December 20, 2013

Employer-Employee Relationship Must Be Defined In Car Accident Lawsuits

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

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

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

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

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

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

December 19, 2013

Injured Employee Limited to Workers’ Compensation Following Accident at Lena Power Plant

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

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

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

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

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

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

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

December 2, 2013

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

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

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

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

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

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

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

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

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

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

November 28, 2013

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

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

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

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

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

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

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

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

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

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

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

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November 14, 2013

Louisiana Court Says Widow of Paper Mill Employee in Mansfield Unable to Recover Damages

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

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

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

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

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

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

November 11, 2013

Employer Had No Duty to Prevent Caregiver’s Lifting Injury

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

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

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

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

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

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

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

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

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

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

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October 19, 2013

Worker's Comp Case Involving Level of Disability and Compensation Shows Degrees of Relief

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

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

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

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

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

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

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

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

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October 7, 2013

City of Shreveport’s Actions Inspected by Judge in Fire Department Tragedy

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

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

The case went up on appeal.

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

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

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

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

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October 3, 2013

Lack of Evidence Leads to Failed Suit Against Employer for Workplace Incident

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

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

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

As stated in the Louisiana Third Circuit Court of Appeals' ruling, "'In order to recover under FELA, the plaintiff must establish that (1) he was injured within the scope of his employment; (2) the employment was in furtherance of the railroad‟s commerce in interstate transportation; (3) his employer was negligent; and (4) this negligence played a part in causing his injury.'"

The appellate court added that a FELA claim does not require as high a burden as in an ordinary negligence case. However, a showing of some negligence is necessary. In June 2010, BNSF filed for summary judgment, but agreed to continue the summary judgment hearing at Mr. Alex's urging that further discovery would reveal the genuine issues of material fact present in the case. Further, BNSF made available employees the plaintiff sought to depose.

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

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

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

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

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

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

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September 27, 2013

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

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

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

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

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

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

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

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

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

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

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

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

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September 19, 2013

Spoliation of Evidence Key Concern in Personal Injury Cases

After you have been in a terrible accident or lost a loved one, especially when the accident or death was caused by the negligence of someone else, you probably want justice. The outrage, the pain, and the sense of loss are too much to bear, and you want someone to pay for what was done. You want to be made as whole as possible. But what if the evidence that would allow that justice to come to pass has been ruined? And what if it was the allegedly guilty party who destroyed it? This intentional destruction of evidence primarily for the purpose of depriving the opposing party of its use is known as spoliation of evidence.

While a party might assume that spoliation of evidence has occurred, mere allegations will not get you far, and actually proving that spoliation of evidence has occurred can be much harder than you might think. In the state of Louisiana, there are several rules and standards with regard to how a party must prove that such spoliation of evidence actually occurred. First of all, merely accusing someone of negligently destroying evidence is not enough to prove spoliation of evidence. The standard is much higher than that. The plaintiff actually has to prove that the evidence was intentionally destroyed, and it can be quite difficult to prove the intentions of one's actions.

If a party fails to produce evidence within his or her reach, there is a presumption that the evidence would have been detrimental to the case; however, it is still essential to prove that the evidence was intentionally destroyed. Furthermore, the defendant has a duty to preserve evidence. This duty arises because of the foreseeability of needing that evidence in the future. If there is no ability to foresee the need for that evidence in the future, though, the duty does not exist.

To help explain this concept a bit better, we can look at the facts of a recent case that was heard in one of the Louisiana appellate courts. In that case, a family had just experienced the tragic death of their son, and they suspected that medical malpractice was at fault. Separate from their medical malpractice claim, the couple brought a separate tort cause of action, arguing that the doctor and his staff were liable for spoliation of evidence. Specifically, one of the things the couple claimed was that the medical staff had unplugged a pump which deleted all of the data regarding the amount of narcotics that their son had received. This was relevant because one of the possible causes of death was related to the narcotics provided by the staff.

While it became an undisputed fact that the staff had actually unplugged the machine and lost the data, this was not enough to prove spoliation of evidence. As stated above, there has to be a duty to preserve the evidence, which arises from the foreseeability of needing that evidence in the future. There also has to be proof that the evidence was intentionally destroyed. In this case, the couple had not asserted any facts that would prove the machine was unplugged for the purpose of intentionally destroying evidence. The couple, furthermore, had not proved that any duty existed for the defendants to collect data in order to support the theory that the death was caused by an adverse reaction to prescribed narcotics. At the time that the staff unplugged the machine, there was no litigation pending or any litigation foreseeable in the near future, so the staff did not have a duty to collect evidence. Because of these reasons, the court found that no spoliation of evidence had occurred in this instance.

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September 17, 2013

Proper Service Essential for Successful Legal Remedy

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

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

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

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

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

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

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September 14, 2013

The Role of Court-Appointed Experts in Complex Litigation

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

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

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

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

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

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

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

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August 26, 2013

Litigation for Workplace Injury Requires Proper Naming of Defendants


In Louisiana, the Third Circuit Court of Appeal upheld a summary judgment against plaintiff Louis Fox in a tort claim ensuing from a work-related injury at the Rodemacher Power Station. On August 12, 2008, Louis Fox, while working inside a cyclone tower at the Rodemacher Power Station, sustained an injury when an object fell from above, striking him in the head and neck area. At the time of the accident, CLECO Power L.L.C. is the owner of the Rodemacher Power Station. Shaw had a contract with CLECO Power L.L.C.in furtherance of the project known as Rodemacher Unit 3. Shaw subcontracted a portion of the work to Foster Wheeler CLECO Power while Mr. Fox was employed by Foster Wheeler Constructors, Inc. as a refractory gunner. Mr. Fox and his wife filed a petition for personal injuries against several defendants: Shaw, CLECO Power, L.L.C., CLECO Corporation, Rodemacher Power Station, etc. CLECO Power and Shaw filed a motion for summary judgment requesting the court find that CLECO Power and Shaw are the statutory employers of Mr. Fox and thus immune from any tort claim brought by him.

If CLECO Power and Shaw were statutory employers of Mr. Fox, it would render the issue of liability moot as workers’ compensation was Mr. Fox’s exclusive remedy against those two defendants. Therefore, the main question is, whether CLECO Power and Shaw were statutory employers of Mr. Fox? There are two instances in which a statutory relationship will be found, thus holding the statutory employer only liable for workers’ compensation benefits: (1) being a principal in the middle of two contracts, referred to as the “two-contract” theory, and (2) the existence of a written contract recognizing the principal as the statutory employer. In addition, the “two-contract” theory “applies when: (1) the principal enters into a contract with a third party; (2) pursuant to that contract, work must be performed; and (3) in order for the principal to fulfill its contractual obligation to perform the work, the principal enters into a subcontract for all or part of the work performed.

However, in Mr. Fox's case, the existence of a written contract is lacking. In other words, CLECO Power and Shaw's summary judgment motion was based on "two-contract" theory. Firstly, there is no question the first two requirements for application of the “two-contract” theory were met. Shaw entered into a contract with CLECO Power and, pursuant to that general contract, work was performed. There is no question the first two requirements for application of the “two-contract” theory were met. Regarding the last element, Shaw did not subcontract directly with Foster Wheele and it was Stone who signed directly with Foster Wheele. The court agreed with the defendants that Stone was acting on behalf and for the benefit of Shaw, as the principal of Stone, thus entitling Shaw to classification as the statutory employer of Foster Wheeler’s direct employee, Louis Fox. The trial court did not err in granting Shaw and CLECO Power’s motion for summary judgment.

The court's "game-changing" decision, which came down for the defendants, essentially means while the required contractual chain necessary for application of the “two-contract” theory is breached, contractors may still be viewed as statutory employers for the purpose of claiming benefits.

August 21, 2013

Exposure to Toxic Chemicals Leads to Louisiana Resident's Appeal

The United States of America was founded on a Constitution that still serves as the supreme law of the land in our country today. Each state followed suit and created its own constitution to be the supreme law throughout the state, second only to the Constitution of the United States. Many claims are made throughout our country based on the constitutionality of particular laws or statutes but very few of these make it to the Supreme Court of the United States, where a final decision is made on the specific action's constitutionality. For an appellate court to rule on a constitutional challenge it must have been "properly raised and pleaded in the trial court below."

The Fifth Circuit Court of Appeal in Louisiana heard a case where this exact issue and rule was raised. It arose from a claim made by Mr. Vincent E. Johnson against Motiva Enterprises, LLC (Motiva) for damages arising out of his exposure to toxic chemicals while working at a Motiva refinery in Norco, LA. The constitutional issue arose because Motiva had contracted out of being sued by the plaintiff because of a contract with his direct employers, becoming merely his statutory employer. The trial court found that the contract was valid and refused to reach the constitutionality of the Louisiana statute allowing for the contract. It is a known fact that courts shy away from determining the constitutionality of legislation unless the resolution of the constitutional issue is absolutely essential to the decision of the case.

Here the appellate court determined that the constitutionality of the Louisiana statute was a "seminal" issue in determining whether Motiva was entitled to the tort immunity that was provided to it by the statute. Because the trial court declined to deliberate the constitutional issue the entire case was not properly before the Fifth Circuit Court of Appeal and was accordingly remanded back to the trial court for a ruling on the statute's constitutionality.

The issues on hand during this trial are ones that have been entangling our legal system since its inception into the country's fabric. The duty of the courts to determine the constitutionality of legislation is a delicate issue and only comes to the forefront when there is no other way for the case to be remedied. The trial court may have shied away from deciding the constitutionality issue of Mr. Johnson's claim for a variety of reasons but, as is supposed to occur, the Appellate court reviewed the decision and deemed it necessary to determine. Mr. Johnson will get another chance for his claim to be heard and if the statute is determined unconstitutional, will change the law throughout the state of Louisiana.

August 20, 2013

Court of Appeals Increases Damages for Lost Wages

The jury is the ultimate trier of fact. In our democratic society, we place high value on the idea of being judged by a panel of your peers. In addition, it allows the accused to be judged by the prevailing community standards. The jury is supposed to be more in touch with the average person than the average judge would be. Generally, since the jury is held is such high regard, the court of appeals is hesitant to overturn any of their decisions. The court explained this notion in a case arising from Cameron Parish, Louisiana.

In that case, a truck driver swerved to avoid a sign placed there by the Department of Transportation and Development. The sign was too far on to the road, the truck driver did not notice the misplacement fast enough, and had to swerve to avoid hitting the sign. When he swerved, he lost control and ended up in a ditch that Hurricane Ike damaged. The truck flipped and, although the truck driver was not harmed upon the collision, he was stuck in the vehicle upside-down. After forty-five minutes of being pinned upside-down, the truck driver died of asphyxiation. His wife and three children sued the DOTD based on general damages, lost past and future wages, survival damages, and funeral expenses.

The lower court found that the DOTD was fifty percent at fault and the truck driver was also fifty percent at fault. As such, the lower court awarded damages that amounted to $700,000 in total. Fault determinations are extremely fact intensive, so the lower court, as the trier of fact has broad abilities to make these determinations. As such, they are difficult to overturn in the court of appeals.

In this type of case, the court of appeals will review the lower court based on a standard of manifest error. That is, the court of appeals will only reverse the lower court if there is a clear error based on a mistake regarding the facts and that because of this mistake in the facts, the final outcome is clearly wrong. In addition, since there are damages awarded by a jury in this case, the court will also look at those damages to determine if they are reasonable.

This case had “special damages” because it included damages for lost past and future wages. Special damages are those that have a “ready market value.” Unlike many forms of damages, it is much easier to assign a dollar figure to special damages. For example, if you lost your arm, it would be difficult to put a dollar figure on what your arm was worth to you. However, if you lost your job, as this truck driver did, then you could take the number of years that you are expecting to work multiplied by your expected yearly salary and come up with a number that would resemble the damages for lost wages.

In this case, the truck driver earned roughly $41,000 per year. He was expected to be able to work for another twenty-five years. When you take the present value of those figures (you have to assume that the future dollars are worth less than the present dollars), you'd get a figure that is roughly four times what the jury actually awarded for lost wages. The appeals court considered these numbers and determined that although juries are granted great deference, the appeals court will correct them if they are clearly wrong. The appeals court thought that, based on the computations provided at trial, that the damages amount for lost wages was abusively low. Therefore, the appeals court increased the damages significantly.

The court of appeals can increase or decrease damages if they feel the need. However, the jury and the lower court judge get great deference because they are the fact-finders. The appeals court will only step in if they see manifest error. In this case, the manifest error was based on simple math.

It is important to consider your options for damages in appeals. Even when you “win” the case, you may be entitled to a larger award.

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August 19, 2013

Appeal Dismissed Because of Late Payment, Abandonment

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

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

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

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

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

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

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

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

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

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

August 14, 2013

Summary Judgment Upheld by 3rd Circuit in Negligence Suit

Regardless of the issue at law, parties in a civil suit can halt further litigation by obtaining a motion for summary judgment. The party seeking summary judgment, known as the movant, must show there is no genuine issue of material fact despite the allegations asserted by the non-moving party. The court will consider a fact “material” if “its existence potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the relevant legal dispute.” Furthermore, a fact will be deemed at issue “if there exists any reasonable doubt as to its existence.”

On July 12, 2006, Raymond Alex, Sr. (hereinafter “plaintiff”) was driving his employer’s, BNSF Railway Company (hereinafter “defendant"), truck south on North Eastern Avenue in Crowley when he was rear-ended by a large tractor-trailer rig driven by Edward Zenon, Jr. (hereinafter “Mr. Zenon”) of Creole Fermentation Industries, Inc. The plaintiff alleged the accident injured his neck and caused radiating pain down his right arm into his hand. His recovery consisted of neck injections and surgery.

Interestingly, the plaintiff signed off on the operating condition of the truck before driving it and after the accident signed a report admitting the defendant was not to blame for his injuries.

The plaintiff first sought recovery for his injuries from Mr. Zenon, his employer, and the lessor of the truck. The petition cited Mr. Zenon’s negligence as the “sole cause of the instant incident.” Ultimately, the two parties settled.

Even though the plaintiff settled with Mr. Zenon and admitted the defendant was not responsible, he filed a second suit against the defendant pursuant to the Federal Employer’s Liability Act ( hereinafter “FELA”). To successfully recover under FELA, a plaintiff must establish that (1) he was injured within the scope of his employment; (2) the employment was in furtherance of the railroad’s commerce in interstate transportation; (3) his employer was negligent; and (4) this negligence played a part in causing his injury. The plaintiff specifically alleged that (i) the seats on the inside of the truck were dry-rotted, (ii) the shocks “weren’t a hundred percent” and (iii) the boom on the truck did not always operate properly. Despite these allegations, the plaintiff agreed that the defendant’s truck was “pretty crashworthy” as it suffered only minimal damage.

On summary judgment the trial court determined there was no evidence pointing to the conclusion that the condition of the truck played any role in the alleged injury even though it is well accepted under FELA that the plaintiff carries an easier burden than usual in getting his claim in front of a jury.

The plaintiff appealed to the Third Circuit Court who also found no merit in his argument. Appellate courts review summary judgments “de novo” and re-evaluate the issues regardless of the trial court’s ruling. During the appeal the plaintiff testified that the truck’s lack of a headrest “maybe” contributed to his injuries. The appellate court was not persuaded by the plaintiff’s arguments labeling them self-serving and not based on credible evidence. Accordingly, the trial court’s ruling was affirmed.

This case provides future plaintiffs a valuable reminder that a claim will only be successful if it is based on credible evidence. It’s not difficult to overcome a motion for summary judgment as a non-moving party is not required to prove each element of their claim but rather must only establish that proof exists. When meeting with an attorney, clients should be forthright about the facts surrounding their claim in order to determine whether it will survive a motion for summary judgment.

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August 13, 2013

Louisiana Court of Appeals Gives Deference in Chemical Exposure Case

In September 2006, Georgia Gulf Lake Charles, LLC's Westlake facility suffered a fire and explosion. Because of the fire and explosion, hazardous chemicals were released into the air. Several people filed suit because of the medical complications that the exposure caused. Georgia Gulf stipulated that it was the cause of the chemical release, but argued that the release did not cause the Plaintiff's medical complications and that it should not be charged damages. The trial court disagreed and awarded the Plaintiffs damages. Georgia Gulf appealed.

Georgia Gulf's major concerns were about two major decisions of the trial court. The first was that the trial court excluded their expert witness. Second, the lower court found a link between the Plaintiff's symptoms and the chemical exposure, which Georgia Gulf argued did not really exist.

In Louisiana, the Court of Appeals reviews these types of decisions with great deference to the lower court. The lower court gets to see all of the witnesses and hear the testimony whereas the Court of Appeals generally does not. As such, the lower court may be a better judge of character and credibility because they actually see the person making the testimony and can observe their demeanor and evaluate how truthful they seem. The court is set up in this way so that people do not have to come back repeatedly to testify and attorneys do not have to present the same evidence to different people again; it is a matter of convenience and timesaving for everyone involved.

