Civil Matter

March 30, 2023

When Is A Louisiana Jury Verdict Considered Excessive?

money_finance_house_mortgage-1024x678 What happens if you win a lawsuit but the other side moves to reduce the amount of money you were awarded? This is the situation Marcus Berry found himself in after he was awarded over a million dollars in damages due to injuries he suffered in a car accident.

Following a car accident, Berry sued the driver of the car that hit him, Leon Berry, and his insurer, Auto-Owners Insurance Company. The other driver admitted liability but contested the nature and extent of the damage Berry suffered.

At trial, the jury agreed Berry was injured as a result of the accident. They awarded him a total of $1.29 million in damages. This consisted of $900,000 for pain and suffering and loss of enjoyment of life previously, presently, and in the future, as well as $390,000 for medical expenses. Following this award, the defendants moved for a new trial or remittitur (a procedure where the court can reduce an excessive verdict), arguing that the jury had awarded excessive damages.

March 28, 2023

Injured While Receiving a Massage and a Court’s Discretion to Award Damages

by Berniard Law Firm

massage_relaxation_massage_389727-1024x685 Spas, health clubs, and wellness retreats are a few places that prioritize the self-care of their patrons, offering relaxing services like manicures, mud baths, and massages. These places also owe a legal duty to their patrons by using reasonable care to avoid causing any injuries. After a massage went wrong at Massage Envy (ME), a jury for the Fifteenth Judicial District Court for Parish of Lafayette (“District Court”) awarded the plaintiff, Julie Roy (“Roy”), $65,000.00 for her future medical expenses. Dissatisfied with this outcome, Roy appealed to the Third Circuit Court of Appeal for the State of Louisiana (“Circuit Court”), claiming that the jury failed to award her sufficient damages to cover her future medical expenses, especially in the light of her physician’s testimony.

Roy’s injuries at Massage Envy resulted from falling off a massage table. Originally, Roy had scheduled a 90-minute massage, but she asked the massage therapist to stop after about 45 minutes, half of her scheduled time. The massage therapist, who was over six feet tall, had raised the massage table to reach Roy better during the massage. However, before Roy got off the table, the massage therapist left the room without lowering the table back to its standard height. Therefore, when Roy attempted to get off the table, she lost her balance and fell, injuring her knee, shoulder, back, and neck. Before leaving Massage Envy, Roy reported her injury to the management there.

A year later, Roy sued ME for her fall injuries. A jury returned a verdict, finding equal, 50/50, fault of both Roy and ME and awarding $65,000 to Roy for her future medical expenses along with damages for her past medical experiences and general damages. Yet, Roy appealed this decision to the Circuit Court, arguing that the jury’s award of $65,000 for her future medical expenses was an abuse of discretion because it ignored the testimony of her physician.

March 27, 2023

Terrebonne Auto Mechanic Injured Twice on the Job, Hospital that provided Medical Services Barred from Full Recovery

by Berniard Law Firm

tire_repairer_tire_mounting-1024x681 Injuring yourself while on the job is not fun for anyone, especially when your accident further exacerbates a previous workplace injury. What happens if you then try to seek retroactive benefits from your previous injury? You may run into an issue of prescription (otherwise known as the statute of limitations). A 2016 case from Terrebonne Parish explores how prescription can play out in a compound workplace injury.

Gerald Hellmers was a mechanic for the Port of New Orleans. On August 23, 2007, Hellmers injured his lower back while changing a tire as part of his duties at work. He required hospitalization and surgery at Tulane University Hospital and Clinic (“Tulane”). Worker’s compensation benefits were paid to Hellmers by the Port. Tulane sent the Port invoices totaling $118,000.00. The Port made some payments but not the total amount owed.

Hellmers re-injured his lower back while changing a truck battery on January 13, 2009. Again, Hellmers was hospitalized at Tulane, and the Port paid worker’s compensation benefits. Tulane billed for this treatment, but once again, the Port didn’t pay the total bill.

March 26, 2023

Louisiana Court Holds Plaintiff’s Failure to Have Surgery Precludes Argument for Future Medical Expenses

by Berniard Law Firm

surgery_medicine_science_1501907-1024x683 Scheduling a post-accident surgery promptly may be essential to ensure complete physical recovery. Sometimes, the scheduling of post-accident surgery matters less. However, scheduling your surgery prudently may pay off when recovering damages in court, as one plaintiff found in a recent appeal discussed below.

