Car Accident

December 18, 2016

Car Crash on Louisiana Highway Shows Importance of Presenting Accident-Related Medical Records

Classical spectacle on eye chart Car accidents happen all the time in Louisiana, but not all accidents cause injuries. Unfortunately, that wasn’t the case in Tangipahoa Parish, Louisiana, when Joseph Lohenis found himself rear-ended on Highway 1249 by a vehicle owned by Tammy Rousse. Lohenis’ son was driving the car and Lohenis’ wife was in the passenger seat. Lohenis himself was sitting in the back seat of the car, wearing a lap seat belt. The rear-end collision caused Lohenis’ body to move forward and hit the console, and then move backward, where the back of his head and neck hit the truck’s back glass window.

Lohenis filed a lawsuit to recover damages for the aggravation of pre-existing neck and back injuries. The aggravation of those injuries allegedly occurred due to the car accident. In a bench trial that was focused solely on the issue of the amount of damages to be awarded, the trial court awarded Lohenis $47, 857.50 in damages. The defendant appealed.

In the appeal, the defendant claimed that the trial court erred in assigning the amount of general damages awarded to the plaintiff. In addition, the defendant claimed that the trial court erred in admitting into evidence third-party medical records as a basis to discredit Lohenis’ neurosurgeon. The second error was that the trial court allegedly erred in finding that Lohenis proved an aggravation of pre-existing injuries beyond two months following the accident. The third error asserted by the defendant was that the trial court used the incorrect mathematical formula to calculate damages awarded to Lohenis. Lasty, the defendant asserted that the trial court was incorrect to find that Lohenis would be entitled to damages for loss of consortium when he did not have a loss of consortium claim in his original petition.

December 17, 2016

Court of Appeal Discusses Louisiana’s Presumption of Negligence in Automobile Accident Cases

by Berniard Law Firm

ambulance-1442004 In Louisiana, the law presumes a driver negligent when he or she leaves a travel lane and strikes another vehicle. This presumption stems from the legal obligation all motorists have to maintain control of their vehicle. In personal injury cases, this presumption overrides the normal burden of proof which lies on the plaintiff. In order to defeat the presumption of negligence, the defendant must show that he or she was not guilty of any negligence, however slight. A recent case of the Louisiana First Circuit Court of Appeal considered the presumption of negligence in automobile accident cases.

On August 3, 2009, a multi-vehicle accident occurred on interstate 10 in East Baton Rouge Parish near the Mississippi River Bridge. Loren Arey was driving an eighteen wheeler in the middle lane of the intersection. Traffic in the two lanes beside him started to slow down. Another unknown driver of a white vehicle switched into the middle lane directly in front of Mr. Arey. In order to avoid hitting him, Mr. Arey swerved right, hitting a pickup truck. It caused the pickup to hit the rear of Leandro Carias’ vehicle. The white vehicle shifted back into the left lane and continued driving.

Mr. Carias filed a lawsuit against Mr. Loren and several co-defendants, including his trainer, Mr. Rickie Williams, the driver of the pickup truck, and the drivers’ respective insurance companies. Mr. Arey, Mr. Williams, and C.R. England, Inc. the owner of the eighteen wheeler (collectively referred to as “the defendants”) filed motion for summary judgment seeking to have the claim dismissed before trial. The defendants’ motion for summary judgment argued that the accident was caused by the white “phantom vehicle,” and that there was no evidence as to any of the defendants’ liability. The Trial Court granted the motion for summary judgment, dismissing all claims against all Defendants. Mr. Carias appealed.

December 11, 2016

Make No Mistake, Medical Testimony Is Required For Juries To Award Damages For Future Medical Expenses

by Berniard Law Firm

car-accident-4-1546893 Car accidents are scary. When individuals make the choice to take on a personal injury lawsuit there is a lot of time that goes into those cases. After expending all that time and emotional energy, people want to feel like the verdict they received was fair, or at the very least compensates them for the injuries they incurred. The jury’s job is to listen to all the facts, be instructed on the law and make a decision. Many people think that once a jury renders a decision, that it is final. However, in some cases an individual can appeal to a higher court if they felt as though the jury award of damages was abusively low. That is exactly what a woman in the Parish of Lafayette, Louisiana did and it worked, partly.

