person-grilling-sausage-and-meat-1857732-1-1024x683The interests of justice are best served when the evidence in a lawsuit is new. This is because any potential witnesses can corroborate or deny evidence presented at trial with a fresh memory of the events or documents. Personal injury cases in Louisiana follow this principle with a one year deadline called the peremptory exception of prescription. A recent lawsuit between New Orleans family members demonstrated the value of having an excellent attorney who knows when these deadlines begin to run.

On April 20, 2014, Cynthia Dent attended an Easter party at Genevieve Willis Dent’s home in New Orleans. While walking in the backyard, Ms. Dent stepped into a hole. This hole was covered by outdoor carpet and was not visible. As a result of the accident, Cynthia Dent experienced pain and swelling in her left foot and ankle. Two days later, on April 22, 2014, Cynthia Dent went to the doctor for x-rays and eventually found out that she broke her left foot.

One year and three days after the original accident and one year and one day after her diagnosis, on April 23, 2015, Ms. Dent filed a lawsuit against Genevieve Dent and Genevieve’s home insurance company, State Farm Fire and Casualty Company. In response, Genevieve Dent and her insurance carrier filed a peremptory exception of prescription. This peremptory exception of prescription is used by defendants for a variety of reasons, which basically argues that there is no legal remedy for the plaintiff’s alleged injury because the lawsuit was brought too late. In Genevieve Dent’s case, she raised the peremptory exception of prescription because Cynthia Dent filed her lawsuit past the one year deadline. The Trial Court held a hearing on the peremptory exception of prescription and agreed with Genevieve’s argument. The lawsuit was dismissed. Cynthia Dent then appealed.

bed-empty-equipments-floor-236380-1024x678Medical malpractice lawsuits have a one year deadline for a patient to bring a lawsuit. This is called the peremptory exception of prescription. This deadline attempts to provide the patient with enough time to figure out they have been wronged by a doctor, while also providing doctors with protection against claims several years old where the evidence can be less reliable. With the help of an excellent attorney, a New Orleans doctor was able to deal win a lawsuit that was brought over two years after a visit with a patient.

In May of 2013, Mario Hurst went to the emergency room at the University Medical Center in New Orleans. Mr. Hurst’s symptoms included a bad cough, bloody phlegm, loss of appetite, bloody stool, and pain in the left section of his chest. He was seen by two doctors, Dr. Heather Murphy Lavoie and Dr. Thomas Clay Crouch.  Dr. Lavoie initially saw Mr. Hurst but sent him to Dr. Crouch, who performed several tests. Along with routine testing, Dr. Crouch ordered a chest x-ray, blood work, urine and stool samples, and an EKG. As a result of the testing, Mr. Hurst was diagnosed with an upper respiratory infection and instructed to see his regular physician for a follow up appointment.

After his symptoms continued for two years, on July 13, 2015, Mr. Hurst brought a lawsuit for medical malpractice against Dr. Lavoie. Dr. Lavoie responded by invoking an exception of prescription because there is a one year deadline on medical malpractice cases. Since the initial visit was May, 21, 2013 and the lawsuit was not filed until July, 13, 2015, the Trial Court agreed and ruled in favor of Dr. Lavoie. Mr. Hurst then appealed.

chairs-classroom-college-desks-289740-1024x683Most American’s have experienced some type of driving school, either during school or after school at a private driving school. Regardless of whether you took driving classes during school or after school, the individuals teaching the classes and the organization sponsoring the classes had licenses. In Louisiana, the Louisiana Department of Public Safety and Corrections, Office of Motor Vehicles (“OMV”) provides licenses for two types of courses – a fourteen-hour course for individuals over eighteen who have never had a license, and a thirty-eight-hour course, for individuals under eighteen.

This case asks whether an appellate court may review a case that is not per se a final judgment. Typically, appellate courts only have jurisdiction to review a final judgment, which is a judgment that determines the merits of a case. La. C.C.P. art. 1841. While not all claims may be reviewed by an appellate court, a final judgment is appealable in all causes. Here, we deal with a case in which not all of the claims had been adjudicated in lower courts.

