Articles Posted in Car Accident

semi-truck-4-1518489-1024x651During litigation, a party may attempt to claim some form of privilege as an avenue not to produce certain evidence.  There are various types of privileges that may be asserted.  One that is familiar to many is attorney-client privilege.  One that is not as familiar is work-product privilege.  Work-product privilege is claimed in civil cases and is used to keep materials that are created in anticipation of litigation from being discovered by opposing counsel.  However, to assert work-product privilege the party claiming it must be an adverse party in the lawsuit.  A non-party is not entitled to work-product privilege, as Louisiana State recently learned when the Louisiana Second Circuit Court of Appeal affirmed that work-product privilege can only be claimed by an adverse party.

In 2011, Ramanand Naik was in a car accident on highway 84 in De Soto Parish, Louisiana.  Mr. Naik was driving a Ryder box truck when a semi-truck, driven by Nathaniel Anthony, hauling a flatbed trailer carrying a boom lift veered across the center line, jackknifed, and crashed into Mr. Naik’s truck.  The impact of the crash caused the boom lift to fall off the trailer and onto the cab of the Ryder truck essentially crushing Mr. Naik and his passenger, Norman Latcha.  Following the accident, Naik filed a lawsuit against various parties and their insurance company.  Mr. Naik did not name Louisiana State as a defendant and the named defendants did not bring Louisiana State in as a third-party defendant.

Despite being a non-party to the lawsuit, ORM was brought into the case during discovery when Mr. Naik filed a notice to have ORM produce all the documents that they had pertaining to the accident. The named defendants in the case did not oppose Mr.Naik’s request.  ORM did not produce the documents leading Mr. Naik to file a motion to compel: a request to have the court force ORM to produce the documents.  ORM filed a motion to quash: a request to invalidate the motion to compel and avoid producing the documents asserting the documents were protected by the work-product privilege. The First Judicial District Court for the Parish of Caddo, Louisiana denied ORM’s motion, requiring the production of the documents based on ORM’s non-party status thus the lack of available work-product privilege.  

coke-1483373-1024x768When are you on the job? While seemingly a simple question, many personal injury cases revolve around the issue of whether an individual was acting within the scope of his or her employment. The ramifications of the answer to this question determine whether a business is on the hook for its employee’s negligence. Recently, a Louisiana Court of Appeal (“the Court”) addressed this question when determining whether a Coca-Cola Bottling Company United, Inc. (“Coca-Cola”) employee was working for the company at the time of an accident.

It all began when Ralph McFarland, a salaried employee for Coca-Cola, rear-ended a vehicle belonging to Darius Jack. Prior to the accident, Mr. McFarland had just finished meeting with his final Coca-Cola client for the day and was on his way home from work. At the time of the accident, Mr. McFarland wore a Coca-Cola polo shirt and was in possession of his Coca-Cola cell phone and laptop. Mr. Jack sued both Mr. McFarland and Coca-Cola. At trial, Mr. Jack insisted that Coca-Cola was vicariously liable for Mr. McFarland’s actions. Vicarious liability attributes the actions of a company’s employee onto the company itself. It is normally found when an employee’s action is closely connected to his or her employment duties. See LeBrane v. Lewis, 292 So.2d 216, 218 (La.1974). Courts usually consider many factors when determining vicarious liability like the payment of wages by the employer, the employer’s power of control over the employee, and the time, place, and purpose of the act in relation to service of the employer. See Orgeron on Behalf of Orgeron v. McDonald, 639 So.2d 224, 227 (La. 1994); see also Reed v. House of Décor, Inc., 468 So.2d 1159, 1161 (La. 1985).