Nicole Barras was involved in a car accident where she sustained multiple bodily injuries. She sued the driver of the other automobile and pursuant to the jury decree, received a payment from his insurance in the total amount of $55,491.96.

Children and spouses of persons injured by the negligence of another may raise loss of consortium claims. These claims compensate the family members of the injured person for spousal or parental affection and guidance that was lost because of the injury. See Ferrell v. Fireman’s Fund Ins. Co., 696 So. 2d 569 (La. 1997). Barras’ husband and five minor children received $6000 total in damages for their loss of consortium claims because Ms. Berrar could not guide her children or help her husband with family matters.

December 7, 2016

Louisiana Personal Injury Case Shows Complications with Jury Awards

by Berniard Law Firm

KONICA MINOLTA DIGITAL CAMERA When you are injured by the actions of another person, seeking monetary damages from them in court is one way to ensure that your costs can be met. However, sometimes judges and juries can make factual or legal mistakes that result in damages that are too high or too low, and in these instances it is often up to an appellate court to set the correct monetary amount. If you have received a monetary damage judgment, but you believe it does not represent the true cost of the injuries you suffered as a result of the other person’s actions, you have the option of seeking an appeal from a higher court to modify your damages.

Mr. Becnel did just that in an automobile accident case arising out of a Louisiana trial court. After he was rear-ended in a car accident, Mr. Becnel went to court to recover his past and future medical expenses and general damages, which covers pain and suffering other than the cost of medical treatment itself. Because medical costs are very concrete and measurable, on appeal Mr. Becnel argued only that his general damages award was too low, because he claimed the jury did not take into account any future pain and suffering, only past.

In an earlier Louisiana case, the court had held that any evaluation of the amount a jury awards by an appellate court must be done by first giving a lot of deference to the determination of facts that has already occurred. (Wainwright v. Fontenot (La. 2000) 774 So.2d 70, 74.) The idea behind this is that the jury was able to hear all of the evidence and testimony first hand, and it would be improper for an appellate court that did not get to hear everything first hand to overturn a decision the jury has already made, unless the jury’s amount awarded was clearly wrong.

December 5, 2016

Three-Car Collision in Lafayette Parish Results in Defendant That Can’t Shake the Presumption of Negligence

by Berniard Law Firm

$arriving-with-the-refraction-4-1573537-1024x768$ In certain kinds of car accidents there is a rebuttable presumption of negligence afforded to a party involved. In a collision that happened in Lafayette Parish, The Louisiana Third Circuit Court of Appeals decided that the presumption of negligence remained intact and the other involved parties could not be assigned fault.

The case arises out of a three-car collision which happened in Lafayette, Louisiana, on March 16, 2012. For this decision, the plaintiff Linda Leblanc was appealing a summary judgment ordered in favor of the defendants, Abbie Norris and Louisiana Farm Bureau Casualty Insurance Company. The Three drivers involved where plaintiff Leblanc, defendant Norris, and Brody Bouzon. Leblanc stopped at a red light with Norris stopping behind her. Bouzon who was behind Norris failed to stopped and rear-ended Norris’ car pushing her into the rear of Leblanc’s vehicle. Bouzon was given a ticket for careless operation of his vehicle at the scene of the accident. Leblanc claims that she sustained physical pain and mental anguish from the accident stemming from Norris and Bouzon’s negligence and she filed her lawsuit against the defendants along with Bouzon and his insurer seeking medical damages and lost wages. Norris and her insurer Farm Bureau filed a motion for summary judgment on her liability based on several allegations coming down to Bouzon having the presumption of negligence. The District Court granted the motion for summary judgment and the Court of Appeals affirms.

To successfully motion for summary judgment the party asking for the motion must show that there is no genuine issue of material fact and that the party is entitled to the judgment as a matter of law. The motion is granted if facts and records of the case show these two things. With a summary judgment a court can decide certain issues of a case in advance of the trial to efficiently dispense with those matters.

November 28, 2016

Appellate Court Ruling in Louisiana Serves as a Reminder to Put Settlements in Writing

by Berniard Law Firm

writing-hand-1553215
Most people have heard the saying “A Deal’s a Deal.” That’s what the plaintiffs thought in a case that arose from Rapides Parish that involved eight people in one vehicle and one person in the other. The plaintiffs were the driver and passengers in the eight-person vehicle, and they were suing for damages that were caused by the defendant in the car accident. However, the only applicable insurance coverage to the plaintiffs was the uninsured motorist coverage issued by Safeway Insurance Company of Louisiana. The plaintiffs eventually reached a settlement agreement with Safeway, in which Safeway agreed to pay the agreed amount of the insurance policy.

