(H): “This section shall not preclude an owner of land from pursuing a judicial remedy or receiving a judicial award for private claims suffered as a result of environmental damage, except as otherwise provided in this Section.” The court found that this language clearly contemplated the landowner receiving an award in addition to that provided by the feasible plan.

Unocal focused on the second sentence of La.R.S. 32:29(H):"Nor shall [this section] preclude a judgment ordering damages for or implementation of additional remediation in excess of the requirements of the plan adopted by the court pursuant to this Section as may be required in accordance with the terms of an express contractual provision." Unocal argued that "additional remediation" damages described in this sentence were the only additional damages a landowner could recover. The court found that this argument completely ignored the first words of the second sentence: “Nor shall it preclude.” The court explained that the first sentence in La.R.S. 32:29(H) guaranteed the landowners’ right to pursue a private claim in court, while the second sentence protected the landowners’ rights to recover additional damage under the terms of a contract.

The court noted that since the language of the statute was clear, it did not need to consider legislative intent. Nevertheless, the court observed, La.R.S. 30:29(A) & (G) clearly indicated the legislature's intent to protect the public interest in the remediation of oilfield lands. The court found that limiting landowners’ damages could reduce their incentive "to engage in the costly and extended litigation necessary to resolve this type of claim."

The appeals court thus reversed and remanded the trial court's order granting partial summary judgment in favor of Unocal.

The Berniard Law Firm represents plaintiffs whose land has been contaminated by oil and gas operations. For assistance pursuing a land contamination claim or a personal injury, please call the Berniard Law Firm today to speak with an attorney immediately.

October 1, 2012

Maritime Injury Leads to Lawsuit Against Employers Leads to Jurisdiction Issue

An employee working on the deck of a marine vessel suffered injuries to his back and hips after a crane moving equipment from the dock swung a cargo basket at him and pinned him to the ship. The employee sued the company operating the crane as well as his own employer who operated the ship he was loading.

The plaintiff-employee, Hamm, and the defendant-companies, Island Operating Company (IOC) and Rodan, disagree about what jurisdiction controls this case. The plaintiff argues that his claims fall under admiralty jurisdiction and as such elected to undertake a non-jury trial as allowed under Rule 9(h) of the Federal Rules of Civil Procedure. But the defendant companies desire a jury trial and believe that the case falls under the Outer Continental Shelf lands Act (OCSLA).

What law is applicable in this case—admiralty or OCSLA—is determinative in this case due to the different statute of limitations. If the case falls under federal maritime law then the employee has three years to file his claim, but if the case falls under OCSLA then the case will fall under the law of the adjacent state (in this case, Louisiana) and the employee had to file his claim within a year. If OCSLA is found to be the applicable law then the employee’s claim will not be valid since he filed suit fifteen months after the accident. If federal maritime law applies, then not only will Hamm be entitled to the non-jury trial he wants, but Rodan and IOC will not be able to throw the case out.

The district court found for Hamm, deciding that the case should be classified as an admiralty suit. IOC appealed, arguing that Hamm’s claims are time-barred under OCSLA’s statute of limitation or, alternatively, that it is entitled to a jury trial. Hamm countered with the argument that the trial court made the correct decision in holding federal maritime law as the governing law. The appellate court agreed, upholding the trial court’s holding.

The court must look to three different elements when deciding if the law of the adjacent state applies under OCSLA: a) the controversy must arise on structures covered by OCSLA like those attached to the subsoil or seabed; b) federal maritime law must not apply of its own force; and c) the state law must not be inconsistent with federal law. The appellate court rejected OCSLA as the governing law because, in this case, federal maritime law does apply. In order to invoke federal admiralty jurisdiction, Hamm needed to prove that both the location of his accident and the manner of which the accident occurred were connected with maritime activity. Hamm suffered his injury aboard a ship so the location factor is satisfied and he suffered his injury while helping to load cargo onto said ship which is clearly a maritime commerce activity.

Since this is a maritime tort action, federal maritime law applies of its own force and Hamm’s claims against IOC and Rodan are not time-barred. A statute of limitations period of three years applies and Hamm is well within his rights to demand a non-jury trial under the federal maritime law.

If you were injured while working in the maritime community and wish to pursue a claim, please contact Berniard Law firm for assistance.

September 27, 2012

Choice of Law: Wrongful Death Case in Amelia, LA Uses Louisiana Law

As you may know, different states have sometimes very different laws. Laws are overall somewhat similar, but small discrepancies between state laws will matter a great deal in a lawsuit. The most common example of this type of conflict occurs when an individual has been injured in one state, usually while traveling, and actually lives in another state. Whose law applies in that situation? Naturally, the states have come up with a generalized test for the court to consider.

The test is usually referred to as the “significant relationship” test. The court will determine which state has the strongest connection to the lawsuit. It will consider factors such as where the injured party lives, where the injury occurred, who caused the injury, and where the causing party lives. Where the injury actually occurred is important because witnesses and evidence will be gathered from the scene. If those witnesses and evidence have to be transferred to another state, then the trial may become a lot more time consuming and expensive for both parties. In order to maintain efficiency, the court will weigh the location of the incident heavily.

In February of this year, the Fifth Circuit Court of Appeals considered a case where choice of law was a major issue. In this case, an individual was killed as he was being transported in a helicopter to an oilrig in international waters off the coast of Louisiana for employment purposes. The helicopter hit a bird and went down, killing eight of the nine people that were in it. The crash was attributed to a product defect.

The deceased was survived by his two parents, who resided in Florida, and a son. The parents brought suit against the helicopter manufacturer; however, the mother of the child also brought suit on behalf of her son. The parents filed in Florida while the mother of the decedent's child filed in Louisiana. The Florida court determined that Louisiana actually fit the significant relationship test more so than Florida. The Restatement (Second) Conflict of Laws provides a list of factors that the court should consider when determining which state fits the significant relationship test. These include:

- The needs of the interstate and international systems - Is this a sensitive interstate or international issue that needs to be carefully weighed? - The relevant policies of the forum - For example, the court will consider whether the case will be dismissed because of other state laws. If they know it will be dismissed in the other forum, then they may not move the case. - The relevant policies of other interested states and the relative interests of those states in the determination of a particular issue - Does Louisiana have a specific interest in this case? - The protection of justified expectations - Will the result of the case be fair and unbiased? - The basic policies underlying the particular field of law - Does the other state have an established processes to address the issue? - Certainty, predictability, and uniformity of result and - Ease in the determination and application of the law to be applied.

After a series of moves from court to court, a Louisiana court combined the two cases in order to determine which suit would actually be allowed to move forward. In Louisiana, a parent cannot sue when there is a surviving spouse or child. Therefore, the court effectively eliminated the parents' lawsuit because they chose to use Louisiana law instead of Florida law to govern the case. The Court of Appeals for the Fifth Circuit agreed with this reasoning and affirmed the decision.

This case illustrates that not only can choice of law be very important to the outcome of a case, it is also a very difficult subject to tackle. Experienced attorneys can help determine whose law to use and how to apply it in injury and wrongful death cases.

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September 19, 2012

How Louisiana Determines Damages for Personal Injury

When a court award damages, the judges commonly look to whether or not that pain and suffering can be attributed to the defending party, the amount of time a victim suffered, and how much pain and suffering occurred. The cause is perhaps the most important aspect of whether or not a party will be awarded damages. It makes little sense for a defendant to have to pay for pain and suffering to the plaintiff if the defendant's actions did not cause that pain and suffering. Then, the length and intensity of the suffering will help determine how much money will be awarded.

In a recent case, the plaintiff appealed from the Parish of Lafayette to the State of Louisiana Court of Appeal for the Third Circuit based on the issue of damages. In this case, the plaintiff was in a car accident where she suffered significant damage to her back. As a result of this injury, she spent approximately twenty-eight months with the chiropractor attempting to correct the damage sustained to her lower back.

Although the victim visited the chiropractor before the accident occurred, the doctor recorded the services rendered before and after the accident. The doctor stated that the victim's injuries worsened and the accident definitely caused the worsened condition. The lower court awarded general damages and medical fees, but it only ordered enough general damages that would cover seven months after the accident. It explained that the victim was already seeing the chiropractor; therefore, the services she received after the accident were only relating to a condition that was already present before the accident.

The medical fees awarded covered the victim's chiropractic visits for the entire twenty-eight month period in which she was treated. The general damages were a much larger sum; however, the Court of Appeals decided that those damages still needed to be increased from the amount that the trial court awarded.

General damages are used to compensate the victim for pain and suffering. This type of damages is difficult to quantify; they "involve mental or physical pain and suffering, inconvenience, the loss of intellectual gratification or physical enjoyment, or other losses of life or life-style which cannot be definitely measured in monetary terms." In this case, the victim, who traveled frequently for work, could not travel in her vehicle for more than an hour, had trouble lifting things, and getting in and out of her car became increasingly difficult. She also complained that she had trouble doing normal housework, which strained the relationships in her family over time. Obviously, the victim's life-style changed significantly.

The appeals court ruled that it made little sense that the lower court would award medical expenses for the entire twenty-eight month period but would award general damages for pain and suffering for only seven months after the accident. The court wanted to correct this inconsistency. In order to make this correction, the court needed to determine what a reasonable amount of damages for this type of injury would be. The court looked to past cases where the victim suffered a similar accident and similar injuries. Once it found such a case, it can use it as a range of possible damage awards.

The Court of Appeals increased the general damages from $20,000 to at least $43,000. The medical expenses awarded stayed at $6,458. In addition, the plaintiff attempted to get monetary damages for future medical expenses, but there was some confusion as to whether the victim would actually need any future medical care, so the court did not award damages for this purpose.

The court has this much-generalized process to determine damages in order to provide some structure in how victims are awarded money after they are injured. A competent attorney can help victims walk through the court's process.

Continue reading "How Louisiana Determines Damages for Personal Injury" »

September 12, 2012

Maritime Injury: The Jones Act and How it Applies to Recovering Damages (Part 2)

This post is a follow up regarding the worker's compensation claims in a maritime case previously discussed in "Maritime Injury: The Jones Act." The Fifth Circuit Court of Appeals also addressed the complicated worker's compensation aspects of this case in addition to the rejection of the use of The Jones Act in the injured party's attempt to avoid an employer's contributory negligence claim. In order to fully understand the worker's compensation aspects of this case, it is important to consider some additional facts of the District Court's decision.

As a reminder, a crane mechanic employed by a third party was injured on an oil rig due to the partial negligence of himself and the owners of the rig. He fell through an uncovered ladder from the top portion of the crane cab and was seriously injured when he landed on the deck below. After his injury, the employee was no longer able to work as a crane mechanic but remained an employee for his previous company.

While the injured man was unable to work as a crane mechanic, his employer gave him a clerical position and paid him significantly more than someone in a clerical position would earn. His employer continued to pay him the wage he earned as a crane mechanic and although he only worked approximately twenty hours a week, his employer paid him for fifty-five hours per week. The lower court determined that this dramatic increase in wages for the work done could be considered an advance of worker's compensation benefits. They based this determination on the original intention of the employer. The Court of Appeals affirmed this decision by stating that the lower court had ample evidence to make this conclusion.

The lower court also found that both parties were partially liable for the employee's accident. Therefore, the damages awarded to the employee in this case were reduced by the difference in what he should have gotten paid in the clerical position and what he was actually paid. That amount was then awarded to the employer's insurance company to compensate for worker's compensation that will be paid to the employee. That meant that the owner of the rig had to pay the insurance company for future worker's compensation payments. The payment was subtracted from the award that the employee received from the owner of the rig.

The employee argued that the damages awarded to the insurance company should at least be reduced by the amount of negligence attributed to the owner of the rig instead of entirely taken from his earned wages. However, the court did not agree with this argument because the negligence was committed by the owner of the rig, not the employer. The employer pays the worker's compensation benefits; therefore, it would be inappropriate to reduce a payment from one party based on a third party's error.

The Longshore and Harbor Workers' Compensation Act provides occupational injury coverage and disease prevention for workers who may acquire these conditions while working on the waters of the United States. The Act covers approximately 500,000 people within the United States. Coverage is either paid directly by the employer or by an insurance company that the employer acquires. There are also special circumstances in which a fund that this Act has developed will pay workers for their injuries. In this case, the employer had an insurance company who would have to pay the injured worker.

In this case, the court determined that the increased wages amounted to payment of worker's compensation under this act. Therefore, the court concluded that neither the employer nor the insurance company should have to pay the employee compensation twice by having a separate worker's compensation payment. This case illustrates that workers' compensation cases can be extremely complicated because they involve so many parties; this case involved the employee, owner of the rig, the employer, and the employer's insurance company even though there were only actually two parties in this case. The aid of competent attorneys is vital in these types of cases. The attorneys at The Berniard Law Firm can help with many workers' compensation cases.

Continue reading "Maritime Injury: The Jones Act and How it Applies to Recovering Damages (Part 2)" »

September 10, 2012

Maritime Injury: The Jones Act and How it Applies to Recovering Damages

The Court of Appeals for the Fifth Circuit addressed an injury case that involved a crane mechanic who was injured on an offshore drilling rig. The man was injured when he fell through an uncovered ladder hole on the top portion of the crane cab which was about fourteen feet above the deck of the rig. As a result of his injuries, he is now unable to work as a crane mechanic, but he has returned to work in a clerical capacity for the company in which he was working for previously. The two parties in this case are the employee and the owner of the rig on which he was injured; however, this case is complicated because the employer is also involved in the worker's compensation claims.

This case involved a cross appeal where both parties appealed some part of the lower court's decision. There were a few issues that arose in this case that that Court of Appeals addressed. This case touches on the Jones Act and considers the concept of contributory negligence. This case is also based on the Longshore and Harbor Worker's Compensation Act so it affects the employer and their insurance company as well. This post will present the basic facts of this case and discuss the Jones Act. A follow up post will address the worker's compensation aspects of the court's decision.1

The employee appealed based on the claim that that he did not contribute to his own injury by being careless. This concept is generally known as contributory negligence. He also argued that even if he was partially responsible, the Jones Act protected him from being punished for his contribution to the injury. The owner of the rig appealed based on the claim that they were also not partially negligent. The Fifth Circuit Court of Appeals considered all of these issues in turn and affirmed the lower court's judgment. The court states that both parties were partially negligent in this case; the owner of the rig left open the cover through which the employee fell and the employee was not watching where he was going, thus contributing to his injury.

In response to this ruling, the employee argued that the Jones Act does not allow his damages award to be reduced based on his contribution to his own injury. The Jones Act is officially called the Merchant Marine Act of 1920 although it is commonly referred to as the Jones Act because Senator Wesley Jones sponsored the Act. The Act covers sailors who previously had few options for recovery if they were injured while performing their duties at sea. It offers sailors a variety of protections and also supports the American seaman because it requires that 75% of crew members be American citizens on all American owned or American flagged ships. It also restricts the parts used in the construction of the ship to be predominately American made. The Jones Act was clearly a significant benefit for the American sailor even as the United States was increasing their global presence.

The benefits that the Jones Act gives sailors are extensive. These benefits include payment of damages if the sailor is injured based on the seaworthiness of the boat or the negligence of the ship's owners or other crew members. These damages include not only money to cover medical expenses, but the sailor must also be paid a daily stipend while he or she is recovering from the injury. The Jones Act also provides death benefits should a sailor be killed while performing his duties at sea. Under this Act, even if the employee is negligent, if the employer is negligent then the employee's negligence gets canceled out and does not factor into monetary damage issues.2

What the employee in this case failed to realize is that the Jones Act only covers sailors and those working on ships. The employee was neither a sailor nor working on a ship; he was a contracted crane mechanic working on an oil rig. Therefore, although the Jones Act offers a lot of protections at sea, the court determined that it cannot be applied in this case. If the Jones Act had applied then the crane mechanic's negligence would not have mattered when determining the amount of damages to award for his injury.

The Jones Act is a complicated act that has complex and extensive benefits. A competent attorney is needed to help determine if an injured seaman can qualify for benefits. For the second half of this case regarding the workman's compensation claim, look for “Maritime Injury: Longshore Harbor Worker's Compensation Act” in upcoming blog posts.

Continue reading "Maritime Injury: The Jones Act and How it Applies to Recovering Damages" »

August 27, 2012

Court Determines Louisiana Man's $1.3 Million Award for Injury is Not Excessive

In October of 2009 a man was injured on a tugboat near Amelia, Louisiana, while attempting to do his duty as a deckhand. Two major issues came up in this case when it went to the Court of Appeals for the Fifth Circuit. First, the deckhand had to prove that he did not cause or partially cause his own injury. Second, he also had to demonstrate that the damages he was awarded at the District Court level were not excessive. Both of these factors were proven and the injured man was awarded approximately $1.3 million in damages.

The deckhand in this case was on a small tugboat and attempted to transfer a big barge that they were hauling to another larger tugboat. The small tugboat crew made the transfer in the very early morning hours and while the sea was quite rough. The deckhand was injured when his tugboat dipped in a wave; a wire came untied, and struck him. He was thrown against a wall, which knocked him unconscious. As a result, he had fractures in two of his vertebrae and wore a back brace for a month before a serious surgery that fused his vertebrae together. He also has serious pain issues that will have to be controlled with a pain pump, which gives pain medication directly to the spinal cord, or the continued use of oral pain medication. His pain issues will likely continue for the rest of his life.

In order to collect damages, the deckhand needed to prove that his injury was not also partially his own fault because he was being careless. In legal terms, this is known as contributory negligence. This was a major issue because at the time that the deckhand was injured, he was in what was called a “pressure zone.” The pressure zone basically assumes that the portion of the deck in which he was standing was more dangerous at the time of the transfer than the other portions of the deck. This is because a wire that the boats used to transfer was tight at that portion of the deck, so if it came loose then the deckhands would lose control of it. The court determined that he did not contribute to his injury in this case because he was following the orders of his captain when he was injured. Previous case law has stated that individuals following orders cannot have contributory negligence because their superiors put them in that situation.

Once the court determined that the deckhand did not contribute to his injury, it awarded damages. The District Court awarded money for future lost wages, past pain and suffering, future pain and suffering, future medical expenses, and maintenance. The Court of Appeals will only reverse an excessive damage award when it is completely unreasonable. The court attempts to determine reasonableness by comparing the case to other similar cases. If a damage award is 133% more than a similar case then it might be excusive.

In this case, the court had a problem because there are very few cases to compare with this type of incident. The fact that the injury happened while on the water made it difficult because the comparison case should have happened under similar conditions and the victim should have a similar injury. The court looked to two cases that had similar injuries or similar situations. In those cases, the awards were either similar or slightly higher, so it determined that the damages were not excessive.

