Is the UPC insurance company taking their sweet time to pay your hurricane IDA insurance claim? The Berniard Law Firm may have uncovered the reason why.
Back Story:
On behalf of our clients, the Berniard Law Firm filed a bad faith insurance claim lawsuit against the United Property and Casualty Insurance Company (UPC) in 2019. The case against UPC involves a homeowners insurance claim.
In the wake of Hurricane Ida, there will be hundreds of thousands of insurance claims. Insurance companies will be overrun, but that’s no excuse for those companies to fail to pay your claims timely. Unfortunately, that’s not always how claims are handled.
You undoubtedly have seen numerous posts giving general advice such as “document every interaction with the insurance company.” That is true and great advice, but documenting every interaction can become burdensome when you are already overwhelmed.
So here’s a quick tip to help achieve the goal of “document everything” by using the phone in your hand. How to record phone conversations with your insurance company:
In a civil case, you do not have the classic “speedy trial” right. Instead, courts will seek expediency by granting summary judgments when appropriate. The purpose of summary judgment is to avoid frivolous and unnecessary trials, or at a minimum, to simply reduce trial time by dispensing of some claims. A motion for summary judgment may be granted upon a finding that there is “no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(A)(3).
In this case, Danny Givens (“Mr. Givens”) was released from prison and subsequently sued James LeBlanc, Secretary of the Louisiana Department of Public Safety and Corrections (collectively, “DPSC”) for false imprisonment. Mr. Givens alleged that DPSC improperly calculated his release date from prison and that he should have been released earlier; thus, he was falsely imprisoned by DPSC.
DPSC proceeded to file a motion for summary judgment, and as a result, DPSC became the “mover” under La. C.C.P. art. 966(A)(3). When filing for summary judgment, the mover has the burden to show there is no genuine issue of material fact. However, the adverse party in this case, Mr. Givens, has the burden to produce factual support to establish the existence of a genuine issue of material fact. La. C.C.P. art. 966(A)(3).
The equivalence of “dotting the i’s and crossing the t’s” in the law is making sure to comply with court procedural rules. One such basic civil court procedure rule is proper service. Proper service is critical in establishing that a court has legal jurisdiction over a defendant. The defendant has a right to know that they are being sued, and they have the right to be present at any hearing or to appear through an attorney. Without proper service, a court may dismiss a lawsuit. One can have a valid and strong claim for a lawsuit, but without proper compliance with court rules, the case may never even be heard. The importance of following procedure is highlighted in this Workers’ Compensation case heard in the Louisiana Fourth Circuit Court of Appeals.
The issue revolves around whether appellant A-1 St. Bernard Taxi & Delivery (“A-1”) was (1) properly served and (2) whether the Office of Workers’ Compensation erred in rendering judgment in Veronica Gordon’s claims for compensation. Ms. Gordon was involved in a car accident on May 2, 2015, while working for defendant A-1 as an independent contractor. She suffered injuries to her left arm, shoulder, neck, and back and filed a claim for compensation on August 7, 2015 (the “Original Claim”).
The Office of Workers’ Compensation (OWC) notified Ms. Gordon’s attorney that service on A-1 was unable to be performed at the address Ms. Gordon listed an incorrect address for A-1 in her Original Claim. Ms. Gordon listed a second incorrect address on an amended claim that also led to the failure of service. Ms. Gordon filed a motion to appoint a special process server and filed a second amended claim. In this claim, she stated that the special process server tried and failed several times to serve A-1. The OWC appointed the Secretary of State as A-1’s agent for service of process. The claim was sent to A-1’s last known address and the case moved for trial. Neither A-1 nor counsel for A-1 was present. The OWC ruled in favor of Ms. Gordon and denied A-1’s motion for a new trial, which A-1 appealed.
Summary judgments are a common tool in litigation to not only expedite the drawn out trial process, but they can also be used to cut down on the cost of a lawsuit. Yet, there are different standards about what kinds of documents can and cannot be considered when a party makes a motion for summary judgment. For two Baton Rouge individuals, their claims against an insurance company survived because of this technicality.
In June 2015, Brenda Jones was driving with her step-son, Mario Jones, Jr., when she stopped at an intersection on Florida Boulevard. Her car was rear-ended by Mr. Jason Anderson, a driver in another vehicle. After the accident, Mr. and Ms. Jones both sued Mr. Anderson for damages arising from the accident. GoAuto Insurance Company (GoAuto), Mr. Anderson’s car insurance provider, was also included in the lawsuit. In response to the lawsuit, GoAuto filed a motion for summary judgment and sought to have the claims against them dismissed. GoAuto claimed that Mr. Anderson’s car insurance had been cancelled in May 2015, a month prior to the accident, because Mr. Anderson had failed to pay for his insurance. Because of this, GoAuto said that it should not be liable since it was not Mr. Anderson’s car insurer when the car accident occurred.
