money-4-1238890-768x1024In workers compensation cases, the awarded money benefits can be offset in court to account for other benefits being received by the employee for the same injury like social security disability benefits. If the employer seeks to have the workers compensation benefits offset to account for social security disability they will need to file a “Motion for Recognition of Right to Social Security Offset” pursuant to La. R.S. 23:1225(A). The Louisiana First Circuit Court of Appeal was recently faced not only with a motion to offset due to social security disability but whether or not to include attorneys fees in the pre-offset amount or not. These particular issues arose out of a lawsuit brought by Stephanie Nitcher against Northshore Regional Medical Center (Northshore) for compensation for temporary or permanent total disability benefits, medical treatment and attorney fees.

On October 30, 2012, Ms. Nitcher was awarded workers compensation benefits including $86,871.84 in past due indemnity, $13,181.13 in interest and $550.47 in appeals costs all from Northshore. In addition, Northshore was ordered to pay Ms. Nitcher permanent total disability benefits in the amount of $329.96 per week from the date of the judgment forward. Ms. Nitcher in addition to the workers compensation benefits being paid by Northshore was receiving social security disability benefits pursuant to 42 U.S.C. § 423. On December 19, 2013, Northshore filed its motion for recognition of the offset of the social security disability benefits, which serves the purpose to allow an employer to offset the amount of money it’s paying out when the employee is essentially receiving payment for the same disabilities from both state and federal entities. The offset sought by Northshore would reduce their weekly payments to Ms. Nitcher by $115.52.  Prior to the hearing on Northshore’s motion, Ms. Nitcher filed to have her attorney’s fees taken out of her weekly workers compensation benefits, resulting in $65.81 coming out of the previously awarded $329.96. Northshore’s offset calculation did not deduct the $65.81 prior to calculating the $115.52 offset which resulted in their motion being denied and the judge ordering that Northshore’s offset amount be $49.71 a week lowering the original $329.96 to $279.35.

On appeal Northshore contends that the judge erred in denying the offset amount of $115.52, claiming that pursuant to La. R.S. 23:1225(A) the attorney’s fees did not need to be deducted prior to the offset calculation. The First Circuit Court of Appeal in determining the social security offset first looked to La. R.S. 23:1225(A) which states that the benefits provided for injuries resulting in permanent total disability will be reduced when the person is also receiving benefits under 42U.S.C. Chapter 7 (42 U.S.C. 423) which applies in this case since Ms. Nitcher is receiving benefits both from workers compensation as well as social security disability. From here the appeals court went on to determine how the offset should actually be calculated, the specific issue here being whether or not to calculate pre or post attorney fee deduction. The prior judgment approved the attorney fees deduction from the calculation referring to statutory attorneys fees which do allow for deduction prior to offset calculations, the fees at issue are however not statutory attorneys fees. The attorney’s fees, in this case, are limited by statute but not authorized by statute which would make them statutory attorney fees. The court went further to determine that since there is no Louisiana law that requires an employer to pay attorneys fees in connection with a workers compensation claim, that the only way to do so would be if it were a punitive order. That is however not the case here and since Ms. Nitcher does owe the attorneys fees it was properly deducted from her disability benefits, but Northshore was improperly made responsible for the fees by including the deduction in their offset assessment.

residence-1226143-768x1024In joint real estate ventures, all partners are presumed to be equal unless agreed otherwise. All parties should have equal decision-making power, share equally in gains and losses, and possess equal interests in the subject property. Cooperation among the partners is essential to the success of the venture. Each person must enter into the transaction with an open mind towards other partner’s ideas and business tactics. However, when one person uses the other partners for his own personal gain, litigation usually follows. This was the unfortunate situation in the following case.

The defendant, Mr. Paul Barranco, wanted to purchase three apartment complexes in Baton Rouge, LA as investment properties. After failing to obtain financing on his own, he enlisted the help of Plaintiffs, Mr. Brignac and Mr. Godchaux. The three parties formed God-Brig-Bar, LLC. Plaintiffs sent their tax information to Mr. Barranco for the purposes of obtaining financing. Mr. Barranco advised Plaintiffs that he was selling another apartment complex located on Ned Drive in Baton Rouge and that the proceeds from that sale may be used as a down-payment on the three apartment complexes. Each Plaintiff gave a check to Mr. Barranco for their one-third deposit amount on the three complexes in the amount of $10,000.00 each.