In 2010, Karl Kimsey was involved in a car accident in DeRidder, Louisiana. Mr. Kimsey alleged a left knee injury and underwent an arthroscopic procedure in late 2010. Kimsey filed a lawsuit against his car insurance company. In 2013, an initial judgment awarded damages, lost wages of $300 a week limited to his period of recovery and required the scheduling of a recommended reconstructive surgery. The defendant’s insurance company would pay for the surgery, provided it happened within one year of the judgment. If the surgery did not happen within one year, any party could return to court. Both parties appealed that order, but their appeals were dismissed because the judgment was conditional and thus not final. Mr. Kimsey did not have the surgery within one year and appealed the final trial court order.

Mr. Kimsey’s main issues on appeal were that the court erred in not awarding future medical expenses, not awarding the argued lost earning capacity of Mr. Kimsey; and erred in the amount awarded of an expert fee for Mr. Kimsey’s expert. The relevant standard of review for these issues are“manifest error” or “clearly wrong”——a demanding standard to meet in Louisiana that requires the reviewing court to review the record in its entirety “to determine whether the trial court’s finding was clearly wrong or manifestly erroneous.” Stobart v. State through Department of Transportation and Development,

March 25, 2023

Can You Enforce an Indemnification Clause Without a Fault Finding?

by Berniard Law Firm

oil_rig_technology_sea-768x1024 Personal injury cases can be costly for all parties involved. Paying those costs can get confusing, especially when there is indemnification. Indemnification arises when a party is contractually obligated to foot the bill for attorney fees and defense costs. The question then arises, can you seek indemnification if fault was never established? This type of contractual clause and legal questions are the core issue in a recent appeal discussed below.

In 2002, Murphy Exploration and Production Company contracted with McDermott, Inc. to design and construct an offshore oil rig facility fixed to the seafloor adjacent to the State of Louisiana. Part of that contract provided that Murphy agreed to indemnify McDermott against claims, losses, and expenses.

James Hefren, a Murphy employee, filed a lawsuit against Murphy and McDermott, alleging an injury that occurred due to a defect on the facility. Eventually, McDermott filed a cross-claim against Murphy asserting that McDermott was entitled to indemnification, based on the 2002 contract between the two parties, for all costs related to its defense against Hefren’s lawsuit. The district court found that Hefren’s claims were barred and dismissed the claims with prejudice. Following that dismissal, McDermott sought indemnification for the expenses incurred in defending itself from Hefren’s suit. The district court entered a judgment for McDermott and awarded attorney costs. Murphy appealed the judgment.

March 24, 2023

Louisiana Court Holds that “Bobtailing” Limitations do Not impact Uninsured Motorist Coverage

by Berniard Law Firm

coins_currency_investment_insurance_0-1024x683 Auto insurance can be beneficial when you are in a car accident. However, it isn’t uncommon to have specific provisions in your insurance policy that can limit your coverage. A recent case out of Kenner, Louisiana, interpreted whether certain caveats in an insurance policy can limit a client’s uninsured motorist coverage (UM/UIM).

Denise Breaux was driving on Interstate 10 behind a truck driven by Jonathan Blum. When a ladder fell off the back of Blum’s truck, Breaux tried to dodge the ladder that fell right into her path. Unfortunately, Breaux’s vehicle collided with Danny Castille’s tractor/trailer while attempting to avoid the ladder. Castille and his wife filed a lawsuit against Breaux, her insurer, and Blum, and then later added Lloyds at Lloyd’s, London (Lloyds) as a defendant. The Castilles were seeking UM/UIM coverage from Lloyds under a surplus lines insurance policy that was issued to Mr. Castille.

Lloyds asserted that the Castilles were not entitled to UM/UIM coverage because they specifically issued an insurance policy that applied when the tractor did not have the trailer attached, known as Bobtail Liability insurance. Further, they argued that liability insurance was only available when the tractor was bobtailing; therefore, UM/UIM coverage only applied in the same scenario. Since, at the time of the accident, the Castilles’ tractor had a trailer attached and was not bobtailing, Lloyds sought summary judgment.

March 23, 2023

Will an Appeals Court Consider Evidence that Attorneys forget to “Offer and Introduce?”

by Berniard Law Firm

law_justice_court_judge-1024x768 Most lawsuits begin with a petition that lays out the facts and basis for a claim. These facts are pertinent to the survival of each claim and defense. Many pretrial hearings and motions are based on what is pleaded in the petition. The face of each pleading can determine the case’s outcome from the beginning.

To attack the petition to have a lawsuit thrown out of court, attorneys will file motions alleging various exceptions. These exceptions can be based on different issues surrounding the case, such as a prescription or peremption exception. When arguing those exceptions, the attorney must be conscientious to “admit” all the evidence into the record that bolsters their position. The following lawsuit out of Ascension Parish, Louisiana, shows how important it is to properly admit evidence into the record when arguing in Court and what can happen when an attorney forgets to “offer and introduce” evidence filed with a motion.