Bosley’s Driving was licensed to instruct the fourteen-hour courses. Additionally, it had applied and been denied the license to teach the thirty-eight-hour courses in both 2012 and 2013. While Bosley’s Driving never obtained a license to teach the thirty-eight-hour courses, it issued certificates of completion to nine students in 2013 and 2014. As a result, in March 2014, Bosley’s Driving was issued a cease and desist as a driving school and a third-party tester due to instructing the thirty-eight-hour driver course without approval. Bosley’s Driving appealed the revocations to the Division of Administrative Law, alleging that the OMV’s treatment of him violated the Louisiana Unfair Trade Practices Act because it was shutting down his business.

black-train-on-rail-and-showing-smoke-72594-1024x727Everyone has experienced or knows about a situation in which a governmental body was liable for damages or injuries caused. When suing a city in Louisiana, there must be some evidentiary support for the elements required under La. R.S. 9:2800. Otherwise, cities would be getting sued for every crack in the sidewalk that someone tripped over. While the situation in this case was more serious than a crack in the sidewalk, there are limits, all the same, to ensure that the city is not liable for another’s wrongdoing. The question in this case is who is responsible for the failure to maintain proper signage at railroad tracks? And if the signage is not enough who is held responsible?

In this case, TG was working as an engineer on a Union Pacific train that was traveling north on a path that would cross Cedar Street in Grosse Tete, Louisiana. DA was driving a road grader traveling west of Cedar Street when he attempted to cross the train tracks. Unfortunately, DA was not able to drive across the train tracks and was subsequently struck by the train, causing his death. TG was allegedly injured and filed suit for damages against the Department of Transportation and Development (“DOTD”), Mr. DA and the Union Pacific Railroad Company, alleging the defendants were at fault for the injuries sustained when the train struck the road grader. DOTD claimed that it was not at fault, but instead that the Village of Grosse Tete was at fault for a number of reasons, including failure to maintain the roadway surface and warning devices.

As a result of DOTD’s claims, Goodmond filed an amended petition adding the Village of Grosse Tete as a defendant, for which it denied liability. The Village of Grosse Tete claimed that the plaintiff lacked sufficient support to establish the required elements to find it liable for the injuries Goodmond sustained. 

alcohol-architecture-bar-beer-260922-1024x576Almost all companies have insurance policies to protect them from liability that may arise during the course of business. In this case, the defendant, Reggie’s, had a commercial general liability (“CGL”) policy through Century Surety Company (“Century”). Generally, an insurance company may limit coverage, so long as the limits to not conflict with any laws or public policy, and when there is a limit, the insurance contract must be strictly construed against the insurer. La. C.C. art. 2056. This means that if there are any ambiguities in the exclusion or limitations, they are construed in favor of the insured. See Edward v. Daugherty, 833 So.2d 932, 940 (La. 2004). Here, the question that arose is whether the August 22 fight at Reggie’s bar was excluded under the policy provided by Century under the assault-and-battery endorsement exclusion.

On August 22, 2010, Juan Mendez (“Mendez”) was at Reggie’s bar when he allegedly threw a drink in another patron’s face. Mendez was then escorted out of the building by Evan Vincent (“Vincent”) a bouncer at Reggie’s, and a defendant in the case. After Mendez was removed from the building, he was injured when Vincent picked him up and forced him to the ground. The police and EMS were called, but Vincent was not charged.

Mendez subsequently filed a civil suit for damages against Vincent, Reggie’s, and Century. Following a hearing, the trial court granted summary judgment in favor, finding that the August 22, incident was not covered by Century. The plaintiff appealed, arguing that the incident was not precluded from coverage because the bodily injuries were intended and resulted from the use of reasonable force to protect persons or property.

1-us-bank-note-47344-1024x724Benjamin Franklin had good reason to make the statement, “neither a borrower nor a lender be.” The potential for risk on either side of the transaction is significant. Be it the likelihood of not getting paid, or the possibility that you will not be able to repay the debt, many find that it is better to avoid the perils of money lending altogether. But that is just not practical. The way big plans are realized is often with money we do not yet have. And loaning money at interest is usually a great short-term investment, if you have the cash to spare. How do we assure our debt agreements will hold up in court?

