Business Dispute

March 14, 2023

Employee vs. Independent Contractor. When is an Employer Responsible for Negligence?

nyc_taxi_taxi_berlin-1024x768 Often people are injured by a person who appears to be an employee of a company. However, just because someone seems to be working for a business doesn’t necessarily mean they are an employee. If you’re hurt by an employee of a company and want to seek damages, whether the person is an employee or an independent contractor could make a big difference in your case. The following case explains the difference between an employee and an independent contract for determining who will be liable for the injured party’s claims.

In January 2013, a cab driver was involved in a crash in Shreveport, Louisiana, where the cab passenger, Ms. Franklin, was injured. The cab driver, Mr. Gary Dick, leased the taxicab from Crawford and Yellow Checker Cab Company each day for $85. However, Mr. Dick kept all proceeds from his driving, and the cab companies received the same $85 a day regardless of how much Mr. Dick made. As a result, Ms. Franklin filed a lawsuit against Dick, Crawford, and the Yellow Checker Cab. Filing a lawsuit against all the possible defendants who may be liable is customary after an auto accident, as before litigation Ms. Franklin would have no way of knowing whether or not Dick was an employee or an independent contractor.

The cab companies filed a partial summary judgment motion arguing that there was no employee/employer relationship between themselves and Mr. Dick. Therefore, if successful, the cab companies would not be liable to Franklin for any of her injuries caused by the car accident, only Dick would. The trial court granted the motion in favor of the cab companies, and Franklin appealed the ruling.

March 13, 2023

How can I Remove the Executor of an Estate in Louisiana?

by Berniard Law Firm

hand_writing_pen_people-1024x683 Removal of estate executors can be difficult and require many hours of work. Not only does a petition need to be filed with the court, but the executor being removed must be notified, which often results in a legal battle. Things can become even more complicated when long-lost relatives appear. The following case discusses how the heirs of an estate may seek to remove the executor.

George Fisher died in a car accident. He was not married and had no surviving parents at the time of his death. However, there was a man by the name of Shawn Poullard (Poullard) who claimed to be Mr. Fisher’s son. This posed an issue for Harry Fisher, Mr. Fisher’s uncle and the executor of his estate.

In 2015, Poullard, and a few other relatives, reached an agreement that gave Pollard ownership of some property within Mr. Fisher’s estate and ordered Harry Fisher, as executor, to pay Poullard from a lawsuit from Mr. Fisher’s car accident. The judgment also dismissed any claims the parties had amongst themselves with prejudice.

February 27, 2023

Will My Business Car Uninsured Motorist Coverage Provide Coverage for a Personal Vehicle?

by Berniard Law Firm

chalmette1972stbernardhwy-1024x664 Car accidents are common and complicated. Wrecks can involve company cars, ride shares, and large commercial vehicles, all with different types of insurance. Impacts can occur while driving on a work errand. All these different types of accidents invoke numerous insurance questions. Questions such as; If you are out driving on a work errand, will your business’s uninsured motorist insurance provide coverage? The Louisiana Court of Appeals grappled with these issues in a recent appeal.

Dr. Kenneth Allan, a Chalmette based veterinarian, is the sole member of Chalmette Pet Wellness Clinic and Hospital. Dr. Allan was transporting a dog to his clinic when he was rear-ended. Dr. Allan was driving a vehicle in his wife’s name and sustained injuries from the car accident. Dr. Allan sued his uninsured motorist insurance carrier, Bankers, which provided coverage for his work vehicle to recover compensation for his injuries.

Bankers balked at paying his claim. Bankers and Dr. Allan asked the court to settle the coverage issue by filing summary judgment motions. They asked the court to determine if the Bankers policy provided uninsured/underinsured motorist insurance coverage for vehicles not owned by the pet clinic. The trial court ruled in favor of Dr. Allan, stating that Bankers should cover his claim. An appeal of the decision followed.

April 17, 2020

Employment Discrimination in New Orleans: The Difficulty is in the Proof

by Berniard Law Firm

man-fixing-vehicle-engine-2244746-1024x683 Workers in the State of Louisiana are protected by laws that prohibit employment-based discrimination. But often, the litigation process is complicated; employees who believe they are victims of discrimination and harassment face a challenging burden of proof in order to recover from their employer.

Mr. Hui Chen worked as an equipment mechanic for Ochsner Clinic in New Orleans. Chen routinely exceeded expectations during his annual performance reviews, but his employer suggested that he develop his technical skills, communication ability, and confidence in order to better resolve certain recurring issues on his own and with a team. Chen declined his employer’s recommendations for training and eventually refused to sign his performance evaluations.

