Articles Posted in Litigation

38-1024x678In Louisiana, if someone does work to your home and you find the work to have been completed unsatisfactorily, you have a one-year prescription period to bring the issue to court. However, what does one do if problems from this work do not appear right away? Considering the statute that allows a one-year prescription period at the first notice of damage, what exactly is noticing damage? Is it formally reporting the issue or simply remarking on an observation?  The Louisiana Fifth Circuit Court of Appeals recently decided a case on appeal from Jefferson Parish that answered such questions. 

In early 2010, Carlos Caballero Castro contacted Omar Oceguera from Triple OH Shoring, Inc. about fixing the elevation of the Caballero home. Mr. Oceguera recommended Keystone Custom Homes, LLC to Mr. Caballero, and as a result Mr. Caballero made a deal with Keystone to fix the elevation of the Caballero home. However, Mr. Oceguera would remain the general contractor of the project – he would design the foundation plan and Keystone would implement the plan. The work was completed on the home on November 20, 2010 and at the time the work was completed Mr. Caballero said the job was well done.

In January 2011, Mr. Caballero decided to build a deck on the back of his house. When he began to build the deck, he noticed there was two-inch dip in the slab – at the time Mr. Caballero rationalized the dip to simply be either the house settling or evidence of poor craftsmanship. However, Mr. Caballero stated that there was no apparent damage to his home at that time. A few days later, Mr. Caballero decided to call Keystone and inform them of the dip. He also told Keystone that since the work had been completed he and his family has heard popping noises, but that he thought these noises were a normal byproduct of the house setting. 

28-1024x683Arbitration is a matter of contract. Parties to an arbitration agreement contract on matters they agree to submit to arbitration. That agreement defines the extent to which the parties are subject to the authority of arbitrator, and such authority corresponds to the boundaries set in the agreement. This case is an example of an attempt to enlarge those boundaries and of the consequences of such attempt.

Jacob Chandler sued his business partner in East Baton Rouge and decided to hire attorney Preis Gordon to represent him. They entered into a written agreement that had a “Fee Contract,” which contained an arbitration clause. Soon after the completion of the lawsuit for which Chandler hired Gordon, it was Gordon who filed a petition in the East Baton Rouge Parish District Court against Chandler seeking a payment of legal fees. Soon the matter was directed to an arbitrator, in accordance with the arbitration clause in the agreement. The arbitrator denied Gordon his claims for legal fees and awarded attorney and expert witness fees totaling altogether almost $43,000 to Chandler.

Chandler contended that Section 10 of the Fee Contract provided the basis for arbitrator’s award. In particular, it that “Client further agrees that any award by arbitrator shall include the costs and expenses of the arbitration, including attorneys’ fees actually incurred.” Based on this, the arbitrator awarded Chandler attorney fees, finding that the Fee Contract provided for prevailing party to recover attorney fees.

55What would it take for an appellate court to overturn an award of damages? According to the Louisiana 3rd Circuit Court of Appeal, the bar is set high and very rarely does an award for damages get overturned as long as it’s reasonable. Lafayette Motors employed Mr. Menard as a service advisor. In August 2003, Dr. Stroy came to Lafayette Motors to obtain a copy of the repair estimate for his wife’s car. While Menard made a copy of the estimate, the shop manager instructed Menard not to give the estimate to Dr. Stroy. Menard crumpled up the estimate to place it in the trash; however his right wrist was grabbed and twisted by Dr. Stroy. Dr. Story proceeded to take the estimate and leave the premises with it. Menard had injuries to his wrist and arm and was later diagnosed with tendinitis by an orthopedic surgeon. Almost ten years later, Menard testified he still had pain in his wrist.