The deckhand in this case suffered a serious injury that resulted in a lifetime of pain problems and various surgeries and medical issues. He did not contribute to his own injury so the court awarded damages. Although the damages amounted to a large amount of money, the Court of Appeals determined that the damages are similar to other cases and therefore not excessive. Competent legal counsel can help you through all of these issues should the need arise.

Continue reading "Court Determines Louisiana Man's $1.3 Million Award for Injury is Not Excessive" »

August 23, 2012

Fifth Circuit Upholds Tanker Liability for Neches River Spill

In 2004, a barge and tugboat crashed into a large tanker ship, rupturing the tanker’s fuel tank and spilling 27,000 gallons of heavy fuel oil into the Neches River in East Texas. The owner of the tanker could be considered "strictly liable" for cleanup costs Under the Oil Pollution Act of 1990 ("OPA"), since the tanker was the vessel that had spilled the oil. OPA liability is not truly "strict," however, since the responsible party can pursue reimbursement from the Oil Spill Liability Trust Fund ("Fund") for cleanup costs that exceed a cap based on the vessel's gross tonnage. Also,the OPA allows the responsible party to escape strict liability by showing that an oil spill was caused solely by an act or omission of a third party, "other than a third party whose act or omission occurs in connection with any contractual relationship with the responsible party.
In 2007, the owners and insurers of the three vessels involved in the spill jointly sought reimbursement from the Fund. The claim submitted to the National Pollution Funds Center ("NPFC") also sought to declare that Buffalo Marine, the owner of the barge and tugboat, was the sole third party cause of the spill. If approved, this claim would have exonerated the tanker owner and limited Buffalo Marine’s liability to $2 million (based on the value of the barge) - significantly less than the potential $36 million liability cap for the large tanker.

NPFC denied the claim, finding that Buffalo Marine failed to prove that its acts were not connected to a contractual relationship with the tanker owner. Although there was not a direct contractual relationship between the vessel owners, Buffalo Marine was actually a delivery agent contracted by a fuel seller to supply the tanker with fuel. NPFC found that the tanker owner and Buffalo Marine had an indirect contractual relationship, and that the spill was caused by Buffalo Marine’s actions in connection with that relationship.

Buffalo Marine unsuccessfully appealed NPFC's decision to a district court and then to the Fifth Circuit.The Fifth Circuit's decision, issued in November 2011, upheld NPFC's finding of the tanker owner's liability. The court considered whether NPFC's interpretation of acts "in connection with a contractual relationship" was entitled to deference under Chevron USA v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), which requires a court to defer to an agency’s interpretation of an ambiguous statute if the interpretation is not arbitrary and capricious. After determining that OPA did not directly address the issue, the Fifth Circuit found that the term "contractual relationship" was broader than the term "contract," such that a contractual relationship could exist between a party to a contract and a third party. The court also considered Congress's use of the word "any," and found that the phrase "any contractual relationship" must necessarily include all varieties of contractual relationships.

The court also looked to the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), another federal pollution statute with a similar third party defense to liability. CERCLA specifically excludes a third party defense where the third party’s act or omission is "in connection with a contractual relationship, existing directly or indirectly, with the defendant." The court found the similarity of these provisions significant in light of the "common purposes and shared history" of the statutes.

The court also considered OPA’s legislative history. The version of OPA that originally passed the House of Representatives used the phrase "a contractual relationship," while the Senate version used the language contained in CERCLA regarding indirect relationships. The court quoted language in the conference report indicating that it adopted "the Senate language on complete defenses to liability," though the conference slightly changed the wording.

Finally, the court determined that requiring a direct contractual relationship to defeat a defense of third party liability would allow anyone to escape liability just by adding an extra link or two in the chain of distribution.

After concluding that the NPFC interpretation was entitled to Chevron deference, the court determined that the agency’s decision should be upheld because it was supported by substantial evidence and was not arbitrary or capricious.

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August 13, 2012

Wrongful Death Claim Based on Fatal Crane Accident Dismissed

Death on the job is a sad reality that all too many Louisiana families face. When a loved one dies on the job, the victim's family is not only left with an emotional hole, but a financial gap as well. Children, siblings and spouses who may have relied on the deceased's income can face economic hardship. Fortunately, a wrongful death lawsuit can help ease this financial burden.

A wrongful death lawsuit seeks to recover damages a surviving family member or estate has suffered by the negligent death of a family member at the hands of another. Since these suits are brought on behalf of surviving family members, compensation cannot be recovered for injuries that are personal to the deceased. This means that pain and suffering and mental distress damages cannot be recovered through a wrongful death lawsuit. However, lost wages and other financial losses faced by the surviving family can be recovered.

A wrongful death is a death that is caused by the negligent act or omission of another. In certain circumstances, if the death is proven to be caused intentionally, a jury may be more likely to award a larger recovery. However, proving an intentional act can be difficult. This was illustrated recently in a case where a man was fatally wounded aboard a ship when he was struck by a crane load.

After the man's death, his son filed a wrongful death lawsuit claiming that the crane operator, whom he alleged was under the influence of drugs, intentionally swung the crane into his father. The district judge dismissed the suit as frivolous and the son appealed. The Court of Appeals agreed with the district judge, finding that the plaintiff's claims did not assign any error to the district judge. Essentially, this means that the district judge did not error in his decision to dismiss the claim which, in turn, means that the son had failed to provide any evidence that suggested that his father's death was caused by the negligent act or omission of another.

The plaintiff's claim in this case that his father's death was intentional fell short. In order to prove intent, a plaintiff must convince the court that the wrongdoer had the mental element of knowingly committing the act. Proving this element requires strong physical evidence and reliable witness testimony. A failure to provide these elements to the court likely will result in a dismissal or denial of the claim.

Since proving intent is difficult it might be in a plaintiff's best interest to claim that simple negligence caused a wrongful death. To prove negligence the plaintiff must establish four elements. First, the plaintiff must show that the defendant owed the plaintiff a duty of care. Second, the defendant must be shown to have breached that duty of care by some act or omission. Third, the plaintiff must prove that the breach of duty caused the injuries contained in the claim. Fourth, and lastly, the plaintiff must establish that those injuries resulted in some sort of damage to the plaintiff. These elements are easier to prove than those for intentional acts and can lead to a higher rate of recovery.

August 6, 2012

Boat Swell Accident Provides Look Into Res Judicata

The first element of an independent action in equity that allows an individual to bypass res judicata analyzes whether the judge's determination in the original case was truly fair and made in good conscience. When a judge shows bias, as in the boat swell case, the judge's decision is likely swayed and not independent. This is unfair to the losing party and therefore helps a claim bypass res judicata.

The second element requires that the original case claim have merit. If the claim is frivolous, then there is no reason for the court to negate res judicata and grant a new trial. This again protects judicial efficiency and duplicitous suits. When determining the merit of the underlying suit, a judge will simply read the complaint to see if it makes an actual claim that, if true, would lead to recovery. In the boat swell case, the personal injury claim did have merit and thus satisfied this prong.

The third element requires courts to determine whether fraud was a reason that the losing party did not prevail in the underlying case. Similar to the first element, fraud is likely to sway a judge's decision to the detriment of the losing party. This is what happened in the boat swell case as the judge's decision was basically bought with lavish hunting trips.

Fourthly, in order to bypass res judicata, the party seeking a new trial must not have been at fault with regards to the underlying fraud or deceit. If the party is at fault, then their attempt to sway the judge's decision obviously failed and no new trial is needed. The plaintiff in the boat swell case had nothing to do with the fraud. In fact, the plaintiff did everything in her power to uncover the fraud, but was unsuccessful.

Lastly, a successful independent action in equity requires that there is no other adequate remedy at law. Since res judicata is such a prevalent legal theory, courts are reluctant to bypass it unless completely necessary. Therefore, courts want parties to seek other forms of remedy at law before granting a new trial that would otherwise contradict res judicata. Requiring this step helps ensure judicial efficiency and protects litigants from facing duplicitous suits.

Taking all of these elements into consideration, the Court of Appeals in the boat swells case found that the plaintiff was entitled to a new trial. The plaintiff did everything in her power to expose the fraud, but the judge denied any accusations. The judge's bias and acceptance of gifts clouded his judgment as evidenced by his seemingly unjustifiable choice to accept testimony by the defense's expert over that of the plaintiff's expert. Such decisions portray the immense power held by judges. Any abuse of that power can have devastating consequences for the parties involved and can send ripples of injustice through the court system.

August 1, 2012

Houma Boat Swell Accident Victim Convinces Court of Appeals to Bypass Res Judicata

Though courts are busy and judges have overflowing dockets, our justice system requires courts to find time to hear cases worthy of adjudicating. This means that judges must be as efficient as possible. One way of doing this is to require claimants to converge all of their complaints into a single lawsuit. Failure to do this will bar a claimant from bringing a second lawsuit against the same party. This legal theory is known as res judicata. It seeks to maintain judicial efficiency and protect litigants from facing duplicitous lawsuit from the same claimant.

Though courts are assumed to be honest, deceit and bias can seep into the legal fabric. When this occurs, the justice system must reanalyze the applicability of res judicata. One illustrative example of an instance like this took place recently in the United States District Court for the Eastern District of Louisiana. The issue was complicated and was later resolved by the United States Court of Appeals for the Fifth Circuit.

The case in question involved a personal injury lawsuit where a yacht's boat swells threw another boat into the air and injured a woman in that boat. That injured woman filed suit against the yacht owners and their insurance company. At trial, the judge found for the defendants, essentially stating that the defendant's expert witness was more reliable than the plaintiff's expert.

However, during the trial it became apparent that the judge and the defendant's attorney were good friends. The two had traveled together on hunting trips and the attorney frequently exchanged gifts with the judge. The judge was also friends with the defendant's expert witness. This led the plaintiff's to seek the judge's recusal, which the judge refused to do.

After the trial, the Department of Justice investigated the judge and Congress eventually impeached him. The plaintiff's in the boat swell case then sought a new trial. The Court of Appeals had to determine whether the plaintiff's claim was barred by res judicata or whether the judge's bias in the original case allows for a rehearing of the case.

To get around the bar imposed by res judicata, a party can file an independent action in equity. The courts have established five elements that must be met in order to plead a successful independent action in equity: (1) a prior judgment which "in equity and good conscience" should not be enforced; (2) a meritorious claim in the underlying case; (3) fraud, accident, or mistake that prevented the party from prevailing on their claim; (4) the absence of fault or negligence on the part of the party; and (5) the absence of an adequate remedy at law.

This analysis will be continued in the second post on this topic. If you have any questions, please feel free to call our offices.

July 16, 2012

Deposition Two-Step: Conflicting Reasons for Quitting Job Early Leads to Perjury Charge

This case is a welcome reminder of how an attorney’s advice may sometimes lead to more harm than good. Brown brought suit against his former employer, Skagit, under Title VII claiming racial harassment and constructive discharge. In a deposition, Brown testified that his sole reason for quitting his job at Skagit was due to racial harassment. However, in a deposition four months earlier in an unrelated personal injury case, Brown testified that he left Skagit solely because of debilitating back pain suffered during a car accident. Skagit sought dismissal of Brown’s claims based on his conflicting testimony, which the district court allowed and dismissed with prejudice. The court also went one step further finding Brown committed perjury. Brown’s appeal is based on a matter of fairness, arguing that a less severe sanction is in order and that he was entitled to explain the discrepancy between the testimonies.

To emphasize the facts, in the first case, based on racial harassment and constructive discharge under Title VII, 42 U.S.C. sec. 2000e, Brown testified as to how he felt endangered by his co-workers’ threatening behavior, which involved dropping heavy plates and pipes near him. He was also distraught by his co-workers flinging derogatory remarks at him on a daily basis. He felt compelled to quit his job, as his supervisors purportedly ignored this behavior. When asked why he quit his job, he testified that the only reason he quit was because of the racial harassment. He reiterated that there were no other reasons for his quitting.

In a completely unrelated deposition for a personal injury claim, Brown testified that the exclusive reason he left Skagit was due to his debilitating back pain, which prevented him from performing his job as a welder. He again emphasized and confirmed that this was his only reason for leaving his job.

His two testimonies are obviously in direct conflict. Skagit argued that Brown’s “blatant misconduct” entitled them to a dismissal of all charges. The court agreed and dismissed all counts with prejudice. Brown accordingly argued that the court’s decision was too harsh, as he was not offered an opportunity to explain the inconsistency. The court explained that the punishment fit the crime as a means of deterrence, since not every perjurer will be caught and “the proper administration of justice depends on people testifying truthfully under oath.”

Brown argued that his lies were not intentional, as his attorney in his personal injury case advised him not to mention his racial harassment case, which he naively and simply followed. Accordingly, the court held a hearing for Brown’s objections, but neither Brown nor his counsel appeared. His case was dismissed on final judgment and his attorney was sanctioned.

Two important issues were raised on appeal, namely, whether it was an abuse of discretion for the district court (1) to dismiss both of Brown’s claims; and (2) to deny an evidentiary hearing on Brown’s contradictory testimony.

Issue 1: Dismissal with prejudice has been described as “an extreme sanction that deprives a litigant of the opportunity to pursue his claim.” When a court’s sanction is severe, the review on appeal is “more rigorous” and “particularly scrupulous.” A dismissal with prejudice is only affirmed if two requirements are met, including: (1) there is “a clear record of delay or contumacious conduct by the plaintiff”; and (2) lesser sanctions would not serve the best interests of justice

We will start with the first requirement. In order to satisfy the standard, the consideration of less extreme punishments should be found in the record. The court found that the sanction was appropriate and that Brown’s conduct was contumacious, defined as “the stubborn resistance to authority,” since he took his oath to tell the truth lightly and committed perjury.

We will now look to the second requirement. The court looked to whether the district court used “the least onerous sanction” to “address the offensive conduct,” and showed that the sanction was not overly harsh and equated to the conduct at hand. The court did consider several lesser sanctions, but rightfully concluded that they were not appropriate. A monetary sanction was not helpful, since Brown could not afford to pay his attorney’s fees and proceeded in forma pauperis. Dismissing only one claim would not cause Brown to suffer a penalty for his perjury. Hence, dismissal of the entire complaint was justified, as it was commensurate with Brown’s conduct. The court stated “Brown plainly committed perjury, a serious offense that constitutes a severe affront to the courts and thwarts the administration of justice.”

Issue 2: The court next considered whether it was an abuse of discretion to deny an evidentiary hearing for Brown to explain his conflicting testimony. Brown wanted to show that the discrepancy was based on his reliance on his attorney’s wrongful advice. However, he made no pressing argument to explain why he and his attorney failed to appear at the hearing. Therefore, his argument lacked merit.

Ultimately, the court affirmed the lower court’s decision and both of Brown’s claims were tossed out with prejudice. This effort is usually based in those cases where no doubt remains as to the premises for suit, especially in the event like this where conflicting explanations lead to doubt in one individual's validity. To prevent conflict in rationale, an attorney should be well versed in the law and have a high moral fortitude.

For more information about the Berniard Law Firm, visit laclaim.com or call us at 504-527-6225.

July 9, 2012

Timeliness to Rebuild in New Orleans Still an Issue after Hurricane Katrina

The idea of timeliness is a common contract clause that requires that one of the parties perform a mandatory act within a certain amount of time. There is often a specific amount of time attached, but sometimes the clause can simply state that an action be carried out "within a timely manner" or similar wording. Usually if a party does not follow a timeliness requirement, the other party can dissolve the contract. However, if there are extenuating circumstances that create a situation in which the timeliness requirement could not have been satisfied, then courts may take that into consideration and allow the contract to continue.

In the aftermath of Hurricane Katrina, many companies were scrambling to rebuild their companies and manage rebuilding in hopes of returning to some form of New Orleans normalcy. Due to the myriad of weather and levee related problems, common damages included flooding within buildings, broken windows, roof damage, and a number of other damages relating to the huge amounts of wind and rain. The damage was enough to force the city of New Orleans shut down for at least thirty days after the storm. One would think that these conditions might fit with those extenuating circumstances to avoid a timeliness provision regarding how quickly to rebuild.

Conversely, the court ruled that this was not the case. Expert testimony stated that contractors were working to rebuild within two weeks after the storm. Therefore, contracts that included timeliness provisions still had full force. In one case, a lessee had a provision in their rental agreement that stated if there was significant damage the lessor could choose to either repair the property or terminate the lease within thirty days after the disaster. If the lessor chose to rebuild, then he would be required to rebuild within 120 days. In this case, the lessor chose to rebuild, was unable to fulfill the timeliness requirement. Instead, the property was returned to a “shell condition” nearly a year after Katrina hit. The “shell condition” consisted of very few substantial repairs, so that the building could not be used for its intended purpose. Instead, vital things were missing such as doors and doorframes.

As in many instances, the court paid close attention to the difficulties suffered in a myriad of cases. The lessor did not fulfill the requirement to repair the building so that it could be used for its intended purpose as required by Louisiana Civil Code. He violated the timeliness provision because even the “shell condition” did not occur until a year after the storm. As a result, the court declared dissolution of the contract. Therefore, the lessee did not have any further rental obligations.

Often, if the circumstances surrounding the repair are such that restoration was possible but the lessor procrastinated beyond the timeliness provision, then the court will dissolve the lease. Additionally, if the repair does not place the lessee in the same or similar position as before the disaster, then the court may also dissolve the lease. If you are a lessee who is struggling with repairs and may have a timeliness provision in your rental contract, contact the Berniard Law Firm today to speak with an attorney immediately.

April 8, 2012

Happy Holidays to all of our Friends

Happy Holidays from the Berniard Law Firm! We will resume blog posting on Tuesday.

March 26, 2012

Lawsuit Over Jackson Parish Car Wreck Dismissed Due to Late Filing

Under Louisiana law, the plaintiff in a personal injury lawsuit may file his complaint with the court by fax. However, the plaintiff must, within five days of transmitting the fax, forward to the clerk of court the original, signed complaint and any fees that are due. If the plaintiff fails to forward the original document, the faxed copy will "have no force or effect." La. R.S. 13:580. The fax option can potentially help preserve an action that is facing the expiration of its prescriptive period. However, as we will see with the recent case of Taylor v. Broomfield, the courts do not take lightly the requirement that the original complaint must be submitted to the clerk within the time frame outlined in the statute.

On September 17, 2009, Jarred Taylor was involved in a serious car accident in Jackson Parish. The other party to the collision was Brandon Goss who was driving a Mack truck owned by Broomfield, Inc. Taylor suffered various injuries including two broken ribs, multiple contusions, and lacerations to his face. Taylor's lawyer initiated a lawsuit against Broomfield and its insurer on September 17, 2010 (exactly one year after the accident and the last day of the prescriptive period) by transmitting a faxed complaint to the Jackson Parish Court. The faxed complaint was not notarized. Although Taylor's counsel had, according to Louisiana statute, until September 24, 2010 to send the original complaint to the court's clerk, the original document was not filed until October 5, 2010. The original complaint filed with the clerk on October 5 included a verification notarized by one Donna Kay Tucker on September 20, 2010.