On February 24, 2014, New Orleans resident Lois Guillory made a $40,000 loan to Percy Goulette and Alan Sagely, with interest totaling $5,000 and due in one year’s time. The parties signed a promissory note memorializing all the terms. But once February 24, 2015 came around, Goulette and Sagely refused to pay the obligation. When Ms. Guillory filed a lawsuit to recover her investment, Mr. Goulette tried to have the claim dismissed, stating that his business Goulette Ice actually borrowed the money. Goulette claimed he and Sagely did not borrow the money individually, but signed the note in their capacity as agents of Goulette Ice. In fact, the note identified the men as owners of Goulette Ice in two places, one of which was below the signature line. This, in Goulette’s eye, meant he and Sagely were not personally guaranteeing repayment, and not liable for the loan. The Trial Court granted Goulette’s peremptory exception of no cause of action, and Ms. Guillory appealed. 

A peremptory exception for no cause of action is essentially one party asking the court to dismiss the case because there has been no offense for which to sue. These exceptions are judged solely on the pleadings, and neither party may introduce evidence to support or object to the exception. La. C.C.P. art. 931. Ms. Guillory’s original petition contained a copy of the promissory note, and the Appellate Court closely reviewed that document. 

blue-and-silver-stetoscope-40568-1-1024x683To many who contemplate filing a lawsuit for an automobile accident, it may seem sufficient to show that the other driver was at fault – show he ran the red light, she failed to signal, and then it’s all downhill from there. But one element of all negligence cases is causation. You must prove that the injuries you have were caused by the accident itself. Normally this is pretty simple, but preexisting conditions can muddy the waters. Wayne Bouchon found out the hard way that proving causation was critical to his case. 

Wayne and his wife, Roberta, were driving down Highway 22 near Mandeville on their way to get lunch when their vehicle was struck from behind. The Bouchons told the officer who came to the scene that they were not hurt, but later that day, Wayne started experiencing lower back pain. Despite the pain, the Bouchons did not file a lawsuit until nearly twelve months after the accident. 

Of the evidence presented at trial, Wayne’s medical records showed he had been treated for a back injury a few years before after lifting a heavy box. Also, the Trial Court heard testimony that Wayne had taken a job at Office Depot a few months after the accident, which required standing for long periods and occasionally moving furniture. His doctor testified to a correlation between his Office Depot job and the worsening of his symptoms. As a result, the Trial Court found that the Bouchons had not proved the accident was the cause of Wayne’s injuries, and awarded only $5,000 in minimal pain and suffering. The Bouchons appealed. 

blur-car-cars-163945-1024x683Is uninsured/underinsured (“UM”) coverage an automatic component of commercial auto insurance policies?  Are there instances when an insured can reject UM coverage in its entirety or select lower limits of UM coverage for a commercial auto insurance policy?  Although La. R.S. 22:1295(1)(a)(i) indicates that all auto insurance policies issued within Louisiana must include UM coverage, subsection 1295(1)(a)(iii) allows for a named insured to either reject UM coverage in its entirety or select UM coverage with lower limits.  In a recent case out of Calctsieu Parish, Louisiana, an employee learned that while his employer carried a valid commercial auto insurance policy with at the time of his accident, the employer executed a valid UM rejection form prior to the accident that remained in full effect.  

On June 21, 2013, Lonny Hayes, an employee of O’Neal’s Feeder Supply, Inc., sustained severe injuries in an automobile accident after Diana Gonzales failed to adhere to a traffic sign and collided with Mr. Hayes’ work vehicle.  Following insufficient recovery for damages from Ms. Gonzales’ insurer, State Farm Mutual Automobile Insurance Company, Mr. Hayes and his wife, Melissa Hayes sued their insurer, Progressive Security Insurance Company, and O’Neal’s insurer, Penn Millers Insurance Company.  Mr. and Mrs. Hayes claimed that both policies from Progressive and Penn Millers provided UM coverage from which they could secure additional funds from to cover their damages. Penn Millers denied Mr. and Mrs. Hayes’ claims, indicating that O’Neal’s executed a UM rejection form for the commercial auto insurance policy that was in full effect on the date of Mr. Hayes’ accident.  Therefore, Penn Millers argued that there was no UM coverage available for recovery. Shortly thereafter, Mr. and Mrs. Hayes filed a Motion for Summary Judgment on the issue of whether Penn Millers’ commercial auto insurance policy provided UM coverage. On January 21, 2016, the trial court granted Mr. and Mrs. Hayes’ Motion for Partial Summary Judgment, finding no valid UM rejection form existed for O’Neal’s commercial auto insurance policy in full effect on the date of Mr. Hayes’ accident and therefore, UM coverage was available for recovery.  

