Car Accident

July 24, 2016

Louisiana Fourth Circuit Denies an Exception of Prescription Based on Procedural Nuances.

hour-glass-1307106-1-1024x768 In legal matters, there is generally always a time frame in which certain actions must be taken. Failing to bring an action in the allotted time may bar a person from filing a lawsuit. Once the specified time period has passed, the plaintiff is no longer able to file a lawsuit or claim. In other states this time limitation is called the statute of limitations; however, in Louisiana, it is called Prescription. Usually, the prescriptive period for filing a lawsuit is one year. La. C.C. art. 3492. Additionally, if a lawsuit is filed but is not filed according to certain procedural guidelines, the plaintiff may also be barred from going forward with their lawsuit, irrespective of whether it was filed within the one year prescriptive period. In either instance, opposing council may file an Exception of Prescription.

An Exception of Prescription is a motion which asks the court to dismiss the lawsuit due to not bringing the lawsuit timely or failing to abide by procedural rules. The failure to follow procedural guidelines, became the center of the controversy in the Fourth Circuit case of Richard Lewis v. Robert Constigan Flowers and Nationwide Mutual Insurance Company. Lewis v. Costigan, et al. 2015.

In this Orleans Parish case, the initial controversy arose from a vehicle collision between Robert Lewis and Robert Costigan Flowers. Mr. Lewis filed a Petition for Damages on April 21, 2014 via facsimile. According to Mr. Lewis’ counsel, the documents were sent to the Clerk of Court on April 25, 2014. However, on May 1, 2014, ten days after the facsimile transmission, the Clerk of Court stamped the original documents when they processed the filing fees.

July 15, 2016

One Car Accident, Two Different Stories of How it Occurred, What Does a Court Do?

by Berniard Law Firm

new-orleans-canal-st-1230688-1024x768 There are two sides to every story — and to every lawsuit. In many lawsuits, each side’s story is plausible, and the trial court’s decision ultimately comes down to which story was more plausible. A recent car accident case in New Orleans illustrates this concept and highlights the need for effective lawyering on behalf of a client.

Brown v. Travelers Insurance Company, et al. arose from a car accident between vehicles driven by plaintiff, Aisha Brown, and defendant, Kevin Fogg, at the intersection of Elysian Fields Avenue and Gentilly Boulevard in New Orleans. Brown, individually on behalf of her minor children, and Nachelle Williams, on behalf of her minor child, filed a lawsuit (the minor children were passengers in Brown’s car). The trial court ruled in favor of the plaintiffs and awarded damages to each of them. Fogg appealed this judgment. The only issue on appeal is that of Fogg’s liability: Did the trial court properly rule in favor of the plaintiff?

At trial, the defendant testified that he was traveling on the right lane of Elysian Fields Avenue and intended to proceed straight on the same road through its intersection with Gentilly Boulevard. As the defendant approached the Gentilly Boulevard intersection, he testified, the plaintiff driver attempted to turn right in front of him from the center lane of travel, causing a collision between the two vehicles. In contrast, the plaintiff testified as follows: plaintiff was traveling on Elysian Fields Avenue, and then she turned right onto Gentilly Boulevard. After merging into the left lane of travel, the defendant’s vehicle struck the plaintiff’s rear passenger door.

July 7, 2016

What Are the Requirements to Prove an Insurance Policy was Cancelled in Louisiana?

by Berniard Law Firm

Mail insurance policy cancelled
If you are injured in a car wreck you typically look to the person who caused the accident and their insurance company to cover your damages. But what happens if the reckless driver’s insurance company claims they cancelled the insurance policy before the accident occurred? How can you determine whether or not that insurance company followed the proper procedures under Louisiana to cancel coverage? The best car wreck attorneys know the law and whether or not the insurance company followed it. The following case out of New Orleans Louisiana demonstrates the steps an insurance company must follow when they cancel coverage and how they can evade liability by proper notification.

Mario Diaz learned the hard way that if you are are struck by an uninsured driver, you may not be able to recover when that driver is at fault in an accident that caused your injuries. Mr. Diaz was a passenger in a car driven by Eudolio Lopez in New Orleans, Louisiana when Mr. Lopez crashed into a vehicle driven by Darrell Butler. Mr. Diaz filed a lawsuit against Mr. Lopez, Mr. Butler and his insurer, Allstate. Allstate, the insurer of Mr. Butler, responded to the lawsuit by filing a motion for summary judgment, contending that Mr. Butler was no longer covered under his Allstate policy because he had failed to keep up with his payments and had received adequate notice of the cancellation of his policy.