A year after the incident occurred, Menard filed a petition for damages. His petition alleged that Dr. Stroy’s actions were the proximate cause of his injuries, and he wanted damages for the medical bills he incurred at the time of the incident. Dr. Story filed an answer to the petition, as well as petitioning for reconventional demand alleging Menard made public statements that were slanderous and defamatory. He further alleged that these statements caused him to suffer embarrassment, humiliation, and mental anguish. Menard filed a motion to strike or dismiss the reconventional demand, and the court granted the motion. Menard then added Dr. Stroy’s insurance company as a defendant, and they responded by saying that the police did not provide coverage for that particular incident. The insurance company filed a motion for summary judgment, and the trial court denied it. A bench trial was held, and the court ruled in favor of Menard and awarded him $3,000 in general damages and $3,048 in special damages for the medical expenses from August 2003 to November 2003.

The standard of review, in this case, is really what this case turns on and, in this case, there is broad discretion owed to the trier of fact when it comes to fixing awards for general damages. See Hollenbeck v. Oceaneering Int., Inc., 685 So.2d 163 (La. 1997). Unless the record shows that a factual and reasonable basis does not exist and the finding is wrong or erroneous, an appellate court should not disturb a finding of fact. See Thibodeaux v. Comeaux, 69 So.3d 674, 679 (La. App. Ct. 2011).

68-1024x683Timing and deadlines are important aspects of the judicial system. However, these specific guidelines are not familiar to most non-lawyers, which underscores the importance of having an excellent attorney represent you. The lack of an attorney can immediately put an individual at a disadvantage, as it did in one New Orleans woman’s case.

 Ms. Scott decided to represent herself in her case against Kindred Hospital New Orleans (Kindred). She alleged that Kindred Hospital violated the standard of care she should have been afforded by allowing a hospital employee to sexually batter her while she was a patient there from May 16 to July 31, 2013. Additionally, she argued that the hospital failed to properly investigate the sexual battery.

 Ms. Scott first brought the lawsuit against Kindred on May 5, 2014. Kindred argued that the claim must be submitted to a medical review panel since it was a medical negligence case.  Kindred also filed an exception of prematurity to the trial court. The trial judge granted the exception of prematurity and dismissed the case.

62-Email-06-24-19-picture-1024x768Running a small business is a challenging endeavor that can prove even more difficult if someone publishes false information about your company.  This is situation is exactly what happened to husband and wife Robbie and Susan Arnaud, owners of Robbie’s Wrecker Service, a towing business located just outside Eunice, Louisiana.

In fall 2010, Ronald Dies was elected Police Chief for City of Eunice, effective January 1, 2011.  Eunice Police Department’s rotation list for situations needing a wrecker service had previously included Robbie’s Wrecker Service. However, after being elected, Dies took action to remove Robbie’s Wrecker Service from the list. In a letter dated December 31, 2010, Dies told the Arnauds that their business would be removed from the list effective January 1, 2011, and that only wrecker services headquartered inside Eunice City limits could be on the list. On January 3, 2011, Dies spoke with a reporter for a local newspaper, The Eunice News, and stated that there had been numerous complaints about the company’s selective response to calls. This claim of “numerous complaints” formed the basis of Arnauds’ defamation claim. 

The required elements in a defamation claim are (1) a false and defamatory statement involving another, (2) an unprivileged publication to a third party, (3) fault (at least at the level of negligence) of the publisher; and (4) resulting injury. See Costello v. Hardy, 864 So.2d 129 (La. 2004).  At trial, the court held that the Arnauds had not proven either defamation or damages and dismissed all of the Arnauds’ claims against Dies. The Arnauds appealed.

martha-dominguez-de-gouveia-nMyM7fxpokE-unsplash-1024x697Navigating any lawsuit can be challenging, especially when the initial trial gives rise to complicated appeals. In this instance, the plaintiff was left wondering how jury instruction impacted her medical malpractice lawsuit. 

Mrs. Sherry Wedgeworth filed a medical malpractice lawsuit against Dr. Tynes Mixon, an ear, nose, and throat (ENT) physician. Mrs. Wedgeworth start seeing Dr. Mixon in 2006 for recurring sinus infections. Dr. Mixon performed sinus surgery in 2009 and then a revision sinus surgery three years later in 2012. After this surgery, a pathologist examined the tissue that was removed and found a fragment of brain tissue. Dr. Mixon immediately advised Mrs. Wedgeworth and advised her to go to the hospital for a C.T. scan because of the risk for infection. Mrs. Wedgeworth declined this advice, but went to see Dr. Mixon the next day, where she again turned down hospital admission and a C.T. scan. Three days later, she was hospitalized, and another three days later she began to show symptoms of a brain infection. Mrs. Wedgeworth and her husband, Mr. Wedgeworth, then filed a malpractice claim.

