Articles Posted in Workers’ Compensation

Published on:

Under the respondeat superior legal theory, an employer can be held liable for his employees’ acts that occur within his scope of employment. This means that a truck company, for example, may be held responsible for an accident caused by one its drivers who was speeding or intoxicated while driving his route. This doctrine can be complicated when questions arise as to whether or not the employee was within the scope of his employment, or whether the person who caused the injurious accident was in fact an employee.

To determine scope of employment, one must look to what the employer pays the employee to do and what, exactly, the employee was doing when the accident occured. If a truck driver deviated from his route to go to a bar, for example, then it will likely be determined the driver was engaged in frolic for his own benefit and therefore was not within the scope of his employment. This means if an accident occurs while that truck driver is on his way to the bar, then the truck company will not be held liable. If, on the other hand, the truck driver had to deviate from his standard route because of a flooded road, then the detour is still considered to be to the employer’s benefit and within his scope of employment. An accident that occurs while on detour will still be imputed to the truck company.

A recently decided case by Court of Appeal for the First Circuit helps illustrate issues of determining the employee/employer relationship. The importance of this aspect is if the party responsible for the accident is found to be an independent contractor rather than an employee, liability cannot be placed on the employer. So, in the case heard on appeal by the First Circuit, a woman who was injured by the negligent driving of a delivery van driver sought to join the subcontracting broker and the delivery service that hired the individuals responsible for the accident. To determine whether an independent contractor relationship existed, the court looked to case law and the facts before it.

According to case law, several factors must be considered to determine whether an employee or independent contractor relationship exists. The most important factor is the amount of control exercised by the employer over the worker. An independent contractor typically has freedom of action and choice when it comes to the task to be performed, often leaving the independent contractor to decide his own methods without employer supervision. Also, an independent contractor is typically subject to a specific price for an overall undertaking that is specific in duration, rather being subject to termination at will.

In the case at hand, the court found an independent contractor relationship existed, and thus held that the employers could not be held liable. In addition to having signed an independent contractor agreement, which is not itself dispositive, the workers in question had very little communication with the employers. Instead, the workers set their own delivery routes and schedules and worked when necessary. Therefore, since the employers lacked an exercise of control over the employees, they could not be held responsible for the employees’ acts.

Lawsuits involving accidents can be extremely complicated, especially when the negligent driver is operating a company vehicle. A competent, experienced attorney can walk a victim through the lawsuit process and help determine if compensation is achievable from the employee, the employer, or both. If you have been injured in a car accident, please contact the Berniard Law Firm.

Published on:

Work-related injuries, especially in construction, are not uncommon. However, the outcomes in workers’ compensation cases vary because the contractual relationship between the parties is often not clear. Under Louisiana law, workers’ compensation is provided to an employee if they’re injured by an accident “arising out of” and “in the course of” his employment with a statutory employer. However, the issue centers on whether the defendant is a statutory employer thereby limiting the plaintiff to workers’ compensation as their sole remedy. If a valid, written contract recognizes the existence of a statutory employer relationship, it creates a rebuttable presumption; this requires careful interpretation of the terms of the contract.

On August 12, 2008, Louis Fox (hereinafter “plaintiff”), employee of Foster Wheeler North America Corp. (hereinafter “Foster”), was assisting with the installation of boiler units at the Rodemacher Power Station near Lena. While working inside a cyclone tower, the plaintiff alleged that he sustained an injury when an object fell from above striking his head and neck. The plaintiff sought damages beyond workers’ compensation against several defendants including CLECO Power (hereinafter “CLECO”), owner of the power station, and general contractor Shaw Constructors, Inc. (hereinafter “Shaw”).

The installation of the boiler units was the result of a written contract between CLECO Power, owner of the station, and Shaw Constructors, Inc. As general contractor, Shaw selected Stone and Webster, Inc. (hereinafter “Stone”) to take charge of engineering and procurement services. Stone then entered into a purchase order agreement with Foster for the sale and installation of the boiler units.

The issue in the lawsuit was whether Shaw entered directly into a subcontract with Foster when Stone entered into the purchase order agreement thereby making Shaw the plaintiff’s statutory employer. The trial court cited two circumstances when a statutory employer relationship is created: (1) under the “two contract” theory (a.k.a. standing in the “middle” of the two contracts) and (2) the existence of a written contract recognizing the principal as the statutory employer. Shaw based its statutory immunity on the two contract theory. The two contract theory is applicable when (i) the principal enters into a contract with a third party; (ii) pursuant to that contract, work must be performed; and (iii) in order for the principal to fulfill its contractual obligation to perform the work, the principal enters into a subcontract for all or part of the work performed.

