Articles Posted in Car Accident

sign-1230883-1024x768Drivers always have a duty to drive with a standard of care that can ensure the cars immediately around them are safe from a collision. But how far does that duty reach? That was the question when a Parish of Calcasieu man entered the highway from the shoulder which resulted in only the first and second cars behind him to slow down, while a third following car was forced off of the road.

The Defendant, David Majoria, was an employee of Groendyke Transport when he entered Interstate 210 from the shoulder of the road. When Mr. Majoria entered the highway it caused the vehicle behind him with an unknown driver to brake. A second vehicle behind Mr. Majoria was driven by the plaintiff’s brother, who also braked. The third vehicle in the lineup was an eighteen to twenty-foot camper, driven by Plaintiff Shane Maylen.   

Mr. Maylen was driving a truck towing an eighteen to a twenty-foot camper and a sixteen-foot boat when he attempted to brake after Mr. Majoria’s car entered the highway.  Mr. Maylen’s truck veered off of the highway and onto the shoulder of the road where his vehicle jack-knifed and caused a right-shoulder injury. No other vehicle was involved in the collision.

field-1-1381631-1024x641Imagine you are in a car accident, one that is so severe it results in you being airlifted to a hospital.  Recovery time is extensive and your mental capacities are foggy at a minimum.  While hospital bound, someone other than yourself files a claim for your workers’ compensation benefits.  Due to the hospital stay, you receive no notice of the claim or court hearings yet a decision is made denying benefits.  The real kicker? All this occurs in a state where you do not live. Sound a tad unjust? Yet this recently happened to a Kaplan, Louisiana man.

Steve Richard, a Louisiana resident, was injured in an automobile accident while driving to a work location in Mountrail, North Dakota.  His injuries required him to be airlifted to a hospital in Minnesota where he spent about a month recovering.   While in the hospital, Mr. Richard’s employer brought a claim workers’ compensation benefits on behalf of Mr. Richard before the North Dakota Workforce Safety & Insurance (“N.D. Workforce”): the administrative body that regulates workers’ compensation claims in North Dakota.   Mr. Richard contended he did not bring the action, never had notice of the decision, and never submitted documents requested by the N.D. Workforce. Moreover, Mr. Richard never received any correspondence on the matter because it was all mailed to his Kaplan, Louisiana address while he was recovering in the Minnesota hospital.  The N.D. Workforce denied benefits finding that the accident was caused by Mr. Richard’s drug and alcohol use and therefore not within the scope of his employment.   Mr. Richard did not appeal this decision presumably because he never brought it in the first place.

A few months later, Mr. Richard did file a claim for workers’ compensation benefits in Louisiana.   His employer Quality Construction & Production, L.L.C, (“Quality Construction”) and their insurance company filed an exception to the claim arguing that the claim was barred by the doctrine of res judicata because the claim had already been decided by another court.  The Louisiana Office of Workers’ Compensation Judge (WCJ) denied Quality Construction’s exception and the case was appealed to the Louisiana Third Circuit Court of Appeal.    

stripe-4-1189901-1024x768Automobile accidents are an unfortunately common occurrence; becoming increasingly more common with the temptations of texting and social media use while driving.   While not all accidents result in life-threatening injuries, they do most often come with at least the headache of assigning fault.  Figuring out who was at fault sometimes comes down to a game of “he said, she said” before a judge or jury.   And as the Louisiana Fifth Circuit Court of Appeal recently explained, the judge or jury’s interpretation of that game is difficult to reverse.   

On October 20, 2011, Rorilyn Prejeant was rear ended by Duane Smith on an expressway in Westwego, Louisiana.  Ms. Prejeant claimed that while she was sitting at a red light, Mr. Smith’s truck was sitting behind her.  When the light turned green, the car in front of Ms. Prejeant failed to proceed, blocking Ms. Prejeant’s car.  Ms. Prejeant claimed she saw Mr. Smith’s truck begin to move, honked her horn, yet Mr. Smith failed to stop thus hitting her.  Mr. Smith’s account was rather different.  He claimed that when the light turned green he suddenly felt his truck go out of gear.  When he attempted to put the truck in gear and proceed, he realized he hit another car but claimed the car was not present when the light turned green.  Mr. Smith contended that Ms. Prejeant told him she merged into Mr. Smith’s lane right as the light turned green.  The police report indicated both that Ms. Prejeant changed lanes before Mr. Smith saw her vehicle but also that Mr. Smith saw Ms. Prejeant’s vehicle come to an abrupt stop before he was able to refrain from hitting her.  

