Articles Posted in Car Accident

paper-family-1186206-1024x676Summary judgment is a legal standard many courts use when there are not enough facts in dispute to even proceed with a lawsuit. When applicable, this is a good strategy for a defense attorney to use because it purges claims that have no merit, saving time and money. The Fifth Circuit Court of Appeal demonstrated this principle within the context of an employment discrimination lawsuit. The following case demonstrates how an employer can use the Courts to deny a Family Medical Leave Act Claim.

Michelle Calderone was an employee of TARC in Hammond, Louisiana. While she was employed, Calderone was involved in a car accident where she was initially diagnosed with a chip fracture to her ankle. Nine days after the accident, she returned to work. About a month later, Calderone was further diagnosed with a crack in her sternum and was instructed to remain on bed rest. TARC’s CEO, Kathleen Abels, gave Calderone permission to work from home. A month later, Calderone proposed splitting up her time equally at home and at work, and Abels agreed. Calderone submitted a doctor’s note allowing her to work the split schedule, which specified no lifting, climbing, or travel and warned of the injury’s existence for 6 months or more. After the split schedule began, Abels gave Calderone a document that characterized her split schedule as temporary and only in effect until March 31, 2012. She did not sign the document, but she submitted a written response opposing some aspects of the document, such as her disability characterization, the revocation of the split schedule, and the failure to inform her of FMLA rights. Abels denied Calderone request.

After Calderone’s doctor gave the release, Calderone returned to a full-time schedule. Calderone did not request any leave thereafter or object to resuming her split schedule. Seven months after returning to a full-time schedule, Calderone resigned stating that she cannot successfully complete her duties under Abels’ management but failed to mention any issues regarding her leave, injuries from the car accident, or timing of her return to work from those injuries.

car-breakdown-1444955-1024x683Comedian Chris Rock once famously opined that insurance should be renamed, “In-case-of.” You pay for insurance every month “in case of” some unfortunate circumstance occurring. Well, you better have access to an excellent attorney “in case of’ the other driver not having the insurance, or even the car, in his name. This is what happened to Wanda Kahl. When the insurance company disputed its obligation to pay for her injuries, Ms. Kahl was subject to a protracted legal battle in court.

Ms. Kahl was driving down Jane Ave in New Iberia one summer day in 2012 when she was rear-ended by a hit-and-run driver. She filed a lawsuit against the vehicle’s owner and his insurer. The registered owner, Tricky Chevalier, later testified in a deposition that the vehicle in question was ostensibly a “straw purchase.” That is to say, Chevalier had purchased, registered, and insured the vehicle in his name but all for the benefit of his cousin, one Joseph Pete. Mr. Pete operated the vehicle, and also paid the insurance premiums, while Chevalier remained owner in name only. After this deposition, Safeway Insurance moved for summary judgment. A summary judgment motion requests that the court rule for the movant without a trial because the evidence presented thus far shows “no genuine dispute of material fact.” La. C.C.P. art. 966. Safeway claimed Chevalier’s admission constituted a material misrepresentation of fact, without which he would not have received coverage. Since the coverage was procured by misrepresentation, Safeway argued that the contract for coverage was not valid, so they were not responsible for payment.

Ms. Kahl appealed Safeway’s summary judgment motion and countered with a summary judgment motion of her own, asserting that the law clearly states the accident must be covered. She relied on La. R.S.32:900(F)(1) to show that Safeway is obliged to pay. Safeway argued that the statute does not apply to the policy in question since this policy is an “automobile policy,” and not a “motor vehicle policy.” Safeway contended that to be a “motor vehicle policy,” the policy must be certified in accordance with La. R.S.32:898, and there no proof of this. Therefore, the policy in question is an automobile policy and not a motor vehicle policy. The trial court agreed, granting Safeway’s motion and denying Ms. Kahl’s.

65-Email-3_13_19-1024x683A common litigation tactic for plaintiffs is to bring cases in federal court to obtain greater damage awards. However, a plaintiff must have a viable claim under federal law or their case will be dismissed by the federal district court for lack of jurisdiction.