Allstate provided proof that the policy was canceled on February 3, 2011 after a letter was mailed to Mr. Butler on January 24, 2011 demanding he pay his premiums or lose his coverage. Allstate provided an affidavit from Ms. Collard, who controlled all of Allstate’s policy records in the state of Louisiana, stating that she had reviewed Mr. Butler’s file and confirmed that a notice was sent to Mr. Butler and that he failed to pay on time. The First City Court of New Orleans agreed and granted the motion for summary judgment. Thus, the trial court found that there was adequate proof of a cancelled policy well before the accident occurred. See Louisiana Revised Statute 22:1266.

July 5, 2016

New Orleans Freight Truck Causes Devastating Injuries That Leads to Interdiction and Res Judicata Issues

by Berniard Law Firm

i-haul-1450942-1024x642 When a person is injured and left in a condition where they cannot handle their legal claims, their family may act on the incapacitated person’s behalf. If a family member is handling claims on behalf of the incapacitated, it is very important for them to find a good lawyer to help navigate the legal processes. The following appeal of a lawsuit arising out of New Orleans discusses what can occur when multiple lawsuits are filed as a result of disastrous injuries caused by an eighteen wheeler.

Connie Marable was injured in an accident when her husband’s freight truck allegedly shifted into gear and dragged her underneath the vehicle. Connie was rendered comatose and she was subsequently interdicted. Her husband, Wayne, was appointed as her curator. Wayne filed a lawsuit against Empire Truck Sales and its general manager Curtis Hudspeth in Orleans Parish Civil District Court on behalf of his wife. Wayne alleged that Empire’s faulty work or failure to work on the truck is what caused the accident which injured Connie.

Connie’s adult children from a previous marriage, Bill and Engelique Jones, later filed a lawsuit on their own behalf in Orleans Parish District Court against not only Empire and Hudspeth, but also Wayne; Great West Casualty Company, Wayne’s insurer; and DTNA and KLLM. The petition claimed that DTNA was negligent in the defective design of the truck and that KLLM, as Wayne’s employer and lessor of the truck, was responsible for the defective condition of the truck. The Jones’ lawsuit was consolidated with the Marable’s suit at some later time.

July 1, 2016

Low Speed Automobile Accident in Monroe Louisiana Discusses Concept of “Relevant Evidence”

by Berniard Law Firm

car-accident-1446905 Being involved in an automobile accident or sustaining a serious injury can be very overwhelming. This is especially true if the accident was someone else’s fault. Although one may be disoriented after an automobile accident, it is pertinent that he/she follows all the necessary steps to ensure that the accident or injury is well documented. One’s first instinct may be to try to minimize the gravity of the situation; however, it is important to understand that a personal injury may have been sustained even if the symptoms are not immediately visible. One never knows if they will have a problem down the road from an injury sustained from the automobile accident, and therefore, a great attorney knows that their client will need proof and documentation to prove that the problem stems directly from the said automobile accident.

Part of that documentation includes what will be considered “relevant evidence” and how to avoid using expert witnesses who may become impeached at trial. The following case out of Monroe Louisiana discusses the standards courts use as the gatekeepers of allowable information that can be used at trial. On July 20, 2010, Michael W. Pratt (“Mr. Pratt”) was hit from behind by Brett O. Culpepper (“Mr. Culpepper”) while stopped at a red light on Desiard Street in Monroe. Immediately following the accident, it is alleged that Mr. Pratt stated to the investigating officer that he was uninjured and did not require medical attention. However, sometime after the accident Mr. Pratt begin to see a chiropractor for the various injuries he alleged were caused by the accident.

In July 2011, Mr. Pratt filed a lawsuit against Mr. Culpepper and his insurer for a variety of damages (i.e., past and future pain and suffering, medical expenses, loss of earnings, disability, etc.) associated with the alleged substantial injuries he sustained to his back, head, and neck in the aforementioned accident. It was disputed amongst the parties as to (1) whether the force of the collision was significant enough to cause the alleged injuries and (2) whether or not the alleged injuries were from this particular automobile accident. In 2014 the lawsuit was tried before a jury. At the conclusion of the trial the jury found that Mr. Pratt failed to prove by a preponderance of the evidence that the accident caused him to suffer physical injuries. The plaintiff then appealed the juries verdict. Mr. Pratt argued before the appeals court that that the trial court’s allowance of the records into evidence of his chiropractor’s suspension by the Louisiana State Board of Chiropratic Examiners was an error that should cause the jury’s verdict to be overturned.

