Civil Matter

December 21, 2016

Louisiana Court of Appeal Finds Plaintiffs’ Case Abandoned for Failure to Prosecute

sundial-1447016 It is, mildly stated, disappointing for a plaintiff when a court dismisses his or her case based on a technicality, particularly when the lawsuit is about medical malpractice. Unfortunately, even when a plaintiff has a good case, with all the necessary evidence to show that the defendant was wrong, the plaintiff can still lose the case if he or she does not diligently take the necessary steps to move the case forward. In Louisiana courts, the Code of Civil Procedure ensures a fair process for all parties. All civil cases must follow these rules as part of the process. Malpractice cases are no exception. In a recent case of the Louisiana Second Circuit Court of Appeal, the plaintiffs learned this the hard way.

In this case, plaintiffs Eric and Nicki Hudson filed a lawsuit against Town & Country Nursing Center of Minden, Louisiana for malpractice damages. Eric Hudson alleged that he sustained injuries while he was a resident of Town & Country. The Hudsons filed their petition for damages on September 3, 2009. Almost one year later, Town & Country filed a motion to withdraw their lawyer and substitute a new one. The Trial Court granted Town & Country’s motion the same day it was filed. In 2013 – four years after the Hudsons filed their petition – Town & Country moved to have the Trial Court dismiss the case on the ground of abandonment.

In Louisiana, the Code of Civil Procedure regards as abandoned cases where parties fail to take measures in the prosecution or defense of their case. La. C.C.P. art. 561. A step in the prosecution or defense of a case can be making a request for discovery or taking a deposition; essentially, any action by one of the parties that moves the case forward. In order to avoid dismissal of a case on the ground of abandonment, three requirements must be fulfilled. First, the party must take some step to move the case forward. Second, that step must be taken in the Trial Court and must be served on all parties and recorded in the trial record. And third, that step must be taken within three years of the last step taken by any party. See Koutroulis v. Centennial Healthcare Corp, 34 So.3d 503 (La. Ct. App. 2010).

December 19, 2016

The Perils of Signing a Non-Compete Agreement in Louisiana

by Berniard Law Firm

rivalry-1371607 Non-Compete agreements can restrict a person’s ability to start and maintain a business. Anyone who plans to work in Louisiana should be very clear what they can and cannot do as a part of a non-compete agreement.

For example, a trial court in Louisiana held that a cardiologist’s business, which he created after he left another medical employer, was too similar and therefore subject to a non-compete in the geography he was operating in. Dr. Abel was a cardiologist in Morgan City, Louisiana. He was employed by the Cardiovascular Institute of the South, where he performed preventative medical treatments in cardiology. He signed a non-compete agreement that restricted his ability to practice medicine in the sub-specialty of cardiology in several parishes surrounding CIS, including East Baton Rouge, Acadia and Evangeline, for a period of two years.

Soon after, Dr. Abel opened a private practice at a Preventative Plus clinic and began practicing preventative and internal medicine. While this wasn’t exactly cardiology, CIS filed an injunction in accordance with Section 8.01 in his non-compete agreement. They argued that Dr. Abel could not perform his medical duties under Preventative Plus since it was similar to the cardiology work he did at CIS and he was in a Parish that he was restricted from practicing cardiology in for two years. After the trial court granted the injunction, Dr. Abel appealed the decision, arguing that his practice was not similar enough to be within the ambit of the non-compete agreement. He also contended that his non-compete agreement with CIS was restricted to the sub-specialty of cardiology and not preventative and internal medicine, which he believed were more general than the sub-specialty of cardiology.

December 14, 2016

Baton Rouge Based Furniture Rental Company Let the Bed Bugs Bite

by Berniard Law Firm

bed bugs There are rules involved in the evidence that a court can allow into a case, even when the case revolves around something as small as a bed bug. If a party believes that the rules have been violated, they can appeal the case and have a higher court review the evidence to make sure nothing inappropriate had an effect on the case.

In this case, the plaintiff, temporarily residing in Baton Rouge for work, decided to rent a twin mattress, box spring, and bed frame from a furniture rental company. The apartment complex he was staying was brand new, and he was the first occupant.

A day after renting the furniture, the plaintiff developed a skin condition that quickly spread “from his earlobes to his toes.” Thinking he had a rash, he sought treatment at Lake After Hours, where they prescribed an over the counter cream for his “rash, papules and vesicles” which gave him lesions.

December 13, 2016

East Baton Rouge Court Emphasizes Importance of Timely Service

by Berniard Law Firm

Being on time is important. In legal matters, being on time is absolutely crucial to the workings of the court and the survival of the case. There are rules that determine the timeframes and time limits involved in a legal battle and it is always best to follow them to the letter.

