Articles Posted in Car Accident

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.

image-3-1024x683After deciding to follow through with filing a lawsuit, one of the first questions asked is where to file. Venue is the county or parish that is applicable for your case to proceed. Filing in the proper venue is a determinative factor in moving forward with your case. There may be more than one appropriate venue for your case, but failure to choose correctly can cause ripple effects to the rest of your lawsuit.

Damion Comeaux and Austin Romero collided at an intersection in Vermilion Parish on June 9, 2012. Comeaux filed a lawsuit on May 16, 2013, in the East Baton Rouge Parish, naming defendants Romero (who was driving a police department car), Abbeville Police Department, the City of Abbeville, the Louisiana Municipal Association, and Zurich American Insurance Company. Comeaux alleged that he was injured when Romero failed to stop at a stop sign, causing the collision with Comeaux’s vehicle, and sought money for his bodily injuries, as well as associated general and special damages.

At trial, the City of Abbeville cited improper venue and the case was ultimately transferred to Vermilion Parish on the condition that the defendants waive any defense of prescription (statute of limitations). Prior to the trial court transferring the case, Comeaux filed an identical lawsuit in Vermilion Parish on July 1, 2013. Both the East Baton Rouge and Vermillion Parish cases proceeded at the same time, which identical filings in each district. The defendants objected to the condition to waive prescription and challenge the cause of action. The trial court ruled in their favor, and Comeaux appealed on prescription of his second filed lawsuit (in Vermillion Parish) and cause of action.

school-bus-2-1518496-651x1024Losing a child is always an extremely difficult experience for a parent to go through, and it is even more difficult when the death is a result of negligence. Normally when negligence occurs, the parents bring forth a wrongful death lawsuit against the negligent party.

On March 14, 2011, six-year-old La’Derion Miller tragically passed away following a school bus accident when La’Derion attempted to board the school bus and the bus door closed on his arm. Unfortunately, La’Derion could not free himself and he tripped and fell on the road, where he was run over by the bus. As a result of the accident, La’Derion’s parents, Marcus Miller, and Heather Jagnauex, filed separate wrongful death lawsuits naming Harold Thibeaux (the bus driver), Lafayette Parish School Board, and American Alternative Insurance Corporation as defendants. Ms. Jagnaeux and Mr. Miller claimed their son died as a result of the defendants’ negligence.

Mr. Miller’s and Ms. Jagnauex’s separate lawsuits were consolidated for trial. Ms. Jagneaux ended up settling outside of court for $275,000 and subsequently dropped from the case. At trial, the trial court ruled in favor of Mr. Miller awarding him $50,000 in damages for his survival action, $250,000 in damages for his wrongful death claim, and court costs. The defendants disagreed with the trial court’s decision and appealed the decision to the Louisiana Supreme Court.

wrecked-1306594-1024x683Generally, when you have a car accident it is a fender bender, and it is clear to the police and the court what events took place. However, in some situations, the evidence can support different versions, and the parties do not agree on what occurred. Typically, when there are conflicting stories in a case, it is up to a fact finder to determine which version is the “truth.” A fact finder may be a judge or a jury. However, when the trial court’s determination of fact is appealed, the Louisiana Supreme Court has established a two-part test to determine if the trial courts finding was correct or must be overturned. First, the Louisiana Appellate Court must make the determination after reviewing if a reasonable factual basis exists for the finding of the trial court; second, the Louisiana Appellate Court must determine if the record establishes that the finding of the trial court is clearly wrong (manifestly erroneous). Purvis v. Grant Par. Sch. Bd., 144 So. 3d (La. 2014). In this case, the Louisiana Court of Appeals had to implement the above two-part test to determine if the trial courts accepted version of the accident was correct.

In 2013, the Plaintiff, Aisha Brown, and one of the Defendants, Kevin Fogg, were driving on Elysian Fields Ave. (“Elysian”) and Gentilly Boulevard (“Gentilly”) in New Orleans, Louisiana. Ms. Brown contends that she was hit by Mr. Fogg while her daughter and her friend’s daughter were in the vehicle, leading her and her friend to sue Mr. Fogg, his employer, and his employer’s insurance, Travelers Insurance Company (“Travelers”).