June 26, 2016

Do I Have Uninsured or Underinsured Motorist Coverage In Louisiana?

by Berniard Law Firm

Imagine you are in an accident with a negligent driver. You seek to recover from the negligent driver’s insurance company, only to discover that he or she does not carry any insurance. If you are in Louisiana, you are in luck. Louisiana’s uninsured motorist (“UM”) law protects drivers from the negligence of uninsured motorists. It allows automobile accident victims to recover damages even when the other driver is without insurance. It even provides additional or excess coverage when the other driver is inadequately insured. But how do you know if you have UM or not? UM coverage is implied in every automobile policy and will be read into the policy unless it is validly rejected. In a recent case, the Louisiana Third Circuit Court of Appeal examined exactly who has the authority to waive or reject UM coverage and the requirements of a valid waiver.

In 2007, Naddia Melder was injured in an automobile accident in Alexandria, Louisiana. Ms. Melder was driving her 2006 Nissan truck when she was struck by another vehicle driven by Connie Turlington. Ms. Turlington was uninsured. Ms. Melder’s vehicle was provided to her by her employer, Grimes Industrial Supply, L.L.C., although it was owned by another company, Grimes True Value Hardware, L.L.C. State Farm insured Ms. Melder’s vehicle and provided uninsured motorist coverage to her. Ms. Melder also held a separate policy with Louisiana State Farm Bureau Casualty Insurance Company which provided additional uninsured motorist coverage to her as an insured.

Ms. Melder and Randel Melder filed a lawsuit against State Farm and Farm Bureau for uninsured coverage. State Farm responded with a motion for summary judgment seeking dismissal of the Melders’ claims. It argued that the owner of Grimes Industrial Supply, Floyd Grimes, declined uninsured motorist coverage under the State Farm policy which provided coverage for the vehicle Ms. Melder drove during the collision. The Trial Court granted State Farm’s motion for summary judgment, dismissing it as a defendant. The Melders appealed, arguing that the Trial Court erroneously held that Floyd and Frank Grimes were the named insureds under the State Farm policy. More specifically, the Melders argued that Grimes True Value Hardware, L.L.C. was the named insured.

June 20, 2016

Decision of Livingston Parish Jury Reinstated in Multiple Car and Tractor Crash Lawsuit

by Berniard Law Firm

tractor-1454432-1 On the back roads of Louisiana it is not uncommon to see tractors and other farm equipment traversing the highway. If that farm equipment is involved in an accident with a car everyone involved might have a different story on how it occurred. If that happens it takes the best lawyers to help the court figure out who is at fault. The following case out of Livingston Parish shows how the courts deal with opposing views of fault in cases where cars and tractors collide.

On August 13, 2009, a multiple-vehicle collision occurred between drivers Yearn Thomas, Breanna Cloud, and tractor operator Stephen Jones on Louisiana Highway 1026 in Livingston Parish. Predictably so, the parties contested the sequence of events that led up to the incident, exactly how it came to fruition, and who was at fault.

Thomas and Cloud claimed that Jones unexpectedly swerved into the roadway from the shoulder and caused the multiple-vehicle accident when the tractor collided with Cloud, causing Thomas to subsequently collide with Cloud, then overturn into a ditch. Jones testified that Cloud collided with the left side of his bush hog and immediately after the initial impact, he heard the loud noise of Thomas colliding with Cloud and reacted by turning his tractor into the ditch on the right to avoid any more damage.

June 18, 2016

Baton Rouge Collision Highlights Difficulties in Assessing Witness Testimony in Motor Vehicle Accidents

by Berniard Law Firm

The Louisiana Revised Statutes along with rules of jurisprudence help Louisiana courts determine whether or not a particular driver is at fault for an accident. For example, La. R.S. 32:81(A), provides that drivers must not follow another vehicle unreasonably close and must take into account the speed of the vehicle in front of them and the overall traffic conditions. Under La. R.S. 32:79(1), drivers must stay within a single traffic lane and must not move from the lane unless they can do so safely. For the purpose of assessing liability, the rear-driver in a rear-end collision is presumed negligent and in breach of these standards of conduct. Yet, a rule of jurisprudence allows the rear-ending driver the opportunity to overcome this presumption of negligence by showing the existence of a sudden emergency caused by the driver in front of him or her. In determining whether a sudden emergency existed, courts will often rely on the testimony of the drivers and the passengers in their vehicles. As a recent decision of the Louisiana Third Circuit Court of Appeal shows, sorting through and making sense of such testimony is not always an easy task.