Following a car accident in which Cheryl Price was hospitalized with injuries, she hired attorney ES to represent her. ES secured a settlement for approximately $4,000 from the at-fault driver’s insurance company, the check for which ES deposited into his firm’s trust account. A lien placed by the hospital prevented ES from immediate disbursement of the money to Price. ES stated that the check included “Medicaid Recovery” as a payee, and told Price that he could not release the money until the lien issue was resolved. Price filed a complaint against ES with the Louisiana Attorney Disciplinary Board who conducted an investigation and concluded that no disciplinary action was warranted. ES’s firm eventually endorsed the check and released the money to Price.

Price then filed a pro se motion against ES, the Louisiana Attorney Disciplinary Board, the Louisiana Department of Health and Hospitals, and the Louisiana Office of Risk Management claiming violations of due process under the 14th Amendment, violations under 42 U.S.C. §§ 1983 and 1985, and violations of state law. Price sought compensatory and punitive damages. All defendants moved to dismiss her claims.

revolt-368925-unsplash-1024x683Imagine you are driving home from work and you collide with another vehicle. Would your employer be liable for the damages? For most commuters, the employer is not accountable for any accidents that occur on the way to or from the place of work and the employee’s residence. But in certain cases, such as where an employee is traveling with a specific business purpose under the direction of the employer, the employer may be on the hook under a theory known as vicarious liability. Effectively, vicarious liability holds an employer liable for an employee’s negligence when the employee is acting within the scope of the employer’s business. La. C.C. art. 2320.

On December 20, 2009, James Richards was traveling from Texas to his home in Florida along Interstate 10. In Bienville Parish, Louisiana, Richards collided with a van, causing the death of the driver and severe, paralyzing injuries to the passenger, Ricky Winzer. In 2010, Winzer filed a lawsuit against Richards and Richards’s employer, Certified Constructors’ Service, Inc. (“CCSI”). Winzer alleged that Richards was acting in the course and scope of his employment at the time of the accident, making CCSI liable through the doctrine of vicarious liability. CCSI filed a motion for summary judgment, arguing that Richards was not employed at the time of the accident and therefore CCSI could not be liable for his negligence. The trial court, after an evidentiary hearing in which depositions, interrogatories, and payroll documents were submitted, granted CCSI’s motion. Winzer appealed to Louisiana’s Second Circuit Court of Appeal.

Upon review, the Court reiterated the general rule under Louisiana jurisprudence that an employer is not liable for an employee’s negligence when they are driving to and from work unless the employer provides the transportation, pays expenses or wages for the time spent traveling, or has assigned the employee a specific  task to perform for the employer. See Woolard v. Atkinson, 988 So. 2d 836 (La. Ct. App. 2008). To determine if the employee’s actions fall within one of the above exceptions, courts must examine the following factors:  the employer’s power of control; the employee’s duty to perform the act in question; the time, place, and purpose of the act in relation to the employment; the relationship between the employee’s act and the employer’s business; the benefits received by the employer from the act; the employee’s motivation for performing the act; and the employer’s reasonable expectation that the employee would perform the act. See Orgeron v. McDonald, 639 So. 2d 224 (La. 1994).

metal-1314941-1-1024x680It is all too easy to forget just how dangerous driving can be. In addition to human factors such as sleepiness, being distracted, and stress, there is also the unpredictability of the road. Uncontrollable circumstances such as the weather or wild animals that dart into traffic can turn a regular commute into a devastating experience. But who is to blame when something unforeseeable, such as a force of nature, causes a highway catastrophe? This issue was addressed after a multi-vehicle accident on Interstate 10 near the Michael Boulevard exit in New Orleans on December 29, 2011.

