Articles Posted in Civil Matter

hospital-bc-laboratory-form-with-syringe-1-1315580-1024x768Trial courts can make mistakes. Some mistakes are permanent, so a redo is impossible. In other cases, the mistakes can be reversed on appeal by an appellate court. When an appellate court reverses a trial court’s decision, the trial court could have to revisit the entire case and put things in correct legal standing between the parties.

Gordon Serou, Sr. resided at the Specialty Hospital of New Orleans, Inc. (“SHONO”), which is a long-term care facility located in the Touro Infirmary (“Touro”). He suffered from Parkinson’s disease and a number of other illnesses. Unfortunately, he was also a patient at SHONO when Hurricane Katrina struck New Orleans in 2005. Two days after Hurricane Katrina struck New Orleans, Mr. Serou passed away due to a generator failure. Upon his death, Mr. Serou’s family members sued Touro, SHONO, and the manufacturer of the faulty generator, Aggreko. Touro then sued Aggreko to recover any damages that the court found Touro liable for in relation to the faulty generator. Aggreko filed a motion for summary judgment, claiming the company was not at fault for the generator failure. Though the Trial Court granted this motion, the Appellate Court reversed and sent the case back to the Trial Court. Aggreko filed another motion for summary judgment, again claiming that the company was not at fault for the generator failure. The Trial Court again granted Aggreko’s motion. Touro argued that this was inappropriate because Aggreko had submitted the motion without any alterations and the Appellate Court had already overturned the granting of this same motion.

A party whose summary judgment motion gets denied at the appellate level may be able to file the motion again. Zeno v. Colonial Mortgage & Loan Corp., 4 So.3d 93, 100 (La. Ct. App. 2008). In fact, a trial court may grant the motion even if the party does not submit new evidence. Paragon Lofts Condo. Owners Ass’n, Inc. v. Paragon Lofts, L.L.C., 32 So.3d 303, 306 (La. Ct. App. 2010). This is because a party files an initial summary judgment motion before the actual trial. Therefore, if an appellate court decides to reject an initial summary judgment motion, it is not making a final judgment on the case. Because the appellate court does not make a final judgment, the party can file a second motion for summary judgment. Hargett v. Progressive Ins. Co., 996 So.2d 1199, 1202 (La. Ct. App. 2008).

clipboard-close-up-composition-893894-1024x683Navigating a lawsuit is a difficult task. Not only do you have to prove the merits of the case, but you also have to navigate the judicial system’s complex procedural requirements. Even if your case seems likely to succeed on the merits, failure to comply with procedural requirements can leave you without recourse. 

On March 22, 2001, the Meladines’ boat struck an unknown object submerged at Lake Hermitage while they were fishing in the early morning. In 2002, the Meladines sued six companies in a lawsuit for personal injuries. In the lawsuit, the Meladines alleged that the companies were the owners and/or operators of oil and gas platforms and pipelines located in the Lake Hermitage area. The Meladines alleged that their boat collided with what seemed to be an unmarked, old gas pipeline. They alleged that the defendants had failed to adequately mark or maintain the pipeline or warn of its potential harm. All six of the defendants denied having any ownership interest or control of the object that struck the plaintiffs’ boat.

Over the next three years, the plaintiffs dismissed the claims they had brought against all the defendants except Stone Energy and Chevron USA. In 2007, the plaintiffs added Jefferson Lake and Plaquemines Parish Government (“PPG”) as defendants. A year later, Jefferson Lake filed an exception of prescription because it had not been renamed as a defendant until over six years since the accident. Jefferson Lake also argued that prescription was inappropriate because there was no solidary liability between Jefferson Lake and any original defendants. The case then proceeded to trial. 

advertisement-architecture-big-2380891-683x1024Around 9am on Saturday, October 12 the Hard Rock Hotel partially collapsed over Canal Street in New Orleans after the top six to eight floors buckled onto the structure. According to New Orleans Fire Department Superintendent Tim McConnel, the remaining structure of the building remains unstable and could possibly collapse entirely. In response, nearby buildings have been evacuated as the two construction cranes are also unstable. Currently, one person has been reported dead, eighteen have been taking to the hospital in unspecified conditions, and two workers are still reported missing. In terms of the next steps to be taken, it is unknown just how long it will take crews to clean up the piles of debris and get the project back on schedule. This is particularly stressful for the city of New Orleans considering the site of the collapse is a major transportation hub for the city – consisting of bus and streetcar lines in addition to the major traffic arteries of the city. An accident such as the Hard Rock Hotel accident will impact much more upon closer inspection spanning to issues such a personal injury, workers compensation, wrongful death, and much more. Considering the complex litigation that can arise out of an incident such as this one it is important to have a good attorney at the ready.

         Personal injury lawsuits can arise out of many different circumstances – car accidents, slip and falls, and even injuries on the job. When filing a personal injury case it is incredibly important to have a knowledgeable attorney because filing a personal injury claim too late or even waiting too long to collect damages can result in having your personal injury claim denied.  It is important to be persistent in personal injury cases and staying on top of filing deadlines and dates and having a diligent advocate can makes a difference in your case.