Further, GoAuto claimed that Mr. Anderson’s insurance was financed through an insurance premium finance agreement between Mr. Anderson and Auto Premium Assistance Company (APAC). To support their claim, GoAuto provided the court with several documents, including affidavits by the company’s operations manager, Mr. Anderson’s insurance finance agreement, and email notices that were sent to Mr. Anderson informing him his insurance would be cancelled. In August 2016, the Nineteenth Judicial District Court granted GoAuto’s summary judgment, finding that GoAuto correctly cancelled Mr. Anderson’s insurance after he failed to pay and affirming that he did not have insurance when the accident occurred. Additionally, the trial court found that GoAuto did not have a legal duty to give Mr. Anderson a defense in the still-pending case against him. Mr. and Ms. Jones appealed.
On TV, lawyers are often shown dramatically acting out speeches in courtrooms and confronting witnesses. Those litigators do often have to speak and cross examine individuals, but in reality, much of an attorney’s role is to make sure the procedural and pleading aspects of a lawsuit are done correctly. Some of this procedure is based on a strategy of knowing what court to file a claim in in order to gain the best opportunity for recovery for your client. A St. Mary Parish School crossing guard’s lawsuit was dismissed when the court found that he had already filed an identical claim which had been dismissed.
Belva Webb, a school crossing guard, was instructed by St. Mary Parish School District to complete a drug screening test. This request came after parents complained to the school district that Webb seemed “unstable” when completing his crossing guard duties. The notice of this request came on February 17, 2012, and on February 23, Webb was told that the results of the test showed his prescription medication was “safety sensitive,” so he should not be working while on these medications. Due to the results of the test, the school district informed Webb that he should not come back to work unless he was contacted to do so.
Webb and his wife brought a lawsuit in federal court against several parties and alleging a violation of his constitutional rights, and that the various defendants had conspired to have Webb fired. All defendants filed a motion to dismiss Webb’s claims, which the federal court granted on the grounds that Webb failed to state a plausible claim for relief under 42 USC §§1983, 1985, and 1986.
Perhaps one of the biggest myths about the law is that you can bring a lawsuit anywhere about anything. In reality, a court must have jurisdiction in order to hear a case. Jurisdiction is the power of a legal body to make binding decisions over the people involved. In addition to having jurisdiction over the parties to the case, the court must also have subject matter jurisdiction. Subject matter jurisdiction is the ability for a court to hear the type of lawsuit brought to it. As one East Baton Rouge man found out, contesting a court’s subject matter jurisdiction can cause quite a headache.
Carey Holliday brought a lawsuit against the Louisiana Workforce Commission (“LWC”) in December 2015 for wages allegedly unpaid. Specifically, Holliday claimed that he deserved $5,868.34 of “premium pay” for performing administrative work which he was not paid for.
LWC claimed in response that the Civil Service Commission never authorized the premium pay and, therefore, they are not required to pay Holliday. LWC stated that premium pay approvals are under the Louisiana State Civil Service Commission’s exclusive jurisdiction and that there was no subject matter jurisdiction of the district court to hear the case. Further, LWC claimed that Louisiana Wage Payment Act, which Holliday had filed his claims under, did not apply.
Domestic abuse is a global issue that requires the services of excellent lawyers and even better judges to sort out the myriad of problems that arise in each domestic violence case. The justice system must use all of the tools at its disposal to try to protect victims from their tormentors while also sorting through murky and disturbing factual scenarios. The facts of these cases often make assigning blame difficult. The case of Yulia Sirenko and Martin Munger demonstrates the convoluted issues that arise in such disputes.
It is a tragic tale that begins in Moscow, moves through Dubai, and ultimately ends up in New Orleans in front of a trial judge tasked with determining who is at fault, who is in danger, and what remedies are necessary to stop the cycle of violence that has enveloped a family that includes young children. Mr. Munger and Ms. Sirenko, a married couple, got into a fight one night in their New Orleans home. The fight left Mr. Munger with a bleeding bite on his chest. He went to an urgent care facility, called a lawyer who advised him to obtain a protective order, and then called the police. Ms. Sirenko was subsequently arrested and spent 20 days in jail. At trial, both Mr. Munger and Ms. Sirenko sought protective orders against each other. They both also sought custody of their young son. The trial court found Ms. Sirenko’s account of a pattern of abuse by Mr. Munger to be credible and granted her a protective order against him. Mr. Munger was prohibited from contacting her except in very specific circumstances relating to their son. The trial court also awarded joint custody, but with Ms. Sirenko being designated as the primary custodian. Mr. Munger’s request for a protection order, on the other hand, was denied based on the trial court’s finding that he did not meet the necessary criteria due to its determination that he was the aggressor. Mr. Munger appealed this ruling, arguing that the trial court’s credibility finding was erroneous. He argued that Ms. Sirenko was not a credible witness and that a protective order in her favor was not warranted. He also argued that the trial court erred in dismissing his petition for a protective order. The Louisiana Fourth Circuit Court of Appeal, however, rejected his assertions of error and affirmed the trial court’s ruling. It based this finding on the great deference owed to a trial court in credibility determinations and evidence examination. It found that the trial court did not err in determining that Ms. Sirenko’s account of abuse was credible.