On November 12, 2010, Broomfield filed an exception of prescription requesting that Taylor's suit be dismissed because it was filed after the one-year prescriptive period had elapsed. A hearing was held on January 13, 2011. In opposition to Broomfield's exception, Taylor’s attorney argued that when his office faxed the complaint on September 17, 2010, his staff immediately mailed the original complaint, along with the filing fees, to the clerk of court. Several staff members from the law firm testified to this effect, but none of them could explain who the notary, Donna Kay Tucker, was or why the complaint's verification reflected a date after the day the firm put the document in the mail. Ultimately, the trial judge denied the exception of prescription and held that the notary date was "merely harmless error" and that the complaint had been timely forwarded by Taylor's counsel per state law. Broomfield appealed.

The Second Circuit began its analysis by reviewing the burden of proof: it noted that
"[a]lthough the party raising a peremptory exception of prescription ordinarily bears the burden of proof, when prescription is evident from the face of the pleading, the plaintiff bears the burden of showing the action has not prescribed." Cooksey v. Heard, McElroy & Vestal, L.L.P. This means that the plaintiff must prove by a preponderance of the evidence that the original complaint and fees were mailed to the clerk; this proof can take the form of affidavits or receipts that show the date and time of mailing or delivery. The court noted that Taylor’s attorney and office staff "testified that they executed their duties on September 17, 2010 with regard to the petition." Yet, when questioned, "no one could confirm that the envelope [containing the complaint] was actually forwarded from the firm to the post office nor could anyone explain the September 20, 2010 date affixed by the notary," who was unknown to the office staff. Also, no witness could explain why the faxed complaint was not notarized, while the purported "original" delivered to the clerk (late) was notarized. The court reasoned, "Taylor has neither postage proof nor any other form of time-stamped evidence to prove that his counsel timely forwarded the petition for damages. Without such proof of mailing to counter the missing and conflicting evidence, this court cannot agree that Taylor met his burden of proof by a preponderance of the evidence." Accordingly, the court concluded that the trial court was clearly wrong in denying the exception of prescription, and reversed its decision.

The Taylor case makes plain the critical importance of meeting filing deadlines in litigation. A plaintiff must choose his counsel carefully to ensure his case is not lost before it begins due to a technical error like failing to properly and timely file the complaint with the court. I

Continue reading "Lawsuit Over Jackson Parish Car Wreck Dismissed Due to Late Filing" »

February 21, 2012

Closing Overview of Class Action Certification for Chemical Leaks, Other Disasters

In this, our final post of the Union Carbide/Dow Taft plant chemical leak series, we will consider the fifth requirement for class certification under Louisiana law: that the class is "defined objectively in terms of ascertainable criteria, such that the court may determine the constituency of the class for purposes of the conclusiveness of any judgment that may be rendered in the case."Chalona v. La. Citizens Property Ins. Corp. The intent of this requirement is to ensure that the class is not "amorphous, indeterminate, or vague," such that any potential class members are challenged to determine whether they are actual members of the class. Plaintiffs initially submitted a class definition that included "[p]ersons throughout Louisiana" who were exposed to the ethyl acrylate that escaped the Taft plant and who suffered injury or loss as a result. The court desired a more precise definition, however. It reviewed the zip code maps, weather data, and expert testimony in evidence and incorporated Dr. Williams's method in describing the symptoms suffered by people who were exposed to craft its own definition. This action on the court's part was specifically permitted by Louisiana Code of Civil Procedure Art. 592(A)(3)(c), which envisions that the court may, prior to a final decision on the merits, enlarge, restrict, or otherwise redefine the constituency of the class. The court determined that its sharpened definition would mean that members "only need to determine if they were present in the geographically defined area on July 7, 2009, and if so, whether they experienced any of the symptoms commonly associated with the offending chemicals released." This meant, in the court's view, that its ultimate ruling as to whether the chemical released by the Taft plant caused the Plaintiffs' injuries and losses would resolve the claims of all class members.

The court summarized its conclusions by reiterating that the substantive issue that will control the outcome of the case is whether ethyl acrylate "in the amount released can cause the damages as alleged by plaintiffs. This issue, along with the legal issues of duty of the defendants to the class ... will predominate." Accordingly, the court held that the Plaintiffs successfully demonstrated that certifying the class would not result in the action "degenerating into a series of individual trials."

As we observed previously in the class certification litigation related to the Chalmette Refinery leak in 2007, the court's task in determining whether to certify a class is an extraordinarily fact-intensive one. In many cases, the certification process is just as complex and involved as the trial on the merits of the ultimate issue. In fact, the class certification in the Taft plant case has not yet been finalized. Subsequent to the issuance of Judge Cade's Order on December 15, 2011, the Defendants filed a motion to appeal the class certification.

Please stay tuned to this blog for updates as they become available.

February 17, 2012

Second Part in Understanding the Anatomy of a Class Action Certification

In our previous post, we began a discussion of the Union Carbide/Dow Chemical Taft plant chemical leak litigation filed by the Berniard Law Firm. This post continues with a review of the court's analysis of numerosity in certifying a class. Under this requirement, the class must be so large that joinder of all members is impracticable. La. Code Civ. P. Art. 591(A)(1). Generally, a class action is favored when there are so many plaintiffs that individual suits would unduly burden the court, and so the class action would be more judicially expedient than other available procedures. See Cotton v. Gaylord Container. There is no distinct number of plaintiffs needed to fulfill the numerosity requirement. In this case, the proposed class included all the residents of St. Charles Parish as well as certain residents of Jefferson and Orleans Parishes--clearly a large number. The court found persuasive the fact that "the size of the individual claims of class members is small enough that individual lawsuits are impracticable," but that that "separate suits would unduly burden the courts." In the court's view, a class action would "be more useful and judicially expedient." Thus, the court concluded that "numerosity exists," but that "the class is not too numerous to manage effectively."

The court next examined the issue of commonality, or whether there were questions of law or fact common to the class. To satisfy the commonality requirement, there must exist "as to the totality of the issues a common nucleus of operative facts." McCastle v. Rollins Environmental Services. of La., Inc. A common question is one that, when resolved for one class member, is resolved for all members. This issue is closely related to the predominance requirement, where the common questions predominate over any individual issues not shared among the class members. The Louisiana Supreme Court has indicated that predominance "entails identifying the substantive issues that will control the outcome, assessing which issues will predominate, and then determining whether the issues are common to the class." The goal is to "prevent[] the class from degenerating into a series of individual trials. Brooks v. Union Pacific R. Co. The same court has also held that a mass tort can only be brought as class action if it arose from one single cause or disaster; however, this requirement does not mean that the amount or extent of damages must be identical for all class members. "[V]arying degrees of damages ... does not preclude class certification." In order to meet the common cause requirement, each member of the class must be able to show individual causation based on the same set of facts and law that any other class member would use. See Bartlett v. Browning-Ferris Indus. Chem. Services, Inc.

With these considerations in mind, the court analyzed the common threads identified by the Plaintiffs as to their claims. First, all class members were physically located in the identified parishes on the date and time of the chemical release. They all suffered various (but similar) physical injuries and financial losses as a result of the release. Also, common questions of law and fact surrounded the Defendants' negligence in failing to maintain its plant and prevent the chemical release. The court concluded that it was "satisfied ... from the evidence presented that common factual issues predominate with regard to whether Defendants took reasonable steps to prevent the release of [ethyl acrylate] that occurred on July 7, 2009 and whether or not the release could cause the harm as alleged by the Plaintiffs to the members of the class." The court's reasoning was based in part on the testimony offered at the hearing by Dr. Patricia Williams, a toxicology expert. Dr. Williams concluded that the symptoms described by the class were consistent with the type of exposure to ethyl acrylate that resulted from the release at the Taft plant. Although the Defendants offered its own expert witness to rebut Dr. Williams's testimony, the court nevertheless found that "a method of assessing general causation for the whole of the class exist[ed]." This permitted the court to reach the conclusion that common factual issues were present. The court thus identified a "common nucleus of operative facts" that permitted a finding that "uniform allegations of complaints of harm amongst the large number of class members that stem from one central release event" involved common legal issues among all members that superseded any individual concerns.

Having concluded that Plaintiffs met their burden of proof on the issues of numerosity and commonality, the court turned its attention to the third requirement: typicality. We will take up this analysis in the next post in the series.

January 25, 2012

"Law of the Case" Doctrine, Part 2

In our most recent post, we began a review of the Third Circuit Court of Appeal's application of the law of the case doctrine in a lawsuit that followed an auto accident in Vernon Parish. The plaintiffs, in opposing UUT’s motion for summary judgment, argued that UUT's no-coverage arguments had previously been heard in a "peremptory exception of no right of action" filed by UUT which the trial court had denied. Both the Third Circuit and the Louisiana Supreme Court denied writs of appeal in that ruling; thus, the plaintiffs argued that the law of the case doctrine should "preclude UUT from re-litigating those same arguments" in the instant case. The plaintiffs also argued that the federal case cited by UUT offered "no precedential value in this state court action." UUT's reply asserted that the exceptions previously heard by the trial court "dealt with procedural, rather than substantive, matters," and were not properly before the trial court at the exceptions hearing. In sum, UUT argued that the trial court's rulings on the exceptions were interlocutory and therefore "subject to revision by the trial court at any time prior to rendition of final judgment." The trial court granted UUT's motion for summary judgment and dismissed all of the plaintiffs’ claims based on the finding that there was no coverage under the UUT policy. The plaintiffs appealed, arguing that UUT’s arguments had previously been heard and rejected in an earlier action (the peremptory exception) and therefore "the law of the case doctrine should have been applied because no new argument or evidence was produced by UUT."

The Third Circuit concluded that UUT showed that "the policy it issued to Olympic did not provide coverage for the plaintiffs’ claims." The truck Coronado wrecked was a vehicle leased from Olympic, and the UUT policy by its language excluded coverage for leased vehicles. Rather than refute UUT’s position on the merits, the plaintiffs simply "argued that the issue had already been litigated and that the trial court was bound to follow its earlier ruling." The court rejected that the law of the case doctrine applied. It noted that UUT did not raise coverage issues when it filed its exceptions in the trial court. Instead, "the plaintiffs brought up the issue of coverage in their opposition to UUT’s exceptions." In fact, UUT was not even made aware of the plaintiffs' position on coverage until the day of the hearing. "Clearly," the court concluded, "the issue of coverage under the UUT policy was not squarely before the trial court at the hearing on the exceptions." In the view of the court, "[t]he issues raised in the motion for summary judgment filed by UUT ... did not cause indefinite re-litigation of the same issue[s] as were raised in its [exceptions motion]." Accordingly, the court affirmed the trial court’s grant of summary judgment in favor of UUT.

The Willis case is a stark reminder to litigants that the rules of civil procedure in Louisiana can be extremely complex. Even when the disputed issue in a case (such as whether an auto insurance policy covers a particular driver) is fairly straightforward, a plaintiff can face a complicated path to a resolution without the counsel of an experienced attorney.

Continue reading ""Law of the Case" Doctrine, Part 2" »

January 23, 2012

Exploring the "Law of the Case" Doctrine in Vernon Parish Car Accident Litigation

Under the Louisiana Code of Civil Procedure, judgments are either interlocutory or final. A judgment that "determines the merits [of an issue] in whole or in part" is a final judgment, while a judgment that determines "only preliminary matters" is an interlocutory judgment. Generally speaking, final judgments can be appealed, but interlocutory judgments cannot unless there is a statutory exception that permits the appeal. See La.Code Civ.P. art. 2083. If a court renders a judgment that addresses fewer than all of the claims or that concerns fewer than all litigants in a case, that judgment is not final and may be revised by the court at any time prior to a final judgment. See La.Code Civ.P. art. 1915(B). With parallel reasoning, if a court of appeal denies a writ of appeal, thereby declining to exercise its supervisory oversight of a trial court, the court of appeal cannot affirm, reverse, or modify the judgment of the trial court. This means that "any language in the court of appeal’s ... writ denial purporting to find no error in the trial court’s ... ruling is without effect." See Bulot v. Intracoastal Tubular Services, Inc..

Related is the "law of the case doctrine." This principle pertains to:

"(a) the binding force of trial court rulings during later stages of the trial, (b) the conclusive effects of appellate rulings at the trial on remand, and (c) the rule that an appellate court will ordinarily not reconsider its own rulings of law on a subsequent appeal in the same case." Petition of Sewerage & Water Bd. of New Orleans.
The doctrine is intended to avoid endless re-litigation of the same issue and to promote consistency of result in the same litigation. It also promotes efficiency by affording the parties a single opportunity to resolve the matter at issue.

The law of the case doctrine was reviewed by Louisiana's Third Circuit Court of Appeal in the recent case of Willis v. Gulf Coast Building Supply. The case centered on an auto accident on November 7, 2005. Steve Coronado was operating a tractor-trailer in Vernon Parish on behalf of his employer, Gulf Coast Building Supply, when he struck multiple vehicles. Six lawsuits were filed by various plaintiffs naming as defendants Coronado, Gulf Coast, Home State County Mutual Insurance Company, Gulf Coast's primary insurer, and Universal Underwriters of Texas Insurance Company (UUT), Gulf Coast's excess insurance carrier. UUT filed a motion for summary judgment seeking to have the plaintiffs’ claims dismissed because its policy did not cover their claims. The tractor trailer that Coronado was driving at the time of the accident was leased to Gulf Coast by Olympic International; the lease agreement specified that Gulf Coast was responsible for providing liability insurance and that Gulf Coast would name Olympic as an additional insured on its policy. UUT's policy covered Olympic, but Gulf Coast and Coronado were not named as insured parties. Also, no provision in the policy extended coverage to lessees of the named insured’s property. Therefore, UUT argued that its policy excluded coverage for the plaintiffs’ claims. To further support its position, UUT pointed the trial court to a decision rendered in a case arising out of the same accident that had been filed in federal court by a different plaintiff. In that matter, the federal court granted summary judgment in favor of UUT and dismissed the case on the basis that the UUT policy did not provide coverage for the claims. That decision was affirmed by the U.S. Court of Appeals, Fifth Circuit.

In a subsequent post, we'll examine the plaintiffs' response to UUT's motion and the court's judgment.

Continue reading "Exploring the "Law of the Case" Doctrine in Vernon Parish Car Accident Litigation" »

January 21, 2012

The Plaintiff's Burden in Proving Special Damages

Under Louisiana jurisprudence, special damages are the category of damages that can be "established to a reasonable mathematical certainty." Myers v. Broussard. Special damages include awards for past and future lost earnings, since a plaintiff's forgone income can be numerically calculated by the court. Given the relatively high level of precision, "when a trier of fact assesses special damages, the discretion is more limited or narrower than the discretion to assess general damages," Eddy v. Litton, though the standard of review is still abuse of discretion. The plaintiff carries the burden to prove that he has suffered a loss of income to induce the court to award damages for lost wages in an amount that equals what the plaintiff would have likely earned if he had not been injured by the defendant and been able to work. In cases where there is "no basis for a precise mathematical calculation of the amount of lost earnings," the trial court may award a "reasonable" amount of damages. However, "to allow a plaintiff to recover damages for lost wages in the absence of independent support is highly speculative.” Turner v. Cleveland Trust Co.

The Third Circuit recently considered an automobile collision case in which the plaintiff was awarded damages for lost wages by the trial court. Lori Johnson claimed that, due to the injuries she sustained when her car was struck from behind by David St. Romaine on Highway 1 in Marksville, she was unable to perform her part-time weekend work as a farrier (horse-shoer). The trial court awarded Johnson $7,200 for loss of income, which St. Romaine appealed. The Third Circuit reviewed the trial record containing Johnson's testimony that she was unable support a horse's weight on her injured shoulder and therefore could not install the shoes. She estimated that she typically earned between $400 and $750 per month, but was unsure of the exact amount because it was a cash business and she did not keep records. Johnson also admitted that she did not report her income from the farrier business to the IRS. The court concluded that, "[a]lthough the uncorroborated testimony of the plaintiff can support a lost wage award, based on the facts of this case, we find that Johnson’s testimony regarding the lost wage claim is insufficient." In the court's view, Johnson's wage calculation was a mere "guesstimate" that could not support an award for foregone income. Thus, the court concluded that it was error for the trial court to award damages for lost wages based on only this speculative information, and reversed that part of the judgment.

This case reminds litigants that claims for special damages must be corroborated by some minimum amount proof. Although the court allows that a plaintiff's testimony alone can in some cases support a special damages award, the facts of each situation will weigh heavily on the court's decision process. Clearly, here, the Third Circuit did not approve of the trial court's treatment of Johnson's claim for wages, perhaps particularly because Johnson did not report her income as taxable.

Continue reading "The Plaintiff's Burden in Proving Special Damages" »

December 23, 2011

Happy Holidays from the Berniard Law Firm

On behalf of the Berniard Law Firm, we'd like to wish all of our clients and employees a Happy and Safe Holidays and New Years.

The blog will resume postings in 2012!

November 21, 2011

Louisiana Fourth Circuit Court of Appeal Punishes For Duplicitous Suits

As part of our Constitutional right to due process, an individual is allowed to bring grievances before a court. However, certain judicial policies may be enacted to deny plaintiffs from bringing suits that have already been litigated, are being brought with the intent to harass, or are frivolous. The purpose behind such policies is to make courts as efficient as possible by deterring such actions. A recent case out of the Louisiana Fourth Circuit Court of Appeal shines a light on several of these deterrents.

In Mendonca v. Tidewater, Inc., the plaintiff sought to nullify several final judgments made by the district court. Mendonca's list of suits stretched over four years, with multiple appeals and pleas for annulment. However, none of Mendonca's nullity claims or his appeals were successful. In his final appeal for anulment, the Fourth Circuit Court of Appeals handed down three restrictions that laid Mendonca's long line of cases to rest.

The first of these restrictions was the court's upholding of the defendent's plea of res judicata and failure to state a claim. When res judicata is enacted, the court declares one of two denials. First, that the claim has been subject to a final judgment and thus no longer qualifies for an appeal, or second, that the litigant cannot bring a claim against the same party in a second claim because all claims should have been brought against that party in the initial suit. The policy considerations supporting res judicata is to preserve court resources and protect defendants from being subject to litigation multiple times, with the possibility of having to pay damages more than once. A defendant's plea that a plaintiff has failed to state a claim goes hand-in-hand with res judicata. If res judicata is applicable, then all duplicitous claims cancelled. In Mendonca's case, this means that there were no new claims. Since there were no such claims, the court held that Mendonca's nu
llity actions were a failure to state a new claim.