         Workers compensation is intended to pay for the medical expenses of injured workers and provide a remedy for lost wages. However, workers compensation claims are often complex from start to finish. There are cases in which it can be difficult to determine if someone is considered an ‘employee’ despite being injured while working on a project. This is especially prevalent if a contractor hires subcontractors in order to complete a project. Moreover, it can also be difficult to receive your workers compensation payments with companies often being uncooperative in the workers compensation process.

class-classroom-conference-716276-1024x683Opinions vary on the principles of trickle-down economics, but on December 15, 2015 the United States Court of Appeals for the Fifth Circuit issued an opinion which affirmed a lower court summary judgement decision for Northwestern State University to take down economics, along with one of its tenured professors.

In 1994, Robert C. Jones III (“Mr. Jones”) was hired as an economics instructor at Northwestern State University (“NSU”) and later gained tenure as an associate professor. Neither his education nor his instruction could have prepared him for the state enacted public university budget cuts that cost Mr. Jones his job as a result of the Great Recession of 2008. On July 22, 2010, the administrative representatives for NSU sent Mr. Jones a letter to notify him of the end of the economics concentration and his tenure. Following the notice, Mr. Jones presented a seven-page document to a committee of NSU faculty members outlining his arguments against the notice to end his tenure. The committee subsequently rejected Mr. Jones arguments unanimously. A year later, Mr. Jones filed a lawsuit seeking reinstatement and damages against NSU and argued that the university denied his procedural and substantive due process rights. The university raised a defense of sovereign immunity, while the administrative official claimed qualified immunity. The United States District Court for the Western District of Louisiana granted these immunities along with NSU’s motion for summary judgment. Mr. Jones appealed the decision to the Fifth Circuit, which ultimately affirmed the lower court’s judgment.

The Fourteenth Amendment of the United States Constitution states that no state shall “deprive any person of life, liberty, or property without due process of law.” Procedurally, due process includes adequate notice as well as the opportunity to be heard. Due process becomes less clear to define, so courts often rely on case law, which is comparable to the present situation. 

close-up-court-courthouse-534204-1024x569When a lawsuit fails, there are certain situations where the party who brought the failed lawsuit is responsible for the costs to the other party. Where that line is drawn is generally based on a judge’s discretion and views on the reasonability of those costs. Without excellent attorney work, procedural and legal roadblocks may make it impossible for a court to award the fees that a party should be entitled to. That was the case for three dentists after winning a lawsuit against a Baton Rouge plaintiff.

Tara Lorraine lost a lawsuit against three dentists she accused of malpractice. The jury found that she did not prove that her treatment breached dental treatment standards and her claim was dismissed with prejudice. When a claim is dismissed with prejudice, the dismissal was based on the merits and the facts of the case and it cannot be brought again by that plaintiff.

In response to their favorable verdict, the three dentists then asked the court to award them with the costs of the defense, totaling $9,555.14. This was asked to cover the costs of various things to prepare for trial, such as jury panels and expert witnesses. The Trial Court held a hearing and determined that Ms. Lorraine was liable to the dentists for the full amount requested. Ms. Lorraine then appealed.

adult-chores-flora-1453499-1024x683If you get hurt due to someone else’s negligence and they agree to cover the costs, how much time do you have to sue for damages? According to Louisiana’s Second Circuit Court of Appeal, you have one year from when the injury occurred or when prescription is interrupted. Typically, prescription refers to land rights, but in Mr. Bethley’s case, it concerns the defendant’s agreement to pay his medical bills.

In July 2012, Mr. Bethley and his father were cutting tree limbs when Ms. Simmons came over and asked to use the saw. Bethley allowed Simmons to try the saw for about fifteen minutes, and then asked him to stop. With the saw in hand, Simmons turned towards Bethley and cut his ankle, which began to bleed to the point where Bethley needed medical attention. On the way to the hospital, Simmons said he would pay for the medical bills as long as Bethley did not tell his wife about it. Simmons paid $180 directly to the hospital, but then stopped making the payments about a year later

In April 2015, Bethley filed suit against Simmons requesting damages for medical bills, lost wages, court costs and pain and suffering. In court, Bethley’s father testified about incident and told the court that Simmons agreed to “take care of it” and asked that his wife not be told. Simmons testified that he didn’t intend to cut Bethley, but Bethley got in the way. He denied promising the pay the medical bills but said he would help if he could. He agreed that he was at fault for the incident, but also contended that the statute of limitation had run out. He also filed an answer stating that over a year had passed since the injury, so the Bethley lost the right to sue. The trial court ruled in favor of Bethley, awarding him damages for pain and suffering, medical bills plus interest, and lost wages. Thereafter, Simmons appealed.

clearing-desolation-destruction-4451-1024x683Accidents can come from the most unexpected of circumstances and result in life altering consequences. Here, a man suffered severe injuries while driving to the local convenience store to purchase a cup of coffee, when a rotten tree from a resident’s yard fell and struck his vehicle.