Mr. Barranco deposited the funds and advised Plaintiffs that Palisades Properties expressed interest in acquiring the purchase agreements to the three properties. The sale of the three complexes to Palisades Properties would yield $1,132,000.00 in profits to be split three ways. Mr. Barranco drafted and signed a letter of intent in his name only to Palisades Properties, stating that he would sell it the three purchase agreements, one for each complex. Plaintiffs advised Mr. Barranco that they wanted the letter of intent changed to include all of their names. Mr. Barranco refused to do so and asserted that it might scare off the potential buyer since they were already nervous about such a large investment.

parking-lot-d-1234500-1024x587Parents love their children very much. It is always a difficult experience to involve a child in a lawsuit. Such an emotionally difficult experience can be soothed by having the best attorney possible. Losing a lawsuit on behalf of one’s child is a traumatic experience, especially after an accident. This is exactly what happened in a recent case of the Louisiana First Circuit Court of Appeal.

In January 2011, the Gaspards were leaving a Winn-Dixie store in Covington, Louisiana walking with their son in a baby carrier through a marked pedestrian zone. Suddenly, they were struck by a vehicle. In May 2011, they filed a lawsuit on behalf of their son against the driver of the vehicle, Anna Lewis; Safeway Insurance Company, the liability company that insured Lewis’ vehicle; and Geico General Insurance Company, the Gaspards’ uninsured or underinsured motorist carrier. Later, the Gaspards added Winn-Dixie Louisiana, Inc., Winn-Dixie Montgomery Leasing, LLC, and Gordon Konrad, the owner of the parking lot, and his insurers as additional defendants. The Gaspards alleged that these additional defendants had been negligent in the parking lot’s maintenance and design. The Gaspards further alleged that the Winn-Dixie and Konrad knew or should have known of the danger to pedestrians in the parking lot and had failed to take the appropriate measures to protect pedestrians.

In 2014, Winn-Dixie and Konrad filed a motion for summary judgment, arguing that the case should be thrown out because the Gaspards were unable to show a connection between the parking lot and their injury. Later, the Trial Court dismissed Gaspards’ claims were dismissed. The Gaspards appealed.

find-money-1182912-1024x768Louisiana law awards damages awarded for injuries caused by the intentional, negligent or reckless act of another. These damages are determined by the finder of fact – a jury or judge – after hearing the evidence presented at trial. Even if the factfinder finds that the defendant is at fault, sometimes it is not clear cut what type of damages should be awarded and what amount is proper. A recent case out of Livingston Parish demonstrates how courts in Louisiana allocate damages in personal injury cases.

Vandi McMurry was involved in a motor vehicle accident with James Commander, who was insured by Louisiana Farm Bureau Casualty Insurance Company. The Trial Court awarded McMurry a $25,000 lump sum award in general and special damages. General and special damages are the most common types of damages awarded in personal injury cases. General damages are the natural result of the defendant’s wrongful actions. Special damages compensate an injured party for actual financial losses. McMurry appealed the judgment to the Louisiana First Circuit Court of Appeal, arguing the Trial Court erred in granting a lump sum and the award should have been higher.

In Louisiana, the factfinder has discretion when it awards damages because it can best evaluate witness credibility and examine the evidence. See La. C.C. art. 2324.1. A court of appeal will normally not a modify a trial court’s damage awards. See O’Connor v. Litchfield, 864 So.2d 234, 237 (La. Ct. App. 2003). A lump sum judgment generally awards all claimed damages. In Louisiana, a trial court is not required to itemize the damages and does not err by granting a lump sum award.

train-sign-1445304-683x1024When a driver fails to satisfy the standard of care, the driver’s negligence during an automobile accident may be considered in a lawsuit. The standard of care is the amount of caution that must be exercised by a person who is under a duty of care. A case out of Ouachita Parish demonstrates the special rules that a left-turning driver must follow and the presumption of negligence that attaches to a left-turning driver.