The standard that the Court of Appeals uses to evaluate the exclusion of experts is “abuse of discretion.” That is, the court will consider whether the lower court made an arbitrary decision or whether it had good reason to exclude the expert. The court may not agree with the lower court, but whether they agree is not relevant for the standard.

In this case, the lower court argued that the expert was not using the proper standard to evaluate the case. Defendant's expert used a “scientific certainty” standard to evaluate the information that he was presented. However, the required standard for experts in Louisiana is based on La. Code Evid. Art. 702. It does not include the requirement to have “a reasonable degree of medical and scientific certainty.” Instead, the standard is simply preponderance of the evidence, or more likely than not.

Since the expert did not use the correct standard to evaluate the information, the lower court determined that although he had done an extensive amount of work the case, it was not relevant because he was using the wrong standard. The court pointed out the great deference required to the lower court and did not determine that the lower court abused its discretion by excluding the expert witness due to relevancy concerns.

The next issue was the causation issue. The lower court found a link between the Plaintiff's medical conditions and the chemicals that were released into the air. A legal cause has a proximate relation to the harm involved. The court defines proximate relation as a “continuous sequence, unbroken by any efficient, intervening cause [and] produce[s the] result complained of.” The court explains that if the cause had not occurred, then the harm would not have happened. In this case, the lower court found that the eyewitnesses to the chemical exposure and medical records proved the link between the chemicals and the harm.

The Court of Appeals reviews causation issues through a manifest error standard. That is, the court asked if the lower court had something to base their decision on and was that basis a reasonable one. Even if the Court of Appeals does not agree with the outcome, they will still give the lower court the benefit of the doubt if the lower court was not clearly in error.

In this case, the Court of Appeals found that the lower court could have found a connection between the harm and the chemical exposure, so there was no manifest error. As a result, the Court of Appeals upheld the lower court's decision in both of the contested issues and awarded damages to those affected by the chemical exposure.

It can be difficult to get around the required standards of review at the Court of Appeals level. That is one of the many reasons that it is so important to have a good, solid case at the trial level. An excellent attorney is important to presenting your case.

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August 4, 2013

Employer Liable for Injuries Suffered While Socializing at Work

When an accident occurs at someone’s place of work, the injured party can hold the employer responsible in certain circumstances, under the legal concept of vicarious liability. This doctrine provided relief for Kenneth and Pamela Porter in a recent Fifth Circuit Court of Appeals case arising out of Avondale, Louisiana.

In Porter v. Fulkerson, the accident occurred at the office of a Navy project that was staffed by personnel from a variety of entities, including subcontractor John J. McMullen Associates (“JJM”). The workspace, with an open air layout with low cubicles, was designed to foster camaraderie and ease of communication, creating a very social environment.

One day, JJM employee Philip Fulkerson was on his way into the office, heading to his desk, when he saw an acquaintance sitting with Navy employee Kenneth Porter in Porter’s cubicle. Fulkerson stopped by to chat, perching on the edge of Porter’s desk. At one point while Porter was speaking, Fulkerson went to pat Porter in what the court described as the style of Tony Soprano. But Fulkerson slipped off the desk, causing him to accidentally slap Porter hard in the face.

Porter was so badly injured from the accident that he was found to be permanently disabled. He suffered from TMJ issues, an aggravated degenerative cervical disc disease that causes debilitating headaches, an inner ear concussion that causes vertigo, and a heightened psychological response to injury.

Porter and his wife sued Fulkerson and JJM. Fulkerson settled with the Porters, but the case against JJM went to trial. The jury found JJM liable for Fulkerson’s actions and awarded the Porters $1.9 million in damages. JJM appealed, and the case went to the Fifth Circuit.

Article 2320 of the Louisiana Civil Code provides that, under Louisiana law, an employer is liable for a tort committed by his employee if the employee was acting within the course and scope of his employment at the time.

The court noted that the course of employment refers to time and place, and the scope of employment is determined according to the following test:

For the employer to be vicariously liable, the tortious conduct of the employee must be so closely connected in time, place, and causation to his employment duties as to be regarded as a risk of harm fairly attributable to the employer's business, as compared with conduct instituted by purely personal considerations entirely extraneous to the employer's interest. However, the employee's conduct need only be reasonably incidental to the performance of the employee's official duties, and need not be exclusively employment rooted.

In Porter’s case, the workspace itself was designed to facilitate social interaction. Physical contact was not discouraged – in fact, friendly handshaking and back-patting were quite frequent. Because Fulkerson was in Porter’s cubicle to socialize, an activity JJM specifically intended to encourage, Fulkerson’s actions served JJM’s purpose and satisfied its goals.

For this reason, the jury was not manifestly erroneous in finding that Fulkerson was within the course and scope of his employment when he injured Porter and that JJM was therefore responsible for the damage Fulkerson caused. Because the Fifth Circuit could not reverse the jury’s finding unless there was manifest error, the court affirmed the jury’s verdict.

If you suffered from an accident arising out of an employment relationship, contact the Berniard Law Firm. Providing the best experts in personal injury, our law firm is fully capable of meeting your litigation needs.

July 29, 2013

Injury at Sea and Signed Release Key Components of Lawsuit

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

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

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

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

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

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

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July 23, 2013

Workplace Injury Leads to Review of Statute Interpretation

The district court dismissed the claims of Entergy, an electrical utility company, for indemnity from contractors involved with repairs to a building to which the utility company provided electrical service on the ground that the Louisiana Overhead
Power Line Safety Act (“OPLSA”) does not allow indemnification remedy. On appeal, having decided favorably for the plaintiff in the legal issue of whether OPLSA might require indemnity, the appellate court vacated the district court’s grant of summary judgment in favor of the contractors.

Shortly after Hurricane Katrina, a general contractor, Carl E. Woodward, LLC, (“Woodward”), entered into a contract with Eagle Enterprises of Jefferson, Inc., the owner of the Walgreens Shopping Center. Woodward subcontracted with Stewart Interior Contractors, LLC (“Stewart”) to install framing and exterior wall material at the shopping center. In turn, Stewart subcontracted with Landaverde Construction, LLC (“Landaverde”) to assist with providing labor. On January 5, 2006, Landaverde laborers, including plaintiff, Daniel Moreno, arrived at the shopping center work site. As Mr. Moreno was standing near the scaffold and evaluating how to best disassemble it, another worker at the top of the scaffold moved a piece of metal that came in contact with both the overhead power line and the scaffolding frame. A resulting arc of electricity flashed from the scaffolding to Mr. Moreno’s body, inflicting serious burns.

In their motions for summary judgment, the contractors did not attempt to negate every element of Entergy’s indemnity claims, but instead argued that Entergy was not entitled to indemnity because, as a matter of law, the OPLSA did not provide indemnity for a utility company’s own negligence. However, the Supreme Court rejected the contractors’ argument that “all damages, costs, or expenses” under subsection (A) of La. R.S. 45:144 restricts a utility company to recovering those items only inasmuch as the utility company itself has suffered a damage to its equipment or an economic loss for a service interruption to its customers.

The starting point in the interpretation of any statute is the language of the statute itself. Words and phrases shall be read in context and shall be construed according to the common and approved usage of the language. The meaning and intent of a law is determined by considering the law in its entirety and by placing a construction on the law that is consistent with the express terms of the law and with the obvious intent of the legislature in enacting the law.

Specifically, the court reasoned that the operation of the three subsections of La. R.S. 45:144 can be restated as follows: subsection (A) describes a cause of action in favor of a utility company and against an OPLSA violator; subsection (B) requires an allocation of a degree of fault, if any, to be made at trial and any allocation against the utility company is recoverable against the OPLSA violator if the utility company has successfully proven its cause of action under subsection (A); and, if an employer is an OPLSA violator, subsection (C) erases the immunity that the employer normally enjoys under the Workers’ Compensation Act. Although the OPLSA nowhere uses the word “indemnity,” La.R.S. 45:144 effectively operates as indemnity.

This case shows how reasonable minds can differ when it comes to statute interpretation. Assembling the best legal team possible is especially important in such cases.

July 18, 2013

Workers Comp Case Involves Settlement Dispute, Rights Review

In a recent Louisiana workers' compensation case, a man filed suit after deciding that the settlement agreement he signed was reached based on misrepresentations. The man was rendered quadriplegic after falling from a roof he was working on during his employment as a roofer. After his injury, he hired an attorney and attended several mediations, which resulted in the signing of a settlement agreement. However, about half a year after the settlement agreement was approved, the man filed a disputed claim for compensation, asking for the settlement to be set aside because it was based on misrepresentations.

What is interesting in this case, though, is that It was not the other party that the man believed misrepresented the facts, but rather, his own attorneys. The plaintiff claims that his own attorneys told him that he would continue receiving 24-hour nursing care and other medical services after the settlement, but this was not the case.

The plaintiff's motion to set aside the settlement agreement was denied, and the plaintiff then brought suit against his own attorneys, claiming legal malpractice in their representation of him. After a three-day trial, the jury decide to rule in favor of the attorneys and against the injured man. Furthermore, when the plaintiff filed a motion for a new trial, the trial court also denied that request. The plaintiff appealed the case at that point.

Although the plaintiff's appeal was ultimately denied and the judgment of the trial court dismissing the plaintiff's suit affirmed, the case sheds light on an important issue: an "assignment of errors." An assignment of errors is basically a report or statement of all of the alleged errors made by the lower court in reaching its prior decision(s). The appellant (the one appealing the case) must compile this list and state all of the errors made by the trial court. This document is important because anything not included in it will likely not be considered by the court, so the appellant must make sure that the assignment of errors is comprehensive.

The plaintiff in this case listed several errors made by the trial court. For example, one of the errors related to the facts given to the jury in the "jury charge." Specifically, the trial court told the jury that the workers' compensation court had ruled that there was no evidence of misrepresentation, even though this judgment had not been entered into evidence. However, the appellate court found that this was not an error in the jury instructions. When taken in the context of all of the given jury instructions, the court found that the jury instruction was not misleading, or at least not misleading to the extent that it impeded justice. In order to make this determination, the appellate court turned to case law issued by the Supreme Court in which the Supreme Court stated that the determinative question when deciding whether jury instructions constitute an error or not is whether the jury instructions misled the jury to the point that the jury was prevented from "dispensing justice." In this case, the appellate court ruled that they had not.

In addition to his claim of error with regard to the jury charge, the plaintiff also went on to claim that there were other errors made by the trial court, including an error for excluding the testimony of the plaintiff's expert, an error for not granting the plaintiff $30,000 under a specific Louisiana law, and an error with regard to evidence at one of the hearings, among others. However, in the end all of the man's errors were dismissed and the ruling of the trial court was upheld. For each dismissal of a claimed error, the appellate court performed an in-depth analysis of the requisite law, explaining why no error had occurred.

From looking over the court's analysis in this case, it is clear that in order to successfully file an assignment of errors and win your case, the assignment of errors has to be cautiously and carefully written out.

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July 10, 2013

Second Circuit Confirms that Employee Was At Fault in Personal Injury Lawsuit

Last August, the Second Circuit Court of Appeal upheld a ruling against plaintiff Dennis Quillian in a tort claim ensuing from a work-related injury in Pineville. At the time of the accident, Mr. Quillian was working as a truck driver for Swift Transportation Company, Inc., carrying paper manufactured by Georgia Pacific. Mr. Quillian's job was to move the shipment of paper from Dixie in West Monroe to Plastipak, located in Pineville. Mr. Quillian was hurt when he went to unload the paper at Plastipak and was struck in the side by a bundle of paper. Mr. Quillian subsequently filed a lawsuit against Dixie.

In a personal injury lawsuit against an employer the main question is, who is responsible? If the employer failed to take a precaution or committed an act that was in breach of his "duty of care", then the employer should be held accountable for damages caused to the employee. If the injury was the result of the employee's own wrongdoing, and not the result of an unsafe work environment, then the employer will not have to compensate the employee for his injury. If the fault of the accident can be attributed in part to the employer and in part to the employee, then the employer can be held responsible for the employee's injuries, but only up to the amount corresponding to his percentage of fault. So if an employer is found 60% responsible for a work accident, then he will have to pay for 60% of the employee's damages.

In Mr. Quillian's case, the issues that were in contention were whether any pertinent safety measures had been contravened and whether Mr. Quillian had assumed any risks associated with transporting the shipment. A contract regulation to ensure secure transportation stated that Dixie was to use Georgia Pacific air bags to secure the cargo being moved. Another safety measure was the use of load locks to secure the bundles of cargo, to ensure that the cargo would not fall out when the truck doors were opened; Georgia Pacific requires the use of two load locks. According to expert testimony, the air bags were meant to ensure the safety of the cargo, whereas the load locks are used to protect the driver from falling cargo. when opening the truck. Mr. Quillian agreed in his testimony that load locks are the main safety mechanism used to prevent cargo from falling out when the truck doors are opened.

On the day of the accident, Dixie could not supply air bags due to a broken air compressor. Dixie foreman Bobby Foster testified that Mr. Quillian had been advised of the lack of air bags, of which Mr. Quillian denied having knowledge. Mr. Foster further testified that he told Mr. Quillian that he could pick up some air bags at the Georgia Pacific office nearby, but Mr. Quillian responded that it would not be necessary since the drive was short. Mr. Foster stated that Mr. Quillian failed to install a second load lock on the top level, and that he could have done so during loading. The Court of Appeal found that the trial court had reasonably concluded that Mr. Quillian failed to inspect the load before driving away, and that the court had not abused its power in crediting Mr. Foster's testimony regarding the air bags and the load locks.

With respect to whether Mr. Quillian had assumed any risks, Mr. Quillian gave conflicting testimony regarding whether or not he properly opened the truck doors. The Court of Appeals found that there was no clear error in accepting the expert testimony and finding that the evidence "profoundly demonstrated" that Mr. Quillian failed to properly open the truck doors, which would have prevented the box from hitting him in the manner that Mr. Quillian described.

Mr. Quillian did not have an expert witness to testify on his behalf at trial. He had tried to call a truck safety expert but the trial judge refused, on the grounds that expert witnesses must be identified within 90 days of trial according to Louisiana law; Mr. Quillian had only given 60 days notice.

As a last point, there was evidence that Mr. Quillian suffered from degenerative disk disease and had prior back issues. Additionally, there was no outward sign of injury from the work accident and Mr. Quillian did not seek medical attention until the next day.

As Mr. Quillian's case illustrates, many factors and details come into play in a personal injury lawsuit, from procedural issues such as promptly turning over witness lists to questions of fact concerning a plaintiff's own negligent behavior.

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June 28, 2013

Distinguishing Wrongful Death Claims from Exclusive Worker's Compensation Issues

Many experience the unfortunate circumstance of work related accidents, the most extreme of which may result in death. People often wrongly assume that sustaining an on-the-job injury guarantees a right to sue the employer, in addition to asserting workers' compensation claims. However, the Louisiana Workers' Compensation Act provides strict guidelines for remedying a work relating injury, even those that result in death.

A recent East Carroll Parish decision aims to clarify some of those common misconceptions. McNeil Harvey, an employee of MAPP, Inc. died when a piece of heavy farm equipment he was working under fell and crushed him. His daughter, Valerie Harvey, filed suit against both MAPP, Inc. and Joseph Brown, an officer of MAPP, Inc. Harvey alleged that MAPP, Inc.'s negligence in exposing McNeil to “ultra-hazardous” perils and assigning McNeil to work outside the course and scope of his employment was the cause of the accident and McNeil's subsequent death. Ms. Harvey sought survivor's damages and wrongful death damages.

The Louisiana Workers' Compensation Act is the exclusive remedy for all work-related injuries and illnesses. If an employee suffers a personal injury as a result of fulfilling a job's duties, the act provides the employee with compensation. The act also prevents an employee from filing a lawsuit for damages against his employer or any principal or any officer, director, stockholder, partner, etc. When such issues arise, the defendant employer bears the burden of proving that it is entitled to immunity under the statute. The employer must prove that (1) the victim was an employee within its company at the time of the accident and (2) the other named defendants are officers, directors, stockholders, etc. of the company. The only exception to the exclusive remedy rule is if a death or injury is the result of an intentional tort. Additionally, an employer must prove that the injury or death occurring during the course and scope of the victim's employment.

The court awarded MAPP, Inc. and Brown summary judgment, finding that McNeil was an employee of MAPP, evidenced by his recent W-2 for wages paid, and he died during the course and scope of his employment with MAAP. MAAP also presented affidavits showing Brown was not only an officer, but also a stockholder of MAAP. Finally, MAPP provided a statement from another employee who worked with McNeil and who confirmed that repairing the heavy equipment was normal during the course of McNeil's work and happened on a frequent basis.

Harvey's only alternative would have been to allege that McNeil died as the result of an intentional tort. However, this fact was negated by Harvey's initial claim that McNeil died as a result of MAPP's negligence.

The Louisiana Workers' Compensation Act is very narrowly tailored to address issues that arise solely from death and work related injuries. Keep in mind that while the standard is very specific, an exception applies where there is suspicion of an intentional tort. There are several instances in which wrongful death suits and similar claims are proper. Don't hesitate to assert such claims.

