Articles Posted in Semi Truck Accident

truck-on-hwy-1615510You 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:

truck-on-hwy-1615510-1-1024x682Renting 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.

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When chain reaction accidents occur it can sometimes feel like mayhem on the highway.  One car hits another, then another one hits another and so on and so on.  But who’s at fault for all the injuries and wrecked cars?  The car that initially caused the accident?  The one after that which ran into another car that was trying to stop to avoid the accident?   The following case out of Avoyelles parish sheds some light on who’s at fault for what in multi-car pile ups.

Lacey Berthiaume was driving on a Louisiana highway when ahead of her a car entered the roadway without yielding to oncoming traffic.  The car in front of Ms. Berthiaume suddenly stopped.  Ms. Berthiaume successfully stopped her automobile within a foot of colliding with the car in front of her.  However, the truck behind Ms. Berthiaume was not able to stop, and the truck rear-ended her vehicle causing injuries to Ms. Berthiaume.  Ms. Bethiaume filed a lawsuit in the Twelfth Judicial District Court, Parish of Avoyelles, alleging the driver of the truck, Mr. Gros, was negligent and caused the accident.

In the trial court, Ms. Bethiaume filed a motion for summary disposition.  Ms. Bethiaume argued that Mr. Gros rear-ended her vehicle, and under Louisiana law, in a rear-end accident, the following motorists is presumed to have violated La R.S. 32:81(A), and therefore presumed negligent.  In summary, La 32:81(A) states a driver shall not follow another motorist too close to react to traffic and highway conditions.  Mr. Gros admitted he caused the accident, but he also argued that the motorist that entered the roadway causing Ms. Berthiaume, and the motorist in front of her, to stop short was also at fault.  In short, Mr. Gros argued that this other driver shared some of the fault underlying this accident.  The trial court disagreed with Mr. Gros and held he was solely at fault for this accident.

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When seeking legal relief, plaintiffs will face procedural hurdles during litigation. Defendants can and will often use procedural mechanisms to avoid liability for claims brought against them. This is the nature of the game, and skilled attorneys are masters of the rules governing the conduct of civil trials. Procedural law differs from substantive law (i.e. torts, contracts, property) in that the former provides the rules for applying substantive law for live disputes. Procedural mechanisms set guidelines for what evidence the court may hear, how evidence should be interpreted, and burdens of proof. One such procedural mechanism commonly used by litigants is the “motion for summary judgment.” A recent decision of the Louisiana First Circuit Court of Appeal discusses the motion for summary judgment and the requisite burdens of proof for parties filing or opposing such motions.

On March 11, 2006, a tanker truck belonging to John Williams was delivering fuel to Mr. Preston Payton’s dredging operation near Independence, Louisiana when it picked up a cable securing the dredge in the gravel pit. The dredge sunk beneath the murky water. Mr. Payton filed a lawsuit against named defendants Mr. Williams; Republic Vanguard Insurance Company, Mr. Williams’ insurer; Texas General Agency, Republic Vanguards adjusting agency; and Randy Anny, who leased the gravel pit where the accident took place. Mr. Payton’s Petition claimed that the defendants entered into a settlement agreement with him and agreed to pay him $256,714.86 as replacement for his dredge. Mr. Payton’s Petition also claimed that instead of paying him directly, Republic Vanguard and Texas General made the settlement check payable to Mr. Anny, who was obligated to pay Mr. Payton. According to Mr. Payton’s petition, the check used by Mr. Anny to pay him was drawn from an account with insufficient funds.

The Trial Court granted Republic Vanguard’s and Texas General’s motion for summary judgment which alleged that Mr. Payton failed to produce sufficient evidence showing that Mr. Anny acted as their agent. Mr. Payton appealed.

i-haul-1450942-1024x642When 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.

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.

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.

We’ve all been there: you’re running late for work, so you rush out the door and into your car. You drive ever so slightly above the speed limit, and all the traffic lights you come across are green. Fortune seems to be on your side. Suddenly, a car seemingly comes out of nowhere and hits you. Are you partially to blame because you were in a rush and drove over the speed limit? If you are liable, how does it affect your ability to collect damages from the other driver and his or her insurance company?