Randall White’s car was the 25th of the 40 vehicles involved in the accident. White and his wife filed a lawsuit against the Louisiana Department of Transportation and Development (“DOTD”), the City of New Orleans, and the Little Pine Limited Partnership “Little Pine.” The Whites claimed that the pile-up was caused by thick fog combined with smoke from a marsh fire that had been burning since August 2011 on land owned by Little Pine. According to the Whites, the fog and smoke, in combination with faulty street lights, compromised visibility on the highway and caused the accident.

The DOTD filed a motion for summary judgment, a motion for judgment as a matter of law rather than on the merits of the case. La. C.C.P. art. 966. The DOTD argued that it had no notice of the fog in the area, had no responsibility for the street lighting issue, had no duty to protect the Whites from the fog or smoke, and it was shielded by governmental immunity. To support the motion, the DOTD relied on affidavits from DOTD engineers, the New Orleans Public Works Director, and the New Orleans City Council, as well documents such as the New Orleans Police Accident Report and the National Weather Service Report from the date of the accident. The trial court granted the motion and dismissed the Whites’ claims. In response, the Whites appealed to Louisiana’s Court of Appeal for the Fourth Circuit.

StockSnap_Q6ZI86R637-1024x678After an injury, it is natural to feel entitled to physical, mental, and financial recovery. Unfortunately, the road to recovery can be full of detours and roadblocks. Without the help of a good lawyer, it can be difficult, and perhaps impossible, to understand and adhere to the many rules of the legal system. What seems like an unfair technicality could be the result of an easily avoidable mistake.

On May 1, 2013, Detrand Lloyd, who is disabled and uses a wheelchair, boarded the Monroe City Bus. Some ways into the trip the bus braked suddenly, sending Lloyd out of his wheelchair and onto the floor, fracturing his tibia. One year later, Lloyd attempted to file a lawsuit against the Monroe Transit Authority and its insurer. Lloyd’s attorney attempted to file the petition via facsimile (“fax”) at 4:24 p.m. on May 1, 2014, just before the end of the court’s business day at 5:00 p.m. Despite more attempts that day, the clerk of court did not receive the petition until the morning of May 2, 2014, which is the day it was officially filed. The defendants filed an exception of prescription, requesting that the petition be dismissed because it was not filed in a timely manner. In their motion, the defendants argued that the lawsuit was filed more than one year after the accident. According to the defendants, the filing of the suit occurred on May 2, 2014, or one year plus one day from the date of Lloyd’s injury. Lloyd argued that his attorney tried to file the petition by fax on May 1, 2014, but “due to circumstances beyond the control of counsel,” receipt of the petition by the clerk of court could not be made until the next morning. A busy signal on the fax line was reflected on the attempted fax transmissions.

At the hearing, the trial court found that the operation of the clerk’s office fax machine was beyond Lloyd’s control and dismissed the exception of prescription. The defendants appealed to the Louisiana Court of Appeal for the Second Circuit, arguing that the trial court erred when it held as a matter of law that the clerk was required to keep the fax machine operating after hours. In addition, the defendants argued the trial court erred in denying the exception because prescription is interrupted only when the fax is received by the clerk, not simply by any attempt to fax the document.

trucking-in-snow-1357665-1024x681The viewing of a dead body can be traumatic for many people. If that viewing is caused by the negligence of another an excellent attorney may help you secure compensation for the emotional anguish experienced from that event. Shortly after midnight on February 4, 2011, Ronnie Rodd Davis was operating a tractor-trailer, owned by Superior Carriers, on eastbound Interstate 10 near the Atchafalaya Basin Bridge in Baton Rouge. Mr. Davis noticed that a collision had recently occurred in front of him and was able to stop before joining the other cars in the collision. Due to the abrupt stop to avoid the collision Mr. Davis’ tractor-trailer was rear-ended by another tractor-trailer operated by John V. Scott, and owned by Service Transport Company. The collision caused Mr. Davis’ tractor-trailer to move forward and strike a Ford F-150 pickup truck that was involved in the initial collision. Mr. Davis exited his tractor-trailer and upon exiting saw the deceased driver of that Ford F-150, Jonas T. Richmond, under or near Mr. Davis’ trailer axle.