The trial court focused on the third element after concluding there was no question the first two elements were met because Shaw entered into a contract with CLECO and, pursuant to that general contract, work was performed. The plaintiff argued Shaw entered into a subcontract with Stone, who then subcontracted part of its work to Foster. The trial court however determined that Foster contracted with Shaw after citing a provision in the Corporate Guaranty that read in-part “Whereas, Purchaser (Stone) as agent for contractor (Shaw) and FWNA (Foster Wheeler) have entered into that certain purchase order for two CFB Boilers.” The court concluded this provision made clear that Stone was acting on behalf and for the benefit of Shaw, as the principal of Stone and granted Shaw and CLECO summary judgment.

The Court of Appeals, Third Circuit, affirmed the summary judgment motion for similar reasons. First, in the “Consent to Assignment” document included in the Stone- Foster agreement the court noted that it listed CLECO Power as owner, Shaw as contractor, and Foster as subcontractor. The court found this document clearly indicated that Foster was a subcontractor of Shaw. In addition, the provision in the Shaw-Stone contract authorized Stone to be responsible for “procurement services” and therefore empowered Stone to act on behalf of Shaw. Thus, the plaintiff was limited to workers’ compensation damages because Shaw was their statutory employer.

This case is a valuable reminder for injured workers to review the terms of their employment contract before seeking damages beyond workers’ compensation from an employer. An effective review of an employment contract should be conducted under the guidance of an attorney. If you’re an injured worker and looking for legal counsel, contact the Berniard Law Firm for immediate assistance from an experienced attorney.

Published on:

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.

Published on:

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.

Continue reading →

Published on:

The appellate court has affirmed a summary judgment dismissing a widow’s case against Stebbins Engineering and Manufacturing Company. She filed suit after her husband died while he was working at International Paper Company in Mansfield, Louisiana.

An employee died when, while attempting to repair a valve on the platform surrounding a white water tank/tile chest, he fell into the tank. Pulp debris around the opening cover may have been dislodged due to overflow before his fall. Thus, the widow brought suit against the manager of the Mansfield paper mill, International Paper, and Stebbins, which designs and constructs the tanks. Over 20 years ago, it manufactured the tank that the deceased fell into, and Stebbins also inspects tile chests at some of its locations, though not at the Mansfield mill.

Whether the widow had a case or not turned on the legal duties of Stebbins. The widow argued that inspections at other plants provided notice to Stebbins that some of the tile chests were over-pressurized and overflowing, which caused the dislodging of the access opening covers, thereby endangering International Paper employees working around the tanks. She argued this created an obligation for Stebbins to inform International Paper employees about the safety issue.

Stebbins stated that the inspections did not relate to the operation of the tanks. Instead, they were concerned with cracks and structural flaws, but not with the plant’s involvement in over-pressurizing the tanks. Stebbins also argued it had no duty to International Paper or to the deceased, and secondly, the widow’s claim was preempted because five years had already passed.

The court agreed with Stebbins. The manufacturing company did not assume a duty to provide safety advice to International Paper due to its awareness of overflowing tanks while inspecting the integrity of the walls of the tile chests. The appellate court relied on a Supreme Court case considering Louisiana jurisprudence, which requires parties who voluntarily assume duties for workplace safety to perform those duties reasonably and prudently. However, to find that such duties existed, the court required proof of some positive undertaking for workplace safety, not just some concern with safety matters. The court decided here that Stebbins did not positively undertake any obligation to ensure the safety of International Paper employees. Thus, the widow’s claim was dismissed.

The facts of this case are tragic. Unfortunately, liability can often be difficult to prove, especially with a company that is not a direct employer. Finding the best lawyers to bring your case and filing suit quickly, within the preemption period, will increase your chances at getting your claims heard.

Published on:

To a certain extent, employers are legally required to guard their employees against the risk of on-the-job injuries. But for an injured employee to prevail in a lawsuit against the employer, the employee must be able to prove that the employer owed him or her a duty to prevent the particular accident that occurred. The Louisiana Third Circuit Court of Appeal recently affirmed this rule in the recent case of Chaisson v. Drake.