However, the plaintiffs alleged that Safeway failed to remit the settlement fund within thirty days of the date that the settlement agreement was put into writing, as mandated by state law. Pursuant to state law under La. R.S. 22:1973, the trial court found the agreement was put into writing on March 18, 2013, while the settlement was paid off by Safeway on the thirty-fourth day after the agreement. Safeways appealed when the trial court ruled in favor of the plaintiffs. The Court of Appeals disagreed with trial court’s finding and determined the day the agreement was put into writing was March 28, 2013. The payment made by Safeway on April 22, 2013, was within the thirty-day period.

The appellate court emphasized that the thirty-day requirement is penal in nature and, therefore, the court should construe its application strictly and narrowly. The Court consequently concluded that when a party seeks penalties for an insurer’s failure to pay a settlement in time, the party is not required to prove that the insurer was “arbitrary, capricious, or without probable cause” in failing to pay. Rather, the party is required to show that the insurer “knowingly” failed to pay. See Sultana Corp. v. Jewelers Mut. Ins. Co, 03-360, p. 9 (La. 12/3/03), 860 So.2d 1112, 1119.

November 24, 2016

Why Might A Personal Injury Lawsuit Resulting From A Car Accident Be Dismissed?

by Berniard Law Firm

jury

Even a minor car accident can result in injuries causing pain and disability. Some injuries are more difficult to prove than others. When a personal injury lawsuit resulting from a car accident goes to trial, a jury often makes determinations as to the extent of the injuries and the credibility of witnesses. If the court does not believe the credibility of your witnesses sometimes that can lead to your case being dismissed. Such determinations were made by a jury in a personal injury lawsuit brought by Andre Stevenson against Sandra Serth and her insurer, Travelers Casualty Insurance Company of America.

In November 2011, Andre Stevenson was stopped at a gas station waiting to pull out onto Veterans Memorial Boulevard. From the eastbound direction, Sandra Serth, in her PT Cruiser, ran a red light and struck another driver in a Nissan Maxima. This collision produced a domino effect sending the Maxima into Mr. Stevenson’s stopped vehicle. Mr. Stevenson claimed that he suffered neck and back injuries as a result of the collision. At trial, he testified as to the resulting injuries. He asserted that he did not have any pain before the accident, but started having neck and back pain after the accident occurred. In addition, he testified that he began treating the pain with an orthopedist and was given epidural steroid injections twice in his back and once in his neck. After Mr. Stevenson completed his testimony, his attorneys did not call any further witnesses. His medical records and the orthopedist’s two depositions were admitted into evidence. However, the orthopedist’s depositions were not read to the jury and pursuant to La. C.C.P. art. 1794(B), the depositions were not allowed into the jury room. Thus, it is unclear what effect, if any, the orthopedist’s depositions had on the jury.

On the other side, the defense produced as one of their witnesses an expert in neurosurgery. The expert reviewed Mr. Stevenson’s cervical and lumbar MRIs in addition to the reports of the radiologists who previously reviewed those same MRIs. The defense’s expert noted that there were some abnormalities in Mr. Stevenson’s neck, but made no statements or indications as to the significance of those abnormalities.

November 20, 2016

Court Reviews Evidentiary Requirements for Damages Claims in Review of Baton Rouge Rear-End

by Berniard Law Firm

baton rouge
Damages are the award of monetary compensation that the law imposes on a defendant for a violation of law or a breach of a legal duty. Generally, damages seek to remedy the harm done to the plaintiff by the defendant. The law recognizes several categories of damages including general damages, specific damages, punitive damages, and damages for loss of consortium. A recent case out of the Louisiana First Circuit Court of Appeal reviews the evidentiary requirements of damages claims.

