Louisiana Personal Injury Lawyer Blog

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

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

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

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

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

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

"(a) the binding force of trial court rulings during later stages of the trial, (b) the conclusive effects of appellate rulings at the trial on remand, and (c) the rule that an appellate court will ordinarily not reconsider its own rulings of law on a subsequent appeal in the same case." Petition of Sewerage & Water Bd. of New Orleans.

The doctrine is intended to avoid endless re-litigation of the same issue and to promote consistency of result in the same litigation. It also promotes efficiency by affording the parties a single opportunity to resolve the matter at issue.

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

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

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

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

The blog will resume postings in 2012!

The Bailey case, as discussed, was determined based upon the precedent set forth by the Louisiana Supreme Court in Bulot v. Intracoastal Tubular Services, Inc. The focus here is on two causes of action, Whether a plaintiff can file both, and receive punitive damages for, a wrongful death and survivorship cause of action.

The Plaintiffs in Bulot were two families who sued the defendant oil refinery for wrongful death and survival. The District Court granted summary judgment, meaning there were no genuine issues of material fact, in favor of the defendant as to one family's wrongful death action and its claim for punitive damages in its survival action. The Court also granted the defendant's exception of no right of action as to punitive damages for the second family's wrongful death action.

Each family had a family member that died after being exposed to radioactive waste. One family alleged that the deceased had worked for a company that engaged in the cleaning of oilfield tubing and pipes. He died of pancreatic cancer in 1999, allegedly as a result of exposure to radioactive waste while employed by the company. The second family's family member died while La. Civ. Code Ann. art. 2315.3 ('the statute') was in effect (between 1984 and 1996). The statute provided that punitive damages may be awarded, in addition to general and special damages, if it is proved by the plaintiff that the sustained injuries were caused by the defendant's "wanton or reckless disregard for public safety in the storage, handling, or transportation of hazardous or toxic substances."

In order to establish when a tort cause of action accrued in an occupational disease case like this, the plaintiff must present evidence that the exposures were significant and that such exposures later resulted in the manifestation of damages, in this case disease. In short, the exposures must be "significant and continuous."

The Appeals Court reversed the grant of summary judgment as to the first family's claim for punitive damages in its survival action, as it found there existed genuine issues of material fact as to whether the family's deceased relative's exposures to radioactive material on the jobsite from 1984 to 1992 resulted in his developing cancer. The Court affirmed the grant of summary judgment as to the family's wrongful death claim, however, because the deceased did not die while the statute was in effect. In addition, the Court affirmed the exception of no right of action for the second family's claim for punitive damages in its wrongful death claim. The Court determined that damages pursuant to the statute could not exist as a component of a wrongful death action because the law in effect at the time of death is the law that applies in wrongful death actions.

Although both causes of action arise from a common tort, survival and wrongful death actions are separate and distinct. Each arises at a different time and provudes for damage awards for different injuries and losses. A survival action exists simultaneously with the tort and transmits to the beneficiaries (decendents) upon the victim's death and permits recovery only for the damages suffered by the victim from the time of injury to the moment of death. A wrongful death action arises once the victim has died and it compensates the beneficiaries for their own injuries which they suffer from the moment of the victim's death and after. The statute limits a survivor's recovery to damages actually suffered as a result of the deceased's death, and cannot recover punitive damages as a result.

A claim for damages pursuant to the statute cannot exist as a component of a wrongful death action, as a wrongful death action is limited to compensatory damages for the victim's own injuries. Punitive damages may be awarded, if it is proved that the plaintiff's injuries, were caused by the defendant's disregard for public safety, but the statute provides for the survivors of the original tort victim to recover all damages for injury to that person, his property or otherwise, caused by the offense.

Continue reading "Louisiana Wrongful Death and Punitive Damages Award in Oil Refinery Release (Part II)" »

The Bailey v. Exxon Mobil Corporation case finds its conclusion based on the precedent set forth in Bulot v. Intracoastal Tubular Services. The focus is on the application of a statute, and differentiating events that take place prior to the statute's enactment, and how the Court will analyze events that continuously occur which began before the enactment of the statute and continue after its enactment.

The issue before the Court in Bailey is whether the plaintiffs’ claims for punitive damages in a wrongful death action are precluded by Bulot. The plaintiffs in Bailey alleged that either they or their decedents were exposed to naturally occurring radioactive material at over 600 pipe yards throughout Louisiana, six other states, and overseas, through their work with, or with a subsidiary of, the Exxon Mobile Corporation. They also alleged they were entitled to punitive damages under former Louisiana Civil Code Article 2315.3.

Punitive damages are intended to reform or deter the defendant and others from engaging in similar conduct to that which formed the basis of the lawsuit. Punitive damages are not intended to compensate the plaintiff, however, the plaintiff often receives most if not all of the punitive damages award. The Court states that the statute in question, La. C.C. art. 2315.3, effective September 3, 1984 and repealed April 16, 1996, provided for punitive damages "if it [were] proved that plaintiff’s injuries were caused by the defendant’s wanton or reckless disregard for public safety in the storage, handling, or transportation of hazardous or toxic substances." The court in Bulot states that "punitive damages cannot be recovered by way of a wrongful death action. The right to a punitive award is a different kind of right or legally enforceable claim than the right to compensatory damages. As such, a claim for damages pursuant to La. Civ. Code Ann. art. 2315.3 cannot exist as a component of a wrongful death action, as that is limited to compensatory damages for the survivor's (victim's) own injuries."

In Bailey, the defendants filed numerous exceptions, including peremptory exceptions of no cause of action for punitive damages for plaintiffs’ wrongful death claims based on the Court of Appeal of Louisiana, Fourth Circuit's holding in Bulot v. Intracoastal Tubular Services, Inc. The District Court sustained the defendants’ exceptions of no cause of action for punitive damages in a wrongful death case.

In Bulot, the widow and children of a deceased employee brought survival and wrongful death actions against his employer. They alleged that the deceased’s cancer was the result of occupational exposure to radioactive waste while cleaning oilfield pipes. The District Court granted the employer’s motion for summary judgment on the punitive damages claims. His widow and children then appealed to the Court of Appeal where it was held that there were genuine issues of material fact which precluded summary judgment on the punitive damages claim in the survival action. The Court of Appeal also held that punitive damages could not be recovered through a wrongful death action. Thus, according to Bulot, the plaintiffs in Bailey are precluded from recovering punitive damages in a wrongful death action.

For a further discussion of Bulot v. Intracoastal Tubular Services, Inc. please continue reading Part II of this post. If, however, you feel as though you have read all you need and have questions or need expert advice in a potential wrongful death claim of your own, then please do not hesitate to contact the Berniard Law Firm.

Not all employees furthering a vessel's mission are seamen. They can provide short-term or even land-based support. If so, they aren't seamen under the federal Jones Act. Whether Kerry Becnel was a seaman when he was injured was the issue considered in Becnel v. Chet Morrison, Inc., No. 2010-CA-1411 (La. Ct. App. 4 Cir. 8/31/11). The court of appeal reversed the St. Bernard 34th Judicial District Court and sent the case back for trial.

In the U.S. Supreme Court case of Chandris, Inc. v. Latsis, the first question to determine whether an employee is a seaman is simple: did the employee "contribute[ ] to the function of the vessel or accomplishment of its mission." Becnel did contribute. He worked 17-hour days in preparing meals, cooking food, and cleaning. He sustained injuries when he fell off a barge at the end of one of those long working days. The parties did not dispute that Becnel met this test.

The second part of the Chandris test is harder: "whether that employee had a connection to a vessel in navigation which was substantial both in terms of duration and nature." Two questions arise. Did the employee have a connection to a vessel in navigation? Was that connection substantial in its duration and nature.

Did Becnel have a connection to a vessel? The barge owner, Chet Morrison Contractors, Inc. (CMC), argued that Becnel did. Becnel's employer, Coastal Catering, L.L.C. and its insurer State National Insurance Co. (SNIC) argued that Becnel did not because Coastal randomly assigned Becnel to its customers. Becnel's assignments, Coastal said, were more often fixed platforms than boats. But this means of employment does not prevent one from being a Jones Act seaman. Seaman status cannot be defeated merely because someone in the future could be assigned a non-seaman role or "could have been assigned to other work locations." What matters is that the person is "continuously subjected to the perils of the sea and engaged in classical seaman's work."

Becnel was "a day-cook/steward and a night cook" with his employer, Coastal, which served a number of customers. Becnel had worked for 153 days at seven different job sites, including five of Coastal's customers. These customers included dive boats, drilling ships, and fixed platforms. But, CMC said Becnel always worked on an identifiable fleet of vessels, and Becnel said all of his assignments were part of a CMC project. The court of appeal found these facts did not result in a clear answer to whether Becnel was connected with a vessel. It could not be resolved on summary judgment.

Did Becnel have a substantial connection in duration and nature with a vessel? The ordinary case in the U.S. Fifth Circuit requires at least 30% of one's time in service of a vessel in navigation to qualify as a Jones Act seaman. Circumstances may justify a lesser percentage of time. The parties disputed how to compute Becnel's percentage of service. Coastal and SNIC argued that Becnel was not a seaman because he worked less than 30% of his time on CMC vessels. But, CMC said that Becnel met the test when considering all his assignments with Coastal.

The court looked at the evidence on either side of the argument. By Coastal's tally, Becnel had worked for 153 days on seven jobs for periods ranging from seven days to 52 days. Within those 153 days, 64 were spent on fixed platforms and 35 were on CMC barges. Coastal and SNIC argued that 35 days was only 23% of Becnel's time in service, and that wasn't enough to qualify as a seaman. One witness also doubted that CMC owned the quarters barge where Becnel worked. Others had testified, instead, that Becnel had always worked on barges or vessels of some type.

The discrepancy could be resolved only by weighing of evidence and determining the credibility of witnesses. Those things are matters for a trial court, not an appellate court that does not see the witnesses. The court of appeal determined that Becnel's seaman status could be decided only by the district court.

The right to a jury trial for personal injuries may be the difference that allows recovery for a seaman's injury. In a specialized economy in which services are provided by third parties, it may be difficult to determine whether one is considered a seaman under the Jones Act. Becnel's circumstances provide a warning. A trained lawyer will be able to ask the right questions to find out the important facts and how they affect your case.

Continue reading "Trial Necessary to Determine Jones Act Applicability (Part 2)" »

Kerry Becnel was injured while working on a barge, but his relationship with the vessel is not clear cut, making it difficult to determine whether he was a seaman under the federal Jones Act. In Becnel v. Chet Morrison, Inc., No. 2010-CA-1411 (La. Ct. App. 4 Cir. 8/31/11), the Louisiana Fourth Circuit Court of Appeal reversed the St. Bernard 34th Judicial District Court and sent the case back for trial.

Becnel was a cook on a quarters barge owned by Chet Morrison Contractors, Inc. (CMC). One night in 2005, he was walking from one barge to another to reach a water taxi used to get to his living quarters. Before he reached the water taxi, he fell several feet into the water. Becnel claimed that "there was no safety device, railing, chain, rope, or other safety feature to prevent falling from the side of the vessel," and the owner knew this. To add to the danger, the only light near where he fell was not working. He said he could not avoid the danger because he could not see it.

Becnel sued his employer, Coastal Catering, L.L.C., which had contracted Becnel's services to CMC. He also sued CMC and the companies' insurers. The battle became one between the companies and their insurers. Coastal's insurer, State National Insurance Co. (SNIC), claimed that Coastal's maritime general liability insurance policy did not cover CMC's potential liability for Becnel's injuries, but the district court decided it did.