Mary Elizabeth Chaisson was working as a private caregiver for Dr. Winbourne Macgruder Drake. She had been helping him get in and out of his wheelchair for three years when one day something went wrong.

Chaisson was attempting to transfer Drake from a lift chair to his wheelchair when he suddenly began to fall forward. When Chaisson grabbed him to prevent the fall, she pulled muscles in her neck and back.

Chaisson sued Drake and his homeowner’s insurance company for her work-related injuries. The defendants claimed that they did not owe Chaisson a duty to guard against the particular risk that gave rise to her injures. The trial court agreed, granting summary judgment in favor of the defendants. Chaisson appealed, and the Louisiana State Court of Appeal for the Third Circuit reviewed her case.

The court compared the facts of Chaisson’s case to those in Griffin v. Shelter Insurance Co., a Louisiana First Circuit case that also concerned an accident involving a caregiver and a patient in a wheelchair. The caregiver, Earnestine Griffin, was caring for an elderly woman named Sally Kemp. Griffin was helping Kemp move from her wheelchair to an easy chair when Kemp suddenly grabbed Griffin’s arm, causing pain in Griffin’s leg and back. The trial court granted summary judgment for the defendants, and Griffin appealed.

The appellate court in Griffin affirmed the lower court’s ruling in favor of the defendants. The question of duty, the court explained, depended on the facts and circumstances of the case and the relationship of the parties. Whether a particular risk of harm is reasonable also depends on the facts at hand, including who the particular plaintiff is, any contractual obligations that exist, and the superior knowledge the plaintiff may have of the situation.

Applying these principles to Griffin’s case, the First Circuit found that Griffin’s contractual duty to Kemp included helping her from her wheelchair into an easy chair, and the risk of Kemp grabbing Griffin’s arm in the process was the very type of risk that Griffin, not Kemp, was contractually obligated to guard against, based on her special status and job responsibilities.

Chaisson argued that her case was different from Griffin’s, because Griffin had received instructions from a physical therapist on how to move Kemp from her wheelchair to an easy chair, whereas Chaisson was not qualified to help Drake from a standing position to a seated position in his wheelchair.

But the court pointed out that Chaisson was a certified nursing assistant with over a decade of experience working for health care agencies and three years of experience lifting Drake into and out of his wheelchair.

According to the court, it was Chaisson, not Drake, who had the duty to prevent the accident that occurred: “Similar to the court’s finding in Griffin, Plaintiff in this case had the contractual duty to take care of Dr. Drake, and this specifically included assisting him from his lift chair to his wheelchair. We cannot say the trial court erred in finding no duty was owed by Dr. Drake to protect Plaintiff against the very risk she was hired to protect against, i.e., Dr. Drake’s falling due to his physical infirmities.”

Continue reading →

Published on:

Under Louisiana Law, there are four types of workers’ compensation: Permanent partial disability benefits, permanent total disability benefits, temporary total disability benefits, and supplemental earnings benefits. Permanent partial disability allows you to collect benefits for serious or disfiguring injuries, even if you do not miss any significant work time. The time frame is limited, however. Permanent total disability benefits occur when you have been injured in such a way as to render it impossible to work in the future in any capacity. Temporary total disability benefits allows you to collect benefits as if you were permanently disabled for only a certain amount of time.

Lastly, supplemental earnings benefits occur when you have been seriously injured, but you can still work in some capacity, even if you cannot continue the job where you were previously employed. Supplemental earnings benefits require that you cannot do at least 90% of your previous job. In order to qualify for supplemental earnings benefits, the employer must not be able to offer the employee light-duty work. For example, if you work in a construction site and you are injured, then your employee may offer you a desk job while you are recovering. If, however, all the desk jobs are full, then the employee will likely have to pay supplemental earnings benefits to the injured employee.

Like any workers’ compensation claim, your injury has to arise out of the work context. You need proof of the injury to make a claim, so be sure to report injuries right away and see a doctor if necessary. The legal standard in workers’ compensation claims is a preponderance of the evidence, which is a slightly higher standard, so good records are important. However, the court can occasionally take your testimony alone as evidence of the injury.

In a recent case, the court considered whether testimony, which was only slightly supported by medical records and other evidence, could establish a claim for workers’ compensation. The claimant, a truck driver, injured himself while trying to unstick a broken clutch. He suffered permanent injury to his leg as a result, but only occasionally went to the doctor, the doctor’s records were unclear, and the injury was not directly reported to the employer. The lower court determined that his testimony and the patchwork record was enough to award supplemental earnings benefits.

