Articles Posted in Car Accident

winter-road-1347950-1024x768We all make mistakes, and, if lucky, are presented with the opportunity to fix them. The same principle can be said for an error in a money damage determination. When a party to a lawsuit believes that the jury or trial court erred in its damage award decision, the party has the ability to appeal. A recent court case out of the Second Circuit Court of Appeal for Louisiana discusses the requirements that are needed to overturn a money damage determination.

The case involves a car accident involving Holly Swayze. Ms. Swayze suffered multiple injuries from the accident and accumulated a sizable amount of medical bills. As a result of the injuries and medical bills, Ms. Swayze filed a lawsuit. At trial, Ms. Swayze testified that prior to the accident she lived without physical limitations. But after the accident, she started experiencing neck and back pain. To alleviate her pain, Ms. Swayze tried self-help and physical therapy, but those treatments only mitigated, not solved, her pain problem. This attempt to alleviate her pain cost Ms. Swayze $12,700.04 in medical bills.

Ms. Swayze’s primary physician, Dr. Coleman, also testified at trial. Dr. Coleman testified that he had been treating Ms. Swayze for ten to twelve years and had no records of her complaining about neck and back pain. He also recalled that Ms. Swayze complained of numbness in her right arm after the accident. Dr. Coleman also testified that Ms. Swayze did suffer from a genetic bone disease and that Ms. Swayze took medication for this condition. Dr. Coleman further explained that those who suffer from this condition normally do not experience any symptoms until they endure an aggravating injury.

nose-1552298-1024x893What happens when a person injures another person? A tort is a civil wrong that causes another person to suffer loss or harm that results in legal liability for the person who commits the tortious act. The person who commits the act is called a tortfeasor. An intentional tort is a category of torts that describes a civil wrong resulting from an intentional act on the part of the tortfeasor. This case out of Ascension Parish illustrates the plaintiff’s burden of proof in a tort action.

On August 13, 2012, Mr. Clifford Barr was on his way to Rossi’s Auto Service (“Rossi’s”), driving southbound on La. Hwy 431. When Mr. Barr was about to turn into Rossi’s parking lot, he noticed another vehicle blocking the entrance. Mr. Barr waited to see if the driver was going to exit. When the vehicle did not move, Mr. Barr proceeded to drive into the parking lot. At the same time, the driver of the other vehicle, Mr. Joseph Schexnayder, pulled out of the parking lot. The two vehicles almost collided. Mr. Schexnayder opened his door and attempted to exit his vehicle, but the vehicles were too close to one another. Mr. Schexnayder reversed his vehicle into Rossi’s parking lot and Mr. Barr proceeded forward into the parking lot. Mr. Schexnayder got out of his vehicle, walked toward Mr. Barr’s vehicle, and stuck his head through Mr. Barr’s rolled-down window. While there is disagreement over which party through the first punch, it was uncontested that Mr. Barr grabbed Mr. Schexnayder and that Mr. Schexnadyer bit Mr. Barr’s nose, requiring medical treatment.

On July 15, 2013, Mr. Barr filed a lawsuit against Mr. Schexnadyer for damages. The case proceeded to trial. On October 30, 2014, the trial court issued a judgment finding that Mr. Schexnayder was the aggressor and that Mr. Barr was not at fault. More specifically the court found that Mr. Barr was very credible and that Mr. Schexnayder was the sole cause of the incident. Mr. Barr was awarded $25,005 in damages: $12,750 for physical and mental pain and suffering; $255 for past medical expenses; and $12,000 for future medical expenses.

car-crash-1316724-1-1024x768When insurance coverage doesn’t pay enough money to compensate a victim for injuries suffered in a car accident, underinsured motorist coverage exists to fill in the gaps. Louisiana law requires that insurance companies provide this coverage. La. R.S. 22:1295. Although this seems like a simple solution for undercovered individuals, many people are unaware that this type of insurance does not benefit every possible person who may be affected by a car accident; an insurance policy’s contract ultimately determines who and what the policy might cover. This common misperception was at issue in a case that arose in Caddo Parish.

In Texas in 2013, Helen Stopak was killed in an automobile accident while riding in a car owned by one of her daughters. The driver’s insurance company (Safeco) paid $30,000 in benefits to her daughters, one of whom was Lori Marshall. Soon afterward, Mrs. Marshall attempted to claim underinsured motorist benefits from her own husband’s insurance policy provided by the Louisiana Farm Bureau Casualty Insurance Company (the Farm Bureau). She believed she was entitled to damages under her underinsured motorist insurance policy for wrongful death and for her own mental distress since her mother had been in an underinsured car. The Farm Bureau refused to pay and she sued. The trial court ruled in favor of the Farm Bureau. Mrs. Marshall appealed.

At issue in the Court of Appeal was whether Mrs. Marshall’s mother was insured under the policy. If so, the Farm Bureau would be obligated to pay out its benefits. Even if not specifically mentioned in the policy, the law requiring underinsured motorist coverage acts as if it is part of the insurance contract. Some insurance policies simply include the wording of the statute in order to provide underinsured motorist coverage. A contract can, however, provide for exceptions to these payments, such as not extending it to people or cars not actually under the policy. Lafleur v. Fidelity & Casualty Co. of New York, 385 So.2d 1241 (La. Ct. App. 1980).

areopagus-1214742-1-1024x657Uninsured motorist (UM) liability coverage is additional coverage that can pay for injuries to individuals protected under your policy, including family members in other cars and passengers in your insured cars, resulting from a car accident caused by an uninsured driver. However, this additional coverage can be modified or inapplicable if the insured decides to reject coverage, select lower limits, or select economic-only coverage, which would only cover costs, not non-monetary damages, such as pain and suffering or quality of life damages. UM coverage is also part of most businesses insurance policies. All of these options allow for insurance policies to be flexible, and whatever a policy stipulates is what it will cover, but as a case that arose in the Parish of St. Landry shows, writing and reading an insurance policy isn’t always straight-forward.