In an East Baton Rouge lawsuit seeking to recover unpaid insurance premiums, the defendant, Insurer’s Salvage Auction, Inc., learned the vital importance of timely serving a memorandum in opposition to the plaintiff’s motion for summary judgment. The First Circuit Court of Appeal, in Retailers Casualty Insurance Company v. Insurer’s Salvage Auction, Inc., stated that the 19th District Court properly excluded the defendant’s untimely served memorandum in opposition and supporting affidavit. As such, the First Circuit Court of Appeal affirmed summary judgment in favor of Retailers Casualty Insurance Company.

According to the applicable Louisiana rules, La. C.C.P. art. 966B(1) and La. Dist. Ct. R. 9.9(c), all parties must receive a defendant’s memorandum in opposition and supporting affidavits at least eight calendar days before the hearing on a plaintiff’s motion for summary judgment. In the instant case, Retailers Insurance Company filed its motion for summary judgment on December 29, 2013, and the hearing was originally set for March 17,2014. The hearing was later rescheduled for May 19, 2014.

December 12, 2016

Bogalusa Fire Department Made to Pay Workers Compensation for Fireman’s Heart Condition

by Berniard Law Firm

heart-attack-1306407 Don’t get burned by worker’s compensation failing to pay for your injury. Make sure that you understand what your rights are whenever you file a worker’s compensation claim. Clinton Miley, a firefighter with the Bogalusa Fire Department, suffered from paroxysmal supraventricular tachycardia (PSVT) after 19 years on the job. He looked to a Louisiana law known as the Firefighters Heart and Lung Statute to prove that his injuries were caused by his job as a firefighter.

The Firefighters Heart and Lung Statute creates the assumption that any heart or lung problem developed by a firefighter after 5 years of service was caused by being employed as a firefighter. La. R.S. 33:2581. Miley had worked at the Bogalusa Fire Department in Louisiana from July of 1993 until January of 2012. On May 12, 2010 Miley sought treatment for chest pain and was diagnosed by his doctor with PVST. PVST is traditionally viewed as a congenital hereditary condition, leading the Fire Department claim that it should not qualify under the statute.

The trial court found that Miley’s disease qualified under the statute, and that if Miley could prove the condition prevented him from working he should be entitled to compensation. This finding lead to an appeal made by the fire department which claimed that because PVST had not been traditionally classified as a disease falling under the Firefighter Heart and Lung Statute. They stated that the amount of time it took for Miley’s pain to occur to coupled with the fact that he had a family history of heart disease kept him from qualifying for benefits under worker’s compensation.

December 10, 2016

Fax Filing of Lawsuits in Louisiana- A Precautionary Tale

by Berniard Law Firm

office-4-1484175 Following proper procedure is critical when it comes to preserving your legal rights. While some rules might seem a bit harsh the best lawyers know the rules and will make sure you do not lose your case simply because you did not dot your I’s and cross your T’s. The following case out of Rapides Parish demonstrates what can happen when a fax filed lawsuit is not followed up with the mailed petition in the proper time.

The Plaintiff in this case, Brenda Quire, was a patient suing her former physician for alleged battery and was asking for alleged damages she incurred under a physician’s medical care. The original lawsuit and filing fee were not received by the clerk of court within the required period of time. In short, she missed the deadline and consequently her case was dismissed.

The Defendant, the physician, filed an exception of prescription requesting the court to dismiss the case, which the court granted. An exception of prescription is a motion filed asking the court to dismiss a lawsuit without probing into the underlying claims, and to demonstrate that the plaintiff has no right to bring such action because the time period elapsed. This is a legalese way of saying the court dismissed Ms. Quire’s claims because she filed her lawsuit past the deadline to file.

December 9, 2016

Louisiana Supreme Court Will Not Overturn a Fairly and Honestly Obtained Arbitration Award for a Mere Error of Law

by Berniard Law Firm

yellow-building-1561908 In executing the terms of a construction contract, a builder and its subcontractors may not perform their duties as mandated under the terms of the contract. If a builder fails to perform its duties, then a property owner may file a claim for breach of contract and damages against the builder for defects in performance. However, the property owner’s ability to bring a claim against the builder is limited to a specific period of time prescribed by state law. The state legislature has the ability to pass laws that change the period of time in which a property owner can bring a claim against the builder for defects in performance; and in 2003, the Louisiana Legislature exercised this power to make changes in the law barring this type of claim, reducing the period from seven to five years.