William and Rosa Cambre owned a building they leased to Premier Performance Marine, L.L.C (Premier). Premier had the building insured by an Atain Specialty Insurance Company (Atain) policy. Therefore, when a storm severely damaged the building, Attain paid Premier under the insurance policy.

March 22, 2023

A Louisiana Court Signs Two Final Judgments, What Happens?

by Berniard Law Firm

courthouse_building_clock_tower-1024x685 When a case ends at the trial court level, the judge signs a physical order document laying out the court’s decisions. This physical order document is called a final judgment; every case will only have one final judgment. Final judgments cannot be amended easily by either the trial court or the parties. The only permissible amendments are those that fix basic errors, such as spelling or arithmetic; all other modifications or changes should be brought up on appeal or in a motion for a new trial. Starnes v. Asplundh Tree Expert Co.

A final judgment is not the end of a case. Almost every case has a right to appeal. The appellant will point to the section they believe is wrong and ask the appellate court to fix the issue. So what happens when a Louisiana Court signs two final judgments? The following case out of Baton Rouge demonstrates what occurs when this happens.

A graduate student at LSU fell and injured his ankle while leaving his university apartment when leaving for a work trip. He petitioned for worker’s compensation but later decided to bring a lawsuit against LSU for his injury in the 19th Judicial District Court in the Parish of East Baton Rouge. The 19th judicial district ruled that because he was in the course of his employment, the only remedy that this graduate student could receive was worker’s compensation.

March 21, 2023

All or Nothing—Piecemeal Peremptory Exception Reversed for Louisiana’s Drug Fraud Case

by Berniard Law Firm

owens_drug_company-1024x857 The legal system is complicated, with many “dos-and don’ts.” Whether or not you can have your case heard in court first requires following the rules guiding the sufficiency of your claim. If your complaint fails to show that you have a right to bring the case against your defendant, your case might be dismissed. But how strictly interpreted is this rule? What does it look like when a cause of action is sufficient to be heard or ripe for dismissal?

The State of Louisiana brought a lawsuit against various pharmaceutical companies participating in manufacturing and selling Actos. The State alleged that the pharmaceutical companies misrepresented Actos’s efficacy and side effects. The State also claimed that research showed that Actos greatly increases the chance of bladder cancer. The State alleged the pharmaceutical companies failed to disclose this information.

In its case against the pharmaceutical companies, the State alleged that it would not have bought and distributed Actos if its risks had been clarified. Because of the drug companies’ alleged misrepresentation, Louisiana sought to recoup damages due to fraud, redhibition, unjust enrichment, and infringement of the Louisiana Unfair Trade Practices Act (LUTPA), La. R.S. 51:1405, and violations of the Louisiana Medical Assistance Programs Integrity Law (MAPIL), La. R.S. 46:437.1. In response, the drug companies brought various objections—peremptory exceptions including no cause of action, res judicata, no right of action, and dilatory exceptions including vagueness or ambiguity of the State’s petition, and the petition’s not following state law requirements. La. C.C.P. art. 891.

March 20, 2023

Does Parental Liability Extend Over Adult Children in Louisiana Lawsuits?

by Berniard Law Firm

children_s_children_asian-1024x683 In the United States, parents are often deemed responsible for the criminal conduct of their minor child. But the rules guiding this concept could be more precise and are subject to much controversy. How do we decide when that duty exists and when it ends? A Louisiana court answers the question, does parental liability extend over adult children in Louisiana?

A Louisiana man, Garry Lewis, was the victim of burglary and criminal committed by 22-year-old Royal Rhodus and 23-year-old Beaux Melancon. Royal and Beaux allegedly broke into Mr. Lewis’s property and took three of his vintage cars, racing and damaging the cars and then hiding the cars and attempting to sell the vehicles for parts. Subsequently, Lewis put flyers in his business window that stated the names of both Royal and Beaux as well as the names and addresses of their respective parents. The flyers included descriptions of the alleged crimes committed and suggested that Royal and Beaux would “be the girlfriends of other inmates” once they were arrested.

Royal’s parents, Jerry and Belinda Rhodus, filed for injunctive relief against Mr. Lewis, requiring him to remove the flyers and pay them damages. In response, Mr. Lewis filed a reconventional demand with Royal as an additional defendant, seeking damages from Royal’s parents. Mr. Lewis later added Beaux and his parents, Danny and Brenda Melancon, as defendants.