June 25, 2013

Tragic Workplace Accident Provides Insight Into Duty of Care

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

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

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

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

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

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

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

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

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June 19, 2013

Jones Act Negligence and Unseaworthiness Explored in Louisiana Maritime Case

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

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

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

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

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

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

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

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June 5, 2013

Understanding Duty Important in Worker's Compensation Claims, Civil Suits

To bring a case to court, it seems obvious that you must have some kind of legal basis for your claim. For a personal injury case, that could mean that someone else caused you to slip and fall; you slipped because the floor was wet. In that type of case, someone else had a duty to keep the floor clear from slippery things, and they did not follow through on that duty. Because of their lack of follow-through, you can likely bring a case to court so that the person that failed to keep the floor clear of slippery things will be responsible for their actions. However, if you slipped in your own house because your son spilled on the kitchen floor, you are very unlikely to have a case against your ten-year-old son.

While the explanation seems simple, it is not in many cases. The law is filled with qualifications and loop holes. In the previous example, you cannot bring a case if no one had a duty to keep the floor clear from slippery things. In personal injury cases, there needs to be a duty to create liability.

There are also time, place, and manner restrictions in bringing lawsuits as well. The classic example is restricting work injuries to worker's compensation claims. Generally, if you are injured while at work, then you do not file a separate lawsuit, you file a worker's compensation claim. It is similar to an in-house procedure for taking care of injury claims. Worker's compensation is an insurance that the employer uses so that they cannot be sued in the regular courts. It provides damages in the form of wage replacement and medical expenses. Therefore, if you tried to bring a case for being injured while you are at work to a normal courtroom, you would likely be dismissed because the worker's compensation program should be handling your claim, not the court.

A situation exploring these circumstances happened in Pineville, Louisiana, in 2009. A worker was leaving her parking spot after completing her shift when she was hit by a van operated by another worker. The worker who was hit filed suit against the business and the worker operating the van. The business objected, stating that she should be filling out paperwork for the worker's compensation claim, not trying to bring the business into court. The trial court agreed and dismissed the case.

However, the appeals court disagreed and reversed the lower court. The time, place, and manner restrictions were important in this case. The worker who was hit was actually leaving her shift. She was not working for the business at the time and was not on the clock. Although she was in the parking lot, she was not acting within the scope of her employment and would therefore not be covered by the worker's compensation program. If the accident had occurred while she was still clocked in, then the result would be very different.

The difference of half an hour allowed that worker to have her day in court. Although litigation is time consuming for both parties, if a worker sues then she may get a jury and that jury may award damages that are significantly higher than what the employee would have gotten under the worker's compensation claim. Businesses are also more likely to settle because they want to avoid the “bad press” of going to trial. Both of these reasons make taking the claim to court much more appealing for the employee, but not the employer.

Whether you are dealing with a worker's compensation claim or want to take your claim to court, you need to be mindful of the time, place, and manner restrictions. They can make or break a case.

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June 4, 2013

Legal Concepts: Louisiana Code of Civil Procedure and Hearsay

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

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

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

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

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

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

May 28, 2013

Workers' Compensation Act Protects Louisiana Employees Injured on Job

If you ever become injured in a work-related accident in Louisiana, or if you become ill with an occupation-related condition, workers’ compensation can help cover your expenses while you seek the treatment and take the time off that you need.

The Louisiana Workers’ Compensation Act is a piece of legislation that details the rules and regulations of Workers’ Compensation in the state of Louisiana. Specifically, the Act provides for compensation if an employee sustains a personal injury in an accident arising out of and in the course of his employment. Much like any other legal document or piece of legislation, it is best interpreted by trained and qualified legal representation.

In Harvey v. Brown, the Second Circuit Court of the State of Louisiana recently examined the Louisiana Workers’ Compensation Act in the context of whether an employee/employer relationship existed and, if so, whether the injury arose out of and in the course of this employment. On October 8, 2009, McNeil C. Harvey died when a piece of farm equipment he was working under fell and crush him. Subsequently, his daughter, Valerie Harvey filed a suit seeking survivor’s damages and wrongful death damages against Joseph Patten Brown, Jr., Gailliard Farms, Inc., and Gailliard Gin, Inc. According to Valerie Harvey, the accident was caused by the parties’ negligence in: (1) exposing McNeil to ultra hazardous perils; (2) assigning McNeil to work outside the course and scope of his employment; and (3) other fault and negligence to be discovered. Moreover, Valerie Harvey added MAPP, Inc. as an additional defendant and claimed that MAPP was negligent for the same reasons as the original defendants.

Both Galliard Farms and Gaillard Gin filed a motion for summary judgment and argued that there existed no basis for liability against them since neither entity had operated since 2001. Further, Brown and MAPP claimed that McNeil died in the course and scope of his employment with MAPP, thus making MAPP immune from tort liability, leaving Ms. Harvey’s with the sole remedy of a workers’ compensation claim. After the trial court dismissed all of Ms. Harvey’s claims against Brown and MAPP, she appealed.

According to Kelly v. CAN Ins. Co., “except for intentional acts, workers’ compensation is the exclusive remedy for work-related injuries and illnesses." Furthermore, “[t]he exclusive remedy provision of Louisiana’s workers’ compensation statute precludes an employee from filing a lawsuit for damages against “his employer, or any principal or any officer, director, stockholder, partner, or employee of such employer or principal.” Accordingly, when an employer invokes the immunity of a statutory employer under the Louisiana Workers’ Compensation Act, it has the burden of proving this immunity.

In deciding that trial court’s decision was proper, the Circuit Court, on appeal, determined that the evidence showed that McNeil was employed by MAPP and that he was performing employment duties on the date of the accident. Unfortunately, Ms. Harvey failed to refute this evidence and the court decided that MAPP and Brown (as an office of MAPP) were immune from liability.

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May 20, 2013

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

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

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

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

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

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

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

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

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

May 17, 2013

Understanding Comparative Fault/Negligence and How it Impacts Judgments

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

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

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

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

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

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

According to Watson v. State Farm, a Louisiana Supreme Court case, the jury will have to consider several factors in assessing and allocating fault amongst the parties in Mr. Williams’ case. These factors include: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger; (2) how great a risk was created by the conduct; (3) the significance of what was sought by the conduct; (4) the capacities of the actor, whether superior or inferior; and (5) any extenuating circumstances which might require the actor to proceed in haste without proper thought.

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

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May 7, 2013

Abandonment Examined by Appellate Court in Construction Lawsuit

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

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

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

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

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

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

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

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May 1, 2013

Summary Judgment Rules Brought to Light in Tort Case

A Louisiana volunteer firefighter, Rodney Champagne, who works for the Duson Volunteer Fire Department was injured around June 28, 2010, while testing fire hoses at the fire department. After the hose wall blew out, the hose struck Mr. Champagne in the head, ultimately causing permanent mental injuries. The contact also fractured his skull. In response, Champagne and his wife filed a tort suit, both individually and on behalf of their minor child.

A tort is basically just a wrongful act that someone does that causes them to be legally liable. These acts are not necessarily illegal, but rather, are acts that cause someone else to suffer loss or be harmed unfairly. In this case, the plaintiffs are claiming that the hose wall blowout that led to Champagne's head injuries is the tortious act for which someone should be legally liable.

The plaintiffs filed suit against several defendants, but two in particular, Lavergne (another fire fighter at the same department) and AAIC (Lavergne's insurer), tried to get a motion for summary judgment passed to excuse them from the suit. The motion for summary judgment argued that Lavergne was immune from tort liability because he is a co-employee of Champagne.

The trial court denied Lavergne and AAIC's motion for summary judgment, and the defendants (Lavergne and AAIC) appealed the decision in order to get it reviewed by the appellate court. When reviewing a motion for summary judgment in this manner, the proper standard of review is de novo. This means that the appellate court who is reviewing whether the motion for summary judgment was appropriately granted or not by the trial court looks at the motion fresh as if the trial court had not already reviewed it.

Determining whether or not the motion for summary judgment should be granted in this case is purely a question of law and centers on whether the Louisiana Workers' Compensation Act allows fellow volunteer firefighters immunity from tort liability. Two sections of the Act in particular, 23:1032 and 23:1036, are in question. Section 23:1032 extends tort immunity to co-employees, but section 23:1036 is ambiguous. The defendants want the court to look at the legislative intent behind the two sections, and they argue that doing this will show that the Act is intended to limit a firefighter's remedy to workers' compensation. This, they argue, would make a co-employee immune from liability.

Champagne and his wife, the plaintiffs, argued that the Act only provides for immunity to the fire company and that it should not be read in a way that would suggest this immunity should extend to fellow employees. If the legislature wanted the law to include immunity for fellow employees, the plaintiffs argued that it would have clearly said that in the law. The trial court agreed with the plaintiffs, stating that it could not simply rewrite the law or add to it, but that it must take the law at face value. If the law needs to be changed, it is up to the legislature to change the law.

While the appellate court ultimately realizes that interpreting the law to allow fellow employees to be liable for tortious acts might make people less likely to volunteer, the court acknowledges, just like the trial court, that the law does not clearly exclude co-employees from liability. Therefore, they agree it is up to the legislature to change the law, but for now, the co-employee can be held liable for the tortious act.

This case is just one example of how important it is to have an in-depth understanding of the law and of how difficult laws can be to understand.

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April 11, 2013

Nursing Home Attack Highlights Workplace Rights

In order to hear a claim a court must have jurisdiction over the matter. Essentially, that means that the court must be legally able to hear the case. For example, some courts are only legally allowed to hear certain types of cases, like the Tax Court, which only hears tax cases. In addition, some courts may be precluded by administrative agencies. If an administrative agency is supposed to address the issue, then the court is generally not allowed to step in to fill the administrative agency's role. The laws occasionally create small areas where the court can act, but in order to fit in those areas, your case has to have a certain type of very specific facts.

A case arising from the Parish of East Carroll explains these conflicts. In that case, a woman working at Shady Lake Nursing Home was attacked by a resident. The resident was outside of his room when he was not supposed to be, the women told him to go back to his room, and he attacked her in a fit of rage. In this instance, the woman was obese and had high blood pressure. She started having blood pressure issues shortly after the attack and was subsequently rushed to the hospital. She died approximately one hour after the attack.

Because the attack occurred at her workplace while she was working, workers' compensation covered the attack. However, her family also attempted to sue Shady Lake Nursing Home for damages. They argued under two major exceptions to workers' compenstation law: intentional tort law and heart conditions.

First, under intentional tort law, they argued that the patient that attacked the woman was aggressive and Shady Lake Nursing Home knew that, but did nothing to protect the woman. Since intentional torts are not covered under workers' compensation, the court considered whether they had jurisdiction in the case, or if workers' compensation should be the only remedy.

The court first considered the meaning of intent: “either desires to bring about the physical results of his act, or believes they were substantially certain to follow from what he did.” Negligence, even gross negligence, acts cannot rise to intentional. The court pointed out that the nursing home did know of the patient's violent outbursts, but he had never attacked a person prior to the event with the woman. However, he was known to punch holes in walls, and he had impulse control disorder, dementia, associated psychotic disorder from a closed head injury, and a history of chemical dependency and alcoholism.

The people at the nursing home all stated that they were surprised about the attack. The patient had been verbally aggressive and occasionally shoved other nurses, but had never before hit anyone. In fact, the LPN that was assigned to the patient noted that he was housed with other people, seemed to be getting along with everyone, and was gradually becoming more cooperative. The staff in no way thought that the attack was inevitable.

The court concluded, then, that the only failure that the employer had was not creating a safe workplace, which is a complaint that is dealt with under workers' compensation law. However, the women's family went on to argue that heart related issues are not covered under workers' compensation law (La. R.S. 23:1021(8)(c)). The court concedes that while this information is correct, the law explains that the heart condition and related death can be under workers' compensation law if the death results from extraordinary working conditions. Only if the working conditions become “extraordinary” will the case fall in workers' compensation when it involves a heart condition. In addition, the stress of work, not some other preexisting condition must be the major cause.

The court explains that the purpose of the law is “intended to exclude from workers' compensation coverage those employees who just happen to suffer a perivascular or heart-related injury at work.” Therefore, the women's family needed to prove that the stress at work was extraordinary in this instance, thereby triggering her heart condition. The other workers that testified explained that it is somewhat common for residents to hit their nurses, but the altercation between this patient and the woman was very unusual. Therefore, the court determined that the action was unusual, so it satisfied the first part of the test regarding workers' compensation and heart conditions. Then, the court determined that the hit was the underlying cause of the death. The hit aggravated her condition, and she would have been fine if she were not hit. Therefore, the court concluded that it was the working condition, and not the preexisting condition that was the major cause of her death.

The family in this case tried to get around workers' compensation law so that they could get a higher amount of damages. The law binds the court to only operate in its subject jurisdiction, which means that their rulings are limited by administrative agencies.

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March 19, 2013

Lead Berniard Law Firm Attorney Demonstrates Expertise with CLE Instruction

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

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

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

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

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

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

March 13, 2013

Forklift Operator from Lena, Louisiana, Wins Workplace Injury Appeal

Injury can occur on the job even when you least expect it. Kenneth Dale Kelly, a forklift operator for Lena, Louisiana, shipping company Boise Cascade, was injured on the job in August 2007. Unlike most workplace injuries that occur due to accidents, Kelly was intentionally injured by a coworker. Kelly was sitting at his desk with his feet propped up when an altercation over a work assignment with Dwayne Myers began. Despite Kelly's pleas to be left alone, Myers approached Kelly, picked him up out of the chair, and threw him to the ground. Kelly, whose history of back injuries was well-known by all coworkers, including Myers, landed on his back and immediately began experiencing severe pain and discomfort. Boise conducted an internal investigation, and Kelly's story was corroborated by several coworkers.

Kelly then filed suit against Myers, Boise, and Boise's liability insurer, and the 5 day trial began on December 13, 2010. During trial, Kelly argued that Myers's conduct was intentional and that Boise was therefore liable under the doctrine of vicarious liability. Kelly moved for a directed verdict, stating that reasonable minds could reach no other conclusion than that Myers had committed battery (an intentional tort), that Myers had committed this tort within the course and scope of his employment, that Kelly was not at fault for any part of the injury, and that Kelly was injured due to Myers's conduct. The trial court confirmed the first two issues, and the jury, finding that Kelly was indeed injured but was 30% responsible, assessed $994,940.00 in total damages to Kelly and his wife. The trial court then increased Kelly's damages for past medical expenses and past lost wages and granted Boise credit for previously paid workers comp benefits.

The defendants appealed, arguing, among other things, that: 1.) Boise should not be liable under respondeat superior for an intentional tort committed by Myers, 2.) the trial court incorrectly applied the Lebrane test, and 3.) the trial court erred in directing a verdict for battery.

Under the doctrines of vicarious liability and respondeat superior recognized in Louisiana, an employer is vicariously liable for the torts committed by its employee if the employee was acting within the scope of his/her employment. These torts can include negligence, such as a delivery truck accident or slip and fall, and intentional torts, such as pushing a coworker during a fight over invoices.

According to Lebrane v. Lewis, a Louisiana Supreme Court case, in respondeat superior intentional tort cases, courts must consider 1.) whether the action was rooted in employment, 2.) whether the action was reasonably related to the performance of employment duties, 3.) whether the act occurred at the place of employment, and 4.) whether the act occurred during employment hours. Here, the appellate court found ample evidence that an intentional tort - battery - had occurred when Myers intentionally grabbed Kelly despite Kelly's objections. The appellate court also found that the act was both rooted in employment and reasonably related to the performance of employment duties. Kelly and Myers were arguing over a workplace document, not a personal matter. In addition, the act clearly happened on premises during work hours; Myers and Kelly were at the factory in Kelly's office during main business hours. Because the elements of the Lebrane test were satisfied, Myers's liability was imputed onto his employer, Boise, and the appellate court affirmed the trial court's decisions and damages.

If you have been injured on the job, whether by accident or by the intentional misconduct of a fellow employee, contact the Berniard Law Firm. Providing the best experts in employment and workers compensation law, our law firm is fully capable of meeting your litigation needs.

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February 18, 2013

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

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

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

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

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

February 12, 2013

Laissez les Bon Temps Rouler!

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

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

February 4, 2013

Kentucky Supreme Court Case Shows Need for Excellent Representation

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

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

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

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

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

January 28, 2013

Louisiana Liability Lawsuit Against Sand Supplier for Silicosis Dismissed

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

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

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

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

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

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

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

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

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January 24, 2013

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

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

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

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

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

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

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January 21, 2013

Identifying the Wrong Defendant in Civil Suit Can Lead to Lost Opportunity

The civil justice system has a few bare minimum requirements that must be met before a party can be successful in any given litigation. In order for a party to be successful in a civil action, that party's case must make sense to the court in terms of the party accused, injury presented, etc. Initiating action against the correct defendant seems like it would be a given, however that is not always the case. Ms. Charise Thomas was injured in a particular location, eventually suing the owner of the location, Mr. Antonio Harris, due to the incident. Ms. Thomas also sued that man's father, Mr. Aaron Harris. Unfortunately for Ms. Thomas, she did not initiate action against the estate of one Mr. Thirkield J. Smith, the owner of the property on the date of her accident.