In October of 2011, Crystal Bell was driving a company car, owned by Compass Behavioral Center for Crowley, when she was rear-ended by Merlyn Rodgers. Crystal Bell and the occupants of her vehicle filed a lawsuit against Merlyn Rodgers and her insurance company. After filing the lawsuit, the plaintiffs amended their complaint by naming Compass’ insurance company, Progressive Insurance Company, as a defendant in order to claim UM coverage.

Prior to the accident, in 2007, a Compass representative, Mark Cullen, had signed a CSL automobile insurance policy with Progressive for $1 million in liability coverage. A CSL policy sets a predetermined limit for the combined total of the Bodily Injury Liability coverage and Property Damage Liability coverage per occurrence or accident. Under Louisiana law, UM coverage must be applied through an Uninsured/Underinsured Motorist Bodily Injury Coverage form, which is issued by the Commissioner of Insurance. La. R.S. 22:1295. This form, however, lacked a space for addressing CSL policies. So, Cullen initialed the box that stated he selected UM coverage but wrote in “$100,000” for coverage and marked out “each person” and wrote in “CSL.” Cullen did this even though the form indicated that it may not be altered or modified. Progressive filed a motion for summary judgment and asked that the district court rule that the policy in place at the time of the accident was only for $100,000. The plaintiffs’ filed a counter-motion for summary judgment. The plaintiffs argued that Compass’ UM form was invalid and therefore UM coverage provided for $1 million in coverage. Alternatively, plaintiffs argued that if the UM coverage form was valid, then it was for $100,000 per person as opposed to only $100,000 for each CSL accident.

car-accident-5-1426862-1024x768After a motor vehicle collision occurs, a court will assign each driver involved a standard of care they were required to maintain. Drivers under Louisiana law are usually subject to ordinary care when driving their vehicle. However, under the law, certain motorists are held to a higher standard or are favored to have less liability if an accident occurs. This differentiation in standards was recently highlighted when a garbage truck was hit by a pickup driving on a three-lane road while pulling out of a Burger King exit.

On August 10, 2009, an accident occurred at the intersection of Carrollton and Tulane Avenue, which has a complicated set-up of four lanes that travel east, three for traffic and one for a bus stop, and three lanes that travel west separated by a concrete median. Gregory Hicks, a garbage truck driver, attempted to cross all four eastbound lanes in order to make a turn onto the westbound lanes, but while doing so his truck blocked all eastbound lanes. The garbage truck, which was owned by Hicks’ employer, IESI LA Corporation, was subsequently struck by a pickup truck driven by Bazzell Hamdan. Hamdan, all of the passengers, and the owner of the pickup truck filed lawsuits against Hicks and IESI. The cases were consolidated and the matters that weren’t settled went to trial in Orleans Parish.

The issues at trial involved the liability of both the defendants and plaintiffs and the damages suffered by the plaintiffs, which included personal injury claims and a property damage claim. The district court found Hicks 100% at fault and ruled in favor of the plaintiffs and awarded general damages (pain and suffering) and special damages (medical expenses and insurance policy deductible) in the amount of: $37,000 general and $11,023.38 special to Hamdan, $36,000 general and $12,786.57 special to a passenger and $500 special to the vehicle owner.  

motorcycle-stunt-1390738-1-1024x768Suffering through an accident is bad enough, but dealing with the aftermath of that accident can be even worse without the help of a great attorney. An often overlooked but critical step in dealing with the consequences of an accident is deciding who to include or exclude from a release, which is a contractual agreement in which one party agrees to give up their right to bring a claim against another party. As Trena and Thomas Garrison learned after their accident in Baton Rouge, a small oversight on a seemingly standard release could result in a substantial loss of potential recovery.

On April 21, 2010, the Garrisons were on their motorcycle driving down O’Neal Lane in Baton Rouge, Louisiana when Mr. Garrison lost control of the motorcycle and crashed. In the months following the accident, Mrs. Garrison released Mr. Garrison, his insurer State Farm Insurance, and all other persons, firms or corporations from any and all claims resulting from the accident in exchange for $25,000.  

About one year later, the Garrisons filed a petition for damages against James Construction Group, LLC. The Garrisons alleged that the accident was caused by a large hole or trench in the road in an area that was under the custody of and being maintained by James Construction. On September 16, 2011, Mrs. Garrison signed an amended release that specifically reserved her rights to bring a claim against James Construction resulting from the April 21, 2010, accident.  

wreck-1459986-1024x686In nearly every case of injury to person or property, there is a time period during which you can bring a lawsuit. When that time period ends is determined by statute. Defendants in cases where the time has past may bring an exception of prescription to have these cases dismissed. But how many times and when the exception of prescription may be raised is an issue that took center stage in an automobile accident case from  Jefferson Parish.

On May 8, 2008, Pauline Herrera filed a lawsuit against Beatrice Gallegos and USAgencies Casualty Insurance Company. Ms. Herrera alleged that her vehicle was struck by Ms. Gallegos’s vehicle on May 8, 2007. In response, Ms. Gallegos filed an exception of prescription and answer, alleging that the accident actually occurred on May 7, 2007, and Ms. Herrera’s lawsuit was filed beyond the one-year prescriptive period.

A hearing on the exception of prescription was held and no exhibits were admitted into evidence. The judge for the Parish Court of the Parish of Jefferson suggested the best way to find out the date of the accident was to call the Kenner Police Department. The judge overruled the exception for lack of sufficient evidence.

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.