When Chen injured his ankle at work, he took three months off for recovery. During Chen’s leave, a back-up mechanic assumed his responsibilities and discovered numerous quality control issues that Chen should have repaired as part of his routine work. When Chen returned from leave, he disputed the needed repairs; nevertheless, he received a corrective action and was ultimately placed on probation for failing to properly assess and diagnose the issues. Because Chen claimed his ankle pain interfered with his duties to perform daily inspections, he performed only six out of 25 scheduled inspections and was ultimately terminated for insubordination.

April 15, 2020

Employer Found Not Liable for Alleged Violations of the ADA and FMLA

by Berniard Law Firm

4k-wallpaper-4x4-auto-automobile-1149058-1024x683 There are multiple federal laws that affect the employer-employee relationship. Two such laws are the Americans with Disabilities Act (“ADA”) as well as the Family Medical Leave Act (“FMLA”). Lawsuits involving the laws often involve employees suffering from difficult circumstances. Such circumstances can become even more difficult if an employer does not comply with their duties under these laws. By ensuring compliance with these and other employment laws, employers can not only help their employees through difficult circumstances, but also avoid liability themselves.

Liza C. Ariza (“Ariza”) began working as a guard and drove a protected truck for Loomis in February 2008. Ariza claims that at the time that she interviewed for the job, she informed the branch manager that she had seizures. However, the branch manager denied that Ariza had ever told her that she had seizures or another disability. Ariza did not mark that she had seizures or another disability on Loomi’s employment forms. She also did ask for any ADA accommodation in the relevant portion of the form.

In September 2008, Ariza claimed that she underwent a fainting spell or seizure while she was driving a protected truck. Her coworker, who was driving in the truck with Ariza when the alleged incident occurred, testified that he did not see anything indicating a seizure. The records from the emergency room stated that Ariza had suffered a fainting spell. Following this incident, Ariza kept driving the protected truck and did not ask for any accommodations. In 2011, Ariza was promoted to a supervisor position. Ariza claimed that she was moved to this position to accommodate her disability, but Loomis countered that she had requested the new position because of demands from her schoolwork. In June 2012, Ariza allegedly had another seizure at work. At Loomis’s request, Ariza took FMLA leave.

February 5, 2020

When Is a Non-Competition Clause too Broad for an LLC?

by Berniard Law Firm

person-writing-on-notebook-669615-1024x678 Non-competition, or non-compete, clauses are a common part of business and employment agreements. They serve to prevent one party from taking knowledge or trade secrets to a competing business. Like any contract, these agreements are sometimes scrutinized to make sure they are actually fair to all parties. Courts will not uphold such clauses that are so limiting as to be unjust. In 2017, the Fifth Circuit of Louisiana considered such an agreement.

The parties to this case, Frederick Yorsch and Stephen Morel, were business partners in Metairie, Louisiana. They ran NOLA Title Company, L.L.C., which provided services related to the selling of real estate, such as title insurance. They also began a separate company, My Tax Sale Resources, L.L.C., which provided tax services related to real property sales. Both parties signed an agreement that included a non-circumvention and non-competition clause. At some point, Mr. Morel began working for CivicSource, a competing company. Mr. Yorsch, the plaintiff, sought to have the court enforce the clauses within their agreement with an injunction . The trial court ruled that the clauses were too restrictive on employment opportunities and were unenforceable. Mr. Yorsch appealed.

The issue for the Fifth Circuit was whether such broadly written clauses are impermissible. Louisiana law, as a policy, seeks to prevent people from losing their ability to work. Restored Surfaces, Inc. v. Sanchez, 82 So.3d 524 (La. Ct. App. 2011). Thus, courts will not enforce any contract or agreement that would restrain anyone from “exercising a lawful profession, trade, or business of any kind” except in very specific circumstances. La. R.S. 23:921. One exception is that members of limited liability companies may agree not to be involved in similar business as the company of which they are members within a certain parish or municipality. La. R.S. 23:921(L).

January 12, 2020

What Happens When Someone Won’t Repay the Money I Loaned Them?

by Berniard Law Firm

1-us-bank-note-47344-1024x724 Benjamin 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.

November 28, 2019

Alexandria Business Loses Malpractice Case for Postponing Lawsuit

by Berniard Law Firm

36-Email-06-24-19-PHOTO-1024x569 Terms of Sale commonly include an “escape clause,” which gives the buyer a way out of a contract if unplanned circumstances arise. It is often a lawyer’s obligation to ensure that this clause is present in a contract, because if the lawyer fails to include one, this could result in malpractice. However, in order to receive recovery from the malpractice, the aggrieved party must promptly bring a lawsuit. The Longs family of Long’s Preferred Products, Inc. in Alexandria, LA, learned this the hard way when they sued their lawyer in the Ninth Judicial District Court Parish of Rapides for not including an escape clause in a stock purchase.