Ms. Prejeant did not seek medical attention at the time of the accident, however later sought medical care when she experienced headaches, back, neck and shoulder pain.  In January 2012, Ms. Prejeant spoke with an attorney concerning the accident and subsequently started frequent visits to the chiropractor for her injuries.  Ms. Prejeant also had an MRI conducted of her spine for injuries related to the accident. Ms. Prejeant filed a lawsuit against Mr. Smith for damages to her vehicle and medical expenses. After a trial before the Judicial District Court for the Parish of Jefferson, the judge concluded that Mr. Smith was liable to the Plaintiff in the amount of $16,000.00 for general damages and $5,105.00 in special damages for the medical expenses. Mr. Smith appealed to the Fifth Circuit claiming the District Court erred in disregarding the physical evidence of vehicle damage and in relying on Ms. Prejeant’s testimony.  

old-country-red-barn-1633768-1024x683When someone dies because of another person’s negligence certain individuals can bring a wrongful death lawsuit against the negligent party. Normally, those who may recover under a claim for wrongful death and survival are limited to a certain class of persons. In such cases, the plaintiff can be the surviving spouse, a surviving child, the decedent’s parents, the decedent’s siblings, or the decedent’s grandparents. La. C.C. arts. 2315.1 (2016); La. C.C. arts. 2315.2 (2016). But what happens when there are multiple people who are entitled to bring the wrongful death suit? Can a biological father recover in his son’s wrongful death and survival suit when the son is presumed to be the child of another man? Recently, the Fourth Circuit Court of Appeal for the State of Louisiana addressed these issues when it decided a case involving a fatal car crash.

On March 8, 2013, Juan Joseph Hughes (“Mr. Hughes”) hit a parked car which caused his car to burst into flames. As a result of this accident, Mr. Hughes lost his life. Mr. Hughes’s parents, Joseph and Cherryn Burkette, filed a wrongful death claim, naming General Motor, LLC. and Banner Chevrolet as defendants. The Burkettes claimed that their son died as a result of the defendants’ negligence.

In response, the defendants argued that Mr. Burkette could not be part of the wrongful death suit. The defendants noted that the Burkettes and decedent did not share a last name. Ms. Burkette asserted that Mr. Burkette was Mr. Hughes’ biological father and that she was his biological mother. Ms. Burkette explained that she was in a relationship with Mr. Burkette while she was married to Jerome Hughes and that her son’s last name only reflected Ms. Burkette’s marital status at the time of Mr. Hughes’s birth.

crash-car-1180834-1024x827Sometimes judges and juries make mistakes that prevent injured parties from obtaining the relief they deserve. Both judges and juries can be swayed by arguments and make rulings that seem contrary to the weight of the evidence presented at trial. In such a situation, it is important to have an excellent attorney on your side to assert your rights and present you with proper avenues of appeal. Kimberly Guidry found herself in just this position after the trial court awarded her no damages for injuries she sustained in a car accident in Erath, Louisiana.

Ms. Guidry was injured in a three car accident while a passenger in her brother’s pickup truck. The accident occurred when Karl Creduer ran a red light, striking another person’s vehicle. This other vehicle then crashed into a Ms. Guidry’s brother’s pickup truck. Ms. Guidry and her brother were both injured in the accident. Ms. Guidry was taken to the hospital in an ambulance due to complaints of pain in her back and knee. At the hospital, doctors took X-rays of Ms. Guidry, placed her in a cervical collar, and gave her prescription medicine for her injuries.

After leaving the hospital, Ms. Guidry saw three separate doctors in hopes of alleviating the pain caused by the accident. Through these doctor visits, it was determined that Ms. Guidry had pre-existing arthritis and pre-existing degenerative conditions in her spine and knee. These ailments arose prior to the accident. According to the doctors, the accident aggravated these ailments.

mercedes-1450415-1024x683Louisiana has laws in place requiring drivers to carry car insurance. However, insurance policies are not uniform and some policies may contain ambiguities or be silent altogether on specific issues. The following case illustrates such a scenario.

Jeremy Elliot was a service technician working for a Mercedes-Benz dealership in Baton Rouge, LA and was involved in an accident while driving a customer’s car during a routine servicing. Elliot sued the other driver and the driver’s insurance company, State Farm; State Farm settled. Evidently, the other driver’s insurance policy was insufficient to cover the damages.   

Thus, Elliot sought reimbursement elsewhere and sued the insurance company that covered the car he had been driving, Encompass Indemnity Company (“Encompass”), as well as his employer’s insurance company, Travelers Indemnity Company (“Travelers”). Travelers filed a motion for partial summary judgment, asking the District Court to find that Encompass was liable for up to $500,000 in coverage for an underinsured motorist.

car-fire-1346381-1024x662When you let a friend borrow your car you probably don’t give much thought to who’s insurance policy would cover any potential accidents. Insurance policies contain many loopholes that can exclude coverage when an accident occurs. The following case out of Lafayette, discusses the problems that can arise when a friendly gesture turns into a legal nightmare for the parties involved.