The trial court granted Aaron Harris a peremptory exception of prescription and Antonio Harrris a summary judgment. These two different types of relief are granted for different reasons, having similar results but different standards of review on appeal. Each requires different elements in order to be granted to the moving party. In this case, they were also both upheld by the appellate court.

An exception of prescription is granted by a trial court when a certain time period has elapsed between the incident giving rise to a particular suit and the filing of that suit. Since Ms. Thomas never ended up filing against the appropriate party, Aaron Harris' peremptory exception of prescription was granted and upheld on appeal. The trial court's decision is given a fairly high amount of deference on appeal and is reviewed under the manifest error standard. If the trial court is found not to have abused its discretion, its decision will not be overturned.

Time restrictions, such as an exception of prescription, dispose of a case just as completely as a summary judgment. The standard of review is different because the timing restrictions are fact-based and the trial court is in the best position to collect the relevant facts surrounding them. In the present case, the appellate court found no error had been committed by the trial court: the appropriate party had not been brought into this case during the time period allotted by statute. Antonio Harris was not the appropriate party given that he did not own the location at the time of Ms. Thomas' alleged accident.

Summary judgment is granted to a party when there are no genuine issues of material facts. Because they provide resolution of a case without reaching its merits, summary judgments are reviewed de novo on appeal. The appellate court gets to look at everything the trial court could have looked at and make a decision regarding the granting of the party's motion. In this case, the defendant did not own the property where this alleged incident took place on the date in question and was enough to convince the trial court that summary judgment was appropriate. The appellate court agreed with the findings of the trial court and summary judgment was upheld.

Summary judgments are reviewed de novo because they present questions of law. Appellate courts do not sit as fact finders but seek to make sure that the law was applied correctly. When a party is granted a summary judgment, the trial court has determined that there are no genuine issues of material fact, meaning that the trial court is not even reaching the merits of a particular case. Summary judgments effectively end the litigation before the merits of the case are even presented to a finder of fact and prevents future litigation of that issue, an important reason why summary judgments are reviewed de novo on appeal. A successful motion for summary judgment prevents the case from ever being litigated on the merits. As a result, appellate courts have a great amount of discretion in determining whether or not a summary judgment has been applied correctly.

Continue reading "Identifying the Wrong Defendant in Civil Suit Can Lead to Lost Opportunity" »

January 3, 2013

Prescription Limits Discussed in Case Coming from Baton Rouge Fall

Lawsuits have limitations on when an individual can sue. These limitations are important so that people will not dread being sued for some things for their entire lives. It is also important because evidence will be fresher and readily available the sooner the lawsuit commences. However, these limitations also imply that those injured and lawyers need to act quickly and efficiently in order to get claims filed in timely manner.

In Louisiana, these limitations are known as liberative prescription. Their common-law counter-part is the statute of limitations. There are also two other types of prescription in Louisiana: acquisitive and prescription of nonuse. Acquisitive prescription is a means of getting ownership of property though possession for a period of time. For example, if you possess land for an uninterrupted period of ten years in good faith, hold it publicly and peacefully, and act as if you are the owner then you will eventually actually own the property. The common-law counter-part for this concept is adverse possession. The last type of prescription is the prescription of nonuse whereby your rights, other than ownership, can be extinguished if you do not use the property for a period of time. Usually that time frame is ten years as well.

The length of each liberative prescription is different depending on the type of case. For example, personal injury cases have a liberative prescription of one year. Therefore, the case must be brought within one year of the date of the accident or the court will not hear the case.

What happens when you cannot remember the exact date of your accident or the date is contested? That is exactly what happened in Baton Rouge in February 2012. A woman tripped on the way out of the pharmacy and suffered injuries to her left knee, breast, and side. She filed her complaint on August 21, 2003. She alleged that the accident occurred on August 22, 2002. However, the pharmacy that she was suing argued that the accident occurred on August 12, 2002.

The testimony and evidence was conflicting. She saw a doctor for her injuries sustained from the fall and his records indicated the date of the visit to be August 19, 2002. The pharmacy indicated that she picked up prescriptions on both August 12, 2002 and August 20, 2002. A man also entered an affidavit that stated he transported her to the emergency room on August 20, 2002. When there is a contested date, such as in this situation, the party that is arguing that the claimant is barred by the liberative prescription bears the burden of proof. Therefore, they have to present evidence that contradicts the date that the claiming party has presented.

The lower court found that the pharmacy met this burden and dismissed the case. The court of appeals, who usually defers to the lower court's finding of facts, affirmed this judgment. This case highlights the need to recall and record dates of the injury accurately. Records such as hospital records, pharmacy pick-ups, appointments, and other dates should all be recorded carefully. Seeing a doctor after you think you have been seriously injured is probably the best thing you can do, not only for your health, but also to make complete records of the accident.

In addition, this case also highlights that you need to see an attorney right away if you have been injured. Although a year may seem like a long time to work on a case, gathering all the evidence and making the best argument possible for your case takes a lot of time and effort, so it is best to have as much time as possible to work on the case before the liberative prescription runs out.

Contact the Berniard Law Firm right away if you have been injured and we will be happy to discuss your options with you.

December 27, 2012

Worker's Injury After Hours at Workplace Puts Claim Process Under Scope

To bring a case to court, it seems obvious that you must have some kind of legal basis for your claim. For a personal injury case, that could mean that someone else caused you to slip and fall; you slipped because the floor was wet. In that type of case, someone else had a duty to keep the floor clear from slippery things, and they did not follow through on that duty. Because of their lack of follow-through, you can likely bring a case to court so that the person that failed to keep the floor clear of slippery things will be responsible for their actions. However, if you slipped in your own house because your son spilled on the kitchen floor, you are very unlikely to have a case against your ten-year-old son.

While the explanation seems simple, it is not in many cases. The law is filled with qualifications and loop holes. In the previous example, you cannot bring a case if no one had a duty to keep the floor clear from slippery things. In personal injury cases, there needs to be a duty to create liability.

There are also time, place, and manner restrictions in bringing lawsuits as well. The classic example is restricting work injuries to worker's compensation claims. Generally, if you are injured while at work, then you do not file a separate lawsuit, you file a worker's compensation claim. It is similar to an in-house procedure for taking care of injury claims. Worker's compensation is an insurance that the employer uses so that they cannot be sued in the regular courts. It provides damages in the form of wage replacement and medical expenses. Therefore, if you tried to bring a case for being injured while you are at work to a normal courtroom, you would likely be dismissed because the worker's compensation program should be handling your claim, not the court.

Exactly this situation happened in Pineville, Louisiana, in 2009. A worker was leaving her parking spot after completing her shift when she was hit by a van operated by another worker. The worker who was hit filed suit against the business and the worker operating the van. The business objected, stating that she should be filling out paperwork for the worker's compensation claim, not trying to bring the business into court. The trial court agreed and dismissed the case.

However, the appeals court disagreed and reversed the lower court. The time, place, and manner restrictions were important in this case. The worker who was hit was actually leaving her shift. She was not working for the business at the time and was not on the clock. Although she was in the parking lot, she was not acting within the scope of her employment and would therefore not be covered by the worker's compensation program. If the accident had occurred while she was still clocked in, then the result would be very different.

The difference of half an hour allowed that worker to have her day in court. Although litigation is time consuming for both parties, if a worker sues then she may get a jury and that jury may award damages that are significantly higher than what the employee would have gotten under the worker's compensation claim. Businesses are also more likely to settle because they want to avoid the “bad press” of going to trial. Both of these reasons make taking the claim to court much more appealing for the employee, but not the employer.

Whether you are dealing with a worker's compensation claim or want to take your claim to court, you need to be mindful of the time, place, and manner restrictions. They can make or break a case.

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November 12, 2012

Court of Appeals Increases Judgment Amount in Slip-and-Fall Accident

A plaintiff from Acadia Parish had her award increased by over $10,000 by the Third Circuit Court of Appeals after slipping and falling on the curb of a dark parking lot at night.

In the case, Darbonne v. Bertrand Investments, Inc., No. 11-1224, the plaintiff had gone to pick up some friends from a bar after a night of drinking. The plaintiff, who was sober, led her friends out the back door of the bar toward her car. In the dark parking lot, the plaintiff tripped over a curb, breaking her foot. She later required two surgeries to repair the damage, and the foot was still swollen at the time of her trial.

The plaintiff brought a lawsuit against the owners of the convenience store next to the bar. She claimed that the owners' failure to light their lot caused the darkness that led to her breaking her foot. She alleged that if the owners had kept their lot in a reasonably safe, lit condition, she would not have tripped over the curb.

After trial, the jury found that the plaintiff was 60 percent responsible for her injuries, and the owners of the convenience store only 40 percent responsible. The jury also found that the plaintiff was owed $100,000 in past medical expenses, $38,000 in lost wages, $50,000 in past, present, and future physical and mental pain and suffering, and $5,000 in loss of enjoyment of life. The jury awarded the plaintiff no damages for future medical expenses or future loss of wages or earning capacity. The total award, of $193,000, was reduced by 60 percent since the plaintiff was 60 percent at fault; the plaintiff was left with a total of $77,200.

The plaintiff appealed the jury's decision on two grounds. First, the plaintiff claimed that the jury's finding that she was 60 percent at fault for her own injuries was incorrect. Second, the plaintiff argued that the jury's failure to award damages for future medical expenses or future loss of wages or earning capacity was not supported by the evidence, and that the awards for past, present, and future physical and mental pain and suffering, for loss of enjoyment of life, and for past lost wages were lower than they should have been.

The Court of Appeals agreed with the jury's decision that the plaintiff was 60 percent at fault for her own injuries. Under Louisiana law, the jury's decision as to the relative fault of the parties is called a finding of fact. The Court of Appeals can only overturn a jury's finding of fact if the Court of Appeals finds that the finding is "manifest error," or "clearly wrong and manifestly erroneous." The finding would have to be unreasonable, based on the evidence presented to the jury.

Here, the Court of Appeals found that evidence was presented to the jury that could lead the jury to believe that the plaintiff was at least 60 percent at fault. The owners of the convenience store presented the testimony of one of the plaintiff's friends, who said that, after the fall, the lighting conditions were fine and that she could see well. Furthermore, the owners showed that the plaintiff lived nearby the store and had visited there several times, and therefore likely was familiar with the parking lot. In light of this evidence, the Court of Appeals held that the jury's finding that the plaintiff was 60 percent at fault was not so unreasonable as to be "clearly wrong and manifestly erroneous." So the Court of Appeals upheld the apportionment of fault.

But the Court of Appeals sided with the plaintiff in finding that the jury's award of damages was too low. When an appellate court reviews a jury's award of damages under Louisiana law, the court checks to see if the jury abused its discretion in making its decision.

The Court of Appeals had several sets of damages to consider. As to past, present, and future mental and physical pain and suffering, the jury initially awarded the plaintiff $50,000. But the Court of Appeals held that the jury abused its discretion, and should have awarded more. Considering that the plaintiff suffered from swelling from the date of her accident to the time of trial - a period of more than three-and-a-half years - and the lower back pain she suffered as a result of having to wear her walking boot, the Court of Appeals increased the plaintiff's award for past, present, and future mental and physical pain and suffering from $50,000 to $75,000.

Another set of damages the Court of Appeals analyzed were those for loss of enjoyment of life. The jury awarded the plaintiff $5,000, but the Court of Appeals increased the amount of the award. The plaintiff had testified that she could no longer do the things she enjoyed after the accident - fishing, camping, four-wheeler riding, or attending LSU Tiger games. She could not play video poker as much after the accident because she no longer worked as close to the casino. Because of the loss of these activities, the Court of Appeals increased the plaintiff's damages for loss of enjoyment of life from $5,000 to $20,000.

The plaintiff also appealed the jury's failure to award any damages for future medical expenses. Her doctors had testified that she would need continuing care for her foot in the form of pain medication, doctor's visits, and orthotics. The plaintiff argued that she would need money for future medical expenses for the duration of her life. The Court of Appeals noted, however, that evidence was presented to the jury that the plaintiff was exaggerating her medical problems - she had been videotaped walking without issue, and she had been diagnosed with fibromyalgia. The Court of Appeals reviewed the jury's decision not to award future medical expenses under the manifest error standard discussed above. The Court of Appeals decided to award a limited amount of damages for future medical expenses - not for the plaintiff's entire life, but $5,000, to cover limited medical treatment.

Having examined these three areas of the damage award, and awarding the plaintiff $45,000 more in damages than the jury did, the Court of Appeals decided that the jury's awards for loss of future earnings and earning capacity and for past wages were reasonable under the abuse of discretion standard. The Court of Appeals upheld the jury's award of damages for those categories.

In all, the Court of Appeals raised the damages owed to the plaintiff from $193,000 to $238,000. Since the plaintiff was still held to be 60 percent at fault for her damages, her award was raised from $77,200 to $89,700.

Personal injury verdicts can be based on a variety of factors, ranging from pain and suffering to loss of future earning potential. If you or someone you know has been injured, it may take legal assistance to recover everything owed. Competent legal representation is needed in the case of appeals in order to get the proper results.

November 2, 2012

Overturned Alexandria Jury Award Demonstrates Power, and Limits, of Court of Appeals

Our justice system puts a great deal of important decisions in the hands of juries. Criminal defendants and civil defendants often find their fates in the hands of some number, varying by jurisdiction, of people with no specific training whatsoever. Our system gives a great deal of deference to the trier of fact at the trial level. Nobody, save perhaps the actual participants in the case, is in a better position to determine exactly what happened in a given case. The jury hears all of the admissible evidence and at the end of the day they determine not only what happened in a civil trial but, once liability is conceded or established, how much the plaintiff is entitled to recover for their injuries. Once the jury renders a verdict, its findings will not be overturned absent a determination that they abused their discretion. The Louisiana Supreme Court has gone out of its way to stress just how much deference should be granted to jury verdicts on review. They noted that a jury finding regarding damages is entitled to "great deference on review" in Wainwright v. Fontenot, 774 So.2d 70, 74. The Louisiana Supreme Court further indicated that "an appellate court should rarely disturb an award on review" in Guillory v. Lee, 16 So.3d 1104.

In the case of Deligans v. Ace American Ins. Co., the defendant conceded the issue of liability. The trial in this case only concerned the amount of money to be awarded in damages. After the jury heard all of the evidence in that case, they awarded the plaintiff several dollar amounts for specific types of damages. The jury awarded Mrs. Deligans money for past physical pain and suffering, future physical pain and suffering, past mental pain and suffering, future mental pain and suffering, past medical expenses, future medical expenses, past loss of enjoyment of life and future loss of enjoyment of life. The jury did not award Mrs. Deligans any money in the areas of past disability or future disability. Ms. Deligans complained on appeal about the inadequacy of the award she was granted by the jury.

The appellate court found that the jury in this case had in fact abused its discretion. After explaining the deference due to such a finding at great length, the appellate court actually raised the award that the jury awarded Ms. Deligans. When an appellate court makes such a finding, it can only raise the award to the "lowest amount which is reasonably within the court's discretion." The appellate court looked to jury awards in similar cases when making this determination. The appellate court then awarded Ms. Deligans the lowest amount it felt was within the purview of the jury to have given without abusing its discretion. Even when the jury verdict is overturned, it is still given great deference.

Juries do not always get their decisions correct but our system is designed around them. We let juries decide issues of fact when people's property, freedom and even lives are on the line. The jury's decision is usually the most important one in a given civil case. An appellate court is reluctant to overturn a jury's decision and even when one does, that court must restrain itself.

The responsibilities instilled in juries in the American justice system are immense. This aspect of our legal culture is the single most democratic component of the American system of government as normal people are charged to determine momentous, life-changing issues of fact. On appeal, judges, either elected or appointed by elected officials, have limited discretion to overturn a jury's findings. This lack of overall discretion makes it all the more important to have a competent attorney during the first, original trial so that items requiring appeal are limited.

If you have an issue of fact that must be entrusted to a number of ordinary people, do not go it alone. Contact the Berniard Law Firm at 1-866-574-8005 today.

October 9, 2012

Chlorine Gas Leak Case Offers Lesson on Products Liability Claims

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

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

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

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

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October 1, 2012

Maritime Injury Leads to Lawsuit Against Employers Leads to Jurisdiction Issue

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

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

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

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

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

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

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

September 19, 2012

How Louisiana Determines Damages for Personal Injury

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

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

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

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

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

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

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

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

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

August 15, 2012

Injury Due to Workplace Discrimination Handled in Court of Appeals

Discrimination in the workplace is unfortunately all too common. But, how do you determine if you might be able to file a claim for workplace discrimination that resulted in a loss of job? Although this is a challenging subject that should be decided for each individual situation, the Court of Appeals for the Fifth Circuit (which includes Louisiana) has come up with a general outline for discrimination cases. This outline might be helpful to determine whether you should bring a case if you feel your workplace has discriminated against you.