The initial medical review panel held for Dr. Mixon. The Wedgeworths then petitioned for damages, claiming loss of consortium, services, and society. A civil jury ruled in favor of Dr. Mixon, dismissing all claims. The Wedgeworths filed a Motion for Judgment Notwithstanding Verdict or Alternatively New Trial. The trial court denied these motions, and the Wedgeworths appealed. The issues for the appellate court were whether the trial court erred by not instructing the jury that negligence equals malpractice and by improperly denying a new trial. 

retro-clock-1422611-1024x919If you are injured and think another party might be at fault, it is important to contact an attorney as soon as possible. If you wait too long, your claim, and any chance of recovering damages could expire, leaving you with little recourse against the responsible party. In the law, this is referred to as prescription, and different claims have different time periods before they prescribe, i.e., expire. In Louisiana, the doctrine of prescription protects defendants from having to defend against stale claims by requiring plaintiffs to file suit in a court of competent jurisdiction and venue within a specified time period and to pursue that suit in a timely manner. There are additional rules determining what actions serve to interrupt the running of prescription, but generally, prescription begins to run from the day damage is sustained, La. C.C. art. 3492, and prescription can be interrupted by commencing an action against the other party in a court that has jurisdiction and where venue is proper. La. C.C. art. 3462. However, as with most everything in the law, there are some nuisances and exceptions to these rules.

The importance of proper and timely filing of a lawsuit is illustrated in Lee v. RTA, where a streetcar passenger was injured when the streetcar had to aggressively brake to avoid a car turning in front of it on Canal St. Although the plaintiff filed his claim before the prescriptive period ended, he filed the claim in First City Court, which lacks jurisdiction over the RTA as a political subdivision. Instead, the claim should have instead been filed in the Orleans Parish Civil District Court. The law states that when a claim is filed in an improper court, prescription is interrupted only by actual service of process within the prescriptive period. La. C.C. art. 3462. Service of process is procedure by which a party is informed of the lawsuit against them. In this case, the plaintiff’s claims had a prescriptive period of one year. By failing to properly serve the defendant within one year, and since his claim was not brought in a proper court, the plaintiff’s claims were dismissed with prejudice after being transferred to the proper court. This means that the plaintiff will have no opportunity to fix his mistakes and attempt to bring the claim again. The trial court’s dismissal was upheld on appeal. If he had originally filled his claim in the correct court, or made timely service on the defendant, his claims would have been able to proceed. This highlights the importance of not only prompt action in choosing an attorney when you have been injured, but also choosing an experienced and reputable firm. 

Additional Sources: Lee v. Regional Transit Authority of New Orleans

41-Email-05-22-19-1024x772In deciding whether to dismiss a specific case, the Appellate Court should consider many factors. Among them are subject matter jurisdiction and statutory of limitation. The claims might be dismissed if they are filed to a wrong court which does not have the legal power to adjudicate on this case, or if they are filed too late (peremption) because laws encourage people to file a lawsuit timely. 

In 1996, Leonard Bracken (“Bracken”) exposed himself to sulfur mustard, widely known as mustard gas, at a facility which was owned by Georgia Gulf Corporation in Plaquemine, Louisiana. Bracken agreed to a global settlement. On October 27, 1999, a workers’ compensation judge (“WCJ”) approved the settlement. Bracken alleged that when he signed on the settlement, he had no idea that the settlement would deprive his right to file any workers’ compensation claims in the future and this is because his former attorney deliberately misled him. On February 2, 2015, Bracken filed a petition in the Nineteenth Judicial District Court (“19th JDC”),  seeking to vacate the WCJ’s approval of the settlement and grant his right to file any workers’ compensation claims arising from the bad accident in 1996, because this is a judgment obtained by fraud or ill practice. Bracken listed various parties as defendants, e.g. Georgia Gulf Corporation and Worker Compensation Tribunal. In response, defendants timely filed exceptions raising the objections of, among other things, lack of subject matter jurisdiction, prescription/peremption and sanctions. On June 1, 2015, after a hearing was held, the 19th JDC held that all the exceptions were sustained and Bracken’s petition was dismissed. Then the 19th JDC dismissed Bracken’s motion for a new trial but granted Bracken a devolutive appeal (in which the appellate courts can determine on some issues while the trial court continue on other issues, rather than suspend).

