Civil Matter

February 13, 2020

East Baton Rouge Worker’s Claim Upheld after LA Workforce Commission Fails to Pay His Wages

abundance-bank-banking-banknotes-259027-1024x683 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.

February 10, 2020

Plain Language of Statute Allows Case Against Texas Corporation in Louisiana

by Berniard Law Firm

photo-of-person-holding-black-pen-959816-1-1-1024x682 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.

January 28, 2020

Improper Jury Instruction Leads to Damages for Car Accident Victim on Appeal

by Berniard Law Firm

blur-car-caution-dash-163945-1024x683 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.

January 25, 2020

Court Dismisses Priest’s Defamation Suit Because of Its Likelihood of Failure

by Berniard Law Firm

architectural-photography-of-white-and-green-church-bell-792554-646x1024 Freedom of speech is one of America’s most celebrated rights. However, it does not mean that courts tolerate all types of speech. After all, we have all heard that the freedom of speech does not allow an individual to falsely yell fire in a crowded theater. Despite there being restrictions, courts take the freedom of speech extremely seriously and will not allow it to be encroached simply because someone felt offended by a certain use of free speech.

Robert and Lisa Mayeux and their daughter, Rebecca, were members of the Our Lady of the Assumption Catholic Church. Upon hearing from their daughter that George J. Charlet, Jr., a fellow churchgoer, sexually abused her, Robert and Lisa sued not only Charlet, but also Reverend Jeffrey Bayhi and the Roman Catholic Church of the Diocese of Baton Rouge as well for being complacent of the abuse despite knowing that Charlet was abusing their daughter.

Louisiana Television Broadcasting (“LTB”) ran several stories of the above sexual abuse case. Many of these stories prominently featured Bayhi. In some of the graphics that accompanied the stories, there were texts that stated that Rebecca was abused by a priest and that the priest had died during the investigation. However, these texts were erroneous. Charlet, the alleged perpetrator, was not a priest–Bayhi was. However, LTB did acknowledge that these texts were erroneous later in time. Furthermore, these stories showed video footage of Bayhi in his priest’s cassock. Bayhi filed a lawsuit against LTB for defamation. LTB filed a Motion to Strike in accordance with La. C.C.P. art. 971, stating that Bayhi did not have a legitimate claim. The Trial Court granted LTB’s motion.

January 24, 2020

Car Accident Victim Gets Appeal Dismissed Because Lack of Valid Final Judgment

by Berniard Law Firm

building-in-city-against-sky-256490-977x1024 You lose your case. However, your lawyer tells you not to despair. She tells you that you can appeal the trial court’s judgment at the appellate court. However, it is not always that simple. Appellate courts, like trial courts, do not just accept every single case that comes their way. They must first have jurisdiction over a case, which simply means that they must meet certain requirements to hear the case. Without jurisdiction, an appellate court will be unable to take your case even if your claim may be legitimate.

A multi-vehicle accident occurred on a highway in Jefferson Parish on December 25, 2014. The accident began when the vehicle driven by Max Beagle struck the vehicle driven by Elridge Thompson, Jr. Shadid Chaudry, who witnessed the collision between Beagle and Thompson, stopped his vehicle nearby to render assistance. Carrie Thiele was in the passenger seat of Chaudry’s vehicle. However, upon exiting the vehicle, Thiele was struck by a motorcycle driven by David Casse, who had swerved to avoid Chaudry’s vehicle. Upon hitting Thiele, Casse was thrown off his motorcycle while his motorcycle continued to move towards Thompson’s vehicle, eventually crashing into it.

Thompson filed a lawsuit against both Beagle and Casse and their respective insurance companies. Casse in turn filed a lawsuit against Thiele. In Casse’s lawsuit, he claimed that his collision with Thiele caused him severe injuries. Thiele filed a motion, stating that Casse’s lawsuit was barred because Casse’s lawsuit was filed more than a year after the accident. The Trial Court, without giving any written opinion, agreed with Thiele and dismissed Casse’s lawsuit.