It is illegal for an employer to fire an employee because of the employee's race. If race was a “contributing factor” in the loss of employment then it is illegal, even if there are other, lawful reasons for the termination of employment. There are three major steps to determine whether or not you might have a case for workplace discrimination.

First, the court will decide if the person who was allegedly discriminated against has a “prime facie” case for discrimination. That is, whether the case looks like discrimination on the surface without diving too deep into the facts. The court will base this decision on four qualifications. First, the person allegedly discriminated against must be a member of a protected class. A protected class has been defined by law as race or color, nationality, sex, or religion. However, an individual can be considered a protected class in relation to the particular situation in the workplace. Therefore, an individual can be a protected class even if that individual is not considered a minority in comparison to the general population. Second, he or she must be qualified for the position that they held. Third, he or she must have actually been terminated from employment. Lastly, he or she must have been replaced by someone from outside the protected class in which the person who allegedly discriminated against belongs. Assuming all of these qualifications are met, you can move on to step two.

Step two gives the employer the chance to state nondiscriminatory reasons why the individual should have been terminated such as poor performance or failure to appear for work. The court says that even if the employer's facts about the situation are incorrect, as long as the incorrect facts do not have a discriminatory nature then they can still be used for justification for the termination of employment. For example, if the employer states that the individual was fired for stealing and that individual was not actually stealing, the fact that the employer had incorrect information does not take away from the fact that the reason for the firing had nothing to do with discrimination of a protected class.

Assuming that the employer does not have a discriminatory reason for the termination, then the final step is that the person who was terminated needs show intentional discrimination even though the employer states otherwise. They should show that although the employer says they were not discriminatory, there is evidence to the contrary. The alleged victim needs to show that the employer's explanation is either false or "unworthy of credence." For example, one could show that people who are similarly situated (perform the same duties or hold the same title) but not a member of the protected class are treated differently.

Discrimination cases are determined by a systematic process, but each case is a little different. The court's explanation of discrimination may help you determine whether you should bring a case for discrimination. A skilled attorney can assist you in walking through this process to decide if you have a valid case.

Continue reading "Injury Due to Workplace Discrimination Handled in Court of Appeals" »

August 13, 2012

Wrongful Death Claim Based on Fatal Crane Accident Dismissed

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

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

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

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

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

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

July 16, 2012

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

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

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

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

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

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

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

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

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

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

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

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

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

April 10, 2012

Class Action Goes to Federal Court in Texas Plant Release Case

Class actions are a type of action that most people have heard of but that may not be well understood. In Klier v. Elf Atochem North America, Inc. a class action was initiated against the operator of an industrial plant in Bryan, Texas. The class was divided into three subclasses for the purposes of settlement. Members of each class were granted specific remedies for their disparate injuries.

Class actions are a useful tool when a large number of people have been harmed by a single defendant but none or few of them have suffered sufficient harm to warrant filing an independent claim. Class action proceedings have res judicata power over plaintiffs who do not opt out. That means that if a plaintiff does not opt out of a class action, the verdict or settlement that results will be binding on that person and prevent them from filing that same claim in the future. If a plaintiff feels that his or her injury warrants a separate claim, that person is free to do so only after opting out of the class action.

In order to certify a class for a class action under the Federal Rules of Civil Procedure in the first place, a court must find that the class is so numerous that joinder of all members is impracticable, that there are questions of law or fact common to the class, that the claims or defenses of the representative parties are typical of the claims and defenses of the class and that the representative parties will fairly and adequately protect the interests of the class. Each of these requirements must be met in order for an action to go forward as a class action.

A class action necessarily requires a great deal of people to be involved. No hard number is found in the Federal Rules but joinder rules exist that are capable of incorporating many parties into a lawsuit before it becomes impracticable. Joinder rules lead to cases that are somewhat confusing from time to time but more people have to be involved to make certifying a class appropriate.

The people in the class must also be similarly situated. If there are not common issues of law or fact, a class action is not appropriate. In Klier v. Elf Atochem North America Inc. the court certified three subclasses. The people in each subclass were similarly harmed. There were questions of fact common to each subclass, as well. Each set of plaintiffs alleged that they had been harmed by the same plant. These subclasses were created so that the case could be settled instead of going to trial. One of the subclasses did not exhaust the resources allotted to it so the court utilized the doctrine of cy pres to distribute the remaining funds. That was determined to be a mistake and is the subject of another post on this blog.

Class representatives necessarily must represent the class. If the claims or defenses they present are atypical of the class, they are not accurately representing the interest of that class. This is likely the reason that the court split the Klier v. Elf Atochem North America, Inc. into three subclasses for the purposes of settlement. The representatives of each subclass likely had slightly divergent interests. In order to avoid a conflict of interest, the court split the class.

The fourth aspect of certifying a class to pursue a class action suit is part and parcel of the third aspect but requires something more. The representatives have a duty to the other members of the class to hire competent attorneys and to pursue claims that are in the best interest of the class as a whole. In order for a class action to be successful, someone must step up and take the lead. Without adequate representation, a class cannot be certified. Furthermore, it is unlikely that anyone would even begin a class action if nobody planned to step up and become the class representative.

The Klier v. Elf Atochem North America, Inc. opinion can be read here. The duties and obligations of the class representatives continued after the trial in that case. The rights of the class members were not fully realized after the initial settlement so the work continued. You can read more about the Fifth Circuit's determination in the opinion and this blog post.

Continue reading "Class Action Goes to Federal Court in Texas Plant Release Case" »

April 8, 2012

Happy Holidays to all of our Friends

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

January 25, 2012

"Law of the Case" Doctrine, Part 2

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

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

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

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

January 23, 2012

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

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

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

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

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

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

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

December 23, 2011

Happy Holidays from the Berniard Law Firm

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

The blog will resume postings in 2012!

December 15, 2011

Summary Judgment on Sand Built of Solid Foundation by Louisiana's Third Circuit

Summary judgment can seem like a punishment to the defeated party. Because of the final nature of these judgments, appellate courts review them de novo. This standard of review grants the appellate court the ability to look at the entire record in the court below. The Bates family experienced an additional loss at the appellate level in Bates v. E. D. Bullard Company. They lost at the trial level as a result of a summary judgment and was later affirmed on appeal.

When a judge grants a party a summary judgment he or she is in effect saying that the opposing party has no case as a matter of law and that there will not be a trial. The party that has been defeated will, however, be able to appeal this decision to the higher court. De novo review is necessary when appealing a summary judgment so that the appellate court can make the most educated decision about whether the winning party deserved a summary judgment. This level of scrutiny is higher than most.

In the case in question, it was determined that the plaintiffs did not establish a case as a matter of law against the sand defendant for several reasons. Sand is not a dangerous instrumentality; there is nothing about sand's very nature that makes it explicitly dangerous or harmful. The defendant sold the sand to the ill plaintiff's employer, deemed by the court to be a sophisticated user. If a buyer is sophisticated, there is no duty on the part of the manufacturer to warn the buyer of possible ill effects of certain uses of a product. This is true even though the seller likely knew or should have known that the sand would be used for sandblasting. The sand defendant's knowledge, real or constructive, did not bear on its lack of a duty to warn the sophisticated user buyer because there was no real way of telling what the buyer would do with the sand.

It appears from the discussion in this case that the only duty to the plaintiff runs to the plaintiff's employer. Mr. Bates' employer likely had some duty to warn him about the danger of sandblasting with inadequate respiratory equipment. The court mentions O.S.H.A. requirements that apply to this situation. While the plaintiff may still have been able to file suit against his employer if he did not already do so in this case, the fact remains he did not have cause against the sand seller for any actions that were done improperly.

There are many reasons to apply strict liability to a class of cases. There are also many consequences of doing so. Strict liability makes a person or entity responsible for the consequences of his, her or its actions or inactions regardless of culpability. There are certain portions of human conduct and interaction to which this standard lends itself. Business dealings between sophisticated entities who likely have the assistance of counsel is not one such area.

The sand defendants were entitled to their summary judgment in the eyes of the trial court and the appellate court as there was no basis for the claim against them under Louisiana law under strict liability or negligence. The fact remains that all the sand seller did was sell a relatively innocent product to another company without warning. The court held the other company to a higher standard than if the buyer had been an individual. The duty, if any exists, falls on Mr. Bates' employer as the sophisticated buyer of an non-hazardous instrumentality to notify the users of any potential dangers which may exist. As a result, the plaintiffs failed to recover against the sand defendants.

Continue reading "Summary Judgment on Sand Built of Solid Foundation by Louisiana's Third Circuit" »

November 29, 2011

Court Determines if Injured Temp Qualifies Under Jones Act

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" »

November 21, 2011

Louisiana Fourth Circuit Court of Appeal Punishes For Duplicitous Suits

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

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

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

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

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

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

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

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

November 15, 2011

Baton Rouge Plaintiff Loses Defamation Claim Due to Prescription

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

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

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

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

November 5, 2011

Failure to Properly Serve a Personal Injury Lawsuit Does Not Require Dismissal, Louisiana First Circuit Court Rules

In a recent Louisiana First Circuit Court of Appeals ruling, a plaintiff successfully appealed an earlier dismissal of his case for failure to properly serve all of the correct parties.

After Hurricane Gustav, Mr, Preston was working on the Southern University campus removing debris, including trimming tree branches, when he slipped and fell into a hole in the ground. He sustained injuries and sued Southern University for negligence, claiming that the campus allowed an unreasonably dangerous condition to exist and it failed to warn him of the dangerous condition.

Under a Louisiana statute (La. R.S. 13:5107), when a plaintiff sues the State of Louisiana or a state agency, he must serve the Louisiana attorney general and the head of the agency. Furthermore, if the suit is a personal injury lawsuit (tort lawsuit), the Office of Risk Management must be notified and served as well, according to La. R.S. 39:1538.

Southern University asserted that although the lawsuit was properly served on the attorney general, it was not served on the head of the department and of the Office of Risk Management, as required by statute. It also asserted that the complaint was too vague because it failed to name the specific parish, state, or location of the Southern University campus where the incident took place. It asked that the plaintiff be required to properly serve all the parties and to amend his complaint to add more specificity.

Mr. Preston amended the complaint, which cured the vagueness defect, but he still failed to serve the head of the department and the Office of Risk Management. His case was then dismissed, but he appealed the dismissal. Southern University claimed that an earlier case, Burnett v. James Construction Group, rendered the appealed issue moot and asked that the case be remanded back down to the trial court. In Burnett, the Louisiana Supreme Court decided that under La. R.S. 39:1538, a dismissal of the case was not required even if the plaintiff had failed to properly serve all of the parties necessary. The First Circuit Court of Appeals ruled that because of the Burnett case, Mr. Preston was entitled to more time to serve the proper parties; Southern University was not entitled to dismissal of the case until Mr. Preston was given an appropriate amount of time in which to serve the lawsuit and failed to do so.

Even in a chaotic environment, this case demonstrates that proper action by an attorney in a filing, as well as careful detailing in a lawsuit, are inherently necessary. If you have suffered a personal injury and need to make sure the lawsuit is done correctly, contact a lawyer at our firm today.

October 13, 2011

Injury At Sea & Indemnification: Who Pays?

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

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

"The act of making another "whole" by paying any loss another might suffer. This usually arises from a clause in a contract where a party agrees to pay for any losses which arise or have arisen."
In this case, this is exactly what Neches Gulf Marine asserted – that Seneca Resources was contractually obligated to indemnify them. Unfortunately for Neches Gulf Marine, the district court granted a summary judgment motion for Seneca Resources, thus ruling they had no duty to indemnify Neches Gulf Marine. On appeal, the United States Court of Appeal for the Fifth Circuit noted that a maritime contract "should be read as whole, and a court should not look beyond the written language of the contract to determine the intent of the parties unless the disputed language is ambiguous."

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

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

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

October 1, 2011

Issues of Law Involving Water Complicated, Require Admiralty Understanding

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

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

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

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

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

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

September 13, 2011

Jones Act Lawsuit Fails Under Seaman Claim

"Plaintiff Lost at Seaman Claim"

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

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

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

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

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

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

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

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

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

September 9, 2011

3rd Circuit Ruling Regarding Workplace Injury - Part 3 of Series

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.

September 7, 2011

Discussion Regarding Employment Injuries - Part 2

The issue of injuries within the scope of employment is not always black and white. Two concepts have somewhat complicated the matter: the borrowed employee and joint employment. Under the borrowed employee doctrine, a permanent employer may loan an employee to another, temporary employer. While under the temporary's employ, the employee's actions are that of the temporary employer. This doctrine means that if an employee is injured while working for the temporary employee, the questions regarding scope of employment apply only to the temporary employer. If the injury falls within the scope of the temporary employment, then the temporary employer may invoke workers' compensation as an affirmative defense to tortious liability.

Figuring out whether an employee is borrowed or not is not always easy. Several questions can be asked to help classify the employment: Who has control over the employee? Who is paying the employee's wages? Who has the right to terminate the employment? Who furnished the necessary tools and location for the employee's work? How long was the temporary employment? Whose work was being done at the time of the injury? Was there an agreement between the permanent and temporary employers? Did the employee agree to the new temporary employment? Did the permanent employer relinquish control over the employee? The answers to these questions should paint a clear picture of whether or not the employee was in fact a borrowed employee. As in the Herbert case, if an employee agrees to do work for a temporary employer only because he is afraid of being fired by his permanent employer for refusal and is paid by the regular employer, then the employee has not fully acquiesed to the new job and the permanent employer has not relinquished control over the employee; it is still responsible for paying the employee's wages. If this were the case, an injury that occurred while conducting the temporary employer's work would fall outside the scope of employment because the employee is not a borrowed employee and the work would not be consistent with typical work conducted by the employee for the permanent employer. However, remember that the answer to each question proposed above is not determinative but rather should be analyzed within the totality of the circumstances.

In Herbert v. Richards, the court found that because GMI had no payroll, no equipment, and no contracts for leased land where the deer netting took place, the company was not an entity separate from Industrial. Since GMI was not a separate entity, it was not possible for GMI to have borrowed Mr. Herbert from Industrial. Thus, the court of appeals reversed the trial court's grant of summary judgment in favor of Defendants with regards to the issue of borrowed employee status.

The second concept to keep in mind is "joint employment." Joint employment occurs when two or more employers work together under a common enterprise and control an employee for the benefit of all the employers. It is important to distinguish joint employment from a borrowed employee. If an individual is injured while a borrowed employee, a suit may still exist against either the permanent employer or the temporary employer. However, if an injury occurs during joint employment and the activity that caused that injury is found to be within the scope of that employment, then all joint employers will be immune from tort liability through each employer's workers compensation insurance. In order to distinguish the two concepts, revisit the questions posed above. If the answer to several of the questions is more than one employer, than there is a likelihood that there was joint employment. In the Herbert case, the court simply points out that joint employment is a possibility because Industrial provided resources, such as helicopters, that could be argued to have made the excursion a joint effort for the benefit of both companies. The issue was remanded to the trial court.

While the court of appeal's ruling on the scope of employment helped clarify the issue, it still had to deal with Mr. Herbert's alternative arguments.

September 5, 2011

Three Part Series Regarding Workplace Injuries

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.

August 20, 2011

American Bar Association Calling for Nominations of Top 100 Lawyer Blogs

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

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

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

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

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

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

August 18, 2011

Opelousas Parish Natural Gas Explosion, Part 3: Assigning Fault

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" »

August 16, 2011

Opelousas Parish Natural Gas Explosion, Part 2: Determining Causation

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.

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August 14, 2011

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

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.

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July 15, 2011

Asbestos Cases Always Difficult, Involve Negligence and Diverse Defendant Groups

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.

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July 9, 2011

Maritime and Industry Injury Cases Quite Complex

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

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

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

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

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

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

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

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

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

June 27, 2011

The Difficulties Abound in a Discrimination Case Regarding the Disabled

Under the Americans with Disabilities Act ("ADA"), disabled employees are protected from discriminatory treatment by their employers. The Act protects disabled employees from discrimination with regard to hiring, promotions, termination, compensation, training, and various other conditions of employment. Unfortunately, the Act's protection is limited - only "qualified employees" are protected from those employers covered under the Act.

For an employee to be successful against their employer for a violation of the ADA, the employee must establish the following elements. First, the employee must have a disability. Second, the employee must establish that they are a "qualified individual" able to perform the essential functions of the job, with or without reasonable accommodation. Lastly, the employee must establish that the employer discriminated against him or her because of the disability. Each of these requirements sound simple enough to meet; however, the U.S. courts have defined and interpreted each of the requirements even further.

"Disability" is a specific term of art. Not every "disability" or impairment, in the ordinary sense of the term, will qualify under the ADA. A "disability" is defined as A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; B) a record of such impairment; or C) being regarded as having such an impairment. Importantly, it is the first type of disability, i.e. one that substantially limits a major life activity, that has been extensively litigated upon.