CMC sought recovery against Coastal for Coastal to compensate and defend CMC's claim against Becnel. CMC argued before the district court that the legal definition of a seaman was enough to show that Becnel was a seaman under the Jones Act. It sought resolution in summary judgment, a means to resolve issues without trial when no genuine issue of material fact complicates the analysis. Coastal and SNIC disagreed.

The district court agreed with CMC's motion that no factual dispute prevented Becnel from being considered a seaman under the protection of the Jones Act. It also found that CMC was an additional insured under Coastal's insurance policy with SNIC. Coastal and its insurers have since settled their claims with Becnel.

Insurer SNIC and employer Coastal appealed the district court decision. They asked the court of appeal whether any disputed facts would prevent the district court from concluding that Becnel was a Jones Act seaman. If there were disputed facts, the question would need to go to trial.

To answer the question, the court of appeal analyzed the Jones Act and cases that have explained its coverage. The federal Jones Act allows a seaman who suffered personal injury while employed to qualify for additional means of recovery for damages and a jury trial. The trial is to be located in the court assigned to the district where the employer resides or has its principal office.

But, what is a seaman? The U.S. Supreme Court case of Chandris, Inc. v. Latsis sets out a two-part test for whether someone is a seaman covered under the Jones Act. The first question is "whether the employee's duties contributed to the function of the vessel or accomplishment of its mission." The second question is "whether that employee had a connection to a vessel in navigation which was substantial both in terms of duration and nature."

The first question is easy to answer in most cases. "[A] maritime employee who does the ship's work falls within the purview of the Jones Act." This includes "[a]ll who work at sea in the service of a ship." Becnel was working as a cook on the quarters barge. The parties didn't appear to dispute that Becnel contributed through his work. Becnel worked 17-hour days preparing three meals, cooking, and cleaning in a galley. These tasks were undisputed, and they were enough so that the first part of the Chandris test was not in dispute. Summary judgment, so far, was OK.

But, the second test was more difficult to resolve and ultimately required choosing among too many disputed facts for a reviewing court to decide (see Part 2).

The right to a jury trial for personal injuries may be the difference that allows recovery for a seaman's injury. In a specialized economy in which services are provided by third parties, it may be difficult to determine whether one is considered a seaman under the Jones Act. Becnel's circumstances provide a warning. A trained lawyer will be able to ask the right questions to find out the important facts and how they affect your case.

Continue reading "Court Determines if Injured Temp Qualifies Under Jones Act" »

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Continue reading "Fireman's Survivors File in Time in Shreveport" »

"Plaintiff Lost at Seaman Claim"

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

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

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

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

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

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

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

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

Continue reading "Jones Act Lawsuit Fails Under Seaman Claim" »

Though Mr. Herbert's primary argument was that he was outside the scope of his employment, he argued in the alternative that, even if the injury occurred within the scope of employment, the Defendants committed an intentional tort. Such a tort is the only recourse available to defeat a workers' compensation defense when the injury occurs within the scope of employment. When making an intentional tort claim one must prove that the act that resulted in the injury was intentional. An intentional act requires the actor to either consciously desire the physical result of the act or know that the result is substantially certain to occur from his conduct. "Substantially" in this context requires more than a probability that an injury will occur and "certain" alludes to inevitability. Negligent, reckless, or wanton action is not enough to satisfy an intentional tort. These high standards make it difficult to succeed in a suit for intentional tort within the workplace.

Mr. Herbert was unable to succeed in his alternative argument because no proof was provided that either Industrial or GMI desired to harm Mr. Herbert or that the companies were substantially certain that the injury would occur from the companies' acts. The court concluded that there was no evidence to prove that safety modifications made to the helicopter were an intentional cause of the injury. Neither the Plaintiff nor the Defendants felt that the safety harness used was unsafe, which defeated any claim that the Defendants knowingly acted to cause harm to Mr. Herbert.

In addition to the intentional tort, Mr. Herbert also claimed that the Defendants were responsible for spoliation of evidence. Spoliation of evidence is an intentional tort that impairs a party's ability to prove a claim due to negligent or intentional destruction of evidence. In essence, the ability to make a claim for spoliation of evidence protects not only the claimant's rights to suit, but also the court's ability to provide justice. The key question in these claims is whether or not the defendant had a duty to preserve the evidence for the plaintiff. A duty of preservation may arise through contract, statute, special relationship, agreement, or an already acted upon undertaking to preserve the evidence. Because spoliation of evidence can be satisfied by an act under a negligence standard, this claim is easier to succeed on than one for any other intentional tort.

For the above reason, the trial court's ruling in favor of the Defendants in the Herbert case was reversed on appeal. The 3rd circuit found that defendant Richards did not seek out a missing piece of lanyard and a carabineer attached to Mr. Herbert's safety harness that fell out of the helicopter with Mr. Herbert. Though it is indeterminable whether or not Mr. Richards failed to seek out the missing safety components in an attempt to sabotage Mr. Herbert's claim, a question of fact remained that required the issue to be remanded.

When an injury occurs in the workplace, it is important to consider whether or not the injury was a product of the employment. If not, then you may sue your employer for a variety of torts. However, even if the injury happened while within the scope of employment, a suit may lie if the tort was intentional. When within the scope of employment, this is the only way to defeat workers' compensation tort immunity.

Though the above article may be helpful in deciding a course of legal action, it should not in any way replace the advice of a practicing attorney. If you have questions about your personal injury claim, please contact the Berniard Law Firm.

3rd Circuit Uses Helicopter Injury Case to Clarify "Injury Within the Scope of Employment"

Injuries in the workplace occur frequently and thus many states have forced employers to purchase workers' compensation insurance. Under workers' compensation, the employer's insurance agrees to pay for any lost wages and medical bills as a result of the employee's injury. In exchange for this security the employer may use workers' compensation as an affirmative defense with the burden of proof on the employer to insulate the employer from tort liability. This essentially minimizes an injured's claim. However, as Herbert v. Richard illustrates, it is vital that one consider whether or not the injury occurred while within the scope of employment. Depending on the answer to this question, an employer may be barred from using workers' compensation as an affirmative defense to protect itself from tort liability, resulting in a potentially greater claim by the injured.

In Herbert v. Richard, an employee fell from a helicopter while netting deer in Mexico on behalf of a game management company, Game Management Inc (GMI). Though the deer netting enterprise was GMI's, the employee worked for Industrial Helicopters, Inc., a company owned by the same family that owned GMI. Mr. Herbert, the employee, had been a fuel truck driver for twenty nine years and had only been on GMI's netting excursions once before the injury. Industrial sought to invoke a workers' compensation affirmative defense arguing that Mr. Herbert was either within the scope of his employment, was a borrowed employee from Industrial, or, alternatively, that Industrial and GMI were joint employers.

There are two issues that must be considered when determining if an injury has occurred within the scope of employment. The first gauge is whether or not the employee was engaged in the employer's business at the time of injury. If the injury occurred while acting on behalf of the employer's business, then it is likely that the injury falls within the scope of employment. For example, if an employee at a warehouse is responsible for loading the company truck and making deliveries to regional retail stores, an injury that occurs while loading the truck at the warehouse would fall under scope of employment. However, if the injured occurred while participating in business not related to the employer, then the injury would fall outside the scope of employment.

The second way an injury falls within the scope of employment is if the obligations of the employment caused the employee to be at the site of the accident at the time the accident occurred. Applying this to the example above, we see that if the truck driver was injured while unloading the company truck at a retail store his injury would fall within the scope of his employment because his job requires him to unload trucks at various stores. Even an injury obtained from an accident while in route to the retail store in this example would fall within the scope of employment because the truck driver is en route to the store only as a part of his employment. In these instances the employer would be able to use workers' compensation as an affirmative defense and therefore protect itself from tort liability unless the tort was intentional.

The following questions also may be helpful in determining whether an injury has occurred within the scope of employment: Was I doing the act on behalf of my employer? Had I done that type of task for my employer before? Was I being paid for the work that was being completed at the time of the injury? Is this the type of work my employer regularly asks its employees to take part in? In addition to these questions, it is important to consider whether the injured was a "borrowed employee" or was working under "joint employment."

These issues will be discussed in our next post.

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

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

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

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

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

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

In the event that a landowner plans to do any form of significant work on an area of land, whether cosmetic, such as landscaping, or extensive, the work should be preceded by the contracting of one qualified and certified to inspect the property and physically mark the location of utility cables upon it. This is to prevent damage to the utility cables, and to prevent the costs of repair to the companies which own the cables. Such action invokes the Louisiana Damage Prevention Act - Louisiana Underground Utilities and Facilities Damage Prevention Law.

An incident central to the MCI Communications Services, Inc. v. Hagan case was noted at causing a $20,000 a minute loss to the utility company for every minute the cable was out of commission. It thus seems rational that the possible negligence and/or trespass in damaging the cable, property owned by a utility company, can cause significant troubles, even if it occurs within the property of the landowner.

The most substantial part involved in this case is the determination of what the definition of trespass and negligence is when a landowner affects the transposed property of the utility company. Without a doubt, a landowner has the right to be on and use the land, but the utility company also has been given the right by law to continue to leave its utility cable in/on the land and continue using it, and retains this right even if the contract for use of the land was made with a previous landowner. If a servitude is involved with having the utility cable in/on the land, then there is a possible claim for Trespass to Land in conjunction with a negligence claim. However, if there is not a servitude, and only a right to continue to use the utility cable on the land exists, then the recourse if damage occurs would be Trespass to Chattels, for damage to personal property, not Trespass to Land, as attempted in this case.

The intent question is one of strict liability, whether the only intent needed is the intent to perform the action, in this case intentionally using the backhoe, and a result, damaging the utility cable, occurred. More succinctly, the aforementioned case notes a trespass is "an unlawful physical invasion of property in the possession of another and the only intent required is the trespasser's intent to perform the act which constitutes the trespass." Thus, "an individual need only refrain from taking intentional action that results in harm to another." However, the Louisiana Supreme Court has yet to rule on the intent standard in regard to claims of trespass to underground cables, and hence, the issue at hand. The Certified Question for the Louisiana Supreme Court is:

"Is the proposed jury instruction in this case, which states that "[a] Defendant may be held liable for an inadvertent trespass resulting from an intentional act," a correct statement of Louisiana law when the trespass at issue is the severing of an underground cable located on property owned by one of the alleged trespassers, and the property is not subject to a servitude by the owners of the underground cable but only to the contractual right to keep it, as an existing cable, underneath the property?"

The ruling by the Louisiana Supreme Court will not only impact a landowner, but the contractors and excavators who will more commonly perform the excavations, and are more likely to cause damage to underground utility cables. This could also bring up further issues in agency, for if it was to be found that an individual who caused the resulting damage was acting as an agent of another, the principal, then the principal would incur the legal wrath of the utility companies.

Though the Supreme Court of Louisiana has yet to rule on this Certification Question, as to the standard of intent for trespass in this situation, contact the Berniard Law Firm for further information regarding the outcome of this case, for clarification of the Louisiana Damage Prevention Act, and for assistance in determining if your property is subject to similar issues.

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

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

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

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

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

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

Recently we explored the Third Circuit Court of Appeal's discussion of the legal cause of a tragic natural gas explosion at the Jones residence in Opelousas Parish. Another of Centerpoint's assignments of error on appeal, the last that we'll review from the case, was that the jury incorrectly apportioned fault; the jury assigned 50 percent of the fault to Centerpoint and 50 percent to Carl Jones, Sr. Centerpoint argued that Jones should have been assessed "at least ninety percent of the fault in causing the explosion and fire." The review of fault allocation by an appellate court is based on the "manifestly erroneous" standard. That is, the court must allow the jury's apportionment to stand unless it is clearly wrong.