Mr. Davis filed a lawsuit for damages and named John V. Scott, Service Transport, and Service Transport’s insurer, National Interstate Insurance Company (National Interstate), as defendants. The defendants filed a motion for partial summary judgment and sought to dismiss Mr. Davis’ claims of mental anguish and/or emotional distress due to Mr. Davis’ viewing of the deceased body of Mr. Richmond. After a hearing, the Trial Court granted the defendants’ motion for partial summary judgment. This dismissed any claims Mr. Davis had related to any alleged mental and/or emotional injuries.

Mr. Davis then filed a motion to designate the judgment as final so he could immediately appeal. The defendants opposed this motion. After a hearing, the Trial Court designated the judgment as final for purposes of immediate appeal and determined there was no just reason for delay. On appeal, the Appellate Court had both procedural problems and issues of causation regarding the accident. First, the Appellate Court dealt with the procedural issues created by the order of final judgment for purposes of immediate appeal. Only after the issue of whether the final judgment order was proper could the court consider the underlying factual issues of whether it was appropriate to grant summary judgment in favor of the defendants. The main issues were whether the issuing of a final judgment was proper, whether to convert the appeal to an application for a supervisory writ, and whether the Trial Court erred in granting Mr. Scott’s motion for partial summary judgment.

thinking-out-of-the-box-3-1237519-1024x1024Accidents involving children are difficult for everyone involved. When the accident results in extensive, life-changing injuries, the situation becomes even more tragic and often results in multiple lawsuits. A person cannot recover damages unless he or she has a recognized claim to do so under law. This concept is known as “standing.” Calvernia Reed, maternal aunt to an injured minor child, Geneva Marie Fils, got a glimpse into how strictly Louisiana courts construe that standing requirement.

On January 2, 2006, Geneva Marie Fils (“Geneva”) was born to John and Demitria Fils. She was almost immediately taken out of the biological parents’ care by the Department of Children and Family Services and placed in the foster home of Mayola Calais. On March 22, 2006, Geneva was involved in an automobile accident and suffered multiple injuries, including a fractured skull, an intracerebral hematoma (brain bleeding), and other traumatic brain injuries. Geneva’s biological parents first filed suit against multiple parties involved in the incident, their insurance companies, and the Department of Children and Family Services itself. Calvernia Reed was not named in the petition, but she was included as a plaintiff in the body of the petition as Geneva’s then-current guardian. The biological parents of Geneva sought damages both on behalf of Geneva, and for their own loss of consortium. In early 2011, Demitria Fils passed away. In February of 2011, Ms. Reed was substituted as the proper plaintiff in the proceedings after being granted custody of Geneva, as well as judicially appointed as Geneva’s “tutor.” Tutorship is the legal status of guardianship under Louisiana law. In late 2013, Ms. Reed amended the petition to include her own claim for loss of consortium with Geneva as a result of her injuries. The trial court dismissed Ms. Reed’s claim for loss of consortium because Ms. Reed was not the parent or guardian of Geneva at the time of the accident. Ms. Reed appealed.

Under Louisiana law, a person may recover loss of consortium, service, and society if the person could recover under “a cause of action for the wrongful death of an injured person.” La. C.C. art. 2315(B). The wrongful death statute allows for a cause of action by “[t]he surviving father and mother of the deceased, or either of them if he left no spouse or child surviving.” La. C.C. art. 2315.2. The statute also includes adoptive kin as named in the statute.  La. C.C. art. 2315.2. It does not, however, specifically include a maternal aunt. The list is considered exclusive under Louisiana law, meaning that if the kin is not mentioned in the statute, then the kin cannot recover damages for the claim. Leckelt v. Eunice Superette, 555 So.2d 11 (La. App. 1989). Outside of including adoptive kin under the statute, the terms “mother” and “father” are not defined in La. C.C. art. 2315.2. The Louisiana Children’s Code currently defines “parent” as “any living person who is presumed to be a parent under the Civil Code or a biological or adoptive mother or father of a child.” La. Ch. C. art. 116(17). Notably, the Children’s Code does not give tutorship, custody, or a guardian the legal status of a parent.