On the evening of November 11, 2011, while attempting to turn left, Cheryl Baker collided into Eloise Square’s vehicle at the intersection of Winnsboro Road and Highway 165 in Monroe, Louisiana. The traffic light was green in both directions. Baker’s vehicle was damaged across the front. Square’s vehicle was damaged along the front driver’s side.

On March 13, 2012, Baker filed a lawsuit against Square and her insurer, State Farm Mutual Automobile Insurance. On March 26, 2012, Square filed a lawsuit against Baker and her insurer, USAgencies. On May 12, 2012, these lawsuits were consolidated. On December 14, 2012, Square’s lawsuit was settled and dismissed.

welder-1241607-1024x683The Louisiana Workers’ Compensation Act aims to protect employees who suffer on-the-job injuries. But in order to benefit from the act, plaintiffs have the burden of proving their claims. This means providing clear and convincing documentation of your injuries and work limitations. In a recent case, the Louisiana Second Circuit Court of Appeal found that the plaintiff failed in meeting this burden of proof.

Celia Sanchez was a card dealer at the Horseshoe Casino in Bossier City Louisiana which is owned by Caesar’s. She injured her back and hip in 2011 when she slipped and fell on a metal ramp at the Horseshoe Casino. In September 2013, Ms. Sanchez filed a disputed claim for compensation against her employer seeking indemnity benefits, medical treatment, penalties and attorney fees.

Caesar’s filed a request with the medical director of the Workers’ Compensation Administration that Ms. Sanchez undergo an independent medical examination (“IME”) with Dr. Robert Holladay. Ms. Sanchez opposed the request for IME and requested that the Workers’ Compensation Judge (“WCJ”) find that no IME was warranted. In the alternative, she requested that the WCJ appoint a physician trained who had fellowship training in spine surgery and actively treats spine patients. Dr. Holladay lacked both of these qualifications.

coloured-peppers-1319797-1024x768Appellate courts are reluctant to reverse a trial court’s judgment based on the argument the trial court failed to properly evaluate the evidence. Deference to a lower court is the norm. A recent decision by the Louisiana First Circuit Court of Appeal in DeBlanc v. Albertson’s highlights the principle of judicial deference.

The case’s origins lie in a workers’ compensation claim. Sidney DeBlanc III worked at Albertson’s as a produce clerk. On December 28, 2009, DeBlanc allegedly injured his back while he lifted a box of apples to place them on a cart. He then took a break, finished his shift, and went home but failed to mention the accident to a supervisor. None of his fellow employees witnessed the incident. His mother notified the store later. Two days after the accident, DeBlanc visited his personal physician, received a referral to a specialist, and he later filed a claim for workers’ compensation.

In March 2012, Albertson’s disputed the claim with the Office of Workers’ Compensation. The supermarket challenged whether DeBlanc injured his back on the job and if the specialist’s surgery recommendation was related to his employment with them. The case went to trial, and the Workers’ Compensation Judge (WCJ) found DeBlanc proved his injury and was entitled to disability benefits and the recommended surgery. Albertsons then appealed, based on the argument the WCJ’s judgment was not supported by the evidence.

old-woman-1437938-681x1024According to the Alzheimer’s Association, 5 million people are currently living with Alzheimer’s disease. Statistics also show that people age 70 are 61% more likely to die from the disease before they turn the age of 80, compared to 30% of the people living without it. So what is Alzheimer’s disease? It is a type of dementia that causes problems with memory, thinking, and behavior. Symptoms worsen over time, rarely get better and are so severe that they can interfere with the daily lives of these individuals. A recent case out of the Louisiana First Circuit Court of Appeal is illustrative of just some of the hardships those who suffer from Alzheimer’s disease face.