Mr. Jack, in arguing that Coca-Cola was vicariously liable, emphasized that Coca-Cola paid for Mr. McFarland’s mileage, that Mr. McFarland met with a Coca-Cola client prior to the accident, and that Mr. McFarland wore a Coca-Cola polo shirt at the time of the accident. Coca-Cola argued against vicarious liability. It pointed out that Mr. McFarland was on his way home from work and that Mr. McFarland did not do any further work after leaving his final Coca-Cola client’s place of business. Coca-Cola also pointed to a statement made by Mr. McFarland where he said that he made a personal stop at a gas station after finishing his last appointment and that while it is possible that he could be called back to office before its closing at five o’clock he could count on one hand the number of times where that happened. Coca-Cola also emphasizes that Mr. McFarland’s typical work day was over by half past three. The trial court held that Mr. McFarland was not working within the scope of his employment with Coca-Cola at the time of the accident and that Coca-Cola was not vicariously liable for Mr. McFarland’s actions.

toes-1438916-1024x683As if having car troubles was not bad enough, imagine also losing your toe in the process. Well, that exact scenario happened to Valerie Babin. After her vehicle broke down in Gonzales, Louisiana, Ms. Babin called American Towing Enterprises to tow her vehicle. An American Towing Enterprises’s employee, Floyd Russo, arrived to help Ms. Babin. At this point, Ms. Babin’s day went from bad to worse. As Mr. Russo partially loaded the vehicle onto the truck’s flatbed, Ms. Babin went to turn off her vehicle’s emergency flashers. At the same time, Mr. Russo lowered the truck bed, which landed on Ms. Babin’s foot, crushing her big toe. Despite attempts to save her big toe, Ms. Babin eventually required surgery to remove it.

Ms. Babin filed a lawsuit against Mr. Russo and American Towing Enterprises. At trial, the court awarded $673,380.35 in damages, finding Mr. Russo and American Towing Enterprises 60% at fault and Ms. Babin 40% at fault. When the injured individual is found partially at fault for his or her injury, his or her damages are reduced by the amount he or she was at fault. In Ms. Babin’s case, her fault reduced the total amount of damages to $404,028.21. Ms. Babin appealed the trial court’s determination of damages, claiming that the awarded amount was insufficient. Conversely, Mr. Russo and American Towing Enterprises appealed the trial court’s determination claiming that the amount awarded was excessive.

The Louisiana Court of Appeals (“the Court”) was tasked with determining whether the damages were insufficient or excessive. The Court examined two types of damages, general damages, and special damages. General damages often include mental or physical pain, suffering, inconvenience, loss of gratification or intellectual or physical enjoyment, or other losses of lifestyle. McGee v. A C And S, Inc., 933 So. 2d 770, 774 (La. 2006). The goal of general damages is to make the injured party whole. In other words, put the injured party in the same position he or she was at prior to the injury. Special damages are damages that the injured person will experience in the future. Ms. Babin argued that at minimum she should have received $400,000 for general damages and $557,028 in special damages for future medical care. The Court found that the trial court’s determination of general and special damages was reasonable. When addressing the amount of special damages for future medical care, the Court noted that the trial court awarded Ms. Babin $223,77.00 based on the testimony of two doctors at trial. When seeking future medical expenses, “the appellate record must establish that future medical expenses will be necessary and inevitable.” Bass v. State, 167 So. 3d 711, 716 (La. 2014). In addition, future medical expenses will not be supported when there is not medical testimony. The Court found the trial court’s determination of special damages was reasonable and disregarded the defendants’ argument that the awarded amount was unsupported by evidence. Lastly, the Court examined the loss of future wages. The loss of future wages requires the trial court to determine how much work the injured party will miss in the future because of his or her injury. For Ms. Babin, the trial court determined that Ms. Babin will lose $81,735.00 in future wages. The Court also found this amount reasonable.

nice-bike-1547666-1024x768The majority of cases, civil and criminal alike, never make it to trial. The parties may settle the case out of court or the claims may simply be dropped by the plaintiff. A third reason why a case may not make it to the jury is if a judge grants a party’s motion for summary judgment; a fate that almost befell Orleans Parish citizen John Ludlow’s negligence claim in September 2015.

In September 2014, John Ludlow, Jr. was a bicyclist waiting for the ferry at the Canal Street Ferry Terminal. As he waited for the ferry, he sat on a concrete barrier and fell backward, hitting the rocks below the platform. Mr. Ludlow sustained extensive injuries because of his fall and in turn, filed a lawsuit against the State of Louisiana, Department of Transportation and Development, Crescent City Connection Division (hereinafter “the State”) in Orleans Parish District Court.