the-last-drop-1306724-1024x768Louisiana, like most states, requires drivers to maintain liability insurance (or less commonly, a liability bond or certificate of self-insurance) to legally operate a motor vehicle. In 1992, an amendment to this law explicitly allowing insurance companies to offer “named driver” exclusions in their policies, which allowed an insured the option of paying a lower premium in exchange for insurance that provides no coverage while the specifically named driver operates a covered vehicle. The law was upheld by Louisiana courts, though it did create some disagreements in its interpretation, both among the appellate courts and between the Louisiana Supreme Court and the legislature. One of these disagreements concerned whether the owner of a vehicle could purchase liability insurance and then, through the named driver exclusion, exclude himself from coverage under the policy. Although the Louisiana Supreme Court determined that to allow such a maneuver would be violative of public policy, their interpretation was overruled by subsequent legislation explicitly allowing it.

In Bourg v. Southall, a motor vehicle accident occurred in Marrero, Louisiana where there was no question of fault: Plaintiffs were stopped at the intersection of LA-45 and Lapalco when they were hit from behind by an intoxicated driver. Although Plaintiffs were able to recover damages at trial, that ruling was overturned by the Louisiana Fifth Circuit Court of Appeal on the basis that the driver of the vehicle was listed in a named driver exclusion of the policy, despite the fact that he was both the owner of the vehicle and the named insured (he purchased the policy).

La. R.S. 32:900(L) clearly allows the owner of a vehicle to purchase liability insurance on a vehicle and to exclude himself from coverage under the policy. Sensebe v. Canal Indemnity Co., 58 So.3d 441, 451 (La. 2011). Furthermore, this provision does not set forth any specific requirements with respect to the form to exclude a named person from coverage; the only requirement is a written agreement. See Gilbert v. Reynoso, 917 So.2d 503, 505–06 (La. Ct. App. 2005).

handcuffs-1484704-1024x768A police pursuit of a suspect can be a dangerous scenario for all individuals in the vicinity of the pursuit. But what happens when the officer collides with a party while in pursuit, and your car is then struck due to the first accident? The First Circuit Court of Appeal for Louisiana recently addressed the issue.

On February 22nd, 2014, Slidell Police Officer Justin Lee Stokes (“Stokes”) was traveling at a high rate of speed, northbound on Highway 11. Lee’s patrol vehicle was in pursuit with both the emergency lights and siren activated. Lee approached the intersection of Highway 11 and Gause Boulevard, when a car traveling south on Highway 11 driven by Ian Jurkiewicz (“Jurkiewicz”), made a left hand turn directly in the path of Stokes’ pursuit. Stokes’ patrol vehicle collided with Jurkiewicz’s vehicle, which then struck a second vehicle, driven by Jennifer Bullock (“Bullock”).

Bullock filed a lawsuit for damages against the City of Slidell, Stokes, Jurkiewicz, and United Services Automobile Association (“USAA”) for damages stemming from the accident. The lawsuit was filed in the Twenty-Second Judicial District Court for the Parish of St. Tammany, Louisiana. Bullock made a motion for the partial dismissal of Jurkiewicz and USAA, which was granted by the District Court. Stokes and the City of Slidell made a motion for summary judgment because police officers are immune from liability when the acts of the officer are within the scope of the power and duties vested in a police officer. La. R.S.9:2798.1 (2014). When an officer is in pursuit of an actual or suspected violator of the law, the officer may exceed maximum speeds limits so long as the officer does not put life or property in danger. La. R.S.32:24 (2014). The district court granted the motion for summary judgment. Bullock then filed an instant appeal in regard to the decision of the district to grant the summary judgement motion, arguing that it was incorrect to determine that there was not a genuine issue of material fact and that La. R.S.9:2798.1 and La. R.S.32:24 were not applicable to the facts in this case, because she Bullock believed that speed was not the cause of the accident.