On August 10, 2009, Ms. Tekisha Greenup’s vehicle rear-ended a Ms. Rachel Howard’s vehicle in Baton Rouge, Louisiana. There was no dispute that Ms. Greenup was 100% at fault in causing the accident. Ms. Greenup was insured by United Services Automobile Insurance Association (“USAA”) with policy limits of $25,000.00. Ms. Howard had uninsured motorist coverage through a State Farm policy with limits of $10,000.00. Ms. Howard received her policy limit of $10,000.00 and medical benefits of $5,000.00 from State Farm. She received no payment from USAA.

Ms. Howard and her husband then filed a petition for damages (i.e. lawsuit) in the 19th Judicial District Court of the Parish of East Baton Rouge. In her petition, Ms. Howard alleged that she sustained serious injuries to her neck, back, and head as a result of the injury that necessitated medical treatment. Before trial, the defendants filed a motion to adjudicate credit, arguing that any judgment against them in excess of its policy limits should be reduced by $15,000.00, the amount the Howards recovered from State Farm. The Trial Court agreed and granted the defendants’ motion. At the end of the trial, the jury awarded Ms. Howard a total of $42,000.00 in past medical expenses, lost wages, and general damages. The jury denied Ms. Howard’s claim for loss of consortium damages. The $42,000.00 was reduced by the credit of $15,000.00 resulting in a total award of $27,000.00. The Howards appealed, challenging primarily the award of damages.

November 8, 2016

Do Drivers Entering Louisiana Highways Have a Duty to Yield to Traffic?

by Berniard Law Firm

truck-on-hwy-1615510 You are driving down a highway in Louisiana minding your own business when all of the sudden an eighteen wheeler pulls out of nowhere. BAM, you slam into the side of it, your back aches, your car is wrecked and now you are involved in a lawsuit. Who is at fault for this unfortunate circumstance? While this might seem like a no brainer many times great car accident lawyers will argue that the driver who was just driving down the road somehow caused the accident. The following case out of Port Allen, Louisiana demonstrates how the Courts assess liability when accidents happen between cars traveling down the highway and those that are entering into the highway.

In 2010 a motor vehicle accident occurred on Lobdell Highway. The highway is a four-lane stretch of road in Port Allen, Louisiana. Leroy Edmond was driving a GMC Sierra truck when he struck a flatbed trailer that was being pulled by an eighteen wheeler driven by Sherbaston Wilson. Wilson was attempting to make a lefthand turn out of a truck stop and at the time of impact Wilson’s trailer had not cleared the northbound lane. Edmond filed a lawsuit against Wilson, his employer, Jowin Express, Inc., and their insurer, Cherokee Insurance Company. Edmond alleged that Wilson was negligent in failing to yield to oncoming traffic while exiting from a private driveway and that Edmond sustained permanent injuries from the accident.

A trial occurred and the jury returned a verdict assessing 95% fault or the accident to Wilson and 5% to Edmond. The damages awarded in favor of Edmond were as follows:

October 12, 2016

U-Haul and Fedex Trucks Collide, Claims Adjuster Repwest Makes a Quick Exit from Lawsuit

by Berniard Law Firm

truck-on-hwy-1615510-1-1024x682 Renting a U-Haul truck can be a necessary burden when you are tasked with moving a lot of stuff from place to place. During the rental process you might be asked whether or not you want supplemental insurance policies. But who do you sue when an accident happens? In the following case out of New Orleans, Louisiana one plaintiff finds out who definitely cannot be sued when a U-Haul and Fedex truck collide.

JR was driving a rented commercial truck (U-Haul), when his truck crashed into a delivery truck (Fedex) in New Orleans. JR filed a lawsuit against the delivery truck and also named the insurer of the company he rented the truck from as a Defendant as well. JR named the company from whom he rented a truck as a Defendant because he claimed to have purchased “risk protection” from that company in the course of his rental agreement with the company. JR believed that the risk protection insurance would provide him with uninsured motorist coverage. The plaintiffs went on to add RW Insurance Company as another defendant, apparently believing that RW was the commercial company’s insurer.

However, RW insurance apparently is only a claims administrator for the commercial company and not an insurance company. Upon receipt of the lawsuit RW wanted out as soon as possible. To do so they filed a motion for summary judgment (MSJ). If RW could prove that there was no genuine issue as to the material fact that they were not an insurer for the commercial company and thus owed no coverage to JR they could be dismissed from the case. See Louisiana Code of Civil Procedure article 966. They did just that and the trial court granted their motion.