Articles Posted in Admiralty/Maritime

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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.

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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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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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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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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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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.

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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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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.

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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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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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