When changes to the law have occurred, parties to a lawsuit may dispute which law is controlling in their claim. A recent example of litigation concerning changes in law occurred in Lafayette, Louisiana. In 2002, a property owner, Crescent City Property Partners, LLC (hereinafter “Crescent”), and a builder, Greystar Development and Construction, LP (hereinafter “Greystar”), entered into a contract for the construction of a mixed-use development in Lafayette, Louisiana. This development was completed in phases with construction of the multiple buildings being completed a year after the parties entered into the contract. Five years later, Crescent filed an arbitration claim under the terms of the construction contract, alleging defects in the builder’s performance, against Greystar and its insurer. In response, Greystar filed a third party demand against various subcontractors.

At the time the construction on the mixed-use development was completed there was a seven-year period of peremption for construction claims; however, only a month after completing the project, the legislature amended the law to provide for a five-year period of peremption. On July 11, 2011, shortly before the parties were scheduled to arbitrate the matter, the Supreme Court of Louisiana decided Ebinger v. Venus Construction Corp., discussing the retroactivity of the 2003 amendment.

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 6, 2016

Court of Appeal: Medical Treatment Guidelines Can Be Applied Retroactively

by Berniard Law Firm

grocery-store-1-1161348
In 2009, the Louisiana Legislature enacted a statute establishing a medical treatment schedule for workers’ compensation claims. This statute took into account the combined concerns of the labor force, insurance companies, and medical providers to establish harmonized guidelines for the treatment of injured employees. The need for this statute stemmed from the formerly burdensome and expensive process of obtaining medical treatment. Since the statute’s enactment, questions have arisen as to whether the medical treatment guidelines should apply retroactively to claims arising before the enactment of the statute and entry into force of the guidelines. The Louisiana Fourth Circuit Court of Appeal resolves these questions in a case arising out of a shooting at Whole Foods.

In 2001, Malord Gales was shot while on the job at Whole Foods Company, Inc. Since the shooting, Mr. Gales has been in a permanent vegetative state. Mr. Gales’ mother has since taking care of him and acting as his representative or “curatrix.” Because of his paralyzed state, Mr. Gales was required to be bowel fed with Isosource 1.5 calorie food which contains the appropriate amount of biofiber for normal bowel function. For many years, Whole Foods paid for this special food. Eventually, it refused to pay. Claiming that the food was too expensive, Whole Foods approved a different food which caused Mr. Gales significant bowel problems.

Finding his symptoms intolerable, Mr. Gales filed a disputed compensation form with the Office of Workers’ Compensation. Mr. Gales sought an order requiring Whole Foods to pay for the formerly authorized Isosource food, and to pay attorney fees for arbitrarily stopping his prescribed food. Whole Foods countered with the dilatory exception of prematurity. In its exception, Whole Foods argued that Mr. Gales claim was premature because he failed to comply with the administrative procedures for filing a claim for medical treatment. The Workers’ Compensation Judge (“WCJ”) granted Whole Foods’ exception and dismissed Mr. Gales’ claim. Mr. Gales’ appealed.

December 4, 2016

Lafourche Parish Sheriff’s Office Found Negligent in Causing a Woman’s Broken Arm in “Self Defense” Class

by Berniard Law Firm

police-5-1572837-1024x768 It’s common sense that self defense class instructors should teach the students how to defend themselves and not inflict pain or broken bones while instructing. However some instructors can go overboard while trying to “teach” these skills. The following case out of Lafourche Parish highlights what can go wrong when simulations in a self defense course get a bit too real for one participant causing her a broken arm and other damages.

In 2010, plaintiff participated in a 3-day Rape Aggression Defense (RAD) self-defense course being taught by the Lafourche Parish Sheriff’s Office. During the course, plaintiff and other participants received instructions for two days and on the third day, participants engaged in a series of exercises simulating attacks upon them by “aggressors”, at this time they were instructed to deploy the defensive techniques they had learned. During one of these simulated attacks, in which a Lafourche Parish Sheriff’s Deputy played an “assailant”, plaintiff’s arm was broken. Plaintiff had to undergo surgery to repair the comminuted fracture, requiring two plates and 21 screws to be inserted into plaintiff’s arm.

At the initial bench trial, the recorded RAD simulations were played on video, showing the RAD instructor was close to plaintiff during the exercise and was constantly giving instructions to the plaintiff on how to properly perform defensive techniques. In the video, the Sheriff Deputy playing the “aggressor” pushes and hugs the plaintiff while the instructor tells the plaintiff how to defend herself. The trial court concluded after watching the video, it did not find the Sheriff’s Office or the Sheriff’s Deputy negligent, as the only way they could have prevented the plaintiff’s injury would have been to not engage physically with the participants, which would have defeated the purpose of the exercising teaching them to defend themselves against aggressive criminals. The trial court subsequently dismissed the defendants with prejudice, and plaintiff appealed.