Laura McKinney of Shreveport, Louisiana, faced those very questions after she collided with another driver on the morning of July 23, 2009. She was running late for her 6:00 a.m. shift at Holy Angels Residential Facilities, and the accident occurred just as she turned into its parking lot. A co-worker was leaving the parking lot and cut across several empty parking spaces to enter the main travel lane when she collided with McKinney. Neither party reported any injuries at the time, but McKinney developed left knee pain three weeks later and was diagnosed with a left knee contusion. She subsequently filed a lawsuit against the other driver and her insurance company.

At trial, several witnesses to the accident provided vital eyewitness accounts to help the court determine who was at fault. One witness testified that it appeared that McKinney was driving faster than the parking lot’s signed speed limit of 15 miles per hour. Another witness, however, testified that she did not think McKinney was driving above the speed limit. After weighing the evidence, the trial court ruled that McKinney was 40 percent at fault and the other driver was 60 percent at fault. McKinney’s damages award was therefore reduced by 40 percent, and the trial court entered a judgment in her favor in the amount of $7,632.60. McKinney appealed, arguing that the trial court erred in finding that she was 40 percent at fault and that the trial court also erred in awarding her an excessively low amount of damages.

Under the respondeat superior legal theory, an employer can be held liable for his employees’ acts that occur within his scope of employment. This means that a truck company, for example, may be held responsible for an accident caused by one its drivers who was speeding or intoxicated while driving his route. This doctrine can be complicated when questions arise as to whether or not the employee was within the scope of his employment, or whether the person who caused the injurious accident was in fact an employee.

To determine scope of employment, one must look to what the employer pays the employee to do and what, exactly, the employee was doing when the accident occured. If a truck driver deviated from his route to go to a bar, for example, then it will likely be determined the driver was engaged in frolic for his own benefit and therefore was not within the scope of his employment. This means if an accident occurs while that truck driver is on his way to the bar, then the truck company will not be held liable. If, on the other hand, the truck driver had to deviate from his standard route because of a flooded road, then the detour is still considered to be to the employer’s benefit and within his scope of employment. An accident that occurs while on detour will still be imputed to the truck company.

A recently decided case by Court of Appeal for the First Circuit helps illustrate issues of determining the employee/employer relationship. The importance of this aspect is if the party responsible for the accident is found to be an independent contractor rather than an employee, liability cannot be placed on the employer. So, in the case heard on appeal by the First Circuit, a woman who was injured by the negligent driving of a delivery van driver sought to join the subcontracting broker and the delivery service that hired the individuals responsible for the accident. To determine whether an independent contractor relationship existed, the court looked to case law and the facts before it.

It is vital to know proper court procedures at the outset of litigation or else an otherwise valid claim might be thrown out of court without ever being heard. One prime example is the need to send initial court documents to a defendant within a set deadline (sending such documents, such as a citation or summons, is known as service of process). Case in point, the Lafayette Parish Court of Appeal, in Boka v. Oller, recently upheld the dismissal of a claim without even considering the merits because service of process was delivered too late. Therefore, it is important to know the rules before bringing a lawsuit or a good claim might be lost due to a mere technicality, such as delivering papers too late. For a non-lawyer, an attorney can be instrumental in making sure proper procedures are followed so that the party has a chance to present their case in court.

In Lafayette Parish, Louisiana Code of Civil Procedure Article 1201 requires that service of the citation must be requested within a deadline of ninety days from commencement of the action. Article 1201 also notes that service of process on defendants is “essential” and “without them all proceedings are absolutely null.” The deadline for service is to ensure that defendants are aware of an action and have enough to prepare. Therefore, as a delay in service is deemed unfair to the defendant, a court may dismiss a claim if service of process is sent too late.

There are some limited exceptions to the rule, but, due to the risks involved in these exceptions, generally a party should attempt to serve process on time. For example, one exception permits late service if there is good cause for the delay. However, as the court is unlikely to accept run-of-the-mill excuses for delays, proving a good cause for failure to serve process on time can be difficult. As noted below, the court in Lafayette Parish found that there was no good cause for late service as the plaintiff knew the defendant’s address.