In 2014, A St. Tammany Parish Trial Court decided that Shirley Fichtel, an elderly woman, needed an interdiction. Interdiction requires another person or persons to help the interdicted person to care for themselves and/or their personal affairs.  This decision came after three different doctors determined that Shirley was no longer capable of caring for herself, her property or her finances. She could not keep her house clean and on several different occasions she had gotten lost while driving, experienced hallucinations, and had her utilities cut off. She was diagnosed as having “Alzheimer’s dementia” and tremors by all three doctors. Her son Matthew testified that Shirley repeated the same things over and over again while speaking and could not remember one conversation to the next. Shirley’s daughter Gretchen testified that she had been handling her mom’s finances for over twenty years.

Shirley believed that her property could have been handled by less restrictive means other than an interdiction and therefore she is appealing her interdiction. She believed that her current caregiver could take care of her as she had been the five weeks before trial. The Court of Appeal found that the caregiver had not been around Shirley enough to handle this task and believed the testimony of her lifetime doctors and her children, who had more time to spend with her, were more valuable than the caregiver.

money-1537580-781x1024Concursus proceedings can be complicated. In a concursus proceeding, multiple parties assert competing claims to money or property. La. C.C.P. art. 4651. These types of proceedings are designed to free the court from the burden of dealing with multiple lawsuits. As a party to a concursus proceeding, you assert your claims to a particular piece of property against all other claimants. This necessitates a good lawyer, as demonstrated by a recent case of the Louisiana First Circuit Court of Appeal.

In 2010, Joseph Shows was injured in an automobile accident that left him with extensive bodily injuries and significant medical expenses. Fortunately for Mr. Shows, he had prepared for such events by obtaining uninsured/underinsured motorist (“UM”) insurance through Farmers Insurance Exchange in the policy amount of $100,000.  He was also covered under a health benefits plan provided by his employer Trimac Transportation, Inc., administered by Blue Cross and Blue Shield of Texas, Inc. (“BCBSTX”).

After the accident, Shows was able to recover $25,000 from the at-fault driver’s insurance company, Allstate, in addition to $63,933.34 of Shows’ $100,000 Farmers UM policy limit. However, one question remained: Who would receive the remaining balance of Mr. Shows’ UM policy limit, totaling $36,066.66?  Farmers filed a concursus petition against Mr. Shows and BCBSTX to recover the remaining balance.

frog-eye-1-1398595-1-1024x768“An eye for an eye will only make the world blind,” said Mahatma Gandhi. In a recent case, the Ritz-Carlton Hotel Company, LLC claimed that one of its employees filed a lawsuit against it as retaliation for her dismissal from the company. The Louisiana Fifth Circuit Court of Appeal was faced with the question of whether that employee actually suffered a compensable work-related injury or whether her claims were suspect.

Phyllis Summers was a hairdresser, nail technician, and makeup artist at the Ritz. On March 2, 2013, she arrived early to perform a pedicure for a guest. But her day took a turn for the worse as she slipped and fell from water leaking from one of the pedicure tubs. The Ritz suspended her employment on May 3, 2013, and later terminated her on May 16, 2013, for repeated violations of Hotel policy. Ms. Summers then filed a Workers Compensation Claim (“WCC”) on June 7, 2013, seeking compensation for a work-related injury. The Workers’ Compensation Judge (“WCJ”) granted her wage and medical benefits, along with penalties and attorney fees. The Ritz and Marriot Claims Service (“MCS”) appealed, arguing that Ms. Summers filed the lawsuit as an act of vengeance.

In reviewing a WCJ’s decision, the Court of Appeal may only overturn conclusions if a close examination of the facts in the entire court record shows that the WCJ was “clearly wrong.” See Dean v. Southmark Constr., 879 So.2d 112 (La. 2004).  In reviewing this case, the Fifth Circuit assessed whether (1) Ms. Summers’ accident was job-related; (2) her accident resulted in injury, or resulted in making an injury she already had worse; (3) she was entitled to temporary total disability (“TTD”); (4) she was entitled to supplemental earnings benefits (“SEBs”); (5) the injury warranted medical, medication and travel expenses; and (6) she had a right to penalties and attorney fees.