January 23, 2020

Doctor Ordered to Pay for Deposition Fees Incurred by Louisiana Accident Victim

by Berniard Law Firm

photo-of-person-holding-black-pen-959816-1-1024x682 Trials can be extremely expensive. One of the most expensive parts of a trial can be the costs associated with taking depositions. Therefore, it is in a party’s best interest to recuperate those costs in the aftermath of a successful outcome. In fact, it is the general rule that included in the damages of a successful party are the costs associated with depositions. However, a trial court may sometimes erroneously or negligently include such costs in a party’s damages.

On October 24, 2014, Pratima Shah, while making a left turn from Causeway Boulevard to Jefferson Highway in Metairie, crashed into a vehicle driven by Dr. James Mayo. Shah filed a lawsuit against Mayo and the Government Employees Insurance Company (“GEICO”), Mayo’s insurance provider. Two days before the trial, Shah’s lawyer filed a Motion to Exclude Live Trial Testimony and for Costs, which was made to bar Mayo from testifying at the trial and to recuperate the costs associated with the perpetuation deposition Shah’s lawyer had to take of Mayo.

Apparently, Mayo was initially going to be unavailable for the trial. Therefore, Shah’s lawyer had to travel to New York, where Mayo resided, to take a perpetuation deposition of Mayo. A perpetuation deposition is a deposition that is made because a witness cannot make it to the actual trial. The statements made in a perpetuation deposition can be used in lieu of the witness’s live testimony. However, Mayo was able to make it to trial, so Shah’s taking of Mayo’s perpetuation deposition would have been a waste of time and money if Mayo was able to testify in person at the trial. The Trial Court did, however, allow Mayo to testify at the trial. Despite allowing Mayo to testify, the Trial Court ruled in favor of Shah. The Trial Court ruled that Shah was entitled to $2,885.00. This amount did not, however, include the costs associated with the perpetuation deposition Shah’s lawyer made. Shah appealed, asking for money damages to recuperate the costs associated with the perpetual deposition.

January 21, 2020

Does Scheduling A Court Status Conference Stop Case Abandonment?

by Berniard Law Firm

When a lawsuit is filed for an injury, most people assume that the claim will be sorted out in court in a timely manner. Sometimes, however, a case can get significantly delayed by years, even before a trial has occurred. In these instances, it is also possible that the case becomes “abandoned” if neither side takes any action towards furthering the course of the lawsuit. For one West Feliciana woman, the defense tried to do just that and claimed case abandonment.

In September 2005, Sheryl Cummings filed a lawsuit individually and on behalf of Shedrick Cummings, alleging that Shedrick became a quadriplegic after sustaining severe injuries from a football game at West Feliciana High School Stadium. Cummings named the West Feliciana Parish School Board (WFPSB), West Baton Rouge Parish School Board (WBRPSB), and several insurance companies, including AIG Insurance (National Union), claiming that there was insurance accident policy coverage of $1,000,000.

The district court judge dismissed claims against several insurance companies and severed the claim from WFPSB from the claims against National Union. In July 2009, all of Cummings’ claims against WFPSB were dismissed. In January 2016, National Union filed a motion to dismiss Cummings’ claims, alleging abandonment because of no steps taken on the case in over three years. The trial court granted the motion and dismissed the claims. Shedrick Cummings appealed the decision to the State of Louisiana First Circuit Court of Appeal.

January 19, 2020

Must a Self-Insurance Fund Cover Injuries from Workplace Fistfights?

by Berniard Law Firm

black-calculator-near-ballpoint-pen-on-white-printed-paper-53621-1024x603 Businesses face many liability risks or risks of being sued. These include injuries to their employees on the job. Workers’ compensation is designed to address such injuries. In Louisiana, businesses in specific industries may agree to pool together with one another in order to “self-insure” these claims. This means that the businesses pay the claims from a specific fund rather than handle them through outside insurance companies. The concept of indemnity is important in these sorts of arrangements. Indemnity involves the paying back of money or the defense in court of one party by the other. Of course, money is not unlimited, and organizations providing may exclude certain coverage in particular situations. The business affected may not agree with this. The Fourth Circuit Court of Appeal recently considered such a dispute.