The State filed a few motions for summary judgment.  Summary judgment is when one party moves for the court to automatically rule in the moving party’s favor before a jury or judge has rendered a verdict.  A judge can grant a motion for summary judgment when the judge finds that there is “no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law” pursuant to La. C.C.P. art. 966(B).

desertic-road-1446241-1024x768Employees can pit employers against each other just like children do with parents. If permission is limited by one person the employee/child will simply repeat their request to the other party.  What an employee is permitted to do can be ambiguous.  In a recent automobile accident case out of Shreveport however, the Louisiana Second Circuit Court of Appeal affirmed that employer “permission” in Louisiana provides a wide berth to an employee and can result in unexpected liability.  

A former employee of Water Works Irrigation Inc. (“Water Works”), Lovell Ellis, used his assigned company truck to pick up his girlfriend, Raquel Coleman, outside of his normal service area.  While the two were in the truck, Mr. Ellis ran off the road, wrecking the truck and injuring Ms. Coleman. Ms. Coleman claimed that Mr. Ellis was texting while driving and ran off the road. In his deposition, Mr. Ellis denied being on his phone but explained his swerving to avoid a log caused the accident. Later Mr. Ellis pled guilty to Driving While Intoxicated (“DWI”) but claimed that he drank only one beer.

As a result of the accident, Ms. Coleman sustained fractured vertebrae as well as other injuries. In January of 2012, Ms. Coleman filed a personal injury lawsuit against Mr. Ellis, Water Works, and Water Works’ Insurance company, United Fire Insurance (“United Fire”), seeking damages. After the dismissal of Water Works, the trial proceeded against Mr. Ellis and United Fire. The District Court found Ellis 100% at fault and United Fire liable for coverage.  The District Court awarded damages of $47,449.67 to be paid by either or both defendants.

highway-14-junction-1628439-768x1024Underinsurance policies provide drivers an extra layer of protection. These policies compensate drivers for injuries suffered in accidents with uninsured or underinsured drivers, but the process of claiming under these policies can be problematic. Ted Luquette encountered this difficulty after he was injured in a car accident in Abbeville.

Luquette was driving home from church in Abbeville, Louisiana when he was hit by a car driven by Chad Mowbray, who through the owner of the vehicle, Billie Borga, was insured with Allstate. After the accident, Luquette settled for his injuries with Allstate for $100,000, which was the policy limit. Luquette then brought a lawsuit against his own insurance, Farmers Bureau. Luquette claimed he required surgeries resulting in damages in excess of $100,000 as a result of the accident, which entitled Luquette to a payout under his policy.

To demonstrate that Allstate was the only insurance that the Mowbray and Borga had, Luquette primarily relied on a discovery answer by Allstate, which stated that Allstate was not aware of Mowbray or Borga being covered by any other insurance policy. At trial, the jury was asked whether Luquette sufficiently proved that Mowbray and Borga were underinsured. Luquette did not object to this question, and the jury resolved that he had not shown that Mowbray and Borga were underinsured.

highway-perspective-1508300-1024x768Lawsuits that are rooted in car accidents are typically cut and dry; it is easy to determine the party at fault and to determine the party that should pay for the costs of damage. However, a case arising out of Monroe proves that this is not always the case. This perplexing lawsuit involves a situation in which the at-fault party was not covered under the vehicle’s insurance.

After a car accident occurred on September 29, 2010, at the intersection of Louisville Avenue and North 18th Street, Shanedra Reed and Jasine Hubbard brought claims against one of the car’s insurers, Safeway, alleging that they were passengers in the car driven by Naiman Carroll when they became injured by the accident. Safeway was Carroll’s insurer, so under these claims, this company would be liable for their injuries. However, Safeway affirmatively argued that Carroll and Reed were passengers in the car, while Hubbard, who is not covered by Safeway under Carroll’s insurance, was driving. Hubbard’s claim was eventually dismissed because she failed to answer discovery before trial.

At trial on January 30, 2014, the Trial Court determined that Hubbard had been negligent in failing to properly look for traffic while making a left turn at a stoplight. As a result, the trial court found that Safeway was liable to Reed for general damages of $10,000, as well as for special damages caused as a result of the accident.

a4-highway-1368417-1024x768It is often the case that although technically legal, certain lawsuits will not be popular amongst the general public because the court’s reasons for its decision just will not make sense at an emotional level.  Despite this fact, people should take notice of the fact that courts rule based on what the law deems to be just and fair. This sort of a fact may only be small comfort to the Toups, who lost their son and want the party or parties responsible to be held accountable for the loss they suffered.    