The complexity of determining whether a disability substantially limits a major life activity is illustrated in a recent Fifth Circuit decision, Picard v. St. Tammany Parish Hospital. Picard, an employee of St. Tammany Parish Hospital, brought a claim against the hospital claiming they failed to make reasonable accommodations for her Charot-Marie Tooth disease ("CMT"). The plaintiff's case alleged CMT disease hindered Picard's ability to work as a transcriptionist, and as such, Picard requested a special computer program to help her transcribe work. The hospital declined to provide the program requested, but did offer other alternatives. Soon after, Picard quit her position with the hospital and filed suit, claiming a violation under the ADA.

Picard established that she had a disability - CMT disease; however, she failed to establish that the disease substantially limited a major life activity. Major life activities include performing manual tasks, walking, seeing, learning, working, and various other activities. Picard testified at trial that she had difficulty working, walking, and shopping. However, she failed to establish that her CMT disability substantially limited her major life activities. To determine whether a limitation is substantial, courts will consider 1) the nature and severity, 2) the duration, and 3) the short or long-term impact of the disability on the employee. The jury heard evidence that Picard could ameliorate the impact of her disability by concentrating, that she could still perform various functions of her job, and that she continued to excel in her position at the hospital. Based on this evidence, the jury concluded that Picard's disability did not substantially limit her work or other life activities.

The Picard case emphasizes the complexity and interpretation required of various vague terms within the ADA. Each claim brought under the American with Disabilities Act is determined on the facts alone. Violations of the American with Disabilities Act are viable claims; however, in order to navigate through the many complex layers successfully, it is advisable to obtain legal help.

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June 21, 2011

Understanding Prescriptive Time Periods When Filing a Lawsuit

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

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

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

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

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

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

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

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June 13, 2011

Louisiana Supreme Court Dismisses Plaintiffs' Case Based on Failing To Show Good Cause For Untimely Service of Process

After filing a lawsuit, plaintiffs are required to notify defendants of the impending suit so that they may defend and respond to the claim. Without notice that a lawsuit has been filed against them, defendants' due process rights may be violated if an unfavorable judgment is entered or rendered without their knowledge. The time frame for this requirement - commonly known as "service of process" - varies among state and federal jurisdictions. In Louisiana, plaintiffs have ninety days from filing a lawsuit to request service of process, which is known in Louisiana as “citation and service.” The lawsuit officially begins once a defendant receives citation and service because only then will a court have jurisdiction over all of the parties. If service is not completed within the statutory period, defendants may justifiably make a motion to dismiss the case. Plaintiffs, however, may be able to defeat a motion to dismiss if they can show good cause for being untimely with the requirement. This issue was recently before the Supreme Court of Louisiana in George Igbinoghene and Sebastian Busari v. St. Paul Travelers Ins. Co.

In the seminal case, Igbinoghene and Busari (hereinafter "plaintiffs") filed their petition in the parish of Orleans on May 18, 2007, but failed to request service within ninety days of the filing date. St. Paul Travelers Insurance Company (hereinafter "St. Paul") filed a motion to dismiss for insufficient service of process. The district court denied the motion and St. Paul appealed.

On appeal, the plaintiffs argued that denying the motion to dismiss was proper because good cause was shown for being untimely since they agreed to St. Paul's request to extend the time to file responsive pleadings. The Supreme Court found this argument unpersuasive given that such events occurred in 2008 and 2009, which were outside of the relevant period. Moreover, the Supreme Court stated that requesting an extension to file pleadings did not act as an express, written waiver of citation and service. In addition, the Supreme Court declared that St. Paul's knowledge of the suit did not make citation and service unnecessary. To support this assertion, the Supreme Court relied on Naquin v. Titan Indemnity Co., a Louisiana Fourth Circuit Court of Appeals case, which held that "defendant's actual knowledge of a legal action cannot supply the want of citation because proper citation is the foundation of all actions."

Accordingly, the Supreme Court reversed the decision of the lower court and granted St. Paul's motion to dismiss because it found that the district court erred in denying the motion. Igbinoghene and Busari v. St. Paul shows us that it is important to have competent representation that will successfully prepare for and fulfill the procedural requirements in bringing a lawsuit. As this case demonstrates, there are grave consequences, such as losing your case, if the lawsuit is challenged and dismissed on procedural grounds.

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June 9, 2011

Thirty Years of Asbestos Exposure Leads to Death

Over the past two decades, America's working class has suffered the impact of exposure to asbestos. Before it was known that asbestos could lead to serious illness and death, people worked around the material without hesitation. Problems with exposure arise due to the fact that the fibers of asbestos, once inhaled, can have a very negative impact on your lungs and body. Those who have been exposed to asbestos can contract mesothelioma, a rare kind of cancer that can develop from the protective lining that covers many of the body's internal organs. It is an aggressive and deadly kind of cancer that has very little remedy; usually the best type of treatment is the keep the person as comfortable as possible. Even worse, mesothelioma can have the same symptoms of other diseases, so it can be misdiagnosed very easily and lead to significant delays in treatment. What's more, the symptoms of the disease do not appear right away. Because the impact of exposure may not become obvious for many years after exposure, people have the possibility of being diagnosed with something other than the disease and miss out on sorely needed medical attention. Because the disease manifests itself so late, it can easily go under the radar and get worse before anything can be done to resolve it.

In Louisiana, in the New Orleans Parish Civil District Courthouse, the family members of yet another victim of exposure to asbestos will have their day in court. The deceased, Phillip Graf, was exposed to asbestos for over 30 years and died a long, emotional and painful death. His family members are suing up to 29 different defendants in their lawsuits arising from his untimely and unfortunate death. Among the defendants is Metropolitan Life. In court documents, the claim states that the company is liable because it aided and abetted the negligence and the marketing of unreasonably dangerous asbestos containing products by such manufacturers. The plaintiffs in the case allege that these actions exhibit a specific type of negligence and lack of care that led to Mr. Graf's death. Moreover, Benjamin Moore & Co. is listed as the lead defendant. This is because it was the employer of Mr. Graf. This case helps illustrate that with matters such as this, a variety of companies both directly and indirectly involved in the exposure can be held accountable for the unfortunate circumstances their actions, or lack thereof, caused.

Losing a member of the family due to a disease is a hard process. However, if you or a loved one feel that you are being exposed to dangerous work environments while on the job, do not hesitate to call an attorney.

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June 7, 2011

Contractor Not Liable for Electrocution Death in St. Tammany Parish

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

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

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

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

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

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

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

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

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May 8, 2011

The Effect of Statutory Employee Status on a Claim for Injury on the Job

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.

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May 2, 2011

Oil Pump Injury Demonstrates Limits of Liability for Child's Injury

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.

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April 8, 2011

Louisiana Workers' Compensation Act and other Available Remedies

An employer takes a worker as he finds him or her, and a worker who is more susceptible to injury is entitled to no less protection under the Louisiana Workers Compensation Act than a healthy one. This holding comes from a Louisiana Appellate decision that supports the concept that employees, who are injured in the course of employment, are to be provided appropriate compensation and medical care. A recent 2nd Circuit Court of Appeals Decision explored workers compensation in Louisiana, and the elements necessary to obtain compensation, despite underlying health risk that may have helped create the injury in question. In Lloyd v. Shady Lake Nursing Home, the nursing home sought for the court to apply the Louisiana Worker's Compensation Act, in order to avoid having to pay higher damages to the surviving spouse and family under a negligence or tort based remedy.

Margaret Caldwell was the focus of the Court's analysis, and her suffered injury and subsequent death. Mrs. Caldwell, was a fifty-four year old woman, known to be suffering from morbid obesity, worked as a Certified Nursing Assistant at the Shady Oaks Nursing Home for over twenty years. One day, as she was cleaning her station, mopping the floors, she spotted a patient out of his room. She asked him to return to his room and it was at this point he attacked her, striking her in the face. Immediately following the attack, Mrs. Caldwell experienced elevated blood pressure levels and was taken to East Carroll Parish Hospital, where only a few hours later she was pronounced dead. The autopsy found the immediate cause of death to be hypertensive heart disease and coronary artery disease, with the underlying cause of death being a physical blow to the face. This last portion became the ultimate point of controversy between Mrs. Caldwell's family and Shady Oaks, as her employer attempted to rely on a specific Louisiana Revised Statute that negates workers compensation benefits for heart related illnesses or death that arises during the scope of employment. The court explores the meaning behind each element of workers compensation and definitional terms in order to formulate their decision.

To begin with, the Louisiana Worker's Compensation Act, provides medical help and/or compensation or injuries or possible death that occurs during the course of employment. However, breaking this down into sections, one must understand what injury/accident legally means, and how it is measured in order to determine whether one is afforded such relief. An accident is defined by La. R.S. 23:1021(1) as follows:

"[A]n unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration."

Such types of injuries are thus, protected and covered by the Worker's Compensation Act. However, there are limitations applied to certain accidents that occur under certain circumstances, even if they occur during the course of employment. of specific relevance is La. R.S. 23:1021(8)(e), which provides,

"Heart-related or perivascular injuries. A heart-related or perivascular injury, illness or death, shall not be considered a personal injury by accident arising out of an in the course of employment and is not compensable pursuant to this Chapter unless it is demonstrated by clear and convincing evidence that:

(i.) The physical work stress was extraordinary and unusual in comparison to the stress or exertion experienced by the average employee in that occupation, and (ii.) The physical work stress or exertion, and not some other source of stress or preexisting condition, was the predominant and major cause of the heart-related or perivascular injury, illness, or death."

The Court denied Shady Oaks attempt for summary judgment, based on the tenuous argument that the patient's act of striking Mrs. Caldwell should be considered an accident that aggravated her preexisting condition resulting in her stroke and heart attack. The defendants had not shown by the required "clear and convincing evidence," that the work environment was extraordinary and unusual or that the physical stress or exertion she had to perform in the course of her employment, was higher than other types of employment related duties. Thus, the court next had to evaluate the work environment, and whether the incident in question was extraordinary or whether it was a normal happening for Mrs. Caldwell during the course of her employment.

The tragic incident that Mrs. Caldwell experienced shortly before her death, was thoroughly explored by the Court. The specific patient who attacked her did not have a history of attacking nurses, however, testimony given declared such incidents of physical assault were not rare for certified nurse's or staff to experience. The court ultimately determined that reasonable minds could disagree as to whether or not Mrs. Caldwell experienced extraordinary or unusual physical work stress and whether that stress, versus her pre-existing conditions, was the predominant and major cause of her heart-related death. Yet, the court does not end their discussion there, the court desiring compensation for the loss Mrs. Caldwell's family incurred, explore an alternative avenue that is available.

Where an employee is not entitled to a remedy or compensation under the Louisiana Worker's Compensation Act, then there is no immunity in tort for the employer. Remember, that when one is afforded the worker's compensation benefits, they have traded their right and ability to sue the employer in tort for negligence. Thus, if worker's compensation is not available or obtainable, than a tort remedy is available. Thus, her family is able to pursue an intentional tort, such as battery and assault against Shady Oaks for the acts of the patient performed against the late Mrs. Caldwell.

Therefore, there are many available legal routes and avenues to pursue if the unfortunate occurrence happens that one is physically injured or is killed during the course of their employment. Louisiana affords protection to its residents, desiring compensation for losses in order to promote the public policy of having an efficient administration of justice. Thus, if Louisiana Worker's Compensation Act is not available to one who is injured or killed, than tort remedies may be available, thus, providing relief to those who would otherwise be prevented from receiving anything.

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April 6, 2011

Lake Charles Toxic Spill Case Explores Claims for Fear of Future Injury

On June 19, 2006, CITGO Petroleum Corp. released some four million gallons of hazardous slop oil and seventeen million gallons of wastewater into the Calcasieu River from the waste water treatment unit at its Lake Charles refinery. The overflow was caused in part by a storm that dropped more than six inches of rain in a three-hour period. The slop oil, which contained numerous toxic chemicals, fouled approximately one hundred miles of the river's shoreline. Within a few days, the sludge migrated to the waters surrounding a small industrial plant located on an island in the river owned by the Calcasieu Refining Company ("CRC"), where several employees continued to work during CITGO's clean-up efforts. Some of the workers in the dock area at CRC were directly exposed to the water and slop oil. They reported nausea, rashes, and peeling skin as a result. The vapors from the slop oil led to respiratory and central nervous system injuries to other workers. Complaints included headaches, nausea, dizziness, as well as eye, nose, and throat problems.

In May, 2007, fourteen plaintiffs from the CRC plant filed suit against CITGO for their injuries related to the spill. On September 17, 2008, CITGO entered a plea agreement in federal court over the spill in which it agreed to pay a $13 million criminal fine for various EPA violations. On September 19, 2008, the trial court entered a judgment against CITGO and awarded each CRC plaintiff general damages in the amount of $5,000, punitive damages in the amount of $30,000, and $2,500 for "fear of future injury."

CITGO appealed, citing as error, among other things, that the award for fear of future injury lacked a basis in the evidence and was speculative. In support of its argument, CITGO cited a prior case, Broussard v. Olin Corp., where the plaintiff sought recovery for fear of developing cancer after he was exposed to phosgene gas. Because the plaintiff failed to clearly link phosgene gas exposure to an increased risk of cancer, the court in Broussard concluded that the claim was "mere speculation" and that the facts did not support an award for "anxiety." The Third Circuit distinguished the present case in that CITGO's own technical data showed that

"more than one of the chemicals in the slop oil can cause cancer, particularly benzene, a known carcinogen, and the [Material Safety Data Sheet] discusses chronic lung dysfunction, [and] organ and system damage."
After reviewing the evidence presented at the trial of the plaintiffs' physical conditions following exposure and considering the testimony of several medical experts, the court concluded the "plaintiffs had a justified fear of future injury," and affirmed the trial court's award.

The CITGO case offers a valuable lesson for plaintiffs who seek to recover damages for fear of developing future injuries as a result of exposure to toxic chemicals or other hazards. Such a claim requires that the future injury giving rise to the fear be causally linked to the initial exposure. Otherwise, the court will likely consider the claim to be too speculative.

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March 31, 2011

Municipality Must Have Notice of a Defect in a Public Walkway to be Liable for Injuries

To win a case, a plaintiff must prove the elements of his or her legal claim, or cause of action. Each cause of action is comprised of certain required elements. For example, in a breach of contract claim, a plaintiff must prove the following elements: duty, breach, causation, and damages. In Louisiana, a resident can sue a municipality for failing to repair a defect in a public street or walkway. In a recent case, the Third Judicial District Court for the Parish of Union (“Court”) discussed the elements required to prevail in such a claim.

At issue in Carol Smithwick and Glenn Smithwick, Individually and as the Administrators of the Estate of the Minor Child, Carsen Smithwick v. City of Farmerville, Community Trust Bank, CTB Financial Corp. and First United Bank, was whether the plaintiffs proved that the City of Farmerville (“City”) had actual or constructive notice of a public way defect - an essential element of the cause of action. Plaintiff Carol Smithwick waited one afternoon for her son at a school bus stop, which encompassed an intersection between two city streets. Ms. Smithwick sustained injuries when she stepped onto the shoulder of one of the streets and tripped on a shallow depression. Seeking $6.2 million in damages, Ms. Smithwick claimed the injury to her right ankle from the fall caused a medical complication in her right knee.

In dismissing the suit, the trial court concluded that the plaintiffs could not prove that the City had constructive or actual notice of a defective condition even though the hole, which caused Ms. Smithwick's injuries, presented an unreasonable risk of harm. On appeal, the Court affirmed the trial court's judgment. According to the Court, a municipality will be held liable for injuries from a defect in the condition of a public way if it had actual or constructive notice of the defect. A municipality has actual notice of a defect or condition if one of its agents or employees had a duty to keep the area in good repair or to report defective or dangerous conditions. Constructive notice is proven if a plaintiff can show a defective condition existed for a considerable amount of time and reasonable diligence by the municipality would have resulted in its discovery.

The plaintiffs argued that the City had actual notice of the depression because one of its maintenance personnel, who trimmed the area at issue, stated at a deposition that he knew of the shallow depression. However, the hole described by the employee was in an area different from the location of the depression in question. The plaintiffs also argued that the City had constructive notice of the defect because the City's personnel trimmed and/or mowed the area during the growing season twice a month. However, the Court disagreed and found the argument speculative since the area had not been trimmed since 2004 and there was no evidence establishing that the hole existed since that time.

Accordingly, the Court concluded that the plaintiffs failed to show the City had actual or constructive notice of the defective condition. Moreover, the Court reasoned that throughout the school year, the area was used as a school bus stop and no other parent or child noticed or was injured by the depression.

Smithwick v. City of Farmerville illustrates how important it is to seek competent legal counsel to discuss whether you have a viable claim, which includes whether there is evidence proving each element of a cause of action. Our lawyers can help save you time and money.