A second deterrent to brining frivolous, harassing, or duplicitous suits is the possibility of monetary sanctions. Rules of civil procedure require that an attorney make objective inquiries into the facts of a case and the law that pertains to it. These inquiries are held to a high standard as they are seen as an attorney's duty. This means that one's subjective good faith inquiry is not sufficient. When an attorney files a claim, it is important that case history is analyzed to ensure that res judicata does not apply. A failure to inquire about previous claims is a failure to impose the applicable law and is essentially poor lawyering. This was the case in Mendonca's appeal. Any attorney who objectively analyzed the situation would have known that the claim was precluded through res judicata. Yet, Mendonca proceeded. The court interpreted this as an abuse of the judicial system and an attempt to harass the defendant. This abuse justifies the imposition of sanctions.

Sanctions are typically defined as an order to pay to the other party the amount of reasonable expenses through the employment of an attorney. Yet, "reasonable" is not confined to the actual expense accrued by the attorney. Instead, "reasonable" has been interpreted to mean additional costs that act to deter, punish, and compensate. When sanctions are imposed by a trial judge they are unlikely to be appealed. Appellate judges tend to give deference to the trial judge's intimate knowledge of the case, litigants, and attorneys. For these reasons, Mendonca was sanctioned in the amount of $10,000, all of which were upheld on appeal.

A third way that a court can punish an individual as a deterrent is to issue a sanction revoking in forma pauperis status. In forma pauperis is a legal termed used by a judge to allow a poor individual to file a legal case and/or represent oneself at trial. Allowing one to claim this status is to essentially cut most court associated costs for the needy individual in order to ensure due process. Mendonca qualified and was granted this status. However, courts have held that in forma pauperis status is a privilege, not a right. Therefore, any abuse of this status will result in revocation. The most common reason why in forma pauperis status is revoked is because one brings frivolous suits. Mendonca did this in his case and was punished accordingly.

Res judicata, sanctions, and other rules of civil procedure are complicated, requiring a full analysis of the facts and the law. Such situations should only be approached by a licensed practicing attorney.

Continue reading "Louisiana Fourth Circuit Court of Appeal Punishes For Duplicitous Suits " »

November 15, 2011

Baton Rouge Plaintiff Loses Defamation Claim Due to Prescription

In 2008, Debra Goulas worked as a bookkeeper for Sunbelt Air Conditioning Supply in Baton Rouge. Jessie Touchet, owner of Sunbelt, and Diane Jones, Goulas's manager, accused her of stealing over $500 from the company during February and April that year. Goulas was tried for felony theft and acquitted. Following the criminal trial, she filed suit against Touchet and Jones in July, 2010 alleging defamation. Specifically, Goulas argued that Touchet and Jones "intentionally and negligently inflicted emotional distress" upon her, and that their accusations were "founded in malice to damage her person and reputation." The complaint sought damages for medical expenses, physical and mental pain and suffering, and loss of wages. The defendants filed an exception of prescription. The basis of the exception was that Goulas's claims were based on the defendants' actions that allegedly occurred during February and April of 2008. By the time Goulas filed suit in 2010, more than one year had passed, thereby prescribing the claims. In October, 2010, the trial judge granted the defendants' exception of prescription and dismissed Goulas's claims with prejudice.

Goulas appealed, alleging error on the trial court's ruling that her defamation claim was prescribed. Goulas reasoned that she could not initiate her defamation action until her criminal trial was concluded in March, 2010; accordingly, she argued that prescription did not begin to run until Frederick Jones publicly accused her of theft when testifying at her trial. The First Circuit noted that Louisiana recognizes a qualified privilege that protects parties from charges of defamation related to statements they make during a trial. "It necessarily follows that, during this time, the one-year period that applies to the filing of a defamation action is suspended." However, the court explained, the suspension of prescription applies "only to allegedly defamatory statements made by parties to a lawsuit." In this situation, Frederick and Jones were not parties to Goulas's criminal prosecution, so the prescription suspension did not apply. The court concluded that "since there has been no suspension of the 2008 alleged defamatory statements," the trial court properly granted the defendants' exception of prescription.

This result was no doubt a painful lesson to the Goulas that prescriptive periods and other rules of Louisiana civil procedure can be complex and confusing. At worst, such as here, missing a deadline can prove fatal to a plaintiff's case. Accordingly, it is critical that victims who think they may have a claim should consult a knowledgeable attorney immediately. Time may very well be of the essence in order to secure a day in court.

Continue reading "Baton Rouge Plaintiff Loses Defamation Claim Due to Prescription " »

November 9, 2011

Oil Company Wins Another Chance to Recover Money It Paid to Clean up Gulf Oil Spill

The case of Jefferson Block 24 Oil and Gas, Inc. v. Aspen Insurance UK Limited highlights an important battle over money set aside for oil spill recovery, an obviously sensitive and important topic in the Gulf Coast. At the federal district court for the Eastern District of Louisiana, the defendants won a motion for summary judgment and the court dismissed the case. The plaintiffs appealed the determination and the United States Court of Appeals for the Fifth Circuit reversed the decision and remanded the case for further hearing.

The plaintiff, Jefferson Block, owned and operated offshore gas leases, pipelines and a platform in the Gulf of Mexico. In November 2007, a drop in pressure in one of the pipelines was discovered that showed that oil was spilling into the Gulf. Jefferson Block cleaned up the oil under the direction of several government agencies and incurred a cleanup cost of approximately $3 million.

At that time, Jefferson Block owned an insurance policy which provided some coverage in the case of a leak, but was limited to the items set out in a "Declaration." This declaration listed the oil interests that Jefferson Block had in the area but did not specifically reference the 16-inch pipeline that was the cause of the spill.

Underwriters, one of the defendants, denied coverage and plaintiff sued in a Louisiana federal court. The policy provided that the governing law was New York law, and under New York law, the policyholder bears the burden of showing that the insurance contract covers the loss. Courts interpret insurance policies like any other contract, and there is a series of steps courts will take to determine what the terms of the contract are.

First, courts look to the express language of the policy, with reference to the subject matter and purpose of the policy. If the terms are unambiguous, the court will determine the parties' intent from the words in the document, and summary judgment is therefore appropriate as a matter of law.

However, if a policy is ambiguous, the burden of proof shifts to the party asking for summary judgment to show that its proposed interpretation of the policy is the correct one. At this point, the court can accept extrinsic evidence of the parties' intent. If the extrinsic evidence does not unambiguously favor the party that filed for the summary judgment, the court looks to the law for guidance. Typically, ambiguities in insurance policies are construed in favor of the policyholder.

In this case, the court found that because of the purpose of the policy, which was to comply with the Oil Pollution Act of 1990, this weighed in favor of finding for the plaintiff. Additionally, the policy referred to facilities "located" within certain areas, and the appellate court agreed with the district court that the word “located” was ambiguous. It also stated that the extrinsic evidence was not so one-sided as to require finding for the defendant.

The district court refused to construe the ambiguities in favor of the plaintiff, and the appellate court held that this was a legal error. For that reason, the court reversed the decision of the district court and sent the case back for further proceedings.

October 23, 2011

Second Circuit Case Demonstrates Importance of Proper Contracts

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.

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October 21, 2011

Texas Contract Law Informs Second Circuit Decision

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.

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October 17, 2011

Louisiana's Second Circuit Holds Shreveport Casino Markers Enforceable Against Texas Gambler

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.

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October 13, 2011

Injury At Sea & Indemnification: Who Pays?

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.

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October 11, 2011

Court of Appeals Upholds Trial Court Ruling Granting Longshoreman's Workers Compensation Claim

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.

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October 1, 2011

Issues of Law Involving Water Complicated, Require Admiralty Understanding

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.

September 29, 2011

Fireman's Survivors File in Time in Shreveport

Timing is everything in civil litigation. The difference of a day or two can determine whether a suit is timely or not timely, meaning if the court will even hear the case being filed. As such, the difference between a suit that is timely and one that is not timely can make the difference between a plaintiff receiving full compensation for their claims and a plaintiff (or his or her surviving family members) receiving nothing.

Mr. Jerry Bozeman dedicated his life to protecting others from fire-related disasters. Sadly, while carrying out his duties he was exposed to asbestos due to improperly built and maintained facilities. As a result of the City of Shreveport failing to protect their employees, including Mr. Bozeman, from the hazardous material in the fire station where he spent a great deal of time, the loyal fireman suffered from asbestos,-related mesothelioma. Mr. Bozeman's two children, Corey Bozeman and Matthew Bozeman, brought suit under theories of negligence and strict liability under a claim of wrongful death in addition to survival benefits.

The primary issue before the Court of Appeal for the Second Circuit State of Louisiana on appeal was whether the case was actually able to be appealed to the First Judicial District Court for the Parish of Caddo, Louisiana. There was some contention as to whether the plaintiff could appeal the trial court's granting of the City's exception of no cause of action as to the plaintiffs' wrongful death claims and non-intentional torts. The City was denied motion for summary judgment and its request for another exception to intentional tort claims and executive officer liability; the plaintiffs did not want to appeal these parts of the trial court's judgment.

Under Louisiana law, an appeal cannot be taken from a partial final judgment until it has been designated as a final judgment. This means that a court must designate a partial final judgment in order for an appeal on that ruling to be made. The appellants, the plaintiffs at trial, urged the appellate court to consider their appeal timely. The appeal came less than two weeks after the partial final judgment was certified by a court as a final judgment. This was well within the time that a plaintiff has to appeal a final judgment and, as such, the appellants won their appeal.

Since the appellants were successful in arguing that they in fact had the right to appeal the decision because it was final, the appellate court also had to weigh their case on the merits. The appellate court determined that the trial court has erred in not revising the grant of an exception of no cause of action to the City of Shreveport. Specifically, the appeals court ruled that the lower court failed to match a superseding Supreme Court decision that directly impacted the case.

While the trial court made its initial decision in 2007 based on a 2005 holding by the Supreme Court, this higher court ruling was specifically abrogated. As such, the appellate court in this case determined that holding that decision not to apply retroactively would be unfair to the appellants and ruled in their favor.

Mesothelioma and asbestos litigation is a constantly evolving area of the law. The trial court's decision was not incorrect at the time it was initially rendered due to the fact the Supreme Court is considered to be the overarching law of the land. However, due to the fact that the law changed during the time that the partial final judgment was not an entirely final judgment, a change in ruling took place. When this decision was replaced with a newer one, the lower court's decision both could and should have been changed to comply with the most recent Supreme Court ruling. Because the trial court failed to change its ruling when appropriate, it was found to be in error. You can read more about the case here.

If you or a loved one is suffering from mesothelioma or a loved one has died from mesothelioma, you may be entitled to benefits and awards. Contacting an attorney is crucial to preserve your legal rights before the timing no longer allows it.

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September 23, 2011

Little Fish, Big Pond: Limitations on Defendant's Duty to Third Parties

Louisiana crawfish are farmed in rice ponds and, beginning in 1999-2000, farm raised crawfish crop allegedly suffered a dramatic decline caused by the pesticide ICON. The pesticide, manufactured and sold by Bayer CropScience L.P., coated the rice seed used in the rice ponds. The plaintiffs resell the crawfish or process them for tail meat and claimed that they suffered economic loss when ICON rice drastically reduced the number of crawfish they could buy and process.

As crawfish buyers and processors, the plaintiffs asserted that they played "an essential and necessary role in the creation, preservation and perpetuation" of the Louisiana crawfish industry. In fact, they supported this contention with evidence indicating that, among other things, they create a market for all "peeler" crawfish, sell bait to crawfish farmers and provide loans to crawfish farmers. Plaintiffs filed suit in federal court and, on appeal, the Court analyzed whether a third party could recover for their economic losses.

The "economic-loss rule" bars recovery in tort when a party suffers economic loss unaccompanied by harm to his own person or property in most jurisdictions. However, Louisiana courts have adopted a modified version of the "economic-loss" rule. Louisiana courts adhere to the traditional rule but use policy considerations to determine the reach of the rule. The courts consider if there is an "ease of association" between the "rule of conduct, the risk of injury and the loss sought to be recovered." This inquiry is done on a case-by-case basis. Additionally, in such negligence cases, the court applies a duty-risk analysis in determining whether or not to impose liability. In order to prevail under the duty-risk analysis, the plaintiff must show that (1) the defendant had a responsibility to conform his conduct to a specific standard, (2) the defendant failed to adhere to that standard, (3) the defendant's conduct actually caused the plaintiff's injuries, (4) the defendant's conduct was the legal cause of the plaintiff's injuries and (5) actual damages.

In the case at hand, the Court held that the ease of association between the damaged crawfish and the plaintiff's economic loss was too attenuated since the plaintiffs did not possess an enforceable right to the crawfish. Also, the Court disagreed with the plaintiff's assertion that they were entitled to recover because of the symbiotic relationship between the Buyers/Processor and the crawfish farmers since the analysis is not based solely on foreseeability. Finally, despite the fact that the defendant's negligence cause severely affected crawfish farmers in the industry, a plaintiff's right to recovery is not related to the economic harm caused by the defendant's conduct.

This case highlights the complex analysis Louisiana courts apply in third party recovery claims. It requires balancing the need to impose responsibility on the tortfeasor for damages for an indeterminate time to an indeterminate class and the need to limit such liability. Thus, any individual or company involved in this type of litigation should consult seasoned attorneys, such as those at the Berniard Law Firm to assist with claims and help minimize liability or maximize the amount of damages.

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September 13, 2011

Jones Act Lawsuit Fails Under Seaman Claim

"Plaintiff Lost at Seaman Claim"

Robert Teaver may have fancied himself a man of the sea but the United States Court of Appeals for the Fifth Circuit agreed with the District Court for the Eastern District of Louisiana that there was no way he could establish his status as a "seaman" for purposes of the Jones Act.

When dealing with litigation, especially when making a claim under a premise, words mean everything. To clarify, words mean specific things and those specific definitions are everything. Robert Teaver attempted to sue his employer under the Jones Act. The Jones Act was crafted to protect seamen who are injured in the course of their employment. This statute lays out the elements that must be met in order for a potential plaintiff to file a successful suit under it. Robert Teaver was a crane operator and installer for Seatrax of Louisiana, Inc. This company makes and installs cranes for offshore drilling platforms. Mr. Teaver's work took him over water but he was not employed on a maritime vessel.

Mr. Teaver's first assignment put him on the M/V Chermie, a boat owned by L&M BoTruc Rental, Inc. Mr. Teaver and his brethren were to eat and sleep aboard this vessel during the three days that they were out on this assignment. The team was to disassemble a portable crane on an oil platform 90 miles of the coast of Louisiana. The platform was owned by Mariner, Inc.

Mr. Teaver received injuries that left him permanently paralyzed less than 24 hours into his employment with Seatrax. He fell about 19 feet on to a gangbox, a type of toolbox. Mr. Teaver filed a claim in Louisiana state court under the Jones Act. This would prove to be a mistake. Mariner removed the suit to federal court under the Outer Continental Shelf Lands Act. Federal question jurisdiction was invoked. Mr. Teaver tried to remand the action to state court with no success.

Mr. Teaver was not a seaman as defined in Chandris, Inc. v. Latis, 515 U.S. 347, 369 (1995). The court in Chandris held that to qualify as a seaman under the Jones Act a plaintiff must establish that "(1) his duties 'contribute to the function of the vessel or to the accomplishment of its mission,' and (2) he has 'a connection to a vessel in navigation (or an identifiable group of such vessels) that is substantial in terms of both its duration and its nature.'"

The seaman must be a member of a vessel's crew and not just a land-based employee who happens to be on the vessel. The coincidental nature of Mr. Teaver's presence on the M/V Chermie is not enough to qualify him as a seaman. Louisiana case law prevents a person whose relationship with a given vessel or set of vessels is simply "transitory and fortuitous" from filing suit under the Jones Act. Mr. Teaver did not contribute to the function of the Chermie. He did not take direction from its captain. The Cheramie was simply a supply vessel. The Seatrax workers were not "borrowed servants" under any agreement between Seatrax and Mariner or L&M. No such agreement existed.

Mr. Teaver tried several reaching arguments in an attempt to distinguish his case from the cases that set the precedents in this area of law. The trial court did not agree with his arguments nor did the appeals court after reviewing his arguments de novo. Mr. Teaver may have done himself a disservice by attempting to file suit under the incorrect statute. Had he been successful, having his case defined as a Jones Act case would prevent it from being removed to federal court. There must have been some reason that Mr. Teaver wanted to keep the litigation in state court. Hopefully he has not wasted his chance for justice and compensation by trying the wrong legal maneuver for the situation.

To read more about Mr. Teaver's ill-fated nautical journey read the case here.

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September 1, 2011

Court Explores Scope of Employment in Baton Rouge Car Accident

After working at his job as a recruiter for the U.S. Army, Sergeant Sean Fowler went out drinking with friends on the evening of February 4, 2008. He returned to the recruiting station in Covington briefly to pick up some personal belongings before heading home, as he had the following day off from work. At about 12:30 am early Mardi Gras morning, Fowler fell asleep at the wheel of his government-owned vehicle ("GOV").

At the intersection of Harding and Howell Boulevards in Baton Rouge, he collided with a car driven by Fartima Hawkins. Fowler, who submitted to a breathalyzer test at the scene, had a blood alcohol content of 0.112%, which was over the legal limit in Louisiana of 0.08%. Hawkins, who sustained serious injuries in the crash, sued Fowler and the U.S. government in federal district court. Her complaint asserted that Fowler was acting within the course and scope of his employment at the time of the crash and, therefore, the government was liable under the doctrine of respondeat superior. The district court granted the U.S. government's motion for summary judgment. Hawkins appealed, arguing that a genuine issue of material fact existed over whether Fowler was acting within the scope of his employment at the time of the accident.

The U.S. Court of Appeals for the Fifth Circuit conducted a de novo review of the district court's decision. Hawkins's case against the federal government was premised on the Federal Tort Claims Act (FTCA), which limits responsibility for injury to that which is “caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment.” 28 U.S.C. § 1346(b)(1). Under the FTCA, the question of whether a negligent act occurred within the course and scope of a federal employee’s duty is settled according to the law of the state in which the alleged act occurred. See Garcia v. United States. Thus, the Fifth Circuit applied Louisiana jurisprudence in its analysis. Generally, an employee’s conduct is within the course and scope of his employment if it is (1) of the kind of conduct that he is employed to perform; (2)it occurs within the authorized time and space of employment; and (3) it is initiated, at least in part, by a purpose to serve the employer. See Orgeron v. McDonald. The default approach in Louisiana is the “going and coming” rule: that is, when an employee is involved in a car accident on his way to or from his place of employment, it is considered to be outside of the course and scope. An exception to the rule is when the employee uses an employer-owned vehicle in the "performance of an employment responsibility." Factors that influence the analysis include: (1) whether the employee’s use of the vehicle benefitted the employer; (2) whether the employee was subject to the authority of the employer at the time of the accident; (3) whether the employee was authorized to use the vehicle; and (4) whether the worker was motivated to use the vehicle, at least in part, by the employer’s concerns. Brooks v. Guerrero. The court found "no evidence ... that Fowler’s use of the GOV was related to any employment responsibility or was of any value to the Army." Instead, the court found that "Fowler was going home for the Mardi Gras holiday at the time of the accident" and, accordingly, was not acting within the course and scope of his duties as an Army recruiter. Although the court recognized that Fowler's "permission to use a GOV on the evening of the accident [was] genuinely disputed," it held that the settlement of that issue was not essential to determining the course and scope of employment. Thus, the court concluded that "no genuine issue of material fact exists that might preclude entry of summary judgment in favor of the United States."