This was an appeal from a summary judgment granted in favor of Adele Dantin, wife of Mr. Dantin, the driver of the car that hit the pickup truck driven by Dr. Toups that resulted in the death of the Toups’ son.  The Toups’ alleged Adele was negligent because it was her car that Mr. Dantin was driving at the time of the accident.  The accident occurred on Louisiana Highway 1 in Lafourche Parish.  Adele filed a motion for summary judgment which asserted she was not legally responsible for the accident because there was no evidence that she gave Mr. Dantin permission to drive the car at the time of the accident.  The motion was granted and the Toups’ appealed.  The First Circuit affirmed which meant that Adele did not share in the negligence of her husband for the accident that resulted in the death of the Toups’ son.

The Toups alleged that Mr. Dantin had a history of drug and alcohol related charges for more than 30 years, that since his release from jail in August 2009, Mr. Dantin was prohibited from operating a vehicle that did not have an ignition interlock device, and that the Maxima that Mr. Dantin had been driving at the time of the accident did not have an ignition interlock device.

autumn-highway-1186821-1024x683Do you remember how it felt to get your driver’s license? Perhaps there was a sense of freedom, invincibility, or just sheer excitement. Imagine, or think back to your own memories of, that feeling’s abrupt end — your first car accident. Such was the experience of one teenager in Monroe, Louisiana.

On May 10, 2012, a little over three months after getting her driver’s license, Courtney Smart and her passenger, Michele, were on their way to school and heading east on Garden Lane toward its intersection with Highway 165. Rita Calhoun, age 69, was headed west toward the same intersection from the opposite side of the highway. In the process of turning right onto Highway 165 South, Courtney’s vehicle collided with Rita’s vehicle, which had made a left turn at the intersection. The collision occurred near the intersection in the left lane of the highway, damaging the rear left panel of Courtney’s Hyundai Elantra and the front right corner of Rita’s Toyota Avalon.

Courtney’s and Michele’s parents (“Plaintiffs”) filed a lawsuit against Rita, claiming that Courtney lawfully made a right turn onto the highway when Rita turned left without yielding the right of way at the intersection and subsequently hit Courtney’s car. Rita denied these allegations in her answer and alleged instead that Courtney was at fault by turning into Rita’s path. Both parties then filed motions for summary judgment, but the trial court denied each motion after finding genuine issues for trial pursuant to La. C.C.P. art. 967(B). In other words, the Plaintiff’s and Rita each filed a motion asking the judge to rule in their favor because their version of the facts is the only plausible version. The court denied the motions, however, because both Courtney’s and Michele’s versions of the accident were plausible. The matter then proceeded to a bench trial, which is a trial before a judge instead of a jury.

a-guys-dream-1546422-1024x768When multiple auto insurance policies are involved after an auto accident it may be difficult to tell which one is controlling. When a mother’s car broke down she borrowed a car from a friend to take her children to daycare. While on the way to drop her kids off she accidentally rear-ended the car of another driver on Highway 139 in Ouachita Parish, Louisiana. When the time came to determine whose car insurance was controlling a lawsuit was filed to resolve this question.

When Shannon Boyd’s Ford Taurus wouldn’t start, she borrowed Vicki Ellis’ Chrysler 300 to take her children to daycare and go to work. While one the way to daycare Boyd rear-ended Hugh and Janie Green’s Dodge Ram. While Boyd and her Taurus were insured by Safeway, Ellis and her Chrysler were insured by State Farm. After the accident State Farm paid $4,041.77 in property damages to the Greens and subsequently filed suit against Safeway for reimbursement.

The issue at trial was which insurance policy is primary. Both Safeway and State Farm filed motions for summary judgment alleging that the other was the primary policy. The Trial Court found that Safeway’s policy defined a “temporary substitute automobile” in a way that conflicted with the policy goals of La. R.S. 22:1296 which mandates that automobile insurance policies must extend to temporary substitute and rental vehicles. With this statutory context in mind, the Trial Court determined that Ellis’ Chrysler met the conditions of a “temporary substitute vehicle.” The Trial Court thus concluded that Safeway was the primary policy. Safeway appealed.