Louisiana Personal Injury Lawyer Blog

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

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

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

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

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

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

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

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

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

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

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

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

The blog will resume postings in 2012!

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" »

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

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? " »

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.

"Plaintiff Lost at Seaman Claim"

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

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.

Continue reading "The Difficulties Abound in a Discrimination Case Regarding the Disabled" »

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.

Continue reading "Understanding Prescriptive Time Periods When Filing a Lawsuit" »

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.

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

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.

Continue reading "Thirty Years of Asbestos Exposure Leads to Death" »

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.

Continue reading "Contractor Not Liable for Electrocution Death in St. Tammany Parish " »

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

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.

Continue reading "Lake Charles Toxic Spill Case Explores Claims for Fear of Future Injury" »

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.

Continue reading "Municipality Must Have Notice of a Defect in a Public Walkway to be Liable for Injuries " »

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

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

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

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

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

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

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

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

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

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

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

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

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.

Continue reading "Legal Remedy for People With Mesothelioma Due to Asbestos Exposure " »

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" »

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.

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

To download the application, click here.

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.

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.

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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" »

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.

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.

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.

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.

Continue reading "Workers' Compensation, Expert Witness Fees, and the Employer's Benefit Offset" »