This case shows the state's policy of requiring more than the showing of an employee/employer relationship to trigger the employer's liability for the employee's misconduct. Although the concept of respondeat superior is alive and well in Louisiana, the ability of the plaintiff to prove that the defendant's conduct was within the course and scope of employment is essential. I

Continue reading "Court Explores Scope of Employment in Baton Rouge Car Accident" »

August 28, 2011

River Boat Casino Injury: Is it a Maritime Issue?

Gambling is one of the many recreational activities that the state of Louisiana has to offer. One of the more popular ways to gamble in Louisiana, is on the river boat casinos. However, in a recent Louisiana Third Circuit Court of Appeal decision, the court explored whether or not incidents such as personal injury that occur on these river boat casinos qualify under maritime law as a result of being "in navigation." This issue presents an interesting dilemma in classification, especially after the Louisiana legislature in 2001 amended the gambling laws so as to prohibit gambling boats in Lake Charles from conducting cruises or excursions. Thus, the question becomes: are these river boat casinos in navigation and thus governed by maritime law?

The facts of the case include a young woman who visited a river boat casino on Lake Charles to enjoy gambling in addition to the complimentary food and drinks. However, she became intoxicated and at 4 a.m., she fell from a stairway onto the ground below, suffering serious injuries. According to protocall, her blood alcohol content was measured at 0.33%. Initially, the young woman pursued damages under Louisiana law, however, Louisiana Revised Statute 9:2800.1 provides:

"The legislature finds and declares that the consumption of intoxicating beverages, rather than the sale or serving or furnishing of such beverages, is the proximate cause of any injury, including death and property damage, inflicted by an intoxicated person upon himself or upon another person."

In an effort to circumvent Louisiana's statute prohibiting liability in the case of an intoxicated individual, the young woman alleged that her cause of action was instead, controlled by federal maritime law which contains no similar provision barring the type of claims she was asserting. Her reasoning for alleging a federal maritime claim, was that her fall occurred on a permanently moored floating casino, a watercraft she contends is a vessel in navigation for purposes of general maritime law. The trial court did not explore the definition of "navigation," nor the actual status of the casino, but instead, agreed, finding the plaintiff's claims did fall within admiralty jurisdiction. It was not until the defendant river boat casino company files an appeal that the actual status of the boat was taken into consideration and explored.

Whether or not a boat is in navigation depends on the services the boat provides and the duties the boat performs. As such, in Stewart v. Dutra, the Supreme Court discussed the distinction drawn by the general maritime law between watercraft that are permanently affixed to the shore or resting on the ocean floor and those that are temporarily stationed in a particular location. The record reflects that the Lake Charles river boat casino was prohibited from conducting cruises or excursions after the Louisiana legislature enacted La. R.S. 2765. Since that time period, the river boat casino has been docked and has not conducted any cruises. Further, the boat itself was fitted with four winches, each holding steel cables to permanently secure the vessel to the dock. The utilities servicing the boat, including electricity, water, telephone, sewer, cable, and surveillance were attached to the vessel from land-based sources. Additionally, since the restrictions were set in place prohibiting river boat casinos mobility, the crew of the river boat has been significantly reduced, in fact the captain of the boat was no longer responsible for any navigational duties. To support the contention that this river boat is indeed "out of navigation," the Fifth Circuit held in De LaRosa v. St. Charles Gaming Co., that the very same gambling boat at issue in the present case, was not a vessel for purposes of admiralty jurisdiction. The Appellate court dismissed the young woman's claim, citing to the federal jurisprudence interpretation on maritime jurisdictional rules and definitions as applied to similar boats and circumstances. Therefore, her claim was not based in general maritime jurisdiction and would have to be governed by Louisiana statutes, which ultimately will deny her damages as a result of her blood alcohol content.

In summary, boats have to be in navigation in order to qualify for general maritime jurisdiction. The numerous river boat casinos that are located throughout Southeast Louisiana may fall outside the definition of a "vessel in navigation." A boat cannot be permanently attached to the shore, or moored for extended periods of time and still qualify as being "in navigation." Thus, the river boat casino would not be governed by federal maritime law, instead, they are out of navigation and are governed by the rules and statutes of Louisiana.

August 20, 2011

American Bar Association Calling for Nominations of Top 100 Lawyer Blogs

The ABA (American Bar Association) has called upon lawyers and non-lawyers alike to submit blogs from across the internet as exceptional examples of legal advice and content. With content about the law ranging widely across the internet, the ABA recognizes the value of those blogs that wish to educate the public about a wide range of issues as examples of how attorneys can help bring an understanding of public policy to the masses.

Through a form, located here, ABA members and/or the public can nominate the efforts of attorneys whose work helps explain the complexities that the law has to offer. While the competition prevents bloggers from nominating themselves, the ABA has requested that the work of their peers be showcased. Due by September 9th, blog suggestions can cover any topic of the law, whether maritime, personal injury, civil or criminal in nature. This possibility of diversity makes the Top 100 list all the more interesting because of the wide variety of content the selected are sure to cover.

If you know of a blog that wishes to discuss legal issues of interest to lawyers (and perhaps those outside of the field), click here to fill out the ABA's form. Limited to 500 words, nominations should explain why the blog, obviously, deserves to be included in the list as well as its value as a whole. Nominated sites should avoid the regurgitation of content from other sites (copy and pasted quotes of news items, etc.), showing that the main focus of the content is original discussion of those issues of law that affect professionals as well as the public.

We will undoubtedly be checking out this list as it is sure to contain content that is of interest not only to residents of Louisiana but across the country. For a directory of 'blawgs,' as categorized by the American Bar Association, you can click here to tour the spectrum of content available by state or topic.

This blog was started as an effort to not only showcase the knowledge of our law firm but to also provide people, whether residents of New Orleans, Louisiana, the Gulf Coast, or throughout the country, a resource that explains how the law is important to their everyday lives. Blogging is a powerful tool not only in the legal profession but as a medium of empowering people who may not realize that an instance of tragedy or harm comes with it legal recourse. We hope that the content we have provided over time has helped people find an answer to legal issues or simply gain a little bit of knowledge about how this country's system of law works. This is said not to shill for a nomination to the aforementioned contest but, instead, to note that this ABA-sponsored contest highlights something we feel strongly about, that being the power of legal blogs.

We hope you continue to enjoy your weekend and will have new content available Monday.

July 17, 2011

Louisiana Third Circuit Court of Appeal Reverses Grant of Exception of Prescription

In Darren Dugas, et al v. Bayou Teche Water Works, et al, the Third Circuit Court of Appeal for Louisiana (“Court”) provided guidance on Louisiana statute La. R.S. 9:5624, which limits the liability of any government entity in Louisiana in connection with a public works for a two-year statutory period. The plaintiffs, the Dugas family (“Dugas plaintiffs”), sued Bayou Teche Water Works, Inc. (“Bayou Teche”) and its insurer for damages they allegedly sustained from Bayou Teche's dumping of brine into an irrigation canal.

The Dugas plaintiffs owned a stretch of farmland along an irrigation coulee in Iberia Parish, and used the irrigation water for their farming operations. Bayou Teche, the defendant, runs a potable water treatment plant nearby. According to the petition, the Dugas plaintiffs notified Bayou Teche immediately upon discovering the discharge, but Bayou Teche continued to discharge the brine into the waterway for about a year after. After the Dugas plaintiffs brought suit, Bayou Teche answered their petition by merely stating that it was a Louisiana corporation that complied with all applicable statutes and regulations in its operation. The company subsequently filed an exception of prescription, which the trial court granted. In granting the exception, the trial court relied on La. R.S. 9:5624, which states that “[w]hen private property is damaged for public purposes any and all actions for such damages are prescribed by the prescription of two years, which shall begin to run after the completion and acceptance of the public works.” As discussed previously, the statute was adopted to limit governmental exposure from claims for damages to property when the damage is caused by a public work. Nuckolls v. Louisiana State Highway Department. The policy behind the statute is to encourage projects that provide a public purpose or benefit. The statutory period begins to run when the damage is discovered. In other words, the suit must be brought within two years after damages are sustained. Therefore, any suit that is not brought within the two-year period is barred. By granting the exception, the trial court concluded that the Dugas plaintiffs did not bring their lawsuit within the period of time set by the law.
Since the burden of proving the exception of prescription is on the movant, the ultimate issue on appeal was whether Bayou Teche met its burden of proof. After reviewing the record, the Court concluded that Bayou Teche failed to meet its evidentiary burden. The Court reasoned that the evidence introduced at the lower level only addressed the defendant's allegations that the plaintiffs' own negligence caused their damages. At the hearing, Bayou Teche failed to argue how it satisfied the particular elements of the statute. It did not assert it was a government entity nor explain how its water treatment plant and the dumping of brine serve a public purpose.

This case is another classic example of how essential it is to seek a competent attorney who is knowledgeable and experienced at defending your claim.

Continue reading "Louisiana Third Circuit Court of Appeal Reverses Grant of Exception of Prescription" »

July 11, 2011

Maritime and Industry Injury Cases Quite Complex (Continued)

In Catalyst Old River Hydroelectric Limited Partnership v. Ingram Barge Co.; American River Transportation Co., the 5th Circuit revisits the decision made by the U.S. Supreme Court in Robins Dry Dock Co. v. Flint, 275 U.S. 303(1927): a foundational precedent for both maritime law specifically, and modern negligence law, generally. In Robins, the Supreme Court articulated a rule that has endured to this day and has significantly influenced general negligence jurisprudence; namely "there can be no recovery for economic loss absent physical damage to or an invasion of a proprietary interest." In TESTBANK (1985) the 5th Circuit reaffirmed the Robins rule that the court has consistently applied whenever circumstances necessitate doing so. After reviewing the rules from Robins and TESTBANK, the court in Catalyst applies these rules to the facts of the case.

On December 24, 2007, two tug boats with barge tows collided on the Mississippi River 2.5 miles upriver from the intake channel to the Sidney A. Murray hydroelectric plant. M/V Dan McMillan and its tow was operated by Defendant ARTCO, and M/V John Donnelly and its tow was operated by Defendant Ingram Barge Co. Several barges broke free from the tow of the Dan McMillan, including Barge TILC-37. Barge TILC-37 then drifted down river into the intake channel of Catalyst's facility and became grounded on the east bank of the intake channel, lodged against the station and abutment. The physical presence of Barge TILC-37 obstructed the intake channel which provides water to the turbine/generators of the electric power generation facility."
Because of the location of the barge, Catalyst had to reduce the flow of water in the intake channel to the turbines; and thus its output of electricity. This was necessary to prevent the barge from sinking and to allow safe access to the barge for its removal. Catalyst had to shut down six of the turbines and reduce the output of the remaining two because of the decrease of water coming into the intake channel. This allowed for the safe removal of the barge. Catalyst restored normal capacity to the plant at 6:30 p.m. on the 25th.

It is important to note that the power station is located "in a channel off the river. Catalyst owns the station and the surrounding property necessary for its operation. This includes the banks of the Mississippi River, the intake channel and the abutment on which the dam structure sits. The intake channel and a small island located in the mouth of the intake channel where it meets the Mississippi River are functional elements of the hydroelectric facility, acting as a pipe would to direct water into the station's eight turbines in order to produce electricity."
Catalyst filed a suit in Louisiana state court seeking damages for the value of the electrical power it was unable to generate due to the intrusion of the barge. The Defendants removed the case to federal district court. The defendants motioned for summary judgment and it was granted. Catalyst appealed and the 5th Circuit decided the appeal.

The Defendants' argued that Catalyst did not suffer any physical harm, and cited Reserve Mooring Inc. v. American Commercial Barge Line 251 F. 3d 1069 (5th Cir. 2001) as a controlling precedent. In Reserve a barge sank while anchored to a midstream mooring facility on the Mississippi River, blocking the site and rendering it unavailable for use by other vessels for 3 months. Reserve sued seeking lost revenue. "Because the sunk barge only interfered with Reserve's business expectancy by preventing other vessels from mooring at the facility for a period of time, this court (5th Circuit) concluded that Reserve's claim for purely economic damages must be denied."

The main thrust of the Defendant's argument is that there was no physical damage done to the intake channel or the rest of Catalyst's facility. Thus, they argue that Catalyst did not suffer any physical injury to a proprietary interest which is the requirement for recovery of economic losses. Also, the Defendants "presented no evidence that the barge did not disrupt the water flow, which everyone agrees is critical to Catalyst's operations", nor did they contest "the basic facts of the ownership and design of the facility": both of which are essential features of the support for Catalyst's claim.

Catalyst argued that its facility did suffer physical damage because "the presence of the barge in the intake channel, which is a functional component of Catalyst's hydroelectric facility interfered with the unobstructed continuous flow of water in the channel, impairing the ability of the facility to operate as designed." The following from an answer by Catalyst in the Defendant's Statement of Uncontested Material Facts sums up the reasons that Catalyst suffered property damage to a proprietary interest.

"The intake channel is Old River's private leasehold property and is the conduit portion of the facility which directs water into the turbines which power the Old River Station. The barge's physical entry into Old River's private leasehold property, its running aground on Old River's leasehold property, the physical recovery effort to secure and remove the barge from Old River's private leasehold property obstructed the conduit, thereby damaging it and physically preventing Old River from using its only source of power for its generators"

The court recognized that the interference with the water flow to the intake channel, hindered Catalyst's use of the facility. The court also recognized the recovery effort as a reason to support Catalyst's claim of damages. Remember, the water had to be restricted to the degree that six turbines were shut down and the remaining two reduced in power output so that the barge could safely be recovered by a tug boat. The decision states "the physical recovery effort to secure and remove the barge from the intake channel required a reduction in the flow of water necessary for the turbines to operate properly and generate the power they were designed to generate." A rule distilled from these facts was articulated by the court in the following: "Acts taken in mitigation to prevent permanent physical damage can serve as the physical damage requirement in the TESTBANK rule." Also, "costs incurred to mitigate damages satisfy the physical damage requirement of TESTBANK."

The court decided for Catalyst and concluded "that the entry of ARTCO's barge into Catalyst's privately owned hydroelectric facility caused physical damage to Catalyst's property and invasion of its proprietary interest. As co-licensees of the Sidney A Murray hydroelectric plant, the people of the town of Vidalia should be happy with the decision.

July 9, 2011

Maritime and Industry Injury Cases Quite Complex

The Town of Vidalia and the Parish of Concordia have the honor and distinction of being the beneficiary and location, respectively, of the largest prefabricated power plant in the world and the first hydroelectric power plant in the State of Louisiana. In 1990 the Sidney A. Murray Jr. hydroelectric station was prefabricated at the Avondale Shipyard in New Orleans, and floated 208 miles upriver to its current location: 40 miles south of Vidalia. The facility sits one mile north of the Army Corp of Engineers Old River Control Complex between the Mississippi River and the Red Atchafalaya River, producing 192 megawatts by utilizing the flow of 170,000 cubic feet per second of water past eight hydroelectric turbines. The project is remarkable not just because it is the first hydroelectric plant in Louisiana, and the largest prefabricated hydroelectric plant on the planet; but it is also the product of a multinational collaboration, it produces clean and renewable energy for Vidalia, and the town of Vidalia is a co-licensee of the project. In addition to the obvious benefits of clean and renewable energy and the employment that the Sidney A Murray Jr. project bestows on Vidalia and the Parish of Concordia; the citizens of Vidalia also benefit from "stabilized energy rates" that they receive with the operation of the plant.

Catalyst Old River Hydroelectric Limited Partnership v. Ingram Barge Co.; American River Transportation Co. is a particularly interesting case for those living in Concordia Parish because it is a maritime tort case involving the Sidney A. Murray Hydroelectric Plant. The case is important because it includes a review of the standards for damage requirements established in Robins Drydock and Repair Co. v. Flint 275 U.S. 303 (1927) and reaffirmed in Louisiana ex. rel. Guste v. M/V TESTBANK 752 F.2d 1019 (5th Cir. 1985). After reviewing Robins and TESTBANK, the 5th Circuit then applies the Robins test to the particular facts of the case. This will be a two part discussion: the first part will identify and discuss the test developed in Robins and evaluated in TESTBANK. The second part will discuss how the 5th Circuit applied the Robins test to the facts of the Catalyst case.

In 1927 the United States Supreme Court decided Robins Dry Dock and Repair Co. v. Flint. This case established "the general proposition that claims for pure economic loss are not recoverable in tort." This decision has profoundly impacted not just maritime tort law, but general negligence law as well; with extremely broad implications and applications that resound to this day, over 80 years later. " No single decision in American tort law has more dominated the analysis of liability for pure economic loss than Robins Dry Dock Repair Co. v. Flint." Justice Holmes "denied the plaintiff, a time charterer recovery for financial loss which resulted from the defendant's interference with the plaintiff's use of the chartered vessel." The following hints at the scope of the effects of the decision.

"As many have noted, this denial of liability went sharply against the current of the overwhelming tendency of modern negligence law 'that pushed liability for physical injuries toward the full extent of what was foreseeable and shattered ancient barriers to recovery based on limitations associated with privity of contract and similar restrictive concepts'. Yet in the face of modern negligence law and notwithstanding that Robins was a case of admiralty, the decision remains, overwhelmingly, the majority view and represents the longest standing and most influential statement in American tort law of what has come to be called 'the economic loss rule'".
In the present case, the 5th Circuit articulates the Robins rule in the following: "It is well settled under the general maritime law that there can be no recovery for economic loss absent physical damage to or an invasion of a proprietary interest."