The court began its review of Centerpoint's argument by focusing on the trial testimony of several of its witnesses. All expressed that the company "clearly recognizes the inherently dangerous nature of its product and has developed numerous measures designed to prevent explosions and fires, such as occurred in this litigation." One witness, the company's former Operations Manager for the state of Louisiana, testified that the procedures for
disconnecting gas service are "based on the inherently dangerous nature of" natural gas and are designed to "protect people from their own ignorance." He further expressed the view that Centerpoint has "an obligation to take every reasonable step to prevent its customers from tampering with its natural gas supply system." The court equated the risk of "catastrophic consequences" created by Centerpoint's conduct to Jones's action in reconnecting the gas supply. Had either party "not breached the applicable duties imposed upon them," reasoned the court, the accident would not have happened. Nevertheless, when comparing their relative conduct, the court concluded that "Centerpoint Energy’s fault far exceeds that of Mr. Jones." It considered Centerpoint to be the "superior actor" in the incident who failed--even in light of the gas industry's general awareness that "customers will attempt to steal gas"--to engage in a "rather simple task" that was designed to "prevent exactly the result which occurred." Thus, the court could "not find that the jury was manifestly erroneous or clearly wrong in apportioning fault equally" between Centerpoint and Jones.

The jury verdict in this case seems to strike a balance between the need for a utility company to prevent natural gas accidents and its inability to prevent all attempts at gas theft by customers. In fact, the court suggested that Centerpoint's fault was actually greater than Jones's, though it could not find error on the jury's part that would allow it substitute its own judgment and increase its share of the fault. Undoubtedly, the jury would have reached a different result if Centerpoint had followed its own procedure in shutting off and securing the gas line and Jones had nevertheless managed to turn the valve back on. Ultimately in the case, the court rejected all of Centerpoint's assignments of error and affirmed the jury's verdict in its entirety.

Continue reading "Opelousas Parish Natural Gas Explosion, Part 3: Assigning Fault" »

In our prior post, we observed the Third Circuit Court of Appeal's finding that the jury correctly held that Centerpoint Energy failed to meet its duty of properly securing the natural gas line and valve when it disconnected service at the Jones residence in Opelousas Parish. Establishing the duty owed by Centerpoint was one of several elements of the duty-risk analysis that Jones was required to establish in order to prevail. Another element that we will now consider is that of causation. Centerpoint argued that its failure to properly shut off and secure the gas supply was not the legal cause of the injuries sustained by the Jones family. Instead, in Centerpoint's view, Jones's "reconnection of the gas service constituted intervening conduct that was not only grossly negligent, intentional, and criminal, but also not foreseeable." Under Louisiana law, an intervening act will relieve the original tortfeasor of liability if it
“superseded the original negligence and alone produced the injury.” Adams v. Rhodia, Inc. However, if the intervening act is foreseeable to the original tortfeasor, it is considered to be "within the scope of the original tortfeasor's negligence." In short, Centerpoint argued it could not possibly have foreseen Jones's attempt to reconnect his gas line and, therefore, its failure to properly secure the line was irrelevant once Jones acted to steal the gas.

The court, however, found that Centerpoint's position was "defeated" by the testimony of its own wtinesses. One employee, the company's Operations Supervisor, explained that the security mechanisms were necessary because it was "common sense that people will try to steal natural gas after their supply has been cut off." Another, Centerpoint’s former Operations Manager for Louisiana, stated that the locking mechanisms were required because "people do not always understand the dangers associated with natural gas." Also, an expert in the field of natural gas operations testified that Centerpoint should have "no illusions" about the potential for people to steal natural gas. The court found that "Jones’s actions in leaving an uncapped gas line open in the house, breaking the plastic locking device and stealing natural gas, and negligently leaving the natural gas running into the house all night, are exactly the unsafe acts that Centerpoint Energy’s duty to properly terminate service is designed to prevent." Thus, it concluded, the jury's finding that Jones’s conduct was foreseeable was well supported, and it correctly determined that Centerpoint could not rely on Jones's intervening criminal act to relieve it of all responsibility for the explosion.

In a third and final post, we will revisit this case to review Centerpoint's argument on appeal that the jury erred in its apportionment of fault between it and Jones.

Continue reading "Opelousas Parish Natural Gas Explosion, Part 2: Determining Causation" »

On May 7, 2003, Centerpoint Energy disconnected the natural gas service at the house of Carl Jones, Sr. and his family because they were past due on an outstanding balance. A short time later, Jones and his son removed the gas stove from the kitchen and replaced it with an electric model. Unfortunately, Jones forgot to cap the gas line before installing the new stove. Late in the evening of June 15, 2004, after having been without a functioning water heater since the disconnection, Jones reconnected the gas line. He did so because he was expecting guests the following day and wished to have a supply of hot water that did not require stove-top heating. To make the reconnection, Jones used a wrench to snap off the red plastic locking device that the Centerpoint technician had installed on the line when he closed the valve. Unable to re-light his water heater, Jones assumed no gas was flowing and went to bed. By morning, the house was filled with gas, and as the family arose several large fireballs erupted. Jones, his wife, and their four children were severely injured in the explosion. Jones sued Centerpoint seeking to recover for his and his family's injuries. A trial was held in July, 2010. After the judge denied Centerpoint's motion for a directed verdict, a jury apportioned half of the fault to Centerpoint and half to Jones and awarded substantial sums to Jones's family members for their injuries. Centerpoint appealed, arguing, among other things, that the trial court erred in permitting the case to go to the jury at all. In Centerpoint's view, its duty to reasonably disconnect gas service for non-payment did not extend to protecting Jones against the explosion caused "by [his] subsequent negligent, intentional, criminal and then grossly negligent conduct."

An appeal of a trial court's denial of a motion for a directed verdict requires the appellate court's de novo review because such a motion can be granted "only if the facts and inferences are so overwhelmingly in favor of the moving party that the court finds that reasonable men could not arrive at a contrary verdict.” The Third Circuit began its analysis by noting that "[t]o prevail in their personal injury suit, the plaintiffs bore the burden of establishing that Centerpoint Energy was at fault in causing the accident, using a duty-risk analysis." Centerpoint argued that Jones failed to meet this burden, in part, because he could not establish that the utility did not conform to the appropriate standard of care when shutting off the gas supply. The court found two sources for the scope of duty imputed to Centerpoint. First, Louisiana case law takes the position that it is

"common knowledge ... that natural gas, being highly flammable and explosive in nature, is an inherently dangerous instrumentality. Those who handle and distribute it are charged with that degree of care commensurate with its dangerous character for the protection of the public from any foreseeable injury." Giordano v. Rheem Manufacturing Co..

In addition, the Code of Federal Regulations provides for three options for "acceptable compliance" when disconnecting natural gas service: (1) the valve that is closed to prevent the flow of gas to the customer must be securely locked; (2) a mechanical device or fitting that will prevent the flow of gas must be installed in the service line or in the meter; or (3) the customer’s piping must be physically disconnected
from the gas supply and the open pipe ends sealed. 49 C.F.R. 192.727(d). In this case, the Centerpoint technician installed an easily circumvented, red plastic locking device on the valve, but, in contravention to Centerpoint's own clear policy, did not install a "blind plate" within the meter that would have blocked the flow of gas even if the valve were to be re-opened. The court, after reviewing extensive expert witness testimony concerning the industry standards for preventing unauthorized tampering with a shut-off gas line, concluded: "reasonable men could find that installing the plastic locking device was not sufficient to comply with the standard of care, that Centerpoint Energy’s technician did not properly install a blind plate on the meter, and, therefore, Centerpoint Energy did not
comply with the applicable standard of care." Thus, the court determined that the jury's verdict, so far as it pertained to the element of Centerpoint's duty, was supported.

In a subsequent post, we will revisit this case to review the court's analysis of Centerpoint's argument concerning the causation element of the duty-risk analysis.

Continue reading "Opelousas Parish Natural Gas Explosion, Part 1: Exploring the Utility Company's Duty " »

If a company manufactures a defective product, and an individual is injured by that product, the manufacturer may be liable for the damages suffered by the product-user. The product, be it a cleaning supply or an automobile part, or any number of different items found in everyday life, bears an element of responsibility of reliability and worthiness when it is delivered by a manufacturer. When that responsibility is breeched, legal remedy is available.

As the Fifth Circuit described in the seminal case of Matthews v. Remington Arms Co., in order for an injured party to win an action against a product manufacturer, that party must prove: (1) that the party, or another "person or entity" was using the product in a manner reasonably anticipated by the manufacturer; (2) that an aspect of the product directly caused the damage(s) claimed; "(3) the product was 'unreasonably dangerous' either in construction, design, or warning; and (4) the characteristic rendering the product unreasonably dangerous either 'exist[ed] at the time the product left the control of its manufacturer or result[ed] from a reasonably anticipated alteration or modification of the product.'”

If a party can show that a product, used in a way reasonably anticipated, could harm a product-user, the manufacturer may have a legal duty to design its product in a manner which would avoid such harm. As explained by the Fifth Circuit, a reasonably anticipated use is a "use or handling of a product that the product’s manufacturer should reasonably expect of an ordinary person in the same or similar circumstances.” If it can be shown that a product was misused and that misuse resulted in the damages claimed by the product-user, then that user cannot collect against the manufacturer for his or her damages.

In the Matthews case, the plaintiff had borrowed a Model 710 rifle from another individual. The manufacturer designed the rifle to be fired with a bolt-assembly pin in place. Warnings were included in the rifle manual stating that the rifle should not be fired without the required pin. According to the Fifth Circuit, the defendant rifle manufacturer had not received any reports, prior to this lawsuit being filed, of its Model 710 rifle being fired without the required bolt-assembly pin. The Fifth Circuit found that someone had removed the bolt-assembly pin, and when the bolt-assembly pin was removed from the rifle in question and was not reinstalled, the rifle's bolt head did not lock with the rifle's barrel when later used by the plaintiff. This resulted in an uncontained explosion which caused the plaintiff's injuries.

In the proceedings below, the trial court had found that the plaintiff's injuries were not caused because the pin was defective, but rather because it had been removed from the rifle. The trial court also determined that the pin had been manufactured according to the applicable specifications. Therefore, the main issue before the Fifth Circuit in Matthews was whether or not it was fair of the trial court to find that the plaintiff had fired the rifle after the bolt-assembly pin had been removed and not reinstalled, as opposed to the plaintiff simply firing the rifle. The Fifth Circuit focused on whether or not the plaintiff had used the rifle in a manner reasonably anticipated by the rifle manufacturer to determine if the rifle manufacturer had a duty to the injured plaintiff, in this case, to design its rifle in such a way as to prevent the harm caused. After reviewing the case, and determining that the pin was missing at the time the plaintiff fired the rifle, the Fifth Circuit agreed with the trial court's finding that the defendant rifle manufacturer should not have expected that someone would fire its Model 710 rifle after its bolt-assembly pin had been removed and not reinstalled. The Fifth Circuit found that the pin could have been removed by the plaintiff or another individual.

As this case demonstrates, cases involving defective products hinge on the facts. Although the court found that the user in this case was the ultimate cause of the damages he suffered, there are many instances where products malfunction through no error on the part of the user.