On August 7, 2012 Jessica Dauzat and Marcus Cooper were involved in an automobile collision in Baton Rouge, Louisiana. Both were travelling eastbound on Interstate I-10 when Ms. Sauzat’s vehicle struck Mr. Coopers’. Both drivers had passengers in their vehicles. Mr. Cooper’s car was insured by Progressive Security Insurance Company and Southern Casualty Insurance Company insured Ms. Dauzat’s vehicle for uninsured or underinsured motorist coverage.

In February 2013, Ms. Dauzat and a passenger in her vehicle, Lacey Lachney, filed a lawsuit against Mr. Cooper, Progressive, and Southern Casualty seeking damages for their injuries. Ms. Dauzat and Mr. Lachney claimed that Mr. Cooper caused the accident by suddenly switching lanes without warning. The Trial Court found that Mr. Cooper was solely at fault for causing the accident and awarded $35,165.38 to Ms. Dauzat and $34,850.12 to Mr. Lachney in damages. Progressive appealed the Trial Court judgment, arguing that it erroneously concluded that Mr. Cooper was the sole and exclusive cause of the accident.

January 16, 2014

Prescription an Integral Element of Lawsuits After Wrongful Death

by Berniard Law Firm

A few months after being in a car wreck, the unthinkable happens, and as a result of the accident, your loved one passes away. As you are mourning the loss, you also have to start thinking about your legal options that stem from the crash and the possible avenues you have as a “survivor” of your loved one in order to receive some damages from the liable person. While this seems somewhat callous to talk about, especially in light of the pain you are already in from losing someone close to you, it is necessary to begin thinking about this somewhat quickly if you are going to actually be able to bring a survival action.

First, though, what exactly is a survival action? In simple terms, a survival action is an action for damages (an award of money) for injuries incurred by the deceased right before dying. You can think of a survival action as a lawsuit for injuries incurred that the actual deceased would have been able to bring had he or she not passed away. Since the decedent is not able to bring the suit himself or herself, the decedent’s estate has to bring the suit. This is typically a child or other close relative. (States will specify exactly which family members are allowed to bring a survival action in that state.)

Along with deeming who can bring a survival action, states also specify during what timeframe individuals are allowed to bring such a lawsuit. This is not because the state or the courts do not want individuals to be able to recover, but rather because a timeframe has to be set so that the liable individual does not have an indefinite period of time during which to worry about the possibility of a lawsuit.

January 9, 2014

Rear-End Collision Case Examines Liability, Statutes in Louisiana

by Berniard Law Firm

A case arising out of a St. Martin Parish accident has shed light on the responsibility placed on drivers following behind another vehicle. According to Journet v. Mouton out of the Court of Appeal for the Third Circuit, a driver following another vehicle must exercise great care. The case arose out of an accident where a man and his family swerved to miss a slowing sheriff’s deputy, crossed the center line, and slammed into a ditch on the other side of the road. The driver of the vehicle was severely injured and was left quadriplegic.

Reports indicate the deputy was responding to an emergency call but had missed the driveway and was slowing to turn around in another drive. The driver of the following vehicle, who was driving without a license, knew the officer knew him and knew he did not have a license. Therefore, the following driver deliberately chose not to pass the deputy and claimed there were no brake lights and no turn signal used by the deputy. However, the plaintiff’s wife contradicted this testimony, stating that she did see brake lights and a turn signal. The defendants filed for summary judgment, which was granted by the trial court and affirmed by the Court of Appeal.

To reach its decision, the court looked to relevant Louisiana statutes. Most pertinent amongst these is La.R.S. 32:81(A), which states a driver shall not follow another vehicle more closely than is reasonable and shall have regard for the speed of the other vehicle. The court also looked to a Louisiana Supreme Court interpretation of the matter, which held that it is the duty of the following driver to exercise a great deal of care and to keep a safe distance behind the lead car.