The jurisdiction of the subject matter is a court’s legal authority and power to hear, analyze and make judgment regarding a particular class of cases. La. C.C.P. art. 2. Even if both parties reach an agreement to give a court the legal power to hear their case, this agreement is not valid at all. A judgment by a court which has no power to hear a case is not valid. La. C.C.P. art. 3. To invalidate a judgment which is reached by ill practice or fraud, the case should be filed to the court which made that judgment. Bracken’s settlement was approved by the Office of Workers’ Compensation Administration (“OWCA”), not 19th JDC, so Bracken should file this lawsuit to OWCA. In addition, all claims which arises from the Louisiana Workers’ Compensation Law may be filed to OWCA, since WCJ have the exclusive and original jurisdiction. La. R.S. 23:1310.3(F)

7-Email-05-22-19-picture-1024x668Timing is everything, especially when it comes to lawsuits. If you delay too long in filing a medical malpractice lawsuit, then you – like Mr. Verbois – may be unable to recover for the alleged negligent acts.

In May 2011, Dr. Jonathan Taylor operated on Mr. David Verbois to repair a hernia resulting from an earlier coronary bypass surgery. After the surgery, Verbois experienced adverse symptoms including fever, vomiting, and abdominal pain. Verbois was readmitted to the hospital. In October 2011, Dr. Taylor removed Verbois’ gallbladder, and in December 2011, Dr. Taylor performed a third surgery on Verbois after a CT scan showed that there was a perforation in his stomach by the gastric sleeve he received during a gastric bypass surgery performed by a different doctor in 2009. Verbois was hospitalized again in January 2012. In March 2012, Verbois visited Dr. Taylor for the last time and terminated his services. Thereafter, Verbois returned to the doctor who had previously performed the gastric bypass. The old doctor removed Verbois’ entire stomach in September 2012.

On July 26, 2013, Verbois filed a complaint with the Division of Administration alleging malpractice against Dr. Taylor from May 2011 until March 2012. Verbois requested a medical review panel (“MRP” to review his claims against Dr. Taylor.

3-Email-05-14-1024x683In the legal world, establishing fault and determining liability is not always easy. In some situations, it may seem clear who is responsible for recovery, but in other cases the situation can become much more difficult than it initially seemed. This issue was explored after an automobile accident in Acadia Parish.

In the morning of December 16, 2011, Ronnie Myers was driving through heavy fog and headed north on Charlene Road. He came to a “T” intersection where Charlene Road met Prudhomme Road (Louisiana Highway 95) but the intersection’s stop sign was twisted and down so that Myers could not see it. Myers was also unfamiliar with the road, and resultantly drove his car across Prudhomme Road and into a ditch, causing injuries to himself and damage to his vehicle. On December 11, 2012, Myers filed a lawsuit in Fifteenth Judicial District Court for the Parish of Acadia against the Acadia Parish Police Jury (APPJ) and the State of Louisiana through the Department of Transportation and Development (DOTD), wanting personal injury and property damages. He claimed that APPJ and DOTD were responsible for the improper state of the stop sign at the intersection.

Nearly three years after Myers’s accident, APPJ and DOTD filed motions for summary judgment, asking for judgment as a matter of law rather than on the merits. A hearing was held on January 12, 2015, and the District Court granted the motions, finding that APPJ did not have custody and control of the stop sign and was not notified of the sign’s defective state. While DOTD was responsible for the stop sign, the District Court held that it also did not have notice of the sign’s problem. Both DOTD and APPJ were dismissed from the lawsuit. Myers appealed.