Continue reading "Fifth Circuit Finds Rifle Manufacturer "Not Liable" for Injuries Sustained After Rifle Firing Resulted in Uncontained Explosion" »

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

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

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

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

The use of asbestos in products such as concrete, bricks, pipes, and other building materials has made way for a large amount of litigation on asbestos-related diseases and deaths. This litigation can help victims of the chemical and their families find some sort of meaning and relief from the toxic material. Litigation on asbestos, however, is very difficult both because the asbestos-related damages did not result from a single, identifiable act, and because it is not only the companies that produced the asbestos which are guilty- it is also those that used and marketed it.

A recent case contains both of these difficulties. Phillip Graf was exposed to asbestos for a period of 30 years while working in several jobs including metal works and drywall. Such extended exposure to such toxic material places one at risk of contracting mesothelioma, a rare form of cancer. Graf suffered from mesothelioma and later died from the disease. His family, Beatrice, Doryk, and Paulette Graf are suing in response to his death. They have named 29 defendants in the case, including Benjamin Moore & Co. and Metropolitan Life. The Graf family claims that the defendants are not only guilty of designing, manufacturing, packaging, transporting, and selling asbestos products, but also aiding and abetting the marketing of asbestos products.

In a traditional personal injury case, the damage results from a single act, but in asbestos cases such as Phillip Graf’s, the damages occurred over periods as long as 30 years or longer. What is worse, typically problems that result from asbestos exposure take years to show. Mesothelioma itself is impossible to detect early on and its symptoms are similar to other diseases, so patients are frequently misdiagnosed. All of this makes it very difficult for plaintiffs to prove that their health problems resulted from asbestos exposure and then link that asbestos exposure to the actions of the defendants. In the Graf case, the Graf family will have to show that the suffering and death Phillip Graf endured from his mesothelioma was caused by asbestos exposure, and that the named defendants caused that exposure.

In one case of asbestos exposure a large amount of defendants may be guilty based upon their involvement in the asbestos use. Unfortunately, an employee cannot typically sue and employer for asbestos exposure because of the Louisiana Workers Compensation Act which requires that such injuries be addressed through workers compensation, not tort suits. As a result, it is important to find other theories of liability on which a victim can sue.

The easiest potential defendant is the building owners, if they are different from the employer. In Phillip Graf’s case, this would be the person or corporation which owned the building in which he was exposed to asbestos. Building owners are strictly liable for damages caused by asbestos on their property.

In the past, most litigation on asbestos focused on the companies that produced asbestos products. However, because of asbestos-related suits, many of these companies have since gone bankrupt. Some plaintiffs have attempted to draw even further chains of causality, suing manufacturers of products used in conjunction with other manufacturers’ asbestos products, such as the manufacturers of pumps and valves. Whether these companies can be liable for failure to warn of asbestos-related hazards in products made by others is still in contention. No matter the theory of liability, as we have illustrated before, to be liable the defendant’s conduct must be a substantial factor in the harm. Thus, for example, for Metropolitan Life, the Graf family will have to show that the company’s aiding and abetting of the marketing and negligence related to asbestos products was a substantial factor in Phillip Graf’s contraction of mesothelioma.

As cases such as Graf’s show, with the many liability strategies and the problems that arise over the timing of exposure and the development of the disease, litigation in asbestos cases can become extremely complicated. In order to fully protect and preserve your rights in an asbestos case, you need to be sure to retain an attorney who is familiar with the many complexities of asbestos cases.

Continue reading "Asbestos Cases Always Difficult, Involve Negligence and Diverse Defendant Groups" »

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

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

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

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

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

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

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

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

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

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

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

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

"As many have noted, this denial of liability went sharply against the current of the overwhelming tendency of modern negligence law 'that pushed liability for physical injuries toward the full extent of what was foreseeable and shattered ancient barriers to recovery based on limitations associated with privity of contract and similar restrictive concepts'. Yet in the face of modern negligence law and notwithstanding that Robins was a case of admiralty, the decision remains, overwhelmingly, the majority view and represents the longest standing and most influential statement in American tort law of what has come to be called 'the economic loss rule'".

In the present case, the 5th Circuit articulates the Robins rule in the following: "It is well settled under the general maritime law that there can be no recovery for economic loss absent physical damage to or an invasion of a proprietary interest."

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

"the question in this case is whether Catalyst suffered such damage to its proprietary interest in its hydroelectric station as to satisfy this test and justify the recovery of the economic damages Catalyst seeks in this court."

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

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

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

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

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

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

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

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

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

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

An explosion at the Multi-Chem Corporation chemical plant, followed by a series of smaller ones, has led to an evacuation of the area's residents. Preliminary reports indicate that no injuries have taken place but it will take some time before a full understanding of the incident is known. The company, which creates oilfield product chemicals, still does not know the full details of the incident. That another explosion has taken place, with the Dow Hahnville incident still in recent memory, leads to a lot of questions regarding the safety standards and practices being utilized at these facilities.

The Associated Press reports that the incident, which appears to have first begun at 4 pm today, featured a significant explosion that could be heard from more than a mile away. The incident led to a one mile radius surrounding the plant being evacuated as all plant employees are accounted for. While the State Police say no one was injured in the incident, previous chemical releases have proven that only after some time are the full effects of an explosion known.

A Multi-Chem Group in Houston spokesman says that the company is still in its exploratory phase and will provide details when they are available. Information is still scarce at this time but we will update this blog as it is available.

Reports are coming in that an explosion has taken place at the New Iberia chemical plant, leading to an immediate evacuation of residents in the area and plant personnel.

More information will be provided as it becomes available.

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

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

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

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

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

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

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

Continue reading "Louisiana Department of Wildlife and Fisheries, Department of Transportation and Development Found Liable for Natchitoches Parish Drowning" »

The health and safety of workers is a pressing concern for both employees and employers alike. When an injury occurs at a job site, many questions arise as to the care of the injured and the responsibility of the employer in regard to that care. As an employee, the question of who pays for the care that may become necessary in the immediate, as well as into the future, is of prominent concern. Also, an injured employee may ask what level of responsibility their employer is held to for the circumstances of the accident and how they can receive compensation for health and living expenses resulting from any injury. What some employees may overlook is that their employment status can often dictate the means and method by which they will be able to recover should a lawsuit become necessary.

The importance of a contract between the employer and the employee who wish to have their relationship classified as statutory cannot be overstated. The recent Louisiana Court of Appeals case out of the Parish of Beauregard, Tilley v. Boise Cascade Corp., illustrates how one's employment status under the law can affect the outcome of a claim for compensation after injury. Tilley, an employee of the BE & K Construction Company, was contracted to work for a Boise Cascade Corp. owned paper mill. While performing work at a machine in the mill, Tilley was sprayed by a scalding liquid and suffered injury. Tilley's contract to work had expired six days prior to the accident.

Tilley filed suit. Soon after, Boise Cascade Corp. claimed immunity under Louisiana Workers’ Compensation Act Title 23 § 1061, arguing that Tilley was a statutory employee who was only entitled to workers compensation benefits and was not entitled to file suit. Hinging their decision on the contract, the Court of Appeals held that the Boise Cascade failed to prove with any certainty that Tilley’s contract had been extended. Therefore, Tilley was not a statutory employee at the time of the accident and she was free to move forward with her suit.

The determination that an employee is a statutory employee can dictate an injured worker’s recovery options. A regular employee is a worker directly hired by a business to perform its trade or operation. Such an employee is covered under the Louisiana Workers’ Compensation Act. The Act mandates that when an employee is injured the employer must pay a certain amount to them under law. In obtaining the absolute benefit of workers’ compensation, the employee forfeits the right to sue for additional damages with the exception of an injury or death caused intentionally by an employer. This immunity covers suits for employer negligence, and the legal result is that an employee receiving workers compensation benefits cannot sue the employer for additional damages not recoverable under workers’ compensation.

A statutory employee is a worker who is contracted to perform a job for a principal employer through a sub-contractor or intermediary. To be classified as a statutory employee under Louisiana law Title 23 §1061, the worker must be performing work “which is a part of [the] trade, business, or occupation” of the principal employer under a contract which indicates their status as a statutory employee. If an employee is classified as a statutory employee the employer enjoys the same immunity from suit as it does with regular employees in the event of death or injury. Thus, if an employee’s status is that of a statutory employee, the employer is exclusively liable for death or injury under workers compensation and enjoys tort immunity. Immunity shields the statutory employer from further suit, preventing the statutory employee from further recovery. Thus, an employee’s status governs the possible methods of legal redress.

Employee status can have great effect on the remedies which can be sought by employees as well as on the duty of care an employer must exercise. If you find yourself faced with an on the job injury you need the services of an effective legal team to help you determine important issues such as the effect your employment status could have on your claim.

Continue reading "The Effect of Statutory Employee Status on a Claim for Injury on the Job" »

When a caller dials 911 to report an emergency, it is not uncommon for the operator to transfer the caller to the local service provider that is best suited to respond to the incident. For instance, a caller who reports an auto accident can expect to be connected with the nearest ambulance service. In the case of Willis v. Rapides Parish Communications District, the Third Circuit Court of Appeal examined the duty owed by an ambulance dispatcher when a transfer does not go through.

Johnny Willis was involved in a single-car accident on La. Hwy. 488 just outside of Oak Hill. The crash was discovered by a passer-by, Shirley Ponthieux, who called 911. The operator for the Rapides Parish Communications District (RPCD) answered her call, contacted the fire department, and then attempted to transfer her directly to Acadian Ambulance because of another incoming call. The operator did not think that taking the other call would affect the transfer, but in fact it failed and Ponthieux was cut off. Because of the phone confusion and because the fire department could not obtain a cellular signal to call Acadia Ambulance when it arrived on the scene, an ambulance did not arrive until approximately an hour later. Sadly, Mr. Willis died at the hospital. His wife, Carleen Willis, filed suit against RPCD and Acadian Ambulance. Her claim against Acadian cited its failure to "receive and respond to the emergency transmission" and that it "failed to establish and utilize a reliable communications system for the receipt of emergency transmissions." The trial judge granted Acadian Ambulance’s motion for summary judgment, holding that it does not owe a duty to an accident victim until it actually receives a call requesting ambulance service.

On appeal, Willis argued that Acadian Ambulance owed a duty to her husband to properly advise the RPCD of how to communicate with its dispatcher. Further, she cited a letter that Acadian had previously sent to the 911 office in Rankin County, Mississippi that explained the procedures that the 911 operators were to follow. Namely, an operator should remain on the line until Acadian Ambulance answered the call in order for the transfer to be completed, and further should briefly inform the Acadian Ambulance dispatcher of the nature of the call before disconnecting. The court disagreed that the lack of a similar letter to RPCD indicated Acadian's failure to exercise reasonable care. In fact, the court could point to "no statutory or jurisprudential principles that support the imposition of [a] duty" on Acadian Ambulance "to properly train the employees of the RPCD in the use of the RPCD equipment to communicate with Acadian Ambulance." Imposing such a duty, in the view of the court, would be inappropriate under the duty-risk analysis favored by the Louisiana Supreme Court. As soon as the Acadian dispatcher actually received a call that an ambulance was needed, he promptly sent one; this met the duty imposed under the law. Accordingly, the court affirmed the trial court's dismissal of Acadian Ambulance from the case.

As this appeal was taken following the trial court's dismissal of Acadian Ambulance from the case, it is not clear what resulted from her action against RPCD which presumably continued following this judgment. The court's decision to affirm the dismissal of Acadian Ambulance illustrates the flexibility of law to determine liability when speculation exists and demonstrates just how complex and difficult civil trials can be for plaintiffs and defendants alike.