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March 25, 2011

Baton Rouge Residents Lose Their Judgment in Property Damage Case

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

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

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

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

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

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

February 28, 2011

Court Outlines Responsibilities of Dockowner in Employee Injury

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

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

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

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

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

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February 14, 2011

Legal Remedy for People With Mesothelioma Due to Asbestos Exposure

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

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

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

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

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

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

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February 11, 2011

Louisiana Court Sets Out Requirements for Summary Judgment

During the course of litigation, one of the tools used by lawyers and the legal system to weed out weak cases is to file for summary judgment. The basic premise of summary judgment is to call the other side to provide solid evidence of their claim. The moving party, the party filing the summary judgment, tells the adverse side that they need to demonstrate to the judge that they can actually prove all the elements required to win the case. This does not mean that they need to show that they can win the case, it just means that they need to show that all the evidence they have acquired at least allows them to bring forth a feasible case on all necessary elements of their claim or defense. If the adverse party is unable to factually prove the elements of their claim, the Court grants smmary judgment by stating that their is "no genuine issue as to material fact."

In Christine Comeaux vs Debbie Lemmons, the State of Louisiana Court of Appeal, Third Circuit, worked its way through the law of summary judgment to decide whether summary judgment was properly granted at the trial court level. The plaintiff was an employee of Giddy-Up-N-GO Lounge (Lounge) in Rayne, LA. After her shift, she remained at her place of work as a patron. During the course of the time she was there, another patron fell into plaintiff causing her to fall and break her leg. She sued the Lounge stating that the Lounge (1) Failed to monitor the consumption of its patrons (2) allowed patrons to dance in inappropriate conditions (3) encouraged reckless behavior (4) allowed the number of patrons to exceed maximum capacity and (5) failed to do and see all things necessary to ensure her saftey during her time as a patron.

During her deposition, plaintiff clearly stated that she was unsure and unaware of whether the patron who fell into her was intoxicated. Further, she admitted that she did not know whether the Lounge was beyond full capacity during the incident that broke her leg. Furthermore, she stated that although there were times when people receieved DWIs after leaving the Lounge, she had no facts to support her proposition that the Lounge was acting irresponsibly on the day of the accident. Her claim, that the Lounge was responsible for the actions of its drunk patrons, falls under the civil law of "dram shop liability." States that adhere to this type of liabilty state different conditions in which those who provide alcohol, either at parties, or for sale, can be held liable for the actions of those who become drunk from the alcohol. In Louisiana, the statute La.Rs.9:2800.1 speaks to the legislatures view on dram shop liability. The statute states that liability for actions that cause damage or injury will be on those who do the drinking, not on those that provide alcohol, if the person receiving the alcohol is of legal age to consume it.

Summary judgment is granted if pleadings, depositions, answers to interrogatories, and admissions on file, together with affadavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. Further, La.Code.Civ.P.art 966(C)(2) states that the burden remains on the moving party. However, if the moving party is not responsible for the burden of proof at trial, all the movant has to do is show that there is factual support lacking for one or more of the adverse party's essential elements. If after this is shown, the adverse party fails to bring forth evidence that provides the needed factual support, there is no genuine issue as to material fact, and summary judgment should be granted. In this case, during her deposition, plaintiff negated her own pleadings. She stated that she did not know whether the patron who fell into her was actually drunk, that she did not know whether the number of patrons were beyond maximum capacity, and that she did not know whether any person was allowed to go home by driving drunk. In either case, the law as it stands concerning dram shop liability exposes on the person who does the drinking to liability. After defendant brought forth the motion for summary judgment, plaintiff was unable to fulfill her burden on providing facts to show that all elements could at least be proven. Therefore, the Court of Appeal upheld the decision of the trial court.

It is essential that if you have a claim, or your think you have a claim, you should seek the advice of legal counsel as soon as possible so that time does not run out on your ability to take any kind of action on your claim.

Continue reading "Louisiana Court Sets Out Requirements for Summary Judgment" »

January 24, 2011

Lessons and Warning Signs of Asbestos Exposure and Mesothelioma

Mesothelioma, also known as asbestos cancer, is cancer of the mesothelium, and is usually found on or around the lungs an individual has had prolonged exposure to asbestos in their homes or at work. Although the disease has become easier to detect in recent years, asbestos manufacturers have actually been sued by victims who have contracted the disease since as early as the 1920s and there is evidence that people were getting sick as early as the end of the 19th century.

Despite this long history, and high profile cases that have gone as far as the Supreme Court with nearly a billion dollars in compensation paid out, no Federal laws have been passed to delineate the compensation available to victims. The sad reality is that many suffering patients end up not getting the compensation they truly deserve due to the lack of regulation and confusion over what victims are entitled. This would seem to be an obvious case of injustice and is an unfortunate reality as working men and women simply cannot afford to aggressively pursue legal action against corporations, especially those that may have closed decades before.

The link between meso and asbestos was officially proven in the 1960s when scientists confirmed the presence of the disease in over 30 people who had been exposed to asbestos in South Africa. In 1962 mine workers were discovered who had mesothelioma and the condition was proven to cause cancer. Once workers are diagnosed with mesothelioma they can no longer work. This is just one reason why they must be properly compensated by their employers for their lost wages. Employers my be hesitant to pay damages; the reality is they could have provided the proper protective equipment to their workers that would have allowed them to work safely with asbestos and remain disease free. The question then significant to many is how you can tell if a person has contracted mesothelioma?

There are several symptoms that should be seen as a red flag (these symptoms are very similar to those for other conditions, including lung cancer). Keep in mind that these symptoms may not surface for years after asbestos exposure:

1. Shortness of breath - from fluid caught between the lungs and chest wall.
2. Chest pains - also caused by fluid. The pain will be felt under the rib cage and may be accompanied by coughing.
3. Weight loss.
4. Abdominal pain or swelling resulted from fluid building up in the abdomen.
5. Bowel obstruction caused by either fluid or tumors that have formed in the abdominal region.
6. Anemia - due to mesotheliomas affect on the tissue lining the lungs and chest cavity (the pleura).
7. Blood clotting - although this is only seen in severe cases.
8. Trouble swallowing - that occurs if the cancer has metastasized from the mesothelioma to other parts of the body.
9. Swelling in the neck or face - this also occurs if the cancer has spread.

If you are at risk for mesothelioma because you have worked with asbestos in the recent or distant past, and you experience any of these symptoms, it is vital that you contact your doctor right away for treatment. With good legal assistance, those struck with mesothelioma can get the compensation they need and deserve. After all, people who have been injured because of the negligence of their employers deserve some sort of financial support from the legal system. If you are diagnosed you may also benefit from legal assistance. Please feel free to contact us and an attorney experienced in mesothelioma litigation will be happy to talk to you about your case.

December 21, 2010

The Louisiana Supreme Court Reduces Damages for Exposure to Toxic Chemical Leaked by Plant in Taft, Louisiana

A Union Carbide Corporation plant facility in Taft, Louisiana, leaked a toxic chemical compound for at least seventeen hours on September 10th and 11th in 1998. Rainwater accumulation from Tropical Storm Frances caused partial collapse of the floating roof on a large tank storing liquid naphtha. Consequently, a tank seal broke allowing escape of liquid naphtha which volatilized and exposed workers and surrounding residential areas to naphtha fumes including the towns of Montz and Killona. An estimated 4.6 million pounds of naphtha vaporized before application of a chemical foam to the tank roof effectively stopped the volatilization hazard.

In the case of Howard v. Union Carbide Corporation, the Supreme Court of Louisiana reduced to negligible amounts the already decided damages awarded to plaintiffs exposed to the naphtha fumes. Specifically, original damages awarded were $3,500, $2,500, and $1,500. However, the Supreme Court reduced these damages to amounts of $500, $250, 150, and $100 based on proximity to the leak with higher awards to those within the plant and lower awards to those in the surrounding residential areas.

Exhibiting a controversial impression of the dangerous chemical involved, as well as defining exposure injuries, the Court concluded "simply no reasonable relationship" exists between the injuries and the original damages awarded. Assuming all fumes are equal regardless of the vastly different compounds which any given chemical leak may constitute, the Court cited other negligible awards in other cases despite the fact that the other cases involved unrelated chemicals.

In fact, the Court categorized exposure injuries to the vaporized naphtha as "mere annoyances." Acute naphtha exposure symptoms may include irritation of the eyes (stinging sensation in the eyes, tearful eyes), nose irritation (stinging sensation in membranes lining nasal passages), sore throat, and coughing. Notably, the Louisiana Supreme Court determined that immediate exposure symptoms are the only consequences of exposure to toxic chemicals. On the contrary to some specialists, forms of naphtha may be carcinogenic. In addition, naphtha has been determined to be a central nervous system depressant, which is the mechanism for the reported headaches, nausea, dizziness, and the sensation of being inebriated (drunk). Further, components within the naphtha often possess additional harmful qualities.

Finally, the Louisiana Supreme Court uses as support for reducing damage awards the lack of professional medical attention and evacuation, noting that, oftentimes, acute exposure symptoms were self-treated because plaintiffs were not provided with adequate nor accurate exposure details.

If you have faced a similar situation, it is important that you contact an attorney immediately to get the legal advice you deserve. When facing a situation like this, an individual who has been injured must be careful with the lawyer you select because it can mean the difference between recovering your losses and being left in the dark. Call our offices today for a free consultation on your legal rights.

December 3, 2010

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

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

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

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

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

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

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

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

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

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

December 2, 2010

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

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

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

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

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

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

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

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

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

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

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

October 31, 2010

Berniard Law Firm Unveils New iPhone Application

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

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

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

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

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

To download the application, click here.

October 27, 2010

Morehouse Parish Case Illuminates Vitality of the 'Two Contract Theory' and the Exclusivity of the Workers Comp Remedy

The case of Dugan v. Waste Management, Inc., was recently handed down by the Second Circuit Louisiana Court of Appeals. It is a tragic case, involving the deaths of two garbage truck employees, and the wrongful death suit that followed. In June 2007, Lamare Kindle and Wallace Bradley were riding in a garbage truck owned by Waste Management. Mr. Kindle and Mr. Bradley were both garbagemen, performing waste reduction services for Waste Management. Mr. Bradley was driving the garbage truck, while Mr. Kindle rode as passenger. As the garbage truck came upon a railway crossing, Mr. Bradley is alleged to have failed to yield and the two were both struck and killed by an oncoming freight train.

Mr. Kindle's parents, including Ms. Bonita Dugan, subsequently filed a wrongful death suit to recover for their son's death. Their theory was that, because Mr. Bradley was a direct employee of Waste Management and was acting in his scope of employment at the time of the accident, Mr. Bradley was thereby an agent of Waste Management. Moreover, because an employer can be held legally responsible for its agent's negligent actions, the parents stated that Waste Management should be held directly responsible for Bradley's negligent driving.

In spite of this usually sound legal theory, the wrongful death suit was immediately complicated by the peculiar employment relationship Mr. Kindle held with Waste Management. While Mr. Bradley, the driver, was a direct employee of Waste Management, Mr. Kindle, the passenger, subcontracted his labor to Waste Management through a temporary employment agency. A question arose: notwithstanding the subcontractual relationship, was Mr. Kindle an "employee" of Waste Management or an "employee" of the employment agency instead?

Under Louisiana law, when a plaintiff is injured during the course of his employment, he cannot directly sue his employer for harms caused by negligent or non-intentional acts. Instead, the employee must use the state's workers comp system to resolve his claims against his employer. On the other hand, if the plaintiff is not an "employee" of the defendant, the plaintiff is free to seek a typical civil remedy from the courts. As a generality, workers comp remedies tend to be modest and limited in scope, while civil remedies allow for greater monetary damages.

In the absence of a direct employment arrangement, a worker can nevertheless be an "employee" of the defendant. This scheme is referred to as "statutory employment." In Louisiana, there are two ways to be a "statutory employee." First, if a written contract expressly recognizes the defendant as a "statutory employer", then by the terms of the contract, the plaintiff is a "statutory employee" and can only seek the more modest workers comp remedies. Likewise, if the defendant satisfies the "two contract theory," (to be expained later) the plaintiff will be deemed a "statutory employee" as well. In the instant case, the court noticed that the written contract between Waste Management and Mr. Kindle did not expressly refer to Kindle as a "statutory employee." Therefore, the first method of achieving statutory employment was not met. However, a subsidiary question remained: was Mr. Kindle a "statutory employee" under the two contract theory?

The two contract theory occurs when a defendant is the principal in the middle of two contracts. More specifically, the two contract defense applies when (1) the principal enters into a contract with a third party; (2) pursuant to that contract, work must be performed; and (3) in order for the principal to fulfill its contractual obligation to peform the work, the principal enters into a subcontract for all or part of the work performed.

In this case, Waste Management met each element of the two contract theory. First, it had contracted with Morehouse Parish, a third party. Second, the terms of the contract specified that Waste Management should dispose of solid waste in the parish, which was "work to be peformed." Finally, Waste Management subcontracted with the employment agency to fulfill its contractual obligation with Morehouse Parish. Accordingly, the court ruled that Mr. Kindle was a "statutory employee" of Waste Management under the two contract theory. This meant that workers comp was the sole remedy available, and Kindle's parents' wrongful death claim was barred.
As the Dugan case shows, the two contract theory can prevent a plaintiff's typical recovery for injuries incurred while on the job. Even temporary workers may be precluded from suing for workplace injuries, despite the fact they were never directly hired by the defendant-employer. On the other hand, "independent contractors" are not employees, and they are not confined to the workers compensation system. Indeed, they can sue in civil court for more extensive remedies resulting from on the job injuries.

If you've sustained injuries while working and are unsure of whether you are an "employee" or an "independent contractor" of the business that hired you, it's important to consult an experienced attorney before making any legal decision. Lawyers at the Berniard Law Firm can examine the various factors that define your relationship with the entity you are working for and can thus conclude whether you must file a workers comp claim or can pursue a civil remedy. Contact Berniard Law Firm today to ensure your workplace rights are adequately upheld.

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September 5, 2010

Louisiana Workplace Injury Judgment in Favor of Joyce Man Reversed

Lamar Richardson of Joyce brought an action against his employer, Kansas City Southern (KCS) Railway Company, for injuries he claims to have sustained on May 14, 1990 when he was working on a maintenance crew. While clearing debris off train tracks, Richardson was cutting limbs from a large willow tree on the track at mile post 149.8 in Winn Parish and claims he was struck with a large limb and injured.

Richardson sued KCS under the Federal Employers’ Liability Act (FELA), 45 U.S.C. § 51 et seq for medical expenses, mental anguish, and lost wages that resulted from the alleged injury. He contended that his employer failed to provide a safe workplace and was negligent in not adequately supervising the clearing of trees or training personnel in how to cut trees. Richardson claimed his injuries kept him from working and eventually led to a need for cervical disc surgery. The case went to trial in 1994 and 1995. Judgment was entered in June 1998 in Richardson’s favor and he was awarded medical expenses of $3,869.75, general damages of $150,000, and lost wages of $525,435.00. The major contention presented during the trial was Richardson’s report that he visited the emergency room Jackson Parish Hospital on May 15th after the pain in his neck intensified. Hospital records do not confirm the report but rather show he visited the ER three days prior to his alleged injury on May 11, 1990 where he complained of, among other things, neck pain that had lasted about a week. The emergency room had no record of a visit on May 15. Richardson claimed that he drove his son to a basketball event in Hammond on May 11 and therefore could not have gone to the emergency room. Witnesses at trial corroborated his testimony and the jury found his account more convincing than the hospital records which Richardson claimed had been made in error.

KCS appealed, and in their April 1, 1999 decision, the Louisiana Court of Appeals reversed. The court found that the Richardson failed to show that the date in the hospital records was inaccurate and that the idea that the records were created in error is implausible and not supported. The court also found that Richardson’s claim that he was treated by a particular doctor and nurse when he visited the hospital on May 15th was impossible given the testimony of those individuals. Finally, Richardson made no claim that the hospital intentionally falsified medical records or provide a motive for them to do so. The court found the hospital records to be accurate and reliable. Medical records are typically considered to be inherently reliable given that health care providers rely on them in making life and death decisions. As such, the plaintiff sought medical treatment for neck pain prior to his alleged injury and was not entitled to damages from his employer.

The FELA is a federal law specifically geared at protecting railroad workers who are exposed to additional inherent risks due to the nature of their job. FELA was designed to provide a statutory federal negligence action for railroad employee and are their exclusive remedy for workplace injuries. On appeal, a court will not reverse an FELA case unless they find complete absence of probative fact to support the fact-finder (jury) conclusions.

This case demonstrates how fact intensive workplace injury cases can be. As here, courts sometimes deal with the difficult decision of whose account of an accident is correct given conflicting testimony or medical records. If you have been injured at work it is vital that your attorney be willing to put forth the effort needed to ensure facts are presented clearly and effectively. This requires extensive case preparation, witness selection, and the use of expert testimony if needed.