Judith Landry of Lafayette, Louisiana and Therese Lesinski were involved in an automobile collision. Landry filed a personal injury lawsuit against Lesinski claiming that Lesinski’s carelessness caused the accident. Importantly, at the time of the accident, Lesinski was driving a car belonging to Mr. Braus, whom she had been staying with in his home. Lesinski’s own personal vehicle was insured by State Farm, but Mr. Braus (the car involved in the accident) was insured by Allstate.

State Farm denied liability by claiming that it was not responsible for any of the damage done to Landry because the car belonged to Mr. Braus who was not a member of Lesinski’s household. State Farm asserted as much in a motion for summary judgment. A motion for summary judgment effectively asks a court to dismiss the entire lawsuit. See La. C.C.P. art. 966.

old-school-bus-1431364-1024x683Sometimes when a plaintiff is awarded damages at trial he or she may believe that the damage amount does not match the injury he or she incurred. When this situation happens, what can a plaintiff do to challenge the damage award? And how easy is it get an increase in the damages amount? A recent First Circuit Court of Appeal case involving a Terrebonne Parish man provides guidance towards answering these questions.

Arthur Mitchell was riding a public bus when the bus was cut off by, requiring the bus driver to suddenly brake to avoid the collision. As a result of the sudden braking, Mr. Mitchell was thrown forward into the metal change box located behind the driver’s seat. Mr. Mitchell brought a lawsuit against the driver who cut off the bus, Jacob Simmons, claiming that Mr. Simmons caused severe injuries to his neck, back, body, and mind. At trial, Mr. Mitchell was awarded a total damage amount of $15,718 of which $1,000 was for future medical expenses, $1,000 was for past pain and suffering, and $13,718 was for past medical expenses.

Mr. Mitchell, believing that his damages were undervalued at trial, appealed the trial court’s decision. He argued that when a jury awards future medical expenses for injuries that the jury must also award future pain and suffering damages.  Mr. Mitchell argued that because the trial court did not award future pain and suffering, that the court erred in its assessment of the final damages total.

money-money-money-1241634-1024x768There are many questions involved in filing and pursuing a lawsuit. How do I file? When must I file? Against whom do I file it? What amount of damages do I seek? Most people are unaware that there are different types of damages. An attorney’s trial strategy not only plays a critical role in if the plaintiff is awarded compensation but also in how much the plaintiff is awarded, as highlighted by the following case.

Lana Averette was driving on Highway 1 in Port Allen when she was struck by an Entergy bucket truck driven by an employee of Entergy Gulf States Louisiana, L.L.C. (“Entergy”). On June 11, 2013, Ms. Averette filed a lawsuit against Entergy and the employee (“Defendants”), asserting that she had suffered spinal injuries from the accident. During his closing statement to the jury at the end of the trial, Ms. Averette’s attorney asked the jury not to award her future general damages, but to award her the cost of the future medical treatments she would be required to undergo because of her injuries. The jury returned a verdict in favor of Ms. Averette in the amount of $42,373.00 for past lost wages, $58,378.00 for past medical expenses, $75,000.00 for past mental anguish and emotional distress, $75,000.00 for past lost enjoyment of life, $75,000.00 for past pain and suffering, and $500,000.00 for future medical expenses. Defendants filed a motion for judgment notwithstanding the verdict or alternatively a motion for new trial, arguing that it was error as a matter of law to award Ms. Averette future special damages without awarding future general damages. The Judicial District Court for the Parish of West Baton Rouge denied the motions and Defendants appealed to the Louisiana First Circuit Court of Appeal. On appeal, Defendants argued that because Ms. Averette waived her claim for future pain and suffering, she waived her claim for future medical expenses.

General damages seek to compensate the plaintiff for losses of life or lifestyle which cannot be measured definitively in terms of money, such as pain and suffering. See McGee v. A C and S, Inc., 933 So.2d 770, 774 (La. 2006).  In contrast, special damages are those which may be calculated with relative certainty, including medical expenses.  In reviewing a jury’s award of special but not general damages, a reviewing court must ask if the award is so inconsistent that it is an abuse of discretion.  See Wainwright v. Fontenot, 774 So. 2d 70 (La. 2000).  Under certain circumstances, the Court of Appeal noted that evidence presented at trial could support an award of medical expenses without an award of general damages. Thus, the question before the Court of Appeal was whether the jury made inconsistent awards based on the record of evidence.

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.