Continue reading "Court Clarifies Duty of Ambulance Dispatcher in Dropped 911 Call" »

Over the course of the last century, products liability law has become more detailed and specific in terms of protecting consumers from injury caused by products. If a product is found to be defective, in most cases any sellers along the chain of sale can be held liable. This means that, from the manufacturers to the retailer, all parties can be held liable if damage is caused by a product. The reason for this trend in the law is to give the benefit of the doubt to the consumer because the consumer needs protection. Further, stricter laws force manufacturers to produce better products. If they know that a defective product could potentially results in a multi-million dollar law suit, they will make sure the products they produce are safe.

This protection is especially true as it pertains to young children. Because children have less experience in life, there is a higher chance that they can make a mistake which would be unreasonable to make if it were an adult. However, even the law does not extend such benefits fully to all actions by children and teenagers. In a recent case, Payne v. Gardner, the Louisiana Supreme Court identified a point at which even a teenager could not be protected.

In 2004, in Rapides Parish, Henry Goudeau was playing around an oil well pump. The oil well pumps on oil wells move back and forth like a pendulum. As Henry was playing around the oil well pump, he noticed the movement of the pump and decided to use the pump as a pendulum type swing for recreational purposes. Afer he jumped on the pump when it reached its highest point, his leg got caught in another part of the pump which unfortunately lead Henry to be seriously injured. Henry's mother decided to sue the manufacturer of the pump, Lufkin Industries. A serious battle arose as to whom the blame should fall upon. Should Lufkin have know that their pumps would be used as a ride? Should Henry have used better care in making a determination of whether it was safe to ride on the pump?

In situations like this there can be no simple answer. However, the determination must be made with insight into the facts that existed at the time, and their relation to the law. At the trial court level, the court agreed with Lufkin. On appeal, the appellate court reversed the trial court's decision. The case ultimately found its way to the Supreme Court. The products liablity act in Louisiana is as follows:

The manufacturer of a product shall be liable to a claimant for damage proximately caused by a characteristic of the product that renders the product unreasonably dangerous when such damage arose from a reasonably anticipated use of the product by the claimant or another person or entity.

Further, reasonably anticipated use is defined as, "a use or handling of a product that the product's manufacturer should reasonable expect of an ordinary person in the same or similar circumstances." Lukfin provided evidence that at the time the oil well pump was built, 50 years ago, the sole purpose of the pump was to extract oil. There was never any intent on the part of the company to make its pump available for recreational use. The Supreme Court agreed and stated that on the part of the company, riding the pump would not be a reasonable foreseeable use. Thus, Lufkin had met its burden of proving that it used care when creating its product.

Although Henry was unlucky in his tragic accident and his ultimate case, one can never know who is legally to blame for an injury caused by a product or a machine.

Continue reading "Oil Pump Injury Demonstrates Limits of Liability for Child's Injury" »

In our last post, we explored the basic elements of class action certification, including the rules that guide a trial court's decision on whether to grant the certification. Although the trial court is granted wide discretion on this question, it must reach its decision through serious analysis; the failure to substantiate its analysis can result in reversal by the appellate court as illustrated in the recent case, Madison v. Chalmette Refining LLC. On January 12, 2007, a group of students, teachers, and parent chaperones visited the Chalmette National Battlefield. During a historical reenactment, the nearby Chalmette Refinery released a significant amount of petroleum coke dust that was carried to the battlefield area. Five individuals (the "Plaintiffs") filed suit in federal court against Chalmette Refining, demanding compensation for a variety of damages including "including personal injury, fear, anguish, discomfort, inconvenience, pain and suffering, emotional distress, psychiatric and psychological damages, evacuation, economic damages, and property damages." The suit sought to represent all individuals who were exposed to the coke dust, specifically:

"all persons entities [sic] located at the Chalmette National Battlefield in St. Bernard Parish, Louisiana, in the early afternoon of Friday, January 12, 2007 and who sustained property damage, personal injuries, emotional, mental, or economic damages and/or inconvenience or evacuation as a result of the incident."

The district court allowed the parties to conduct discovery on the issue of class certification. Chalmette Refining took the deposition of each of the five named class representatives, yet the Plaintiffs conducted no discovery at all. At the hearing on the motion to certify the class, no evidence was introduced; at the conclusion, the district court orally granted the Plaintiffs’ motion for class certification.

Even before the district court issued its written order, Chalmette Refining petitioned the Fifth Circuit Court of Appeals for an interlocutory appeal over the decision to certify the class. The thrust of Chalmette Refining's appeal focused on the district court’s findings of "superiority" and "predominance" as required under Federal Rule 23(b)(3). "Determining whether the plaintiffs can clear the predominance hurdle set by Rule 23(b)(3) requires district courts to consider how a trial on the merits would be conducted if a class were certified." This, naturally, demands a fact-intensive analysis that "will vary depending on the circumstances of any case." The district court's order, in the Fifth Circuit's opinion, revealed that it failed to meet this requirement. Instead, it "adopted a figure-it-out-as-we-go-along approach that ... Fifth Circuit cases have not endorsed." For example, the district court's order provided no evidence that it meaningfully considered how the Plaintiffs’ claims would be tried, or that it weighed whether the case could be “streamlined using other case management tools, including narrowing the claims and potential plaintiffs through summary judgment." The district court also apparently failed to acknowledge or resolve the "significant disparities" among even the named class representatives concerning exposure, location, and mitigation. Thus, the Fifth Circuit concluded that by failing to adequately balance the common issues against the individual issues, the district court abused its discretion in determining that common issues predominated and in certifying the class. The court was careful, however, not suggest that class treatment is necessarily inappropriate for the case; instead, Fifth Circuit precedent simply required a "more rigorous analysis" than the district court conducted. Accordingly, the court reversed the district court’s class certification order and remanded the case to the district court for further proceedings.

The Fifth Circuit leaves open the possibility that class certification may still happen in this case if, on remand, the district court properly engages in the analysis required by the Circuit's jurisprudence and Rule 23. It is interesting to note that no evidence was presented by the Plaintiffs in the district court's original hearing on certification. Perhaps had more evidence been in play at that stage, the court would have had more information at its disposal on which to base its analysis and could have avoided the reversal on appeal. Ultimately, this case demonstrates the complexities of class action litigation and reminds plaintiffs that an experienced attorney is essential.

Continue reading "Chemical Release at Chalmette Refinery Results in Battle Over Class Action Certification (Part 2)" »

In this post, we will explore the basic concepts of a class action lawsuit. In particular, we will examine the rules that govern the process by which the court decides whether to recognize a class and permit a group of plaintiffs to litigate under one single action. In a subsequent post, we will examine a recent case from the Fifth Circuit Court of Appeals in which the defendant, a petroleum refinery, challenged the district court's certification of a class of plaintiffs following a chemical release in Chalmette, Louisiana.

A class action is appropriate when numerous plaintiffs who have experienced similar harm collectively bring a suit against the defendant. For actions filed in federal court, Rule 23 of the Federal Rules of Civil Procedure sets out the requirements for a court to certify, or recognize, a class in a particular case. The four central prerequisites include:

(1) numerosity--a sufficient number of plaintiffs that for each to bring a unique suit is impracticable; (2) commonality--questions of law or fact are common to each plaintiff; (3) typicality--the named parties’ claims are representative of those of all plaintiffs; and (4) adequacy of representation--the class representatives will fairly and adequately protect the interests of all plaintiffs.

If each of these requirements is met, the plaintiffs must then meet two additional burdens. First, they must show that questions common to all the plaintiffs predominate over questions that affect only certain individuals. Also, the plaintiffs must demonstrate that the class action is better than alternative methods for resolving the controversy. Feder v. Elec. Data Sys. Corp. The district court is responsible for determining whether the class will be certified. “The decision to certify is within the broad discretion of the court, but that discretion must be exercised within the framework of Rule 23.” Castano v. American Tobacco Co. The court's "rigorous analysis" of the class question means "going beyond the pleadings ... [to] understand the claims, defenses, relevant facts, and applicable substantive law in order to make a meaningful determination of the certification issues.” This typically involves the court's allowing the parties to conduct discovery specifically on the issue of class certification before rendering the decision.

Given that class certification involves "important due process concerns of both plaintiffs and defendants," the district court's proper handling of the certification petition is essential. For this reason, Federal Rule 23(f) provides that the parties may file an interlocutory appeal to challenge the court's grant or denial of class certification. The appellate court is charged with ensuring that the district court conducted a sufficiently rigorous analysis if a party challenges the class certification, such as in the recent case of Madison v. Chalmette Refining LLC, which we will take up in a future post.

Continue reading "Chemical Release at Chalmette Refinery Results in Battle Over Class Action Certification" »

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

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

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

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

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

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

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

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

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

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

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

Continue reading "Court Outlines Responsibilities of Dockowner in Employee Injury" »

The tort of intentional infliction of emotional distress, as we have previously explored, occurs when the defendant purposefully engages in extreme or outrageous conduct with the goal of seriously upsetting the plaintiff. A different case is the scenario involving the plaintiff's mental distress that results from the defendant's negligent conduct. Commonly, a plaintiff can successfully recover for a claim of negligent infliction of mental distress when the distress arises out of a physical injury that is related to the defendant's negligence. Without physical injury, however, a plaintiff is far less likely to recover. The case of Taylor v. Novartis Crop Protection, Inc. provides an example.

On the evening of July 18, 1999, Novartis Crop Protection Corporation's facility in St. Gabriel released industrial ammonia into the air for approximately 15 minutes. Following the release, several hundred individuals who were present in or owned property around the St. Gabriel area filed a suit for damages against Novartis. The complaint alleged that as a result of the chemical release, the plaintiffs suffered "burning eyes, itching, burning skin, breathing difficulties, dizziness, nausea, diarrhea, headaches, anxiety, and fear for their physical well being." The complaint also stated that the incident caused considerable fear, anguish, discomfort, and inconvenience to the people in the communities" surrounding the Novartis facility. Novartis filed a motion for dismissal for those plaintiffs who were located outside of the "zone of danger" agreed upon by experts from both sides and who therefore could not have been exposed to the ammonia. The affected plaintiffs responded that their claim was not for physical exposure but for "mental anguish, emotional distress, inconvenience, and fear and fright." The trial court entered a judgment dismissing all plaintiffs who were outside of the "zone of danger," and those plainitiffs appealed.

In its analysis, the First Circuit Court of Appeal reaffirmed that under Louisiana law "a defendant will not be held liable for [damages] where its conduct was merely negligent and caused only mental or emotional disturbance unaccompanied by physical injury." The narrow exception to this rule is where the plaintiff can demonstrate "special circumstances," which must be "more than minimal inconvenience worry." The court noted that the only special circumstances cited by the plaintiffs was a prior release of ammonia that occurred in 1999 and which required the evacuation of a school. But the court concluded that the prior incident did not rise to the level of "special circumstances" as required by Louisiana jurisprudence. (Examples of sufficient circumstances from case law include the negligent transmission of an erroneous message about a loved one's death; the mishandling of corpses; and damaging property while being observed by the plaintiff. See Moresi v. State for further discussion.) Further, the court noted that the plaintiffs failed to offer any evidence to show they had "suffered from genuine and serious mental distress." Accordingly, the court affirmed the trial court's judgment dismissing the plaintiffs whose claims included only mental distress.