To resolve the issue in Catalyst, the 5th Circuit has to apply the Robins rule to the facts of the case. An analysis of the application of this rule to the facts will be discussed later. However, the Court very succinctly makes the relevance of Robins to Catalyst clear in the following statement in, and about, Catalyst:

"the question in this case is whether Catalyst suffered such damage to its proprietary interest in its hydroelectric station as to satisfy this test and justify the recovery of the economic damages Catalyst seeks in this court."
As the above quotation about Robins makes clear, the Robins decision "remains, overwhelmingly, the majority view" that has existed since 1927. Curiously and serendipitously, the same court deciding Catalyst, the 5th Circuit of Louisiana, "engaged in an extensive debate over the continued vitality of Robins and concluded (despite five dissenters) that it remained good law." In the State of Louisiana ex. rel. Guste v. M/V TESTBANK (1985) two ships collided on the Mississippi River, resulting in a toxic chemical release and the closure of an outlet on the Mississippi River for approximately 19 days. A variety of entities were adversely affected by this closure which compelled those adversely affected to file numerous lawsuits. These lawsuits were "consolidated before the same judge in the Eastern District of Louisiana". The defendants were granted summary judgment "on all claims for economic loss unaccompanied by physical damage to property." On appeal an en banc panel of the 5th Circuit affirmed the decision.

In TESTBANK, the 5th Circuit reaffirmed Robins; articulating specifically that "physical damage to a proprietary interest is a prerequisite to recovery for economic loss in cases of unintentional maritime tort." The 5th Circuit described the rule in Robins as a pragmatic rule that prevents "open ended liability" in cases where "a plaintiff has no proprietary interest in property that is physically damaged." The court recognized the Robins rule as effective in helping the trier of fact to avoid arbitrary judgments by having a "bright line rule" that places a "determinable measure on the limit of foreseeability" and that "allows for extensive losses....to be spread over first party or loss insurance." The court emphasized the pragmatic effects and benefits of the Robins rule in TESTBANK.

In Catalyst the 5th Circuit revisited both the Robins decision (by applying the rule) and its own decision in TESTBANK (the reaffirmation of the Robins rule). The Court relied upon Robins and TESTBANK as precedents for Catalyst, creating consequences for the Parish of Concordia and the town of Vidalia. In Catalyst, the 5th Circuit cites Kaiser Aluminum and Chemical Corp. v Marshland Dredging Co,. 455 F.2d 957 (1972), Dick Meyers Towing Service, Inc. v. United States, 577 F. 2d 1023 (1978), and Louisville & Nashville Railroad Co. v. M/V BAYOU LACOMBE, 597 F. 2d 469 (1979) as examples of the "consistent application of the rule stated by the majority in TESTBANK 'that there can be no recovery of economic loss absent physical injury to a proprietary interest.' "

A significant dimension of Catalyst is the review of Robins and TESTBANK standards for recovery. Considering the influence of Robins and the fact that this rule was perpetuated and reemphasized in TESTBANK, the combination of these cases provide powerful precedents that will demonstrate their influence in Catalyst. The application of these precedents to the facts of Catalyst will be very interesting and compelling.

July 7, 2011

Fourth of July Offers Reminder of Danger of Negligence and Need for Common Sense, Attention to Safety

July 4th, though best known as an occasion for grilling out, visiting the beach or lake, and watching the fireworks, is unfortunately also notorious for its high incidence of accidents and injuries. Many incidents, especially vehicle and boat accidents, are related to alcohol use. The Louisiana Highway Safety Commission recently announced that more than 87 state and local law enforcement agencies work overtime throughout the holiday weekend. Many of the agencies will be participating in the state's "Over the Limit, Under Arrest" campaign that aims to keep impaired drivers off the road. The Commission reports that the number of highway deaths has dropped significantly over the past few years: 16 people were killed on Louisiana highways over the Fourth of July holiday in 2007, and only two fatalities occurred last year.

Despite this positive trend and the stepped-up efforts by law enforcement, patriotic celebrants throughout Louisiana may still find themselves in dangerous situations over these holiday weekends. When calamity should strike, the parties involved may turn to the courts to resolve their dispute; the resolution will likely involve the court's application of negligence. The theory contains four basic elements that a plaintiff must show in order to recover from a defendant. First, a plaintiff must establish that the defendant owed him or her a duty. This is generally a straightforward matter, as all members of society have a responsibility to exercise reasonable care toward others; this duty takes such common sense forms as requiring users of fireworks to point bottle rockets away from bystanders or drivers to operate their vehicles in a safe manner. Driving a car or piloting a boat or jet ski while under the influence of alcohol or drugs is a clear violation of this duty. A person who fails to observe the obligation of safety and engages in conduct that poses an unreasonable risk of harm to others is said to breach this duty. This second element of negligence must be tied to the plaintiff's injury by way of the third element, causation. That is, the defendant's breach of duty must have resulted in the plaintiff's injury. A defendant is responsible only for the consequences that are directly linked to his or her misconduct.

The final element, harm, requires the plaintiff to prove that he or she suffered a loss. The court can award two kinds of damages to compensate the plaintiff for his losses: special and general. Special damages are those which are easily quantifiable, such as medical expenses, lost wages, or property repair costs. General damages cover intangible losses, such as pain and suffering. Trial courts are afforded great latitude in assessing general damage awards, which can potentially expose defendants to staggering liability.

The Insurance Institute for Highway Safety reports that the Fourth of July is the single day of the year with the highest rate of car crash deaths nationwide, with the second-highest rate occurring on July 3. This serves as a reminder how every holiday comes with it poor decisions and that people should, more than anything, remember to keep their family's safety a priority, on and off the highway. Additionally, any injury should receive both medical and legal attention lest a person's health, and rights, be violated due to rash decisions.

All of us here at the Berniard Law Firm hope that all of our readers enjoyed a happy and safe Independence Day, as well as an enjoyable shortened work week!

July 3, 2011

On-the-Job Injury at Sea: The Jones Act, Employer Negligence, and Claims for Unseaworthiness

In any workplace, an on-the-job injury can have serious repercussions, both medical and legal, for the injured employee and their employer. However, if the injured employee is a seaman, additional maritime laws and standards may apply when an injury occurs. For individuals working on ships, in shipyards, or in any industry covered by maritime law, knowledge of the protections and specific laws which apply in the event of injury is pivotal in order to be able to protect oneself.

The recent Louisiana First Circuit Court of Appeals case of Graham v. Offshore Specialty Fabricators, Inc. and Cashman Equipment Co. illustrates the importance of understanding the Jones Act, a federal law allowing seamen injured on the job to sue their employers, and claims alleging unseaworthiness of vessels. Graham was injured while working with a barge fleet on the Atchafalaya River near Morgan City, Louisiana. He and a co-worker were charged with the task of securing their employers deck barge. During this process, they needed to move other barges owned by Cashman Equipment Co. They crossed the deck of one such barge in order to reach and release the ship’s towline. Unbeknownst to the men, there were two large holes on the ship’s deck. Both men fell through one of the holes and both were seriously injured. Graham sued, and the lower court found in his favor. A jury awarded him damages. Both plaintiff and defendant appealed.

Graham brought his personal injury suit under the Jones Act. The Jones Act applies to any seaman who is injured or killed on the job and establishes his or her right to bring a civil action against an employer. The potential liability of the employer extends to all personal injuries sustained on the job, but the employee must prove negligence in order to recover. The duty of care owed by an employer under the Act is ordinary prudence. The ordinary prudence standard requires an employer to take reasonable care in maintaining a safe work environment under the circumstances particular to the case. To prove a claim of ordinary negligence, a claimant must prove that injury occurred and that the employer owed a duty to the injured, that the duty was breached, and that the breach caused the injury. The claimant must also show they themselves were exercising reasonable care in the course of their activities in order to recover. Graham presented evidence that the defendants were at fault for failing to properly maintain their ship deck. Based on this evidence, the appellate court held that the jury determination of damages on this issue should stand.

Graham also claimed unseaworthiness, citing the condition of the deck on the vessel which caused his injury. In maritime law, the owner of a ship has a duty to provide a seaworthy vessel. This duty is completely independent of the duty owed from an employer to an employee under the Jones Act. If the seaman making the allegation of unseaworthiness can prove that his injury was caused by the defective condition of the ship or its equipment, the employer is held strictly liable for the injury. Strict liability is applied without consideration of whether or not the employer exercised due care or was negligent. In other words, where the claimant can prove a violation to which strict liability attaches, the employer is held liable regardless of their actions. The claimant need only prove that the dangerous condition caused his injury in order to recover. The court in Graham’s case held he had sufficiently proven the condition of the ship caused his injury, and it held the jury’s damage award must stand.

If you or a loved one is employed in an industry covered by maritime law, it is imperative that you understand the often complex law which governs any injury that occurs on such a job. You need the services of an effective legal team to help you determine important issues such as whether you have a claim under the Jones Act. Contact the Berniard Law Firm online at laclaim.com and an attorney specializing personal injury will be able to assist you.

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June 21, 2011

Avoyelles Parish Cooking Accident Leads to Court's Review of Interlocutory Appeals

Louisiana jurisprudence recognizes the concept of the interlocutory appeal, which is an appeal of a ruling by the trial court before the verdict is ultimately rendered. An interlocutory appeal is available only for issues that would directly affect the trial's outcome or that would not be reviewable except by immediate appeal. Thus, not all interlocutory judgments made by a trial court are eligible for appeal. For instance, a trial court's judgment granting a party's motion for new trial is an interlocutory judgment that is ineligible for appeal because it does not decide the merits of the case. This very rule was at the center of the Third Circuit Court of Appeal's recent unpublished opinion in the case of Dauzat v. State of Louisiana, Department of Transportation and Development.

On March 10, 2008, Christine Dauzat boiled several batches of crawfish in a large, heavy pot on the patio of her home located in Avoyelles Parish. When she was finished cooking, Dauzat and her adult son carried the pot of still-boiling-hot water to the roadside ditch that ran the length of her property. While attempting to dump out the pot, Dauzat slipped on a ramp that crossed over the ditch. The hot water from the pot poured over her as she fell into the ditch, burning her severely. Dauzat sued the Department of Transportation and Development (DOTD) alleging that the ramp and ditch were located within the DOTD's right-of-way and that the DOTD failed to properly maintain the ramp. At trial, a jury returned a verdict finding Dauzat to be 100 percent at fault for the accident. Dauzat filed a motion for a new trial, which the trial judge granted after a hearing. Then the DOTD filed a suspensive appeal in the Third Circuit Court of Appeal that sought to delay the commencement of the new trial. Dauzat countered that the DOTD's appeal was improper "because a judgment granting a motion for new trial is an interlocutory judgment." The Third Circuit agreed: "The judgment granting [Dauzat's] motion for new trial does not decide the merits of this case and, thus, is interlocutory." Louisiana jurisprudence has expressly held that "a judgment granting a motion for a new trial is a non-appealable interlocutory judgment.” Thus, the court found that the trial court’s ruling was a "non-appealable, interlocutory ruling," and Dauzat was able to proceed with her new trial.

At the center of this judgment was the fact that the trial court's granting of a new trial did not directly resolve the ultimate issues in the case - whether the DOTD had a duty to maintain the ramp and ditch in front of Dauzat's property, and whether it failed to do so. The trial court's judgment simply permitted the matter to be brought before a second jury for resolution, and that ruling was therefore not appealable. The policy of limiting appeals is based on the preference of handling matters at the trial court level whenever possible, as the trial court offers the most direct means by which to resolve factual disputes.

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June 21, 2011

Understanding Prescriptive Time Periods When Filing a Lawsuit

Time is of the essence when it comes to filing a suit to address a grievance. If too much time passes, one may be barred from filing a lawsuit. The time period for filing a lawsuit is known as the "prescriptive time period." For example, a lawsuit for personal injury is subject to a one-year period of liberative prescription, following the date of the accident. The issue may become whether or not the time period has passed or not, thus, keeping a close eye on the calendar is the best way to stay safe when filing a lawsuit.

In a recent Louisiana Supreme Court decision, the court explored the time period in which the plaintiff initially filed to determine whether or not he filed in the appropriate time period. The cases arose from a fire at an oil well site in which the plaintiff was severely burned. The oil well accident occurred on September 27, 2007, thus, according to the prescriptive time period, he had one year from this date to file suit against the defendant(s). The plaintiff was employed by a Well Service Company that had contracted with an additional Mineral Company that produced oil and gas. In turn, the Mineral Company contracted with the plaintiff's direct employer to drill a well. The plaintiff filed a tort suit for his personal injuries against the Mineral Company and its insurer on September 4, 2008, falling within the one-year time period allowed for personal injury lawsuits. The plaintiff sustained injuries during the drilling operations, the well penetrated into formations that were pressurized with hydrocarbons. At the time of the incident, the plaintiff was in charge of circulating water through the well while awaiting heavier drilling mud to be pumped into the well to control the hydrocarbon pressure. His direct supervisor, a Well Service Employee, told the plaintiff to stand away from the well because the level the pressure was dangerous. However, the Mineral Supervisor contradicted the former supervisor's orders and told the plaintiff to get on his station at the pump and to abandon it only after shutting the pump off should the gas escape the well.

To the plaintiff's misfortune, he followed the Mineral Company's supervisor, where shortly after a hydrocarbon gas from down-hole escaped from the water tank sufficientily so that it ignited as the plaintiff was attempting to shut off the pump. This caused the hydrocarbon cloud in which the plaintiff was surrounded by, to become ignited, severely burning his entire body. It was only after the plaintiff filed suit against the Mineral Company that he discovered that the alleged Mineral Company supervisor was actually an independent contractor employed by a separate Pipeline Company. Thus, after the one year period, the plaintiff named the Pipe Company as a defendant in an amended petition. The question became whether or not the amended petition was proper, since the prescriptive period of one year had since passed. Thus, the Supreme Court's responsibility was to explore the lower court's decision which sustained the Pipeline Company's argument that too much time had passed and thus, the plaintiff should not be allowed to add them into the initial lawsuit.

Jurisprudence has recognized three different scenarios in which a plaintiff may rely on to establish that prescription has not run. These three situations include, suspension, interruption, and renunciation. In this case, the plaintiff relied on the theory of interruption to argue that his claim had not prescribed. In Louisiana Civil Code Article 1799 provides,

"The interruption of prescription against one solidary obligor is effective against all solidary obligors."

In addition, Louisiana Civil Code Article 3503 declares, "When prescription is interrupted against a solidary obligor, the interruption is effective against all solidqary obligors." Relying on jurisprudence, the Louisiana Supreme Court affirms the principle that for purposes of prescription, parties are solidarily liable to the extent that they share coextensive liability to repair certain elements of the same damage. As such, the plaintiff sustained severe physical injuries after being directly ordered to engage in dangerous activity by an independent contractor who was employed by the Pipeline Company. The companies are solidarily responsible since they held the supervisor out as a company employee and they were directly involved in the injury of the plaintiff. Therefore, prescription was properly interrupted as process was served upon the Mineral Company within the one year prescriptive time period, and since the independent supervisor involved was a solidary obligor, this initial service interrupted prescription amongst all involved and permits the plaintiff to amend the pleading to add the supervisor despite being past the one year prescriptive time period.

Lawsuits are a complicated process that require more than a grievance, they require proper filing within certain time periods, and serving parties at appropriate times. Thus, acquiring legal representation is highly recommended. This will help to ensure that the prescriptive time periods are followed and your legal argument does not fall between the cracks.

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June 7, 2011

Contractor Not Liable for Electrocution Death in St. Tammany Parish

The U.S. Court of Appeals, Fifth Circuit upheld a District Court ruling in early 2011 allowing a contractor out of a negligence suit following a tragic incident in which a young man was electrocuted while trimming trees. The Court held Defendant Contractor Camp Dresser & McKee, Inc. (CDM) did not have a duty to protect a subcontractor from injury and therefore could not be held negligent. Because there was no contract between the contractor and the tree service subcontractor, the Court held there was no principal-independent contractor relationship that would have formed a duty.

Chad Groover, an employee of Groover Tree Service (GTS), was operating an aerial lift and cutting trees on the morning of December 7, 2006, north of Slidell when the basket he was riding in made contact with an energized line. Groover's brother, Larry Groover, witnessed the electrocution. Chad Groover was severely injured at the scene and sadly died seven months later from complications. The family of the deceased brought a negligence action against several defendants, including the contractor CDM, a CDM worksite monitor, and CDM's insurers, Zurich American Insurance Company and ACE American Insurance Company. The suit alleged CDM's negligence caused Larry Groover to suffer mental anguish when he witnessed his brother's death.

Proving negligence requires proof that the negligent party owed a duty to the injured party. Duty implies a special relationship or can be established by law. The Defendants filed motions for summary judgment arguing they did not have a legal duty to protect Chad Groover from injury. Plaintiffs averred in a cross motion for partial summary judgment Defendants had a statutorily provided duty to have the power company de-energize the lines.

Summary judgment is appropriate if the the person claiming it shows there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. If the movant demonstrates the absence of a genuine issue of material fact the burden shifts to the non-movant to provide specific facts showing the existence of a genuine issue for trial. The issue as to whether a defendant owes a duty is a question of law. In deciding whether to impose a duty in a particular case, Louisiana courts examine whether the plaintiff has any law to support the claim that the defendant owed him a duty. Here, Plaintiffs provided no such law.

In their argument, Groover's side argued CDM was a principal and GTS was an independent contractor. Plaintiffs contended CDM had a duty to GTS because CDM controlled and expressly authorized the unsafe work practices that let to Chad Groover's death.

A principal, contractor relationship is in large measure determined by the terms of the contract between them. CDM and GTS did not have a contract. CDM's contract was with the Parish. GTS's contract was an oral one with another one of CDM's subcontractors. Under Louisiana law, a principal is not liable for the injuries resulting from the negligent acts of an independent contractor, unless the principal retained "operational control" over the contractor's work, expressly or impliedly approved the unsafe work practices, or the activity is ultra hazardous. Instantly, the Court held that the Plaintiffs side failed to provide evidence sufficient to show a principal-contractor relationship existed between the parties. Therefore, Defendant CDM owed no duty.

The Court also held the Louisiana Overhead Power Line Safety Act did not provide a statutory duty as the Act merely provides a means by which powerline operators and owners can hold individuals and companies liable for all damages, costs, or expenses incurred by the owner or operator as a result of contact with powerlines during the course of unauthorized work. Therefore, when doing work as a subcontractor it is important to ensure a valid contract exists between the parties.

If you have been injured on the job, hiring an attorney to discuss your rights is important. By hiring an attorney with experience and a thorough understanding of the law, you can protect your ability to recover for damages suffered.

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June 5, 2011

Lafayette City-Parish Consolidated Government Ordered to Pay Damages, Costs to Injured Bus Passenger

The plaintiff in this case, Eileen Laday, was a passenger on a bus owned by the Lafayette City-Parish Consolidated Government. The bus had been donated to the City-Parish in the aftermath of Hurricane Katrina. When the bus was donated, it was missing a plexiglass shield that was designed to keep the bus door from coming into contact with passengers. As Ms. Laday sat in the front seat, the door opened and trapped her arm. She was not consistent about how long her arm was trapped.