Continue reading "Louisiana Workplace Injury Judgment in Favor of Joyce Man Reversed " »

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August 20, 2010

Workers’ Compensation Case at Dodson Lumber Mill Shows Importance of Reporting a Work-Related Injury in a Timely Fashion

Louisiana workers' compensation law creates a system that provides medical treatment and monetary income to employees who suffer injuries while on the job. The law is designed to benefit both employees and employers. Workers are protected against the difficulties that result from job-related injuries such as the expenses of medical care and lost wages from being unable to work. An injured employee can receive bi-weekly income payments and free medical treatment, but must forfeit any right he may otherwise have under the law to sue his employer over the injury. The employer benefits by avoiding a potentially costly and unpredictable lawsuit in exchange for accepting limited liability under the structured system that seeks to protect the interests of both parties. Under this system, the issue of fault or negligence is not at issue—it is enough for the employee to show that he suffered an injury while performing work for his employer.

One important procedural obligation on the part of an injured worker is that he must report the injury to his employer in a timely manner. According to Louisiana statute,

No [claim] for compensation shall be maintained unless notice of injury has been given to the employer within thirty days after the date of the injury or death. This notice may be given or made by any person claiming to be entitled to compensation or by anyone on his behalf. La. R.S. 23:1301.

Although notice is always required, the 30-day window is not absolutely inflexible. Louisiana statute further provides:

A notice given under [the workers’ compensation law] shall not be held invalid or insufficient by reason of any inaccuracy in stating the time, place, nature, or cause of the injury, or otherwise, unless it is shown that the employer was in fact misled to his detriment thereby. Lack of notice or delay in giving notice shall not be a bar to proceedings … if it is shown that the employer, or his agent or representative, had knowledge of the accident or that the employer has not been prejudiced by such delay or lack of notice. La. R.S. 23:1305.

The sufficiency of notice given well outside of the 30-day statutory window was central to the case of Hammock v. Weyerhaeuser, 917 So. 2d 733 (La. App. 2005). In this case, David Hammock worked at the Weyerhaeuser lumber mill in Dodson, Louisiana. Hammock’s job required him to move 3,000-pound loads of wood from a conveyor belt to a stacking machine using a motorized buggy. In August, 2002, a load of wood fell off the stacking machine; Hammock and a co-worker were then required to manually move the load back onto the machine. Hammock claimed that in the course of this operation, he felt "a popping in [his] lower back and a tingling in [his] legs." Hammock did not report the incident, but mentioned to his co-worker that he thought he felt "something" in his back. Over the next several months, Hammock told other co-workers about the incident and complained about back pain but did not make a formal report the incident until January 6, 2003. In his report, he wrote "do not know" in the field for "Date of Accident" and wrote "3 mos. ago" in the field for "Time of Accident." Weyerhaeuser disputed that Hammock’s injury was work-related and sought to avoid providing Hammock with workers’ compensation benefits in part based on the late notice of injury.

At the hearing before the Workers’ Compensation Judge (“WCJ”), Hammock testified that one of the reasons he didn’t immediately report his injury is that he worried it would prevent him from being offered a promotion. Further, Hammock feared that a reported injury might lead to the closure of the Dodson plant. The WCJ concluded that Hammock “was, in fact, involved in a work-related accident." And that his "perception that the reporting of accidents was unfavored by [Weyerhaeuser] had a plausible basis and it cannot be used to preclude workers' compensation benefits." The WCJ ordered Weyerhaeuser to pay benefits to Hammock, awarded him attorneys fees, and required Weyerhaeuser to pay a $2,000 penalty for unreasonably denying Hammock’s claim. Weyerhaeuser appealed the WCJ’s decision to the Louisiana Court of Appeal.

The Court of Appeal confirmed that under Louisiana law, "a plaintiff in a workers' compensation action has the burden of establishing a work-related accident" Graham v. Nissan 907 So. 2d 213 (La. App. 2005). After reviewing the statute that requires an injured worker to give his employer notice of an injury within 30 days, the court explained that a delay in reporting an injury is "not fatal to a claim" for benefits. "This is especially true," the court continued, "when the delay is of a relatively short duration."

The court acknowledged that Hammock’s reporting delay was "not of a short duration," and further found Hammock’s fear of retaliation by Weyerhaeuser was not justified. Nevertheless, the court conceded that his worry the accident would be held against him was a "genuine and honest explanation for his failure to report the incident for three months." The court concluded that "despite the extended delay in reporting the accident, [Hammock] carried his burden of proving that he suffered a compensable injury as a result of a work-related accident,” and affirmed the award of compensation by the WCJ.

Although the court’s ruling ultimately turned out favorably for Mr. Hammock, this case demonstrates the critical nature of the worker’s responsibility to report an injury within a reasonable time. Had Mr. Hammock reported his injury to Weyerhaeuser within 30 days of the incident, he would likely have received his benefits without the need for a lengthy judicial process that concluded more than three years after the injury occurred.

If you have been injured on the job, talk to an attorney who can help you understand your rights and responsibilities under the workers’ compensation law and help you get the benefits your deserve without delay.

Continue reading "Workers’ Compensation Case at Dodson Lumber Mill Shows Importance of Reporting a Work-Related Injury in a Timely Fashion" »

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June 8, 2010

Assessing Multiple Defendants' Liability in an Asbestos Case

As research has revealed more about the dangers of asbestos and the mechanics of how it causes certain types of lung disease and cancer, medical and social opinion of asbestos has changed. Likewise, the law of asbestos-related injuries has changed in the last half century. For example, one of our blog posts recently discussed how workplace asbestos cases are now typically addressed through workers compensation proceedings rather than traditional personal injury tort law. A decision issued by the Louisiana Supreme Court in 1992 illustrates another change in the law related to asbestos injuries.

Background

The background and procedural history of Cole v. Celotex Corp, 599 So.2d 1058 (1992), is complicated. However, knowing the case is important when trying to understand the significance of asbestos litigation. The plaintiffs in the case suffered asbestos exposure in the course of their work duties and filed suit against twenty individual defendants. The defendants included manufacturers of the asbestos materials the plaintiffs encountered on the job as well as officers of their former employers. Additionally, the plaintiffs added as a defendant Insurance Company of North America ("INA"), the primary liability insurance provider for the officers.

The lawsuit proceeded and moved toward trial. Just before the trial commenced, the plaintiffs and the defendant-manfacturers reached a settlement agreement. As part of the agreement, the manufacturer-defendants admitted legal fault and paid a monetary sum to each plaintiff. Thus, the trial proceeded against the officers and INA, their insurer. At trial, the jury found the officers responsible for the plaintiffs' injuries and awarded each plaintiff monetary damages. As the officers' insurer, INA would be responsible for paying all amounts due as a result of the officers' legal liability.

Multiple Defendants' Liability

Because asbestos cases involve both long-term exposure and a period of latency - or development of the disease - it is not uncommon to see changes in the applicable law during the relevant time period of a case. The Cole case is no different. At issue was a change in how Louisiana law treats multiple defendants' liability for injuries caused.

Prior to 1980, defendants shared financial liability under what is referred to as virile share doctrine. This doctrine divides financial liability equally among all defendants who are found to be at fault. A plaintiff may seek his entire damage payment from any or all defendants. However, any defendant required to pay more than his equal share could seek reimbursement from those who had not paid. In 1980, Louisiana enacted Act 431, which replaced the virile share doctrine with a comparative fault doctrine. Under comparative fault, each defendant is assigned a percentage of fault, and that percentage corresponds to the percentage of the damages each defendant must pay to the plaintiff. (See LSA-C.C. 2323.)

Each scheme has practical consequences for all parties in a lawsuit. For a defendant, comparative fault obviously limits the amount of money he could be forced to pay. If a plaintiff is owed $100,000 from 5 defendants, under virile shares, one defendant may be forced to pay the entire sum and then seek reimbursement from the other defendants. Under comparative fault, if each defendant is assigned 20% fault, the plaintiff may only collect $20,000 from each individual defendant. That is regardless of the plaintiff's ability to collect from the other defendants. (See LSA-C.C. 2324.) This example illustrates a plaintiff's implications as well. He may or may not be able to collect his entire damage award under comparative fault, even if one defendant has the financial ability to pay the entire award.

In the Cole case, a major issue was determining which one of these fault doctrines applied. The Court determined [link to post # 1] that issue based on when the when the exposures to asbestos occurred, legally speaking. Ultimately, the Supreme Court ruled that the plaintiffs' injuries occurred before 1980, the year the comparative fault doctrine took effect. Thus, the virile share doctrine applied. For INA, this had a tremendous impact. The jury in the case had found the officers INA insured to be 95% at fault for the plaintiffs' injuries. Once the case was altered to apply virile share, INA's ultimate responsibility was only 9/20ths of the plaintiffs' award. (Of the twenty defendants, INA insured nine of them; hence, INA is responsible for nine of the twenty virile shares.)

The Cole case demonstrates that, even though the timing of the plaintiffs' injuries are difficult to pinpoint, the legal consequences of that timing are significant. The legal framework that applies to a case may increase or limit the amount of damages a plaintiff will actually be able to recover. In order to fully protect and preserve their rights, persons affected by asbestos exposure should be sure to retain an attorney that is familiar with the complexities of asbestos cases.

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May 9, 2010

The Importance of Timing in Making an Asbestos Claim

Employees injured on the job are usually bared from filing a claim against their employers because they are fully compensated under the Louisiana Workers Compensation Act. However, while the act provides for most injuries, it does not provide for all. Whether or not your injuries are covered by Workers Compensation requires a look at recent Louisiana statutes.

In the case of employee's claiming injuries due to asbestos exposure, Louisiana's Workers Compensation Act can may be tricky to pinpoint. Because asbestos usually manifests itself years after initial exposure, deciding which statute applies, and thus which injuries are covered, may be difficult. The time at which a claim arises is usually measured from the injury producing event, that is in this case, the initial exposure to asbestos. The injury producing event, in addition to providing a timeline for a cause of action, also determines the law controlling the event. Laws are amended and changed over time, so the date of asbestos exposure actually determines which statute will be applied to the injury claim.

In 1996, Royce Thomas filed a claim against his former employer, Anco Insulations ("Anco"). He claims that his job, from 1968 to 1971, exposed him to large quantities of asbestos, and he contracted lung cancer and asbestosis as a result of the exposure. His employer challenged the claim, alleging that the injuries were covered under workers' compensation. This is where the importance of the injury producing event becomes evident. Royce claimed that his lung cancer and asbestosis were related to pre-1975 exposure to asbestos. Under Louisiana law at that time (pre-1975), asbestos was not a substance covered under the Workers' Compensation Act. Therefore, Royce had a valid cause of action because the injury producing event occurred at a time when asbestos, and lung cancer for that matter, were not injuries covered by the state's Workers' Compensation Act.

Determining the injury producing event is very important to a claim, especially one involving asbestos or mesothelioma. Had the asbestos exposure occurred after 1975, Royce Thomas' would have been bared from filing a claim against Anco because the statute was amended to include asbestos, and he therefore would have been entitled to complete relief under Workers' Compensation.

Cases involving asbestos exposure also lend themselves to debate over the root cause of the injury. In the above case, Mr. Thomas claimed that his injuries were caused by asbestos exposure, a substance not covered under the Workers' Compensation Act. The employer, however, argued that Thomas' lung cancer was actually caused by asbestosis, a disease explicitly covered by the Act. [Note: Asbestosis is a chronic inflammatory medical condition that effects the lung tissue]. Determining the injury producing event, whether lung cancer was caused by asbestos exposure or asbestosis, can help a court decide whether the injured party has a right to relief under Workers' Compensation or not.

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May 7, 2010

Police Chief's Complications Good Example of Workers' Compensation Limits

If you or someone you know has been injured on the job, there's a good chance that
workers compensation was a topic of conversation. By law, employees injured during and/or in the course of their employment are entitled to monetary benefits. However, the right to collect worker's compensation does not stretch indefinitely. Most jurisdictions place a "statute of limitations" of a "prescription period" on personal injury claims, limiting the amount of time an injured party has to file a compensation claim.

In 2002, City of Brusly's Chief of Police was injured during the course of employment. His claim for compensation, however, was not filed until December 2004, nearly two and half years after his injury. The question at issue in this case was whether prescription, that is, the filing of his claim after Louisiana's one-year limitation placed on personal injury claims, prevented the Chief from filing his action for worker's compensation benefits.

Louisiana Revised Statutes 23:1209(a) provides three prescription (limitation) periods for the filing of compensation claims:

(1) one year from the accident when the injury is immediately manifest;
(2) one year from the last payment of compensation benefits; and
(3) one year fro the time the injury develops, but not more than two years from the accident, when the injury does not result at the time of or develop immediately after the accident.

In certain circumstances, prescription can be suspended to prevent the time constraints imposed on a personal injury claim from expiring. Suspending prescription on the Chief's injury would allow him to successfully file a claim after the one-year limit.

After the accident, the Chief of Police was unable to perform all of the necessary duties required of his office, yet he still received the same level of compensation. The court considered these to be "wages in lieu of compensation", which qualified as compensation benefits under the second prong of the above mentioned statute, allowing the Chief to claim benefits even though the prescription period had expired.

"Wages in lieu of compensation" differ from regular salary in the sense that they provide compensation that is not on par with the actual work being performed. For all practical purposes, these wages are considered to be compensation benefits that qualify under the second prong of the statute.

While the Chief of Police highlights an exception to the prescription period, it is not the recommended route when filing a claim for worker's compensation benefits. To avoid undue future litigation and stress, file your claim for worker's compensation as soon as possible. Prescription period across the nation stretch from 1 year in Louisiana to 6 years in states like Maine and North Dakota.

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April 6, 2010

Workers' Compensation, Expert Witness Fees, and the Employer's Benefit Offset

In previous posts we have examined the important role of expert witnesses in litigation. As a general rule, the party who retains an expert witness is responsible for paying for the witness's services.

The issue of expert witness fees was central to the case of case of Burns v. Apache Corp, 853 So. 2d 708 (La. Ct. of App., 2nd Cir. 2003), which was an appeal from a ruling by the Louisiana Office of Workers' Compensation (OWC). Mr. Barry Burns was employed by Apache Corporation as an oil well pump technician in Shongaloo, Louisiana. On June 21, 2000, he was struck and killed by a moving part of the pump he was working on. His widow, Terry Burns, made a claim for workers' compensation against Apache and also filed a tort action against Dodson Tye Machine Works, Inc., a third-party contractor who had also worked on the oil well.

After the accident, Apache began paying Ms. Burns $384 per week in workers' compensation death benefits. Ms. Burns's lawsuit proceeded to trial where a jury awarded her $45,324 in damages against Dodson.

Under Louisiana's workers' compensation law, an employer who pays benefits is entitled to offset from its obligation any money the injured party/claimant also recovers from other parties in tort. (This situation usually arises in cases like this one where there are parties other than the employer who also may have contributed to the claimant's injury or death. Although the claimant cannot sue the employer, he or she may pursue any potential tort claims against other parties involved in the accident.) The intent of this provision is to prevent the claimant from obtaining a "double recovery"--that is, enjoying both an award for tort damages and workers' compensation payments from the employer, when together the amounts would exceed the claimant's actual losses.

Under Louisiana law, the application of the employer's benefits offset takes into account the court costs and attorney's fees incurred by the claimant as a result of her related tort case:

The employer's credit against its future compensation obligation shall be reduced by the amount of attorney fees and court costs paid by the employee in the third party suit. (La. R. S. 23:1103(A)(1))

In the Burns case, Apache sought to reduce its obligation to Ms. Burns by offsetting the $45,324 awarded to her in the tort case against Dodson. The OWC allowed the offset, but lowered the amount by $14,360 to cover Ms. Burns's attorney's fees in bringing the tort action. The OWC also reduced the offset by $5,700 to cover other court costs. It refused, however, to further adjust the offset for the $35,043 Ms. Burns spent on expert witnesses.

The Court of Appeal, in noting that Louisiana Workers' Compensation law is "to be interpreted liberally in favor of the workmen," concluded that requiring Apache to offset the expert witness fees would in no way lead to a double recovery by Ms. Burns. The court reasoned that "to disallow the offset for expert witness fees would be to punish the claimant by allowing the employer to disproportionately benefit from the employee's successful... pursuit of tort remedies."

Accordingly, the court ordered that Apache's offset be adjusted by the amount of Ms. Burns's expert witness fees, which effectively reduced Apache's benefits offset to zero.

The Court of Appeal's ruling reflects the purpose of the workers' compensation scheme of protecting Louisiana families when workers are injured on the job. To have disallowed the consideration of Ms. Burns's expert witness fees would have left her worse off than if she had not pursued her tort claim against Dodson in the first place: Ms. Burns would have received reduced death benefits from Apache and would have been left with a hefty expert witness bill. Since Apache was not 100 percent responsible for the incident that killed Barry Burns, the court appropriately demanded through its decision that any other at-fault party share in the duty to make Ms. Burns whole.

If you have been injured on the job, talk to an attorney who can help you understand your rights under the workers' compensation laws and help you get the benefits your deserve.

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