The victim, 52-year-old Rodney Caldwell, filed a lawsuit against property owner Michael Jones and ANPAC Insurance Company, Jones’ insurance provider. The lawsuit was filed in Lincoln Parish. Caldwell was awarded special and general damages totaling $12,186. However, after being awarded damages for his claim, Caldwell appealed the amount he received in general damages, which totaled $4,000, claiming that the amount was not sufficient compensation for his injuries. On appeal, the Second Circuit Court of Appeals agreed to increase Caldwell’s amount in general damages to $15,000. 

Ordinarily, when assessing damages, the judge or jury have discretion to determine what is a sufficient amount to award the victim. La C.C. art. 2324.1. When determining general damages, the court takes into account the victim’s pain and suffering, loss of physical enjoyment, and other losses of life or lifestyle which cannot be definitively measured in monetary value. McGee v. A C and S, Inc., 933 So. 2d 770 (La. 2006)

adults-businessman-close-up-1056553-1024x666When representing clients, attorneys walk a fine line between providing adequate services for their clients and being potentially sued by their clients for legal malpractice. While there are legitimate cases of malpractice among attorneys, there are also allegations of malpractice that simply lack merit and are based upon anger from a dissatisfied client.  

Such was the case for Carlos Hardison, who filed a legal malpractice lawsuit in the New Orleans Parish against George W. Byrne Jr., an attorney at Ungar & Byrne, A Professional Law Corporation (“Byrne”). Hardison, a seaman who sustained injuries to his foot while on the job and had to undergo a partial leg amputation, filed a maritime personal injury lawsuit against his employer, Abdon Callais Offshore (“ACO”) because of injuries sustained while at sea. After receiving a $90,000 settlement and what he felt to be an adverse judgment, Hardison filed his lawsuit against Byrne for malpractice. 

Hardin alleged that as a result of Byrne’s malpractice, he was given a settlement option of $90,000 as opposed to an amount as high as $10 million. Hardin also alleged that he did not give valid consent to the proposed settlement by the court and that he was also under duress at the time of giving consent.

auto-automobile-blur-532001-1024x683When you think of an interrogation, you may think of a cold, plain room. You can imagine the two-way mirror and the rough metal chairs. You’re probably picturing some menacing looking criminal across from a police officer. It’s likely a high-pressure situation, and one party clearly holds most of the power. The police officer is calling the shots, asking all of the right questions, and knows all of the protocols. But what if it was another officer sitting across from them in the interrogation room?

On August 8th, 2013, Davin Miller was arrested by the Ascension Parish police for counts of simple battery and domestic violence.  It was alleged that Miller, an officer for the City of Gonzales, had an altercation with his wife leaving her with injuries and had also threatened his father-in-law while in uniform. Following an investigation and citing ten possible violations of the Department’s standard operating procedures, the Chief of the Gonzales Police Department fired Miller. Miller appealed this decision, citing errors including not being able to record interrogations and not having assistance of counsel during interrogations.

Mr. Miller alleges that he requested that the questioning be recorded and to have counsel present but was denied twice. He was then made to sign two waivers or else be terminated. The first waiver, a “Warning of Rights and Consent to Speak,” stated that Mr. Miller could speak to counsel and have them present when being questioned. The second waiver was consent to a polygraph test. During the questioning, Mr. Miller was asked by the Chief of the Gonzales Police Department multiple times if he was lying. 

bill-oxford-r2ESY7RXB4M-unsplash-1024x517Litigation must come to an end so that parties to a lawsuit can go on with their normal lives. The court system also needs to move on to assist others in settling their disputes. This is a fundamental concept of our justice system. This also encourages courts to deal with cases in an efficient manner so that cases should not drag on unnecessarily. There are several ways in which cases can come to an end. One way is through abandonment. If you file a lawsuit and do nothing about it until three years, that lawsuit will be considered abandoned. In this case, the Fifth Court of Appeal of Louisiana considered a situation where this rule applies.

On May 10, 2011, the plaintiff, Mr. Felo, filed a lawsuit in which he named Ochsner Medical Center as the defendant. In the lawsuit, he alleged that he was injured after falling following a right hip arthroplasty. Ochsner Medical Center answered the petition on July 22, 2011, and on July 28, 2011, filed a request for a jury trial. The July deposit order was signed by the trial court on July 29,2011 and mailed to both parties on August 10, 2011. From this date, the plaintiff took no further action until August 6, 2014, when the plaintiff made applications and requests for production of documents. The defendant filed a motion to dismiss the lawsuit for abandonment. The court granted this request. On appeal, the court considered whether the mailing of the jury deposit order by the clerk of the court was a step in the prosecution of the action to an extent that it had changed the running of abandonment to start from August 10, 2011, and not July 28, 2011.

According to La. C.C.P art. 561(A)(1), an action is deemed abandoned when the parties fail to take any steps in either prosecution or defense for a period of three years. Under this provision, the rule does apply even without a formal order as it is an automatic so long as the period is three years. See Clark v. State Farm Mut. Auto. Ins. Co., 785 So. 2d 779 (La. 2001). Under this rule, if a party disputes abandonment, it must prove that (1) it took a formal action which was intended to continue with the case, (2) the steps must appear on the court record and (3) the steps must have been taken within the prescribed time period.