Ms. Laday went to a doctor the next day, complaining of neck and shoulder pain radiating into her right arm. The doctor ordered an MRI, which showed degenerative cervical disc conditions as well as a disc herniation. She later saw an orthopedic surgeon, who recommended that she undergo surgery. As of the date of trial, she had not yet had the surgery, which was estimated to cost between $60,492.60 and $61,492.60.

The judge conducted a bench trial (where there is no jury) and ruled in favor of Ms. Laday because of the high standard of care imposed on common carries like operators of public buses. He awarded her $60,000 in general damages, $24,084.56 in past medical expenses, and $60,492.60 for future surgery costs to be placed into a reversionary trust under La.R.S. 13:5106, with interest to go to Ms. Laday.

Lafayette City-Parish appealed, claiming that the trial court was clearly wrong in believing Ms. Laday over its expert, who testified that the claimed contact between the bus door and Ms. Laday’s arm was a possible, but not probable, cause of the disc herniation. It also claimed that the court should have put the interest on the award for future medical expenses into the reversionary trust rather than giving it to Ms. Laday.

Ms. Laday, on the other hand, thought that the amount of general damages and medical expenses were abusively low, given that there were additional future medical expenses proven at trial, including follow-up visits for a year.

The Third Circuit Court of Appeal for the State of Louisiana considered the purpose of La.R.S. 13:5106, which was to assure that money for subsequent medical care was paid directly to a medical care provider because judgments against public entities have amounted to more than those entities are able to pay. The use of a reversionary trust ensures that a plaintiff will not take the money and use it for something else other than medical treatment. Considering the purpose of reversionary trusts, the appellate court ruled that any interest that accrued should also go into the trust rather than being paid out to the plaintiff.

The Third Circuit also found that there were follow-up medical appointments needed after the surgery, which the plaintiff had proven but the trial judge did not take into account when awarding future medical damages. The appellate court added those amounts back in, making the total amount $62,288.00 that should go into the trust.

Ms. Laday was ultimately awarded a higher amount for future medical expenses, but the money, along with the interest that would accrue on that money, would be placed in a trust to be paid directly to a doctor or other medical professional providing treatment. As a result of this award, she was able to pay for the back surgery she needed.

If you have been injured while riding on public transportation, you may be eligible for compensation from the operator of the vehicle.

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May 12, 2011

Louisiana Department of Wildlife and Fisheries, Department of Transportation and Development Found Liable for Natchitoches Parish Drowning

In a ruling by the Third Circuit Court of Appeal for the State of Louisiana, the Louisiana Department of Wildlife and Fisheries (LDWF) and the Department of Transportation and Development (DOTD) were found jointly liable for $3.9 million to Vanna McManus and her children, the survivors of a man who drowned at Chivery Dam in Natchitoches Parish.

The deceased, Hugh McManus, was fishing with his friend Stanley Neal at the 70-year-old Chivery Dam in Mr. Neal’s boat. They pulled up close to the dam, killed the motor, and began throwing cast nets. The pair believed that the current in the nearby Saline Bayou would cause them to drift back downstream, but because of water coming over the dam and how close they were when they stopped, they were actually pulled toward the dam. The two men did not notice this until the boat bumped against the dam and began filling with water. The pair abandoned the boat without securing their life vests. Mr. Neal was able to make it to shore by walking on top of the dam, but Mr. McManus drowned. There were no warning signs posted anywhere near the dam announcing that approaching within a certain number of feet was dangerous.

A Natchitoches Parish jury found in favor of the plaintiffs and awarded them $3,880,965.95, with 25% of the fault allocated to LDWF (which owned the dam) and 75% to DOTD (which inspected and maintained the dam). The State of Louisiana appealed, claiming that the jury erred in finding that DOTD and LDWF were liable to the plaintiffs and that DOTD had a legal duty to warn of the alleged dangerous condition that caused Mr. McManus’ death. The jury also concluded that DOTD willfully or maliciously failed to warn against a dangerous condition under La. R.S. 9:2795 and that a dangerous condition existed at Chivery Dam at the time of the accident and that DOTD and/of LDWF had constructive notice of it.

In order to prove liability on the part of the state, the plaintiff has to show: 1) that there was a dangerous condition which presented an unreasonable risk of harm; 2) that the State had actual or constructive knowledge of the condition and enough time to take remedial action; 3) that the State had a duty to warn of the dangerous conditions; and 4) that the State was willful in its inaction. This last requirement overcomes the usual qualified immunity defense; La. R.S. 9:2795 states in part that an owner of land who permits someone else to use the land does not extend any assurance that the premises are safe for any purposes except for willful or malicious failure to warn against a dangerous condition. If the condition is obviously dangerous and would be clear to both the owner and a visitor, no duty exists to warn about the danger. If the unreasonably dangerous condition is not “open and obvious,” however, there is a duty to warn the plaintiffs of the danger.

Most of the jury’s findings that the State claimed were error were factual determinations, so the appellate court could not overturn them unless they were clearly wrong. It was clear that there was a reasonable basis for all of the jury’s findings, and the appellate court affirmed all of the trial court’s decisions.

In this case, there was testimony that there were at least two similar occurrences (without injuries) at the dam previous to this tragic incident. One incident involved Mr. McAlpine, a 28-year veteran enforcement agent for LDWF, who would have drowned had he not been able to grab a life preserver. He testified that someone who witnessed the accident had a similar experience and had seen several other accidents in the same area. Because Mr. McAlpine was and is a LDWF agent, LDWF can be said to have constructive knowledge of the unreasonably dangerous condition.

The plaintiffs’ expert witness, an engineer, testified that it was not possible to fix the condition and that the only alternative was to post warnings, buoys, or barricades that would have warned the plaintiffs. He pointed out that even the DOTD website states that the operator is required to correct or post warnings if there is a dangerous condition. He also testified that unless a person had training or experience with dams, there was no way to tell that the condition existed. The State did not refute the expert testimony. The evidence at the trial was enough to show that the State’s failure to post warning signs was willful, since they knew about the problem and had more than enough time to post signs.

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March 25, 2011

Baton Rouge Residents Lose Their Judgment in Property Damage Case

In 1996, a group of plaintiffs filed a petition for damages against the city of Baton Rouge/Parish of East Baton Rouge alleging that the operation and maintenance of the North Wastewater Treatment Facility caused personal inconvenience, mental suffering, embarrassment, and personal injuries, threatening their health and safety, as well as damaged their land and property. The trial court awarded monetary damages to nineteen plaintiffs for stigma damages and added plaintiffs back who had been dismissed for no property interested, awarding damages for discomfort and inconvenience. However, in a 2009 decision (that can be found here: 2009CA1076), the Louisiana Court of Appeals reversed many of the damage awards based on errors of law.

On appeal, the Louisiana Court of Appeals considered whether the trial court erred because the prescriptive period had expired, erred in awarding damages out of the 1997 expansion of the plant, or erred calculating damage amounts. Under La.R.S.9:5624, the prescriptive period for public property damage claims like this one is two years. The court agreed with plaintiffs that the period did not lapse because the latest expansion of the sewage plant can be viewed as a new public work event - thus plaintiffs were only responsible to file suit within two years of the 1998 expansion, not within two years of the plant's original opening in 1960.

The trial court awarded damages under Article I Section 4 of the Louisiana Constitution, which provides that "property shall not be taken or damages by the state or its political subdivisions except for public purposes and with just compensation paid to the owner." The Louisiana Supreme Court has addressed inverse condemnations like this one in the past (where the state is not taking other's property, but rather damaging it through their own property) and noted that "Despite the legislative failure to provide a procedure to seek redress when property is damaged or taken without the proper exercise of eminent domain this Court has held that a cause of action must arise out of the self-executing nature of the constitutional command to pay just compensation." As such, individuals whose land is damaged by the government have constitutional redress.

The Supreme Court has also provided five elements that must be proven in such a case: (1) that the property rights are at issue; (2) that the act alleged to have caused damages was undertaken for public purposes; (3) that the acts of the government violate Civil Code articles 667 through 669; (4) that the government has engaged in excessive or abusive conduct and (5) that their property has either been physically damaged or has suffered "special damage peculiar to their particular property." The Supreme Court has also found that as long as the activities on State land do not exceed the level of causing claimant some inconvenience there can be no taking or damaging of the property right.
Basically, in a case like this one, proof of personal injury, physical damage to property, or the presence of excessive or abusive conduct must be made. Here, the Court of Appeals found that it was unclear whether the trial court applied the correct legal criteria. Plaintiffs suffered inconvenience, but inconvenience alone is not compensable. The Court found that several errors were made at the trial court level:

First, plaintiffs can only be compensated for damages sustained by expansion of the treatment plant that occurred in 1997 and 1998 because earlier claims had prescribed, and as such, damage for odors existent in 1995 were awarded in error. Additionally, the court can only award stigma damages if they resulted from the expansion of the sewage treatment plant. However, plaintiff's real estate expert concluded that the proximity of the treatment plant generally resulted in property damage ranging from 13,000 to 30,000 per home. The expert did not consider the effect of the expansion in particular. The expert testified that only one home was actually damaged by the expansion itself due to the fact that post-expansion his home was no longer directly across the street from a BREC park. Other damages were awarded in error.

Finally, damages were also awarded to a number of plaintiffs for discomfort and inconvenience during the 17 months of expansion itself. However, the evidence did not establish absusive or excessive conduct or any physical damage or personal injury. Ill effects of construction are unavoidable and generally not compensable.
As this case demonstrates, sometimes litigation can be a rollercoaster with claimant's fighting for a favorable ruling only to have it reversed and damages rescinded. Competent representation is crucial to fight all of the battles in the court case, through trial, appeal, and beyond.

February 28, 2011

Court Outlines Responsibilities of Dockowner in Employee Injury

A gangway is a pathway that connects the ship to the dock at which it has stopped. It is the means by which the crew and cargo of a ship are moved onto and off of the ship. Usually ships have detachable gangways that the ship crew put on the side of the ship when the ship is docked. Other times, docks have policies that require the ships to use gangways that are provided by the dock owner. As in any other legal field, the use of gangways are subject to rules of negligence and duties of care. The question in a recent case, Landers v. Bollinger Amelia Repair, was whether a dock owner was liable for a gangway provided to a ship under the stated policy of the dock owner that all ships must use gangways provided by the dock.

On June 12, 2006, the M/V Roseanna docked on the Bollinger Amelia Repair (BAR) dock. The reason for docking there was that the Roseanna's hull had been breached, and it needed repair. The Roseanna had a gangway on its ship, but it was full of cargo and could not be used to access the dock. In any case, BAR had a policy of requiring all docked ships to use a BAR provided gangway. Thus, Landers, an employee of the Roseanna, and another Roseanna employee got a gangway from BAR and installed it.

The gangway was inspected by a Roseanna employee and was found to be in good condition. The gangway was used many times that day. The crew of the Roseanna discovered that the hull of the ship could be fixed without the aid of BAR and proceeded to do so. At the end of its use, the gangway was removed by Landers and another member of the Roseanna crew. Upon removal, the gangway sprung up hitting Landers in the back and causing injury. Subsequently, Landers brought suit against BAR arguing that due to BAR's stated policy of requiring the use of BAR gangways, BAR was liable for the injury caused to him under general Maritime negligence law.

Landers' argument was essentially that due to BAR's policy, BAR stepped into the vessel owner's shoes and thus assumed a maritime duty to provide a gangway free from hidden defects. The issue with Lander's case was that there was no case law that backed his claim. There were two ways in which Landers could have brought his claim. The first way was under general state negligence law. The problem with this approach was that the statute of limitations to bring this suit had already run. The other means was under general maritime negligence law. As stated above, there was no precedent upon which Landers rested his case. He essentially was asking the Court to expand the law with his claim. Although there was no case exactly on point, it is a well established that the gangway of a ship comes under general maritime law. Further, it is well established that the vessel owner has a fundamental duty to provide its crew members with a reasonably safe means of boarding and departing from a vessel. Furthermore, this duty of the vessel owner, that the vessel owner provide a seaworthy ship, is absolute and nondelegable. Thus, under general maritime law, if the dock owner is held liable for the gangway, the dock owner would also have to be the ship's owner. General maritime law is a law which relates to the vessel. Thus, it would be illogical to extend the protection of the crew members, which belongs to the vessel owner, to a dock owner unaffiliated with the ship or its crew. Thus, the Court held that there was no relationship between Landers and BAR to create liability under maritime law. Landers could bring suit under a state law theory, but Landers was out of luck on that claim because the statute of limitations had already run.

There may be many theories under which a case can be brought. Further, there may be different areas under which cases may fall. In Landers' case, he could have brought a state law and maritime law claim. However, because he waited too long to seek legal counsel, his state law claim expired and he was left with only a maritime law claim, which ultimately failed. Filing under both areas of law would have increased his chances of success. If you have been injured on the job, it is important that you seek legal counsel.

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February 14, 2011

Legal Remedy for People With Mesothelioma Due to Asbestos Exposure

Asbestos-related illnesses have impacted many families throughout the nation. The impact of asbestos exposure can lead to serious terminal illnesses. Partly as a response to such illnesses, the federal government created the Longshore and Harbor Worker's Compensation Act (LHWCA). The act provides injury and occupational-disease protection for those who work on the navigable waters of the United States.

In the past, the Louisana shoreline was home to many companies that were involved with the direct use of asbestos. Those individuals who were impacted by the use of asbestos in such areas are potentially protected by the LHWCA. The act provides for a set of procedures that must be fulfilled prior to any case reaching a court of law. At first, an Administrative Law Judge (ALJ) reviews the facts of the case and decides whether the LHWCA provides relief for any party. If this decision is appealed, it will go to the Benefits Review Board (BRB), which will have to conclude whether the ALJ's order was supported by substantial evidence on the record as a whole and is in accordance with the law. After this stage, if the decision of the BRB is challenged, the case will find its way into court.

In a recent decision by the United States Court of Appeals, Fifth Circuit, in Louisana Insurance Guaranty Association Baton Rouge Marine Contractors Inc. vs. Director Office of Worker Compensation, the process through which claims under the LHWCA proceed is clearly outlined. Plaintiff in the case worked on the Lousiana shoreline from 1965 to 1977. During the 60's he worked directly with asbestos by unloading bags of asbestos. From 1970 to 1977 plaintiff worked on cranes for the same company. This position did not require direct contact with asbestos. However, he worked in and had to continuously walk through warehouses where asbestos was dealt with and stored. During the plaintiff's employment, the company that he worked for was insured by Employers' National. It provided insurance coverage from 1972 until 1982. However, it was declared insolvent and placed in receivership in 1994. Louisiana Insurance Guarantee Association (LIGA) appeared in its place as a substitute party in this proceeding.

Based on the facts provided, the ALJ granted relief under LHWCA. The BRB, then found the ALJ's decision to be supported by substantial evidence. The insurance company appealed the decision to the fifth circuit. The case is broken down into factual questions and legal questions. The fifth circuits only job was to correct errors of law and make sure that the BRB did not substitute its interpretation of the factual issues for those of the ALJ. The first factual issue in the case was whether LIGA was subject to the LHWCA's last employer rule. LIGA argued that plaintiff could not have been injured by asbestos exposure after 1970 when he moved from working directly with asbestos, to working on the cranes. The Court held that the ALJ had sufficient evidence to determine that plaintiff was indeed exposed to asbestos due to the storage of asbestos in warehouses in which he worked in and walked through. Second, defendants argued that plaintiff was not forced to retire because of any asbestos related injury. Plaintiff testified that he had trouble walking up and down stairs and that the asbestos injuries and sickness are at least in part the cause of his retirement. The Court stated,"the ALJ as sole factfinder is entitled to consider all credibility inferences and [his selection] among inferences is conclusive if supported by evidence and the law." The BRB explained in its review that,"if the claimant's work related injury played a role in causing his retirement, the retirement is involuntary." The Court decided that since both determinations were made within the bounds of law and the evidence provided, the decision made by the ALJ, that plaintiff was involuntarily forced to retire due to asbestos exposure, should stand. Third, plaintiff was granted the status of total disability. Under the LHWCA, to establish a prima facie case claimant must show that he is unable to return to his regular or usual employment. Thus, the question posed is not whether any claimant can work anywhere else or do anything else, the question is whether the claimant can continue to do the same or similar things as he or she did prior to the disease or injury. Since the plaintiff testified that he had a hard time walking up and down stairs, there was sufficient evidence that plaintiff had total disability as defined under the act.

The legal issue in the case was whether LIGA should be held liable for the insurance that was provided by Employers' National, which was declared insolvent. The "last responsible employer" rule was a policy decision on the part of the acts administrators. Eventually, it was judicially adopted by courts. Under the act, insurance liability would fall onto the shoulders of Employers' National. Employers' National insured plaintiff's employer during the last years of his employment. Under Louisiana law, the law responsible employer rule would also subject the last insurer. The rule applies to Employers' National, and in turn to LIGA, as a substitute party in this case. Thus, under the law, and Federal law as applied in Louisiana, LIGA is liable to plaintiff for his injuries and medical expenses.

Although, nothing can take away the pain and anguish associated with a debilitating disease or the loss of a loved one, there are law that were created to protect those who have been impacted by disease associated with asbestos. It is essential that if you or a loved one have been injured due to asbestos exposure, you should contact an attorney who may be able to help. Laws like the LHWCA have been enacted to help people in such difficult and trying time.

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December 3, 2010

Part 2: Case of Barge Accident Reveals Strategy to Prevent Plaintiff's from Winning Case

Resuming where we last left off in this important case...

The court then turned to the deposition of Rigoberto Garcia, an employee of Maxum. Garcia had testified that while he was at work the day before the accident, all safety barricades were set up. He said that Maxum employees never removed the safety barricades when they worked around or passed through the holes. Instead, they would climb over or through the cables. Garcia finally stated that he left work every day at 5 p.m. The depositions of two other Maxum employees supported Garcia's testimony. The combined testimony of these Maxum employees tended to show that the removal of the cables occurred when Maxum workers were not on site.

Finally, the court examined the testimony of Glenn Russo, an employee of Corrosion. Russo testified that his foreman, also an employee of Corrosion, had confirmed he'd been the one to place the plastic sheeting over the manhole. This admission effectively eliminated Maxum as the culprit behind the plastic sheeting that obscured the hole from Cotone's view.

Based on the above pieces of evidence and testimony, the court concluded that the removal of the safety cables occurred sometime in the evening. Because Maxum employees were typically away from the barge hole during the day, and home from work at night, it was not probable that a Maxum employee had removed the cables. This was buttressed by the Maxum employees' consistent testimony that neither of them removed the cables, nor ever witnessed them removed at any time. Furthermore, the admission of the Corrosion employee that the company's foreman had placed the plastic over the hole removed from the realm of possiblity the idea that a Maxum employee was to blame for that particular action.