The State of Louisiana Court of Appeals for the Second Circuit explained that testimony alone could be sufficient to establish that an accident occurred if none of the other evidence discredits the witness or casts serious doubt on the testimony and the worker’s testimony is corroborated by the circumstances following the injury. For example, the lower court can consider late reports to the employer, supervisor or coworker testimony, family and friends’ testimony, medical evidence, whether the injured person continued to work, and any prior injuries. Generally, the court allows the claimant to assume that the work accident caused the related injury if they were in good health before the accident, but were not in good health after the accident.

In the truck driver’s case, the only directly contradicting evidence came from the doctor’s report, which stated the injury actually occurred three years prior to work injury. Statements from family, friends, and co-workers all matched the injured employee’s claims. His supervisor commented that his work quality declined, which was also consistent with the injury. In addition, the employee went to the doctor again later, and the medical records indicated the same type of injury that he acquired while at work during the same time period of the injury. He had no previous record of a similar injury or previous condition. Lastly, the injured worker also attempted to work in a similar field, but due to pain in his leg, could not drive well and had to quit.

As a result, the court determined that the employee was entitled to supplemental earnings benefits because he could not perform 90% of his pre-injury job, and the employer did not find a light work position for him. However, in this case, there was significant time between the injury and the claim for benefits. During part of that time, the injured employee received unemployment benefits. The court points out that you cannot receive both supplemental earnings benefits and unemployment benefits. Therefore, the employee only received supplemental earnings benefits for the weeks that he did not also receive unemployment benefits.

There are many legal options if you are injured at work. However, it is much easier to file a claim if you keep complete records of the incident.

Continue reading →

Published on:

On February 21, 2009, Shreveport Fire Department Chief Tommy Adams fell from the top of a ladder while preparing a fire truck for service for the Gemini Mardi Gras parade. As a result, Tommy Adams sustained severe trauma to his spinal column and died ten months after the date of the incident. Chief Adams’ wife, Traci Lee Adams, filed suit on behalf of herself and her two minor children seeking compensation for her husband’s accident-related damages and contending that the City’s response to her husband’s injuries fell below the reasonable standard of care that should have been provided.

In response to Mrs. Adams’ petition, the City of Shreveport filed an exception of no cause of action and argued that the Louisiana Worker’s Compensation Act provided the exclusive remedy. The trial court granted the City’s exception, but allowed Mrs. Adams thirty days to amend her original petition. As a result Mrs. Adams submitted an amended petition stating that the City knew or should have known that Chief Adams’ injuries were substantially certain to occur as a result of the City’s actions. Ultimately, the City filed a motion for summary judgment and the trial court judge granted the City’s motion finding that neither the pleadings, depositions, nor briefs supported an exception to the exclusive remedies provided by the Louisiana Worker’s Compensation Act.

The case went up on appeal.

The Louisiana Second Circuit Court of Appeal addresses two legal issues in this case: the trial court (1) failed to recognize that the City’s motion for summary judgment was “a cleverly disguised peremptory exception of no cause of action which had already been denied by the previous trial judge” and (2) erroneously granted the City’s motion for summary judgment.

According to the Second Circuit Court of Appeal, there was no indication that the City’s motion for summary judgment was merely a disguised exception of no cause of action. After Mrs. Adams’ first amended petition, the trial court properly denied the City’s exception of no cause of action. Further, the record below showed that the trial court’s review and analysis of the City’s motion for summary judgment covered more than the pleading and included consideration of discovery. As such, the Court of Appeal determined that the trial court clearly treated the motion for summary judgment appropriately and not merely as another exception of no cause of action.

The second issue that the Court of Appeal addressed was whether the trial court erred in granting the City of Shreveport’s motion for summary judgment. Mrs. Adams contends that the decision by the Shreveport Fire Department not to supply “quick-trach kits” to all paramedic units substantiates a genuine issue of material fact. Pursuant to La. C.C.P. art. 966, “[t]he plaintiff or defendant may move for a summary judgment in his favor for all or part of the relief for which he has prayed … [t]he summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action and is favored by the courts and construed to accomplish these ends.” “The party opposing summary judgment cannot rest on the mere allegations or denials in his pleadings, but must show that it has evidence which, if believed, could satisfy its evidentiary burden of proof at trial. If there is no such evidence, then there is no genuine issue of material fact, and the movant is entitled to summary judgment.” Accordingly, the Court of Appeal determined that the trial court properly granted the City’s motion for summary judgment as Mrs. Adams failed to establish that her husband’s injuries resulted from an intentional act by the City pursuant to the Louisiana Worker’s Compensation Act. Further, the Court of Appeal found that the trial court correctly concluded that Mrs. Adams had not produced any evidence, which would support a finding that the City knew its actions were substantially certain to result in the injuries suffered by her husband.