This case further reinforces the fact that courts generally look unfavorably upon claims for mental or emotional distress when there is no physical manifestation of the injury. This may be due to the fact that mental harm is difficult to measure, as well as the potential for false claims.

Continue reading "Court Turns Away Plaintiffs' Mental Distress Claims After Chemical Release in St. Gabriel" »

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

To download the application, click here.

In certain situations, a person that witnessed another get physically injured has a legal claim against the person that caused the physical injury—even when the witness suffered only mental anguish, without any direct physical injury. The rule allowing this recovery is known as the bystander recovery rule.

Louisiana’s bystander recovery is governed by Louisiana Civil Code Article 2315.6 and the Louisiana Supreme Court case of Trahan v. McManus. As stated in Trahan, the bystander recovery rule does not "compensate for the anguish and distress that normally accompany an injury to a loved one under all circumstances." Rather, the bystander recovery rule is more limited and has four requirements in order for a bystander to recover damages for his mental anguish from witnessing another’s injuries.

Those four elements are:

1. The bystander must be closely related to the injured person. Specifically, the bystander must be the spouse, parent, grandparent, child or grandchild of the injured person.
2. The injured person must suffer a significantly grave harm so that it’s reasonable to expect the bystander to suffer serious mental anguish or emotional distress from witnessing the incident.
3. "The bystander’s mental anguish or emotional distress must be severe, debilitating, and foreseeable," as quoted from Article 2315.6.
4. The bystander’s mental distress must immediately, or almost immediately, follow witnessing the defendant’s actions that caused the direct victim’s injury.

The best way to explain the basics of the bystander recovery rule is by example. A good example of failing to satisfy the bystander rule is the Trahan case. In Trahan, a child was in the hospital. The doctor negligently elected to not treat the child and told his parents that the child would be fine. The parents then took the child home, where he later died.

Although the first three requirements of the bystander rule were met, the fourth requirement was not: The parent’s mental anguish from witnessing their child die occurred well after the doctor’s negligent failure to provide medical treatment. "There was no observable harm to the direct victim that arose at the time of the negligent failure to treat, and no contemporaneous awareness of harm caused by the negligence."

Conversely, the following is a good example of satisfying the four elements of the bystander recovery rule. A mother is playing in her front yard with her eight year old son. A drunk driver veers off the road and into their yard, killing the child but leaving the mother untouched. Unlike the Trahan example above, here, the mother suffers from mental anguish immediately after the defendant’s action of crashing his car into her son.

If you’ve witnessed a traumatic event and, as a result, suffered mental anguish, it’s imperative that you seek legal representation. Cases involving bystander recovery involve many legal questions, such as whether the mental anguish was foreseeable, whether the mental anguish was sufficiently contemporaneous and more.

Continue reading "Understanding the Law: Bystander Recovery After Tragedy Strikes" »

Breaking news from the Times-Picayune with reports up to 29 workers were injured when a supply vessel struck a gas line 15 miles southeast of Cocodrie.

24 workers in total were evacuated from the scene of the accident, with five other workers transported to the Louisiana Marine Consortium. The Consortium functions as a makeshift medical center to deal with any problems related to the BP oil spill in the Gulf of Mexico.

More information will be posted here as it becomes available.

For all of our readers who are on Facebook, our firm has unveiled a new Page dedicated to the BP oil spill as a means to keep abreast of the latest news and more.

Click here to add us!

Despite BP’s best efforts, clean-up volunteers will be able to file legal claims against the oil company if they arise. BP tried to force volunteer responders to promise they will not file claims but a federal judge has determined that will not be allowed. George Barisich, President of the United Commercial Fisherman’s Association in Louisiana asked for an emergency restraining order against BP, comparing the request to:

Demanding that a person running into their own burning home sign a release limiting or giving up their claims against the arsonist who caused the fire...At best it is an ill-conceived approach to the crisis at hand and has the unforeseen consequences of causing further--and irreparable--injury to the citizens of Louisiana. At worse, it is a dastardly effort to compromise the rights of those citizens when they are the most vulnerable.

U.S. District Judge Helen G. Berrigan agreed with Barisich and granted the restraining order, finding that the agreements are unconscionable and that any agreements that had already been signed are null and void.

The BP oil plume already has covered over 4,000 miles of seawater and coastal areas, threatening fish, oysters, crabs, shrimp, birds, and their habitats. As such, the need for volunteers to stem the tide of destruction is high and the attempt by BP to force volunteers to sign these agreements has stood in the way. According to Barisich, before BP let him assist in protecting his own livelihood it demanded he sign a master vessel charter agreement, the same agreement it was forcing all volunteers to sign. Because fishermen are providing emergency cleanup services in their own boats, they are “vessel owners” in BP’s charter agreement with BP serving as the “charterer.” Under the charter agreement, if the vessel owner has a claim against the charterer or is aware of potential claims, they must provide written notice within 30 days. If a claim is not addressed within 30 days it will be released. The agreement also provides that the vessel owner will not hold the charterer liable for anything connected to BP’s performance, including the vessel owner’s death. The agreement holds fisherman to the same standard of oil-spill remediation experts when they are actually laymen and victims. In addition, any fishermen who sign the agreement are not allowed to disclose any information discovered during the cleanup regarding the oil spill, including sharing information with other disaster victims.

Judge Berrigan found that the charter agreements limited potential plaintiffs’ rights too much and therefore cannot stand. In contract law, an unconscionable agreement is one with terms that are unfair to one of the parties to the contract (here either BP or potential plaintiffs). Contracts that are entered into with inadequate consideration (payment exchanged for something else) may be held unconscionable. This is particularly relevant if there is evidence that one party to the contract has superior bargaining power to the other and could therefore insert provisions into the contract that overwhelmingly favor the interests of that party.

In the case of this incident, BP, as a huge multinational corporation, has superior bargaining power to lay-fisherman trying to assist in efforts to clean up contaminated areas and protect their businesses. As such, BP could exert their influence over the fisherman and other volunteers and essentially force them into signing agreements that make them give up much more (legal rights, the opportunity to sue BP) than they are getting (the chance to help clean up). In finding contracts unconscionable, courts have flexibility to determine how to best correct the situation. They may insert fairer provisions into the contract itself, or, as happened here, simply declare the contract void.

According to an AP report, BP yesterday admitted that more oil than it originally estimated is leaking into the Gulf. This news, coming roughly one month after the Deepwater Horizon oil rig exploded and sank, is heightening Gulf Coast residents' worries about the amount of damage likely to occur. A spokesman for BP, Mark Proegler, said that efforts over the weekend to insert a tube into the leaking pipe were successful, and that the tube is now siphoning off 210,000 gallons of oil per day. That figure is more than the total amount of oil BP and the U.S. Coast Guard originally estimated was leaking from the well, and it is clear that the tube is not capturing all the escaping oil. Mr. Proegler declined to estimate how much oil is still spewing into the Gulf, but some scientists who have viewed the underwater videos of the leak have suggested it could be as much as ten times the official estimate.

Meanwhile, crude oil began washing into the marshes on the state's southeastern tip and the Breton National Wildlife Refuge, where scientists believe oil has killed some rare birds that reside there. "This is the heavy oil that everyone's been fearing that is here now," Gov. Bobby Jindal said during a boat tour of the wetlands. According to the National Oceanic and Atmospheric Administration, as of May 17, 29 miles of Louisiana's coastline had already seen oil.

Adding to concerns over BP's handling of the disaster are reports of the company's efforts to limit the public's view of fouled beaches in Louisiana. CBS news reports when journalists attempted on Tuesday to visit an oil-covered beach in South Pass, they were turned away by BP contractors and two U.S. Coast Guard officers aboard a boat. The officers threatened to arrest the reporters, even though the government had not closed the beach to the public. The reporters captured video of one of the officers saying, "This is [sic] BP's rules, not ours."

According to the Times-Picayune, other beach areas impacted by the oil sludge include Trinity Island, Whiskey Island, the Chandeleur Islands, Fourchon Beach, Raccoon Island, and Grand Isle.

Finally, in an effort to help those looking to make claims against BP, Louisiana Senator Mary Landrieu initiated the process of making funds available for the assistance of filers. The legislation, which would authorize $20 million in EDA grants to help businesses and individuals prepare claims with BP over the Deepwater Horizon spill, also provides funding for the establishment of an oversight panel. This advisory board would, in conjunction with technical experts, monitor the claims process.

In a press release the Senator placed online, the Louisiana politician noted

"Filing claims can be an extremely technical and complicated process," Sen. Landrieu said. "This legislation would help ensure our fishermen, shrimpers, oystermen and other businesses can cut through red tape and file accurate claims. The transparency and oversight created by this bill is an important step in fairly and fully compensating Gulf Coast businesses for their losses from this unprecedented disaster."

Please return to this blog often for further updates.

Continue reading "BP's Estimates for Oil Leak Significantly Lower than Real Amount" »

In the face of the looming oil slick many estuaries and fishing grounds are being closed, leaving hundreds of Louisiana fishermen out of work. As the oil pours into the Gulf, many fishermen are wondering what's next. While many questions are still up in the air there are a number of issues that fishermen need to be aware of.

The Oil Pollution Act of 1990
The Oil Pollution Act is a federal law that, among other things, allows an affected fisherman to file a claim against BP for his lost profits caused by the oil spill in addition to any other claims he has (i.e. property damage).

For example, if you are a shrimper, and your grounds have been closed off because of the oil spill, you can submit a claim for profits that you lost during the time the grounds were closed. To be clear, this remedy is only for profits and not total revenue. When trying to figure out how much you have lost subtract what you normally bring in during this season minus whatever costs you normally have.

In order to recover for your wages the spill must be the reason why you haven't worked. If this is the case then you can complete a claim. The claim will have to include a specific sum (your lost profits during the time the estuaries were closed), it must be presented to BP, and it must be submitted within three years.

In order to best ensure recovery you will need documentation. The Act requires that parties: document damaged property, make a showing of lost profits, show the amount of earnings in similar seasons, list any alternative employment, and list any savings to overhead as a result of the spill.

The best methods of doing all of this are:
- photographs
- tax returns, income statements, balance sheets, and cash flow statements from the past three years
- your expected profits from this year
- Newspaper reports that describe the spill
- Reports from emergency respondersópolice, fire department, etc

Submitting your claims involves three steps:
1) Write the claim. You can develop your own document, utilize the appropriate form at http://www.uscg.mil/npfc/Claims/claims_docs.asp#claim_guide, or contact a lawyer.
2) When the claim is complete attach proof of your losses to it (the photographs, tax returns, etc from the list above).
3) Mail it all to the National Pollutions Funds Center, Suite 1000, 4200 Wilson Blvd, Arlington, VA 20598-7100.

A successful claim will grant a fishermen his expected revenue substracted from his typical costs during the time in which he is unable to work due to the oil spill.

The $75 million cap
The OPA seems like a blessing, but it also limits liability in lost profits situations. While there is no limit to what BP will have to pay regarding oil clean-up, the current state of the Act caps economic damage pay outs at $75 million. The expected impact is likely to be far greater than $75 million given how many people are going to be affected by the spill. Anyone who lost profits or income because of the spill will qualify under the OPA, which means an almost unlimited number of hands reaching into a limited fund. While the OPA also created the Oil Spill Liability Trust Fund in anticipation of such an event, it is unclear how the Fund will be utilized in this spill.

Congress and the White House noticed this cap problem and, as of Monday of last week, are working on legislation that will increase the cap to $10 billion; however, it is unclear if the new proposed bill will act retroactively.