The Court of Appeal stressed that “[i]n matters of credibility, an appellate court gives great deference to the findings of the trier of fact.” Franz v. First Bank Sys., Inc., 868 So.2d 155 (La. Ct. App. 2004). This deference is owed due to the fact that the trial court gets to examine the witnesses as they are giving testimony. It gets to look at the evidence first hand. It has the best view of the evidence and “the demeanor and mannerisms of the witnesses.” The Court of Appeal simply has the record created at trial upon which it can base its rulings. Particularly in cases where conflicting testimony exists, “reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed…” Stobart v. State through Dept. of Transp. And Development, 617 So.2d 880 (La. 1993). Thus, the Court of Appeal will defer to these determinations unless the determination clearly goes against the evidence presented. There was no indication of such an erroneous ruling here. The Court of Appeal pointed out how thoroughly the trial court examined the evidence and compared it with the testimony of the witnesses. The evidence of bruises and other injuries, documented in photographs, lined up with Ms. Sirenko’s testimony. The trial judge clearly explained how the evidence was linked together with that testimony. Thus, the Court of Appeal found no error in the granting of a protective order to Ms. Sirenko under Louisiana’s Domestic Abuse Assistance Act. La. R.S. 46:2131. The Court of Appeal also upheld the trial court’s decision to dismiss Mr. Munger’s protective order. The trial judge determined that Mr. Munger was the aggressor and the evidence supported that determination. Once again, the Court of Appeal deferred to the trial court’s analysis of the evidence.
Sometimes, the most complicated cases can have the most simple resolution. For West Baton Rouge plaintiffs who sued mining companies for extracting resources underneath their property without their knowledge, the ultimate outcome of the lawsuit rested on the plain meaning of statutory language.
TMR Exploration, Inc. was a mining company owned by Raymond Lasseigne. Since surface property (houses and land) are often legally separate from mining rights (the resources underneath the surface), the Louisiana Commissioner of Conservation granted TMR a permit in 2007 to extract minerals from A. Wilbert’s Sons, LLC’s property. The only trouble was that this property belonged to no A. Wilbert but rather the descendants of a Peter and Elnora Hill, specifically Calvert Hill. This oversight resulted in TMR slant drilling into Mr. Hill’s property without his knowledge. This type of drilling is set up on one property and then drilled through the ground at an angle to access resources on a different property. Accordingly, Mr. Hill had no knowledge that TMR (and successive mining companies) had extracted minerals two miles underneath his property for six years.
Mr. Hill brought this lawsuit against TMR and Mr. Lasseigne in December of 2013, claiming that Mr. Lasseigne knew it wasn’t A. Wilbert’s Sons, LLC’s property but rather knew it was Mr. Hill’s. Mr. Lasseigne countered this, arguing that TMR’s involvement in mining underneath Mr. Hill’s property ended in June 2010 and was passed on to a different mining company. According to Louisiana statutes, one cannot sue the head of a business directly for negligence that his or her business caused “more than three years from the date of the alleged act.” La. R.S.12:1502. Mr. Lasseigne’s involvement in the mining ended June of 2013, six months before Mr. Hill brought this lawsuit. Accordingly, the Eighteenth Judicial District Court ruled in favor of Mr. Lasseigne, and Mr. Hill appealed to the Louisiana First Circuit Court of Appeal.
Sometimes, there are situations that appear to have an obvious result. Person A causes injury to Person B and B sues A. All the evidence points to A being at fault and B being hurt and in need of recovery. However, what if in the middle of the case, the court held that B was not hurt at all and therefore did not need to recover? How does a result like this even come about? What does B do? This situation is illustrated in a case arising from a New Orleans motor vehicle accident from 2014.
On January 7, 2014, Michael Mirandy (“Mirandy”) was driving down Interstate 10 in New Orleans on his way home from a doctor’s appointment where he had been treated for injuries from a car accident the previous year. Unfortunately for Mirandy, he was rear ended by a car driven by Gary Walters, Jr (“Walters”). Three days after the accident, Mirandy returned to his physician, Dr. Chad Domangue (“Domangue”) with complaints of pain in his neck and back. Domangue ordered an MRI that month and compared it to previous MRI Mirandy underwent on July 13, 2013. When he compared the two MRIs, it was clear that many discs and vertebrae that had been normal in 2013 were now injured, and those that were already inflamed or displaced in 2013 were now in worse shape.
Mirandy and his wife then sued Walters for damages in the Civil District Court for Orleans Parish. Both Domangue and Mirandy’s orthopedic surgeon testified that many of Mirandy’s injuries were not present before the 2014 accident and because of that accident, he needed surgery. During the jury charge conference, one of the jury charges suggested that the accident was a “minimal or minor collision.” Mirandy’s counsel objected to this language and the court agreed to modify it. However, the charge was not modified and after four days of trial, the jury held that while Walters was at fault for causing the accident, Mirandy was not injured. As a result of this judgment, Mirandy did not received damages. He appealed to the Court of Appeal for the Fourth Circuit, arguing that the unmodified jury charge improperly instructed the jury, and that the District Court erred when it found that he was not injured in the car accident.
Louisiana Personal Injury Lawyer Blog