On appeal, Penn Millers asserted that the trial court erred in finding no valid UM rejection form existed for O’Neal’s commercial auto insurance policy in full effect on the date of Mr. Hayes’ accident.  Penn Millers argued that the UM rejection form executed by O’Neal’s on June 5, 2007, remained in full effect on June 21, 2013, because the same policy had been renewed annually from 2007 thru to 2013. Pursuant to La. R. S. 22:1295(1)(a)(ii), a UM rejection form that is executed by the insured or the insured’s legal representative and initially rejects UM coverage in its entirety or selects UM coverage with lower limits remains in full effective for the life of a policy, regardless of whether the policy is renewed, reinstated, substituted, or amended.  In support of this argument, Penn Millers produced seven declaration pages that corresponded to the commercial auto insurance policy initially issued to O’Neal’s in 2007 and subsequently renewed thru to 2013. Specifically, each declaration page after 2007 included the same identification number with an exception of changing the last two digits to signify the year the policy was in effect.    

close-up-photo-of-black-car-2470657-683x1024It is undisputed that it is always important to obtain a good lawyer to fight for you in court. But when exactly should that representation begin?

For Bobby Clay, the answer to that question was the moment her Jeep collided with Jefferia Washington’s Mercury Grand Marquis. In the city of Monroe on November 19, 2015, Ms. Clay was backing out of her driveway and hit the passenger door of Ms. Washington’s car. In order to avoid the headache of dealing with police reports and insurance claims, Ms. Clay offered to pay for the damage to Washington’s Mercury Grand Marquis. The next day, the repairs were estimated at $2,061.32. Although Ms. Clay believed this was a very high amount for the damages, she paid the full amount just three days after the accident. 

Ms. Clay proceeded to file a lawsuit for fraud, per La. C.C. art. 1953. Ms. Washington countered with a suit of her own for defamation and harassment. Both parties appeared without lawyers and both cases were dismissed. Ms. Clay appealed, this time with representation. 

blue-and-silver-stetoscope-40568-1024x683The biggest obstacle to any plaintiff in a medical malpractice case is prescription, but what is that? In the state of Louisiana, prescription is a peremptory exception that can be claimed by defendants. Prescription can be thought of as a privilege for medical professionals which exempts them from malpractice cases so long as they are working within the scope of their employment. It is typically difficult to overcome a prescription exception unless a plaintiff has solid proof of negligence. The following case is no exception. 

Caddo Parrish resident Karla Breland’s tragic story began on June 19, 2014. Her husband, Ray Breland, had a medical condition that caused his body’s ammonia levels to rise, and thus he was prescribed Lactulose. Mr. Breland developed liver complications and a recurring hernia, for which surgery was performed by Dr. Zabari. Mr. Breland was discharged eight days later, on June 27th, only to return one month later for severe abdominal pain.

 The Brelands went to the emergency room. Mrs. Breland informed several staff members throughout their visit of Mr. Breland’s need for Lactulose, yet he was only given medication for nausea and pain. The next day, Dr. Zibari  fixed the hernia without surgery and said Mr. Breland should be discharged the following day. Again, Mrs. Breland informed the nurse on duty and one of the named defendants, Nurse Vierra, that Mr. Breland needed Lactulose, but he still did not receive it. Another doctor, Dr. Jones, another named defendant, checked on Mr. Breland and advised the nurse to administer Lactulose, but when Mrs. Breland reminded Nurse Vierra of this, the nurse said that she did not have a written order for the Lactulose. The next on-duty nurse, Nurse Hayes, was informed of the same situation but again told Mrs. Breland that there was no written order for it.