Your Legal Rights
It is important that people making claims to BP be careful and not sign or agree to anything until speaking with an attorney. It is possible that, by accepting money from the oil conglomerate, individuals affected by the spill may be signing off their right to pursue more damages in the future. Further, by speaking with an attorney, you may find out you are entitled to more than you had previously assessed. If you have any questions regarding the spill please contact the oil spill experts at Berniard Law Firm.

Recently, we discussed the availability of funds under the Oil Pollution Act (OPA) and the Oil Spill Liability Trust Fund (OSLTF) for compensating Louisiana residents who suffer property damage as the result of an oil spill. Claims for oil damage to boats are treated as a separate category from other types of personal property under the OPA.

According to the U.S. Coast Guard's National Pollution Funds Center web site, the owner of a boat can submit a claim for the cost of removing oil stains from his vessel (including its interior furnishings like upholstery and carpeting) so that the boat is restored to its pre-fouled condition. Claims can also be filed for damage to mechanical parts of the boat, such as an outboard motor, rudder, anchor winch, etc.

As with other property claims under the OPA, claimants must meet a series of specific requirements in order for their claims to be accepted by the National Pollution Funds Center. The claimant must prove that he owned or leased the boat at the time of the oil spill and must show that the vessel was damaged or destroyed by the oil and not some other event. The claimant must substantiate the value of the boat both before and after the oil spill as well as the costs to repair or replace the boat. The claim must contain evidence to support the value sought, which can include photographs of damage, the boat's name and the date of the boat's last hull painting, the year the boat was built or overhauled, the boat's length, its hull material, a copy of boat's title or other ownership documentation, the Vessel Identification Number, the location where boat was damaged by the oil, or the date and location that the boat was cleaned and/or repaired.

As with personal property and real property, boat owners have only three years to gather the necessary documentation and submit a claim under the OPA. If your boat has been damaged or destroyed by the Deep Horizon oil spill, you should not delay in contacting an attorney who is an expert in filing boat claims. An attorney can assist in all aspects of the claims process, including locating boat appraisal professionals who can substantiate the dollar value of your loss.

Continue reading "What You Should Know About Boat Damage Claims Under the Oil Pollution Act (OPA)" »

In a previous post, we explored the role of the Oil Pollution Act (OPA) and the Oil Spill Liability Trust Fund (OSLTF) in compensating Louisiana residents who incur oil removal and clean-up costs. These funds are also available for coastal residents who suffer property damage as a result of an oil spill.

According to the U.S. Coast Guard's National Pollution Funds Center web site, the OPA permits filings for oil-related losses to real and personal property. Real property damage is defined as "injury to or economic losses resulting from destruction of land or buildings." For example, the owner of oil-fouled waterfront property can file for reimbursement of the costs to restore the property to its pre-spill condition. Or, if the owner decides to sell the property without restoring it, he can submit a claim for the difference between its pre-spill assessed value and the reduced price he receives for the fouled property after the spill.

Personal property damage is "injury to or economic losses resulting from damages to other types property you own or lease besides real property." For instance, a fisherman can submit a claim for the cost of cleaning or replacing a shrimp net, fishing tackle, or clothing that is fouled by oil.

The OPA requires that property damage claims meet a number of specific requirements. The first is that the claimant must prove ownership of the damaged property. This primarily pertains to real property claims and can be accomplished by titles, deeds, or other public records. The claimant must show that the damage complained of was actually caused by oil and not some other factor. Further, the claimant must show that the amount of damage claimed is "appropriate." This can be achieved by citing the cost to repair or replace the property, the appraised value of the property before and after the spill, or, in the case of real property, the amount of loss suffered when selling the fouled property. Documentation is essential and can take the form of photographs, reports from governmental agencies, invoices, receipts, witness statements, professional property appraisals, lease or rental agreements for substitute property, or any other documentation the claimant feels will help support the amount claimed.

Property owners have only three years to gather the necessary documentation and submit a claim under the OPA. Claims must be for a specific amount of money, which means it is imperative that property owners take the necessary steps to determine the true value of their losses.

An attorney who is an expert in the OPA claims process can ensure that your claim is properly prepared, adequately substantiated, and timely filed.

Continue reading "What You Should Know About Property Damage Claims Under the Oil Pollution Act " »

In the aftermath of the explosion of the Deepwater Horizon and the disastrous oil spill that now encroaches on Louisiana's coastline, many individuals and business will be looking for a way to handle the massive financial burden associated with clean up and recovery. Luckily, the law provides a way for them to collect some damages.

The Oil Pollution Act

In 1989 the Exxon Valdez spilled over 11 million gallons of oil into Prince William Sound in Alaska. At the time, the U.S. did not have adequate funds to respond to the spill and only very narrow compensable damages could be recovered. The Oil Pollution Act (OPA) was passed by Congress in 1990 (33 U.S.C. 2701-2761) to address these shortcomings. The OPA created a comprehensive regime to prevent, respond to, and compensate for vessel and facility caused oil pollution. The law also provided for federal oversight of maritime oil transportation through increased environmental safeguards.

Title I of the OPA broadened the scope of damages for which polluters are liable and authorized up to $1 billion for the Oil Spill Liability Trust Fund (OSLTF). The OSTLF can be used to pay for oil removal and damages that are left uncompensated after claims are made against the parties responsible for the spill (the limit of the fund was raised to $2.7 billion with the passage of the Energy Policy Act of 2005) and is funded by an oil tax. The U.S. Coast Guard administers the OSLTF through the National Pollution Funds Center (NPFC).

It is interesting to note that the OSTLF was actually created four years before the passage of the OPA in 1986. However, Congress did not authorize the use of the money in the fund or the collection of revenue necessary to maintain the OSTLF until the OPA was signed into law.

As mentioned above, under the OPA, the OSTLF can be used to pay claims for uncompensated removal cost and damages after an oil spill. In the current situation, British Petroleum (BP was leasing the Deepwater Horizon when the explosion occurred and has been deemed the responsible party) is currently accepting claims. However, if any party is not satisfied with the resolution of their claim by BP, they may make a claim under the OPA and submit a claim to the NPFC. Several different types of claims are recoverable, many of which may apply to individuals or businesses whose lives have been negatively affected.

The OSTLF can be used to make claims under a variety of parameters:
Compensate the public for the lost use of the affected natural resources.
This could entail compensation for the lost use of public lands that have been contaminated by the spill.

Pay the cost to remove, minimize, mitigate, or clean up an oil spill.
This means that if BP is unable to fully clean up the spill, the federal government has funds available to use to ensure areas are returned to pre-spill condition.

Pay the cost of economic loss that resulted from the destruction of real or personal property (although not personal injury).
Real property includes real estate and personal property includes any other property that may have been damaged in the spill.

Pay for injury or economic loss that resulted from damage to a boat.
If you own a boat that was in an affected area and is now damaged, you may be able to recover damages to repair or replace your boat.

Pay damages equal to the loss of profits or impairment of earning capacity due to the injury, destruction, or loss of property or natural resources.
If you own a business in an affected area and the business was forced to close temporarily or permanently you may be able to recover damages for the profits that would have been earned if the oil spill did not occur.

Pay damages to anyone who has lost profits or income, regardless of whether or not they owned the damaged property.
This may apply to someone that operates a business in an affected area but does not own property (maybe the business property is leased or the business does not involve the use of property). Owning damaged property is not a prerequisite for recovering damages.

It is important for potential clients to make a claim as soon as they can so that the legal process can begin. By hiring an attorney that is advanced in matters relating to liability for industrial accidents, an affected party may have their best chance in court to get the justice they deserve.

The massive oil slick drifting ominously in the Gulf of Mexico has state officials worried for the health of Louisiana residents who live along the coast. Since April 20, when the oil rig Deepwater Horizon exploded and subsequently sank, oil has been flowing into the Gulf at a rate of up to 200,000 gallons per day. The fact that the oil has not yet reached land is largely the result of favorable winds and currents, both of which are subject to change at any moment. As of Friday afternoon, underwater robots had begun positioning a four-story tall, 100-ton box made of concrete and steel over the gushing well on the sea floor. The device will permit crews to recover most of the oil from the well, but it will not entirely stem the flow. It will also do nothing to address the oil that has already escaped and looms ever closer to the coast.

According to an AP story carried by Yahoo News on May 7, state and federal authorities are gearing up to deal with the many hazards to human health that will result if and when the oil reaches land. Officials are advising coastal residents to take precautions now. "We don't know how long this spill will last or how much oil we'll be dealing with, so there's a lot of unknowns," Dr. Jimmy Guidry, Louisiana's state health director, said. "But we're going to make things as safe as humanly possible."

Last week, in what many saw as a preview of things to come, a foul stench drifted over parts of lower Louisiana. According to Alan Levine, secretary of the Louisiana Department of Health and Hospitals, the oil was likely to blame. Levine's office received numerous complaints, some from state legislators in New Orleans, who were more than 130 miles from the epicenter of the disaster.

According to the AP report, the U.S. Environmental Protection Agency has begun 24-hour air quality monitoring in coastal areas and is now posting the readings online for ozone and airborne particles like soot. These materials are irritants that can cause respiratory distress in humans, particularly those with chronic conditions such as asthma or emphysema. Also, fires being set deliberately by the Coast Guard to burn off oil on the water are producing acrid smoke that could cause problems for those who come into contact with it.

The health symptoms for exposure to the oil leak are simple and simple actions can prevent problems caused. Public health agencies are advising residents near the coast who experience nausea, headaches, burning eyes or other discomfort to remain indoors, close windows, and turn on air conditioners. People who must be outside should take care to avoid exerting themselves.

Clean drinking water and a safe seafood supply are also a concern. The Louisiana Health Department has ordered testing of municipal water systems near the Gulf for signs of oil. Some coastal cities, including New Orleans, source drinking water from the Mississippi River, which so far has shown no signs of oil contamination. Nevertheless, the Coast Guard is inspecting boat traffic on the river and will order any ships with oil-coated hulls to be scrubbed down. Health officials have pronounced fish, shrimp, oysters, and other Gulf seafood that have already made it to market safe to eat. "If we see increases in hydrocarbons or other contaminants, we'd stop the flow of seafood," Levine said. The major immediate risk from eating contaminated seafood is gastrointestinal sickness. However, given that oil contains carcinogenic compounds, officials are concerned about fish from oily waters reaching consumers.

Please return to this blog often for further health updates from state officials.

A growing amount of national attention has begun to shift upon the oil spill disaster developing in the Gulf Coast. With some news sources declaring it "a disaster without precedent," the explosion and subsequent sinking of the Deepwater Horizon oil rig has led to an environmental nightmare. With thousands upon thousands of gallons of oil leaking into the Gulf, it will only be a few days before a more vivid, and scary, picture can be drawn of what Louisiana and other Gulf Coast states are facing.

The Portland Press Herald/Maine Sunday Telegraph reports

Eve, who lives on the water 20 miles east of New Orleans, said strong oil fumes were engulfing his neighborhood. "You can't breathe the air comfortably," he said. "It bites you right in the back of the throat and your eyeballs burn."

Obama administration officials fanned out across the Gulf of Mexico states pledging attention and assistance. In an already troubled economy, the oil slick threatened to damage the region's fishing and tourism industries as well as disrupt shipping along the Mississippi River.

On Friday, Louisiana's departments of Health and Hospitals and Wildlife and Fisheries announced severe restrictions on fishing and oyster harvesting east of the Mississippi River.