At trial, Ms. Brown testified that she was traveling on Elysian, turned right onto Gentilly, and after merging into the left lane was struck in the rear passenger door by Mr. Fogg’s vehicle. Her testimony at trial differed from what she claimed occurred in her petition and discovery response, in which she alleged that the accident occurred when she was traveling on Elysian at Gentilly when Mr. Fogg rear-ended her. According to Mr. Fogg, at the time of the accident he was traveling in the right lane of Elysian, heading to perform a work-related inspection, and as he approached Gentilly, Ms. Brown attempted to turn right in front of him from the center lane of travel, causing the collision.

trucking-pics-1619675-1024x765You never know when a leisurely drive can turn into a lengthy lawsuit. Larry Dragna was on a drive in November, 2011, when his vehicle was hit by a driver for A&Z Transportation. KLLM Logistics hired A&Z to transport a freight load from Louisiana to Michigan. Before hiring A&Z, KLLM followed its internal selection policy by reviewing A&Z on a transportation industry review website, which showed that three of A&Z’s scores were at a point that indicated problems in certain categories. Although the indicators showed instances of unsafe driving, fatigued driving, and maintenance issues, there were no federal regulations that advised KLLM not to hire companies with scores like A&Z. KLLM, however, had an internal policy to not hire carriers with three troublesome scores until it had discussed the scores internally or with the carrier. There is no evidence if whether KLLM followed this policy when they hired A&Z.

The Dragnas sued KLLM, claiming that KLLM was liable under the theories of joint venture, vicarious liability, and negligent hiring of an independent contractor. The district court for the Middle District of Louisiana entered summary judgment in favor of KLLM on all three claims and the Dragnas appealed. The United States Court of Appeals for the Fifth Circuit decided this case.

Summary judgment is proper when there is no genuine dispute to any material fact in the case, under Fed. R. Civ. P. 56(a). The court in this case first applied this requirement to the issue of joint venture liability, finding that the Dragnas’ evidence did not create a genuine dispute of material fact about a joint venture between KLLM and A&Z. Under Louisiana law, there are certain requirements that must be met in order for there to be a joint venture. There must be contributions between two or more persons in determinate proportions, a joint effort between the parties, a sharing of profits, and a mutual risk of losses. See Cajun Elec. Power Coop., Inc. v. McNamara, 452 So. 2d 212, 215 (La. Ct. App. 1984). Those requirements were not met, as A&Z used its own resources in transporting the load, KLLM placed all of the risk of loss on A&Z, A&Z did not share in any profits made, but was paid upon completion of performance, and A&Z alone determined how to move the load. Summary judgment, was, therefore proper in regards to the first issue of joint venture liability.

horse-1392212-1024x863While there are many steps that can be taken to prevent road accidents, accidents still happen. When accidents occur, we are left to determine who is at fault. For many people, automobile insurance is the only lifeline to help them recover from the accident. However, to automobile insurers, the question of who is at fault is incredibly important. Is there ever truly one party who is 100% at fault for a crash? How is a crash handled if it involves unconventional modes of transportation? Can someone be at fault if they are not legally negligible? These issues were explored in a case brought to the State of Louisiana Third Circuit Court of Appeals.

In February 2012 on Dave Douglas Road in Calcasieu Parish, Louisiana, Cyril Prejean and Jessyca Steward were riding Prejean’s horse Mississippi. At approximately 6:25pm, Prejean and Steward were hit by a GMC Yukon driven by the defendant, Russell Horton. Cyril and Steward did not receive serious injuries, however, Mississippi died from a gunshot wound to ease his suffering from injuries sustained in the crash. Horton was insured by State Farm Mutual Automobile Insurance. Prejean and Steward filed a lawsuit against Horton in November 2012. Following a trial in September 2014, the trial court found Horton was 100% at fault for the accident and awarded Prejean $17,969.50 in total damages and Steward $6,962 in total damages.

Horton and Statement appealed this decision citing that Prejean should have outfitted Mississippi with lights as required by Louisiana law and therefore Prejean should be 100% at fault for the accident. See  La.R.S. 32:53, La.R.S. 32:301, and La.R.S. 32:124.

girls-playing-1564125-1024x768What happens when a plaintiff is injured, and damages are denied? How can a plaintiff prove they suffered injuries from an accident? According to Louisiana law, a plaintiff must prove, by a preponderance of the evidence, that his or her damages were the result of an injury caused by the defendant. Wainwright v. Fontenot, 74 So.2d 70, 77 (La. 2000).  The following Louisiana Fifth Circuit case demonstrates the plaintiff’s burden of proof needed for a Louisiana court to award damages.  

On March 5, 2013, Regina, and her minor children, Darren and Darinesha were traveling northward in the center lane of Williams Boulevard when their car was sideswiped by a car driven by Mr. Hashim on Williams Boulevard in Jefferson Parish. The airbags in both cars failed to deploy, and the cars only sustained minor headlight and paint damage. The plaintiffs, Regina Tezeno, and her minor children, Darren and Darinesha Tezeno filed a lawsuit against Mr. Joel Hashim and his insurer.  

The district court attributed 100% fault to Mr. Hashim and awarded Regina Tezeno special damages of $1,035.00 and general damages of $4,500.00. Yet, the trial court dismissed the award claims to her minor children with prejudice. The plaintiffs appealed the trial court’s refusal to award damages to the children.