Charles Elliot represented the Longs in a stock purchase of $500,000 worth of shares from Linda Minton. On March 28, 2011, both parties agreed to the Terms of Sale and on April 29, 2011, the Longs signed the $500,000 promissory note that promised payment to Linda Minton. The Longs relied on receiving loan approval in order to pay on this note, but on August 11, 2011, the Longs’ loan was denied. Twelve days later, they discovered that they were sued to enforce the promissory note. The Longs hoped that an escape clause in the Terms of Sale would relieve them from the duty to pay; however, their lawyer, Elliot, failed to include one.

In May 2013, the Longs spoke with a different lawyer, and on April 28th, 2014, the Longs sued Elliot for malpractice in the Ninth Judicial District Court. The District Court ruled that this lawsuit was perempted, which means that the Longs lost their right to bring a lawsuit.

November 19, 2019

Eunice Police Chief Comments about Business Owners Found Defamatory

by Berniard Law Firm

62-Email-06-24-19-picture-1024x768 Running a small business is a challenging endeavor that can prove even more difficult if someone publishes false information about your company. This is situation is exactly what happened to husband and wife Robbie and Susan Arnaud, owners of Robbie’s Wrecker Service, a towing business located just outside Eunice, Louisiana.

In fall 2010, Ronald Dies was elected Police Chief for City of Eunice, effective January 1, 2011. Eunice Police Department’s rotation list for situations needing a wrecker service had previously included Robbie’s Wrecker Service. However, after being elected, Dies took action to remove Robbie’s Wrecker Service from the list. In a letter dated December 31, 2010, Dies told the Arnauds that their business would be removed from the list effective January 1, 2011, and that only wrecker services headquartered inside Eunice City limits could be on the list. On January 3, 2011, Dies spoke with a reporter for a local newspaper, The Eunice News, and stated that there had been numerous complaints about the company’s selective response to calls. This claim of “numerous complaints” formed the basis of Arnauds’ defamation claim.

The required elements in a defamation claim are (1) a false and defamatory statement involving another, (2) an unprivileged publication to a third party, (3) fault (at least at the level of negligence) of the publisher; and (4) resulting injury. See Costello v. Hardy, 864 So.2d 129 (La. 2004). At trial, the court held that the Arnauds had not proven either defamation or damages and dismissed all of the Arnauds’ claims against Dies. The Arnauds appealed.

August 20, 2019

How To Avoid Your Lawsuit Being Dismissed Because Of No Cause of Action

by Berniard Law Firm

mercantile-bank-building-dallas-1228577-771x1024 There is no shortage of frivolous lawsuits. As a result, courts have developed many different ways to nip these sorts of lawsuits in the bud. One way is by allowing defendants to file an exception of no cause action, which is essentially a request that asks the court to drop the plaintiff’s lawsuit because there is no factual support to justify the lawsuit. In the case below, the plaintiff truly believed she was wronged by her employer, but because the facts she provided in her lawsuit did not support a valid claim, her lawsuit was ultimately denied. So, how can you avoid your lawsuit being dismissed by no cause of action in Louisiana?

Gina K. Lusich worked as the branch manager at Capital One Bank in St. Bernard Parish, Louisiana. Lusich’s employment with Capital One was terminated in June 2013. She then filed a lawsuit against Capital One for wrongful termination. Lusich argued in her petition that she was terminated wrongfully because of a false accusation claiming that she instructed other employees to falsify time cards. She also claimed that her personal property was stolen by Capital One. Capital One responded by filing an exception of no cause action. The trial court granted this exception in favor of Capital One, and Lusich appealed to Louisiana’s Fourth Circuit Court of Appeal.

When an appellate court reviews an appeal of an exception of no cause of action, it must examine the sufficiency of the claims within the lawsuit. In other words, the court must seek to determine whether the law can sufficiently provide a remedy for the plaintiff. Badeaux v. Southwest Computer Bureau, Inc., 929 So.2d 1211, 1217 (La. 2006). In doing so, the court must accept the facts as stated by the plaintiff’s petition to be true, asking whether the plaintiff would be entitled to a remedy based on those facts. Jackson v. State, 785 So.2d 803 (La. 2001). However, the lawsuit should be dismissed if the plaintiff cannot show some theory under which he can prove the facts that would support his claim. Wallace C. Drennan, Inc. v. Sewerage & Water Bd. of New Orleans, 753 So.2d 861 (La. Ct. App. 1999).