Because the depositions and invoice showed that there was no genuine issue of material fact in regards to Maxum's alleged involvement in the removal of the safety cables and placing of the plastic, the Court of Appeals affirmed the district court's dismissal of the company from the case. Accordingly, Corrosion was left to defend the suit by itself.

The Cotone case is instructive because it showcases the "divide and conquer" strategy a plaintiff can implement when he sues multiple defendants. For instance, once Corrosion and Maxum were named in the suit, Maxum ran for the exit door, as opposed to uniting its legal energies with Corrosion against the plaintiff, Cotone.

Whether or not a defendant will choose to become advesaries with another codefendant is often a matter of risk analysis. If the defendant in question is confident it can escape from the suit without much financial harm or exposure, it will likely do just that. On the other hand, if the facts squarely suggest some sort of negligent behavior on behalf of the defendant, it will often join forces with the other codefendant to create a united front against the plaintiff--or at the very least try to keep the more "innocent" codefendant from exiting the suit. After all, misery loves company.

A skilled attorney can a help a client determine which defendants should be sued when there are a multitude of negligent individuals available to choose from. By strategically selecting defendants who are solvent and who have a high likelihood of opposing one another, lawyers can maximize the recovery for their client.

Continue reading "Part 2: Case of Barge Accident Reveals Strategy to Prevent Plaintiff's from Winning Case" »

December 2, 2010

Part 1: Louisiana Barge Case Showcases Divide and Conquer Strategy When Suing Multiple Defendants

The Third Circuit Court of Appeals for Louisiana released their decision in Cotone v. Corrosion Control Systems, Inc. The case highlights the importance of the plaintiff's "divide and conquer" strategy when litigating against multiple defendants. Additionally, it illuminates the challenges defendants and plaintiffs may both face in lawsuits involving injuries occuring in settings controlled and occupied by multiple parties.

In 2006, Timothy Cotone was employed by Superior Derrick Services as a shipyard supervisor on a Lousisiana river barge. Superior was tasked with converting the barge into a drilling rig. In order to accelerate the conversion, Superior subcontracted temporary workers supplied by Maxum Industries to perform welding and fitting services. Meanwhile, Corrosion Control Systems was hired separately by the barge owner to provide sandblasting and painting services. Superior and Corrosion were separate companies otherwise unaffiliated with one another.

On November 3, 2006, Cotone stepped into an open hole on the barge and suffered injuries. Typically, the hole was barricaded by safety cables. However, when Cotone stepped into the hole, no such safety cables were in place. Furthermore, plastic had been placed over the whole, preventing Cotone from noticing the opening. Naturally, Cotone concluded that one of the other barge workers must have negligently removed the safety cables and placed the plastic over the hole. Consequently, he sued to recover for his injuries.

Faced with multiple actors who occupied and controlled the hole in question, Cotone originally sued only Corrosion. Later, by amended pleading, he added Maxum to his suit. Cotone's amended lawsuit alleged that either a Corrosion or Maxum employee had negligently removed the safety cables, and both companies should therefore be jointly and severally liable. (Notably, Cotone did not name is own employer, Superior, as a defendant in the suit).

In a game of legal "hot potato," Corrosion and Maxum each denied responsibility and implied that the other was to blame for Cotone's injuries. When Maxum filed a motion for summary judgment to remove itself from suit, Corrosion resisted. Corrosion wanted Maxum to remain in the suit so it could share the cost of any damages award a jury might award to Cotone.

Maxum alleged that it had presented enough evidence to show that no trier of fact could conclude that a Maxum employee had removed the cables or placed the plastic over the hole. Because Maxum, as a defendant, would not have to bear the burden of proof in a subsequent trial, Maxum only needed to "point out that there [was an] absence of factual support for one or more" elements essential to an adverse party's claim. Convinced of Maxum's motion, the district court dismissed Maxum as a defendant. In response, Corrosion appealed.

In determining whether the dismissal of Maxum should stand, the Third Circuit Court of Appeals looked to the depositions of Cotone and Maxum employees, as well as documentation submitted by the company during the discovery phase of the litigation.

The court first looked to Cotone's deposition. In it, Cotone noted that he was the last person to leave the barge on the evening before his accident. This fact suggested that the person responsible for removing the safety cables and adding the plastic committed the negligent act sometime in the evening between Cotone's departure for the previous day and his arrival on the day of the injury. Cotone further asserted that Corrosion's crew worked on the barge during the evenings.

Next, the court looked to an invoice provided by Maxum. The invoice showed that during the week surronding Cotone's injury, the majority of Maxum's workers completed assignments in the shipyard and away from the barge. Because most of Maxum's employees were not working around the hole Cotone fell in, the liklihood of a Maxum employee removing the safety cables and adding the plastic was diminished.

Check out the blog tomorrow for more information on this important case.

October 31, 2010

Berniard Law Firm Unveils New iPhone Application

The Berniard Law Firm is proud to announce the release of an innovative new iPhone application that can be considered a must-have for individuals in the Gulf Coast. With extensive versatility and options including multiple contact points for our attorneys, as well as consistent site updates that will keep you informed of legal developments as they become available. Released October 26, we recommend everyone download the application in order to stay abreast of a variety of issues that relate to them.

In the works for some time, and with an update already planned, the Berniard Law Firm iPhone app puts law matters that are important to Louisiana residents in the palm of their hands. Constantly refreshing, with updates relating to our website, this application is an effort by our firm to allow our friends and clients quick access and up-to-date information for their daily lives. Whether using the application to send our firm a legal question or to call our offices, we strongly encourage anyone that wants an attorney and a wealth of legal information at your fingertips.

Specifically, the Berniard Law Firm Injury Attorney iPhone App provides users
- Entry page to record important details in the event of an accident
- Minimal size installed (only 3.1 MBs)
- Practice area explanations
- Quick jumps to consistently updated blogs
- Fast contact information to speak with an attorney

One feature that is extremely important and valuable in the Berniard Injury Attorney App is the entry page. Composed of data input fields that target inherently important details of an accident, using this portion of the application can help you make sure you record all of the necessary information at a time in which it maybe be difficult to remember. Providing an easy, step-by-step accident guide, this application can even include a picture with the information report with a simple tap.

For more information on how to download this application, or to discuss your legal rights regarding an issue that you are facing currently, contact our offices today. The Berniard Law Firm would happily discuss with you what opportunities you may have within the realm of the law, as well as give you a free consultation in regards to how we can best get you the justice you deserve.

To download the application, click here.

July 9, 2010

Slight Standard of Causation is all That is Needed in Jones Act Cases

A recent Louisiana Court of Appeals < a href="http://www.leagle.com/unsecure/page.htm?shortname=inlaco20100519282" > decision provides a good discussion of the burden of proof required in Jones Act cases.

James Bancroft worked as a seaman on the M/V Captain Nick owned by Mitchell Offshore Marine when the ship collided with the Pan Am Caribe. Mr. Bancroft was thrown violently, and broke ribs and punctured a lung. The court ruled that the vessel was not seaworthy and therefore Mitchell owed Bancroft $65,000 in general damages as well as $8250 for wage loss. The trial court did not agree with Bancroft that the accident had aggravated a prior back injury. On appeal, Bancroft asserted that the trial court erred in applying the incorrect burden of proof to the causal element of his case, finding his spine injuries and spinal fusion were not caused by the accident, awarding unreasonably low damages for his injuries, and failing to award punitive damages against Mitchell, while Mitchell claimed the trial courts damage award was too high.

Under the Jones Act, seaman are provided with the same rights railway employees have under the Federal Employers' Liability Act which provides that "every common carrier by railroad . . shall be liable in damages for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier." 45 U.S.C. § 51. Under the Jones Act, seaman can recover when their employers' negligence causes their injury. The standard of causation in both FELA and Jones Act cases is very low. The Supreme Court has used the word "slightest" to describe the standard of causation between employer negligence and employee injury. This means that if employer negligence played any part in producing injury or death, the employer will be held liable

In this case, Mitchell argued that the "slight" standard of causation required proof of that negligence by preponderance of the evidence, the more likely than not standard. However, because the case that Mitchell relied on goes against years of precedent, the Court of Appeals disagreed. As such, Bancroft only needed to prove that the injury he sustained was linked to Mitchell's negligence by slight evidence. According to the Maritime Case of Stevens v. Omega Protein, Inc.:

Under the Jones Act and the general maritime law, when the defendants' act aggravates or accelerates a pre-existing condition and renders a plaintiff unable to continue his work or awakens a dormant conditions that causes a plaintiff to experience pain when he did not suffer from pain or disability prior to the aggravation, defendant can be liable in full for the disability caused."


As long as the plaintiff can prove a causal connection between the injury and the accident by the slight evidence standard the defendant will be held liable. The Court of Appeals found that the trial court here applied the correct burden of proof despite its use of the phrase "preponderance of the evidence."

Bancroft also contended that the trial court erred in not finding that his spine injuries and surgical collision and again the Court of Appeals disagreed. The trial court set forth detailed reasons for their judgment and accurately describe Bancroft's history of back problems, dating back to 1997 when he first visited a doctor for back pain. The history indicated that Bancroft had recurrent bouts of lower back pain, casting doubt on his claim that a latent problem was made symptomatic by the accident. Bancroft's doctor was even of the opinion that the surgery he performed was for the injury that had been diagnosed prior to the accident. The Court of Appeals agreed with the trial court's exhaustive reasoning that the back injury and surgery were not caused by the accident. Bancroft failed to prove that his injury resulted from the accident, even by the slight standard of causation.

Even though the injury and surgery were not caused by the accident, however, the Court of Appeals found that the trial court did err n finding that no back pain was caused by the accident. It is clear Bancroft did suffer some back pain as a result of the accident, and this affected the Court's determination regarding the trial court's general damage award.

While damage awards are entitled to great weight and should rarely be reversed, the Court of Appeals found that the trial court abused its discretion in awarding damages to Bancroft for rib and chest injuries only. Medical records clearly showed that some back pain came from the accident. As such, the Court of Appeals awarded Bancroft an additional $25,000 in general damages for suffering he suffered related to back pain from the crash.

As this case demonstrates, the evidential standard required in Jones Act cases is very low, but there still must be a causal link between the accident and an injury upon which the plaintiff seeks to recover damages. If you are a seaman injured while at work it is essential you have an attorney who is able to demonstrate to a court that your injuries did in fact result from the accident and not some pre-existing condition.

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May 9, 2010

Admiralty and Maritime Jurisdiction for Mississippi River Accidents

Sometimes, accidents on bodies of water, such as the Mississippi River, are governed by a unique set of federal laws, instead of state laws. This is known as admiralty jurisdiction. This special type of jurisdiction is important for many residents of Louisiana, especially those in coastal cities like New Orleans, because of the number of water-based industries that thrive including recreation, fishing, shipping and other port or dock-based maritime activities.

In order for an accident to fall under admiralty tort jurisdiction, the "locality plus nexus" test must be satisfied. The test has two requirements: The accident (1) "must occur on or over navigable waters" (i.e., locality) and (2) "must 'bear a significant relationship to the traditional maritime activity'" (i.e. nexus). These requirements are put in place to strictly define applicable events as those in the operation of the boat and not the variety of other water-based accidents or situations that can arise that the law is not trying to incorporate.

Locality
In order to meet the locality requirement, the accident does not need to occur on water. Rather, the accident can occur on land, as long as the accident "is at least caused by a vessel on navigable waters." Case law has established that "federal admiralty jurisdiction extends to the means of ingress and egress [to the vessel], including but not limited to the [vessel's gangway.]"

Nexus
In order to satisfy the nexus requirement, the maritime activity doesn't need to be exclusively commercial. Rather, the courts attempts to determine (1) "whether the incident has a potentially disruptive impact on maritime commerce" and (2) "whether the general character of the activity giving rise to the incident shows a substantial relationship to the traditional maritime activity."

Example
An example of admiralty jurisdiction occurs in the Louisiana case of Thomey v. Weber Marine. In Thomey, Cargill, Inc., contracted with the company Weber Marine to provide transportation across the Mississippi River for Cargill's employees. Cargill employed the plaintiff "as a maritime worker [for] loading and unloading grain barges and ships on a mid-stream grain transfer facility."

At the time of the accident, the landing area used for boarding Weber Marine's transportation vessel "was covered with approximately 30 feet of ankle to knee-deep water due to the seasonal rise in the river's water level." To allow dry access to the vessel's gangway, Weber Marine placed three wooden pallets and a six foot board in the water. The plaintiff, while attempting to board the vessel for work, then "slipped and fell as he attempted to step onto one of the wooden pallets."

The court held that the accident fell under admiralty tort jurisdiction. The court stated the locality requirement was satisfied because "the pallets served as a makeshift means of ingress and egress to the" vessel, even though they weren't physically connected to the gangway. Additionally, the court supported this idea of expanded locality by noting that "many employees routinely used wooden pallets to access the gangway when the water level was high."

The court also found the nexus requirement satisfied because it "substantially impact[ed] an activity essential to commercial shipping, i.e., the loading and unloading of vessels in commerce"--even though the accident occurred on the shore side. The court reasoned that the "failure to provide a safe means of ingress and egress exposes employees to injury" and impacts their ability to arrive timely--if at all--at work. Furthermore, the court noted that transporting "river workers from shore to ship is inherently maritime[.]"

Determining whether an accident is governed by admiralty jurisdiction's unique set laws depends on the facts of each case. In order to know whether a person's rights are determined by Louisiana or federal admiralty law, legal representation is essential.

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April 30, 2010

An Overview of Louisiana Maritime Law

Maritime law has been around for a long time. Ever since boats have been used to move goods there has been a need for laws governing their transport. Because of its long history, maritime law is very complex and involves a lot of international, federal, and state laws. The first official U.S. maritime law was the Judiciary Act of 1789 that put jurisdiction over this area of law within federal courts.

The Jones Act, or Section 27 of the Merchant Marine Act, passed in 1920 is another very important piece of Maritime law. This law officially codifies the rights of seaman. The latest version of this law passed Congress in 2006. Under the Jones Act seaman can bring lawsuits against their employers in either state or federal court and are entitled to a jury trial. Many find protection in federal courts to be more advantageous, however. Unlike international maritime law, the Jones Act gives seaman the right to pursue legal claims against ship owners based on negligence or unseaworthiness. The Act applies to employees who spend at least 30% of their time on a navigable vessel (although this requirement has been interpreted very broadly by courts). There is a three year statute of limitations for claims filed under the Jones Act. This means that if a claim is not filed within three years of when the injury occurred, it will be time barred.

With Louisiana’s long coastline, multiple ports, channels, waterways, and rivers, the Jones Act becomes very important. Shipping is a big industry here and recreational boating activities play a major role in the economy. Anyone who spends more than 30% of their work time onboard a vessel may be entitled to compensation under this law. This goes beyond what one might traditionally think of as "seaman" and includes inland river workers or anyone who spends significant time on floating or moving structures. Even certain onshore oil industry employees can be covered if they spend significant time on the back deck of a boat loading and unloading supplies. If an employee is killed while working their survivors may be entitled to compensation under the Act as well.

Compensation under the Jones Act can be a complicated matter and may be very dependent on the facts of the case. First, a seaman may receive what is called maintenance and cure. Maintenance and cure can be recovered for an injury or illness that occurred while a seaman was under a service contract of a ship whether or not the injury was actually sustained on the ship. Maintenance is the cost of room and board the seaman would have gotten on the vessel if he was not injured and begins the day the injured person left the vessel. Cure refers to medical expenses incurred as a result of the injury or illness. Second, individuals may be able to recover lost wages, or money they would have earned if they had not been injured. Finally, damages to compensate the seaman for his pain and suffering can be collected.

If you or someone your love was injured while working on some type of vessel you may be entitled to recover under the Jones Act. Your success will require excellent legal representation and an attorney who understands the intricacies of the law and is willing to conduct an intense factual investigation.

Continue reading "An Overview of Louisiana Maritime Law" »

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April 15, 2010

Jefferson Parish Maritime Case: Are Forum Selection Clauses in Employment Contracts Enforceable in Louisiana?

Greek Seaman Dimitrios Keramidas’s ship was docked in East Charles Parish in 1999 when he became sick. He was hospitalized and treated for sepsis at East Jefferson General Hospital in Metairie for two months before he was sent back to Greece with medical approval. Keramidas never recovered and passed away in May 1999. His surviving widow and son brought suit under the Jones Act against Shipping and Steamship Mutual Underwriting Association Limited. The defendant was granted a summary judgment motion because the trial court found that “under the forum selection clause of the seaman's employment agreement, the country of Cyprus, not the United States, is the proper forum to bring the suit.” The 5th Circuit Louisiana Court of Appeals reviewed and affirmed the trial court’s decision.

Forum Selection Clauses

Even though states usually can enforce their own procedural rules and forum selection clauses are basically procedural, in admiralty cases, they are controlled by federal law.

Under federal law, forum selection clauses are presumed to be valid and should be enforced unless it is clear that enforcement would be unreasonable, unjust, fraudulent, or against a strong public policy of the state.

Potential Exceptions to Forum Selection Clause in this Case

1. The plaintiffs contended that forum selection clauses are against the public policy of the State of Louisiana. After all, in R.S. 23:921 A(2), the enforcement of forum selection clauses is expressly prohibited. However, admiralty cases are unique. R.S. 23:921 A(2) is part of the Labor and Workers' Compensation Section of the Louisiana Revised Statutes and is designed to protect Louisiana employees and employers, not foreign maritime workers. Had the legislature intended to protect foreign maritime workers they would have included a statement to that effect in the law.

2. The plaintiffs also argued the enforcement of the clause would be unreasonable because Mr. Keramidas was not a member of the union that negotiated the contract. The court does not accept this argument and cites several Louisiana cases where clauses were enforced despite the injured employee not being a union member. In addition, if the employee is a veteran seaman they should understand the employment contracts they sign.

3. The plaintiffs claimed that the clause is unenforceable because it leads to an unjust result. Here, the plaintiffs contend that they cannot afford to pursue the case in Cyprus. Specifically, to travel between Greece and Cyprus would cost more than the compensation that can be collected under the contract. While the compensation amount may be low by U.S. standards, the mere fact that the forum required in contract would not provide maximum recovery does not add up to injustice.

4. Finally, the plaintiffs contended that because Keramida’s widow and son were not parties to the employment contract, it does not apply to their claims. However the contract is clear in its intent to apply to both Keramidas and his family/survivors. The contract even specifically references the "seaman’s property administrator and/or seaman’s family members."

Although tragic, this case is a good example of how the courts have applied the Jones Act. In noting the exceptions it has made in the past to apply the Act to a variety of individuals, this case also demonstrates the wide variety of application possible.

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