This synopsis accurately captures the situation New Orleans faces currently. Be it merely the fumes of spilled oil or a severe blow to the local fishing industry, the problem has finally reached the city and Louisiana at large. The longstanding effects aside, the current situation is not one any resident of the area would have ever expected a month ago and is yet another blow to a region that has faced chemical discharges and horrific hurricane damage.

More information on this issue will be posted as it becomes available.

For those struggling to visualize the Deepwater Horizon explosion and oil leak being faced by Louisiana and other Gulf Coast residents, the Times-Picayune has released a helpful graphic depiction of the various elements involved in the matter.

Using information from the US Coast Guard, NOAA, BP and Transocean, Dan Swenson provides the following

We would encourage our readers to check out the full article accompanying the graphic as it outlines with great detail the situation in New Orleans, Venice and other areas in the Gulf Coast that are waiting anxiously to understand what fate will befall them in the face of this environmental disaster.

As always, we will provide updates on this matter, as well as expert legal analysis of this issue, throughout the week.

The oil spill that occurred as a result of the explosion on the oil rig Deepwater Horizon is enormous. As oil continues to spew into the Gulf of Mexico and near the Louisiana coastline, estimates have begun that place the size of the spill at a stunning proportion.

According to the Associated Press,

A graphic posted by authorities fighting the slick shows it covering an area about 100 miles long and 45 miles across at its widest point.

And, thanks to NASA, the spill can be seen from space. As of the 27th, news reports had the spill at "48 miles long and 39 miles wide." Given that reports today have more than doubled that slick's length, it's appropriate for many to be concerned.

To put this slick's size into perspective (100 miles long and 45 miles across), consider the following:

Rhode Island is 37 miles wide and 48 miles long. This would mean the conservative numbers of 48x39 used yesterday to describe the slick would place the oil disaster as the size of the smallest state in America.

The state of Vermont is approximately 161 miles long and 80 miles wide.

Massachusetts is 183 miles wide and 113 miles long.

Connecticut has a length of 110 miles and a width of 70 miles. The oil spill, as reported today, would be roughly half the size of the state of Connecticut, a state that has a population of 3,501,252.

It's terrifying for many whose livelihood is based on industries that require a healthy Gulf Coast that a slick half the size of Connecticut could be nearing this country's biggest river mouth. Only time will tell what the ramifications will be of this disaster but information will be posted on this blog as it becomes available.

In an effort to prevent the oil leaking from the Deepwater Horizon oil rig in the Gulf of Mexico from reaching the Louisiana shoreline, crews are discussing burning the slick. In a complicated process intended to keep the oil from reaching the sensitive marsh coastline, officials are discussing an idea that would shift the oil to a safer location where it would then be ignited in some way and allowed to burn.

The Associated Press reports

A 500-foot boom will be used to corral several thousand gallons of the thickest oil on the surface, which will then be towed to a more remote area, set on fire, and allowed to burn for about an hour, the Coast Guard said. Such burns will continue throughout the day if they are working.

It was unclear what would be used to set the oil on fire and how far from shore it would burn. The slick was about 20 miles east of the mouth of the Mississippi River.
About 42,000 gallons of oil a day are leaking into the Gulf from the blown-out well where the Deepwater Horizon exploded and sank last week. Eleven workers are missing and presumed dead. The cause of the explosion has not been determined.

Greg Pollock, head of the oil spill division of the Texas General Land Office, which is providing equipment for crews in the Gulf, said he is not aware of a similar burn ever being done off the U.S. coast. The last time crews with his agency used fire booms to burn oil was a 1995 spill on the San Jacinto River.

Preventing the oil from reaching the coast is inherently important because of the delicate ecosystem that exists along Louisiana's Gulf shore. As the article mentions, the oil is only twenty miles from the mouth of the Mississippi River and should that toxic material become integrated with the plant and wildlife that thrive in that area the results could be catastrophic.

The burn, on the other hand, appears to be a much safer option, according to Pollock

"I would say there is little threat to the environment because it won't coat an animal, and because all the volatiles have been consumed if it gets on a shore it can be simply picked up," he said.

Authorities also said they expect no impact on sea turtles and marine mammals in the burn area.

A graphic posted by authorities fighting the slick shows it covering an area about 100 miles long and 45 miles across at its widest point.

What happens if this burn does not work is unclear but the potential harm it could cause local fisherman and businesses that operate within a clean, healthy environment is serious. The relief well that is being worked on could take months to complete while oil continues to spew into the Gulf and increasingly endanger the Gulf Coast states.

We will continue to monitor this issue and post news as it becomes available.

Early yesterday morning relatives of the survivors of the Deepwater Horizon explosion anxiously awaited the return of their family members. About 100 workers escaped onto a supply boat following Tuesday nights tragic explosion. When the boat arrived ashore early this morning they were looked over by doctors and then taken to a New Orleans hotel for what must have been an emotional reunion. Some families couldn’t wait that long. The Associated Press reports:

Some relatives, including Dana Eugene of Slidell, instead chose to meet their loved ones sooner when they docked in Port Fourchon. She tearfully hugged her brother, Kevin Eugene, who she said was tired and didn't look good.

'He's kind of shook up,'Eugene said, adding he described the ordeal as 'very scary.'

'We just want to get home,' she said.

The explosion certainly was scary, and not only for the workers. The hours dragged on for family members who waited Wednesday night to hear word from their loved ones. 4:30 a.m. at the Crowne Plaza Hotel couldn’t come fast enough.

Survivors were shaken up on their return home. According to reports from the Houston Chronicle :

Stanley Murray was reunited at the hotel with his son, Chad Murray, 34, the rig’s chief electrician.

'The first thing he asked for was a tooth brush,' said family friend Jessica Sharp.

Stanley Murray said his son told him workers had less than five minutes to get off the rig.

'My son had just walked off the drill floor,' Murray said. 'He said if been there five minutes later he would’ve been dead.'

While families like the Murray’s enjoyed a tearful happy reunion they also provided comfort to family members of those still missing. According to survivors, there is not much hope that any of the missing will be found alive given the magnitude of the explosion and fire.

Rig workers and their families are aware of the potential risks that go along with the job. However, that didn’t stop the fear relatives felt when hearing about the crash early Wednesday morning. Debi Nunley of Tyler’s husband works offshore on a different rig and called his wife to let her know their 24 year old son Mark was among the missing. Thankfully, 7 1/2 hours later the family got word that Mark had been found and was on his way back.

Kristin Hall of Denham Springs hadn’t heard about the fire when her husband called late Tuesday night to tell her he was okay. Even receiving good news was emotional for the mother of 3 whose 36 year old husband has held oil field positions for the last 10 years.

'It's definitely a risk that he takes when he goes out there,' Hall said Wednesday afternoon while she waited for word that she could reunite with her husband. 'He's told me before that they could blow up. He really knows the dangers.'

Even with the risks involved, Hall doesn’t think her husband will make a career change. She is comforted with the knowledge that he is well trained and rig fires like this one are relatively rare.

Following the explosion on the oil rig Deepwater Horizon 50 miles southeast of Louisiana’s coast Tuesday night, officials, crewmembers, and their families most likely have had serious questions about what could have ignited such an intense fire. At this point the cause is unknown and formal investigation will not be underway until rescue and firefighting efforts are completed.

The Times-Picayune reports:

The Coast Guard's Command Center in New Orleans received a report Tuesday about 10 p.m. that the rig was on fire and the crew was evacuating.

Luckily crewmembers perform safety exercises on a regular basis and are familiar with evacuation procedures. There were also several offshore supply boats in the area that provided assistance.

Just prior to the fire, the crew was cementing a production casing atop an 18,000 foot deep well. The plan was for the well to be abandoned and later tied into production facilities. This was done according to plan with appropriate testing completed and most likely was not to blame.

The Deepwater Horizon is owned by Transocean, Ltd., the world’s largest offshore drilling contractor. Transocean is a Swiss Company with offices in Houston. The rig has has been leased to BP Exploration Production Inc. who pay about $500,000 a day to use the huge 400 by 250 foot rig (roughly the size of two football fields). Last summer the Deepwater Horizon drilled the world’s deepest oil well, nearly six miles into the Gulf of Mexico, and enabled BP to find the Tiber Prospect, one of the largest petroleum discoveries in the US. While BP picks drilling locations for the Deep Horizon and designs the well, Transocean devises the drilling plan and operates the rig. The rig is only used for drilling and does not actually produce any oil.

The Associated Press reports:

Adrian Rose, vice president of Transocean, said the explosion appeared to be a blowout, in which natural gas or oil forces its way up a well pipe and smashes the equipment. But precisely what went wrong was under investigation.

Because Tuesdays explosion occurred in international waters, the U.S. Occupational Safety and Health Administration (OSHA) will not be able to investigate. However, according to OSHA, Transocean has no safety violations for the past five years. BP on the other hand has two open and 27 closed cases. BP also operates the site of a 2005 refinery explosion in Texas City, Texas that killed 15 people and injured 170. That accident was investigated by the U.S. Chemical Safety and Hazard Investigation Board. According to Bloomberg News, the Board is considering investigating this rig incident as well.

After missing crewmembers are found and safely evacuated, the cause for the accident can be investigated thoroughly and the damage to the rig (whether it can be saved) properly assessed. The Deepwater Horizon was built in 2001 in South Korea. It cost about $350 million to build and has a replacement value between $500 and $600 million.

A thunderous explosion rocked an oil rig named the Deepwater Horizon 50 miles off the Louisiana coast last night - potentially causing the nation’s deadliest offshore drilling accident in more than 50 years.

As noted in an article in the Times-Picayune, at least 15 of the 126 crewmembers onboard were injured and 11 were still missing as of Wednesday

The Coast Guard was prepared to search through the night Wednesday for 11 missing workers as firefighters battled a raging blaze fueled by crude oil gushing from the rig about 50 miles southeast of Venice.... Rear Adm. Mary Landry, commander of the Coast Guard's 8th District, said an intensive search for the 11 missing workers would continue into the night if necessary.

'We will continue searching as long as it is reasonable that we might stil find someone,' she said.

Seventeen workers total were taken by helicopter to hospitals across the region. According to Adrian Rose, Vice President of Transocean, Ltd. (the Swiss Company that owns the Deepwater Horizon), the injuries included burns, broken legs, smoke inhalation, and lots of scratches and bruises sustained while people tried to get away. Anxious family members waited at Port Fourchon last night to be reunited with 98 of the workers who were rescued.

In the deep waters of an area known as the Mississippi Canyon, the rig was estimated to be leaking 13,000 of sweet crude oil an hour with nearly all of it burning up in the fire. Although an oil spill is not expected, pollution response vessels were sent to the scene just in case. Even Louisiana governor Bobby Jindal has gotten involved. According to Jindal, “Officials at the Coastal Protection and Restoration Authority are also working with the state’s oil spill coordinator office to monitor any potential environmental impact.”

Pollution control efforts aside, the main focus right now is obviously search and rescue, which requires putting out the fire consuming the rig. Five private fireboats battled the blaze throughout the day yesterday, fighting flames that shot up to 200 feet in the air. A remotely operated vehicle will be sent to cut off the flow of petroleum at the base of the river in hopes of extinguishing the flames. This could prove difficult, however, due to the size of the fire and intensity of the heat. The fire was so intense that Marc Creswell, an Air Med helicopter pilot, could see it from 70 miles away as he flew in from Lafayette to pick up the injured. “It was so bright that we had to take off our night vision goggles about 40 miles out,” he said.

More information on this issue will be posted as it becomes available.