Summary judgment is appropriate when there is no dispute as to a material fact and where there is no factual support for one or more of the essential elements of the claim. Therefore, because the claimant did not provide evidence to show she could meet the burden of proof at trial, specifically that the City of Shreveport knew its actions were certain to result in the injuries suffered by her husband, there is no genuine issue of material fact and the claims are dismissed. Quality representation is vital in making sure that your case is brought to court with the proper evidence and the best arguments are made for your side.

Continue reading →

Published on:

On July 12, 2006, Raymond Alex, Sr., a structure carpenter for the BNSF Railway was driving a company boom to a work site in Mermentau. Around 3 p.m., Mr. Alex stopped at an intersection, was rear-ended by a large tractor-trailer rig driven by Edward Zenon, Jr. As a result of the accident, Mr. Alex alleged he suffered injuries to his neck with radiating pain down his right arm and hand. He was given injections in his neck at first, but ultimately required cervical spine surgery.

In July 2007, Mr. Alex sued Mr. Zenon, the lessor of the tractor/trailer, PACCAR Leasing Company, and his employer, Creole Fermentation. After some initial discovery, Mr. Alex settled with the defendants.

Two years after his previous suit, Mr. Alex decided to sue his employer, BNSF, under the Federal Employer’s Liability Act (FELA). In his petition, Mr. Alex alleged that BNSF was negligent for failing to provide a reasonably safe place to work, failing to warn him of dangerous conditions and providing a poorly designed truck for him to work in.

As stated in the Louisiana Third Circuit Court of Appeals’ ruling, “‘In order to recover under FELA, the plaintiff must establish that (1) he was injured within the scope of his employment; (2) the employment was in furtherance of the railroad‟s commerce in interstate transportation; (3) his employer was negligent; and (4) this negligence played a part in causing his injury.'”
The appellate court added that a FELA claim does not require as high a burden as in an ordinary negligence case. However, a showing of some negligence is necessary. In June 2010, BNSF filed for summary judgment, but agreed to continue the summary judgment hearing at Mr. Alex’s urging that further discovery would reveal the genuine issues of material fact present in the case. Further, BNSF made available employees the plaintiff sought to depose.

The case drug on into the next year, to March 2011, and a deposition of Mr. Alex. He testified that the truck he drove on the day of the accident was not his normal operating vehicle, which was out of service. The plaintiff said he was given an old truck from Texas, though he signed off on the condition of the truck both before and after the accident. Mr. Alex even said that the truck was “pretty crashworthy.”

Complaints of the truck’s boom not always working, dry-rotted seats, and old shocks were just that — complaints; they had nothing to do with the vehicle’s crash-worthiness. The strongest criticism to the truck’s crash performance offered was a suggestion that a lack of headrest might have contributed to Mr. Alex’s injuries.

BNSF again sought summary judgment in June 2011 — nearly two years after the case was filed and five after the accident — attaching the deposition of Mr. Alex as an exhibit. Plaintiff responded just before the summary judgment hearing, re-iterating its allegations and again seeking further discovery. Unlike the year before, BNSF smartly replied that allegations were not enough to withstand summary judgment. As for any other discovery, the BNSF employees plaintiff’s counsel wanted to testify were not witnesses to the accident and were found not able to contribute anything of merit to the negligence allegations.

The trial court granted summary judgment to BNSF, to which Mr. Alex appealed. Under a de novo review, the appellate court, was not swayed. Noting previous holdings that additional discovery is not warranted when plaintiff had over a year to do so, the appellate court summed its ruling thusly:

“…there was no evidence presented that the condition of the truck played any part in the injuries suffered by [Mr. Alex]. Thus…[he] could not prevail even under this “easier burden.”

When you enter litigation, make certain that you seek an appropriate legal remedy.

Continue reading →

Published on:

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.

Continue reading →