Two employees of The Columns Hotel in New Orleans got into a physical altercation while at work. One of them was injured and sued the hotel and his coworker. As part of this same lawsuit, the Columns Hotel (“the hotel”) brought in the Louisiana Restaurant Association Self-Insurers Fund. The hotel claimed that the indemnity agreement between the parties should have applied in this situation. The fund disagreed, filing for summary judgment to have the court dismiss the claim on the basis that the agreement was not insurance. The trial court agreed and dismissed these particular claims. The hotel appealed.

The issue for the Fourth Circuit Court of Appeal ultimately dealt with how to interpret the indemnity agreement. Although the hotel argued that insurance law should apply to this contract, Louisiana law specifically excludes self-insurance organizations from the Louisiana Insurance Code. La. R.S. 23:1195(A)(1). Thus, the Fourth Circuit looked at the indemnity agreement between the hotel and the fund itself to determine how it should be applied. Contracts in Louisiana must be interpreted only to determine what the parties intended the terms to mean. La C.C. art 2045 Here, the parties disagreed as to what situations would be excluded from coverage by the fund. The exclusions the fund relied on were bodily injury, as well as assault and battery. The exception for bodily injury excluded from coverages situations where someone was injured by actions that should have been reasonably expected to cause such an injury. The court applied this to the fight between the employees. Their actions during the altercation would have been reasonably expected to cause injury. Thus, the Fourth Circuit found that the bodily injury exclusion would have applied. Therefore, the fund had been entitled to summary judgment on that point. The other exclusion was that of assault and battery. The exclusion includes reference to bodily injury caused by assault and battery. In Louisiana, battery is a “harmful or offensive contact” and assault is any action that would threaten such contact. Lawson v. Straus, 750 So. 2d 234 (La. Ct. App. 1999). Under these definitions, the fight between the employees would be considered assault and battery. Thus the agreement would not cover the se bodily injuries. Because these two exclusions applied to the situation, the Fourth Circuit found that summary judgment had been correctly granted.

January 12, 2020

What Happens When Someone Won’t Repay the Money I Loaned Them?

by Berniard Law Firm

1-us-bank-note-47344-1024x724 Benjamin Franklin had good reason to make the statement, “neither a borrower nor a lender be.” The potential for risk on either side of the transaction is significant. Be it the likelihood of not getting paid, or the possibility that you will not be able to repay the debt, many find that it is better to avoid the perils of money lending altogether. But that is just not practical. The way big plans are realized is often with money we do not yet have. And loaning money at interest is usually a great short-term investment, if you have the cash to spare. How do we assure our debt agreements will hold up in court?

On February 24, 2014, New Orleans resident Lois Guillory made a $40,000 loan to Percy Goulette and Alan Sagely, with interest totaling $5,000 and due in one year’s time. The parties signed a promissory note memorializing all the terms. But once February 24, 2015 came around, Goulette and Sagely refused to pay the obligation. When Ms. Guillory filed a lawsuit to recover her investment, Mr. Goulette tried to have the claim dismissed, stating that his business Goulette Ice actually borrowed the money. Goulette claimed he and Sagely did not borrow the money individually, but signed the note in their capacity as agents of Goulette Ice. In fact, the note identified the men as owners of Goulette Ice in two places, one of which was below the signature line. This, in Goulette’s eye, meant he and Sagely were not personally guaranteeing repayment, and not liable for the loan. The Trial Court granted Goulette’s peremptory exception of no cause of action, and Ms. Guillory appealed.

A peremptory exception for no cause of action is essentially one party asking the court to dismiss the case because there has been no offense for which to sue. These exceptions are judged solely on the pleadings, and neither party may introduce evidence to support or object to the exception. La. C.C.P. art. 931. Ms. Guillory’s original petition contained a copy of the promissory note, and the Appellate Court closely reviewed that document.

December 31, 2019

Leesville Auto Repair Shop Fails to Properly Respond to Lawsuit, Loses

by Berniard Law Firm

When a party to a lawsuit waits too long to respond to a lawsuit or flat out declines to respond, courts have the ability to resolve the case with a default judgment. This default judgment resolves the case and the non-responding party must live with the court’s decision. While not ideal, it is a needed mechanism for times when a party does not comply with the rules. With the help of an excellent attorney an injured driver won his lawsuit when a Leesville vehicle repair shop failed to properly respond to his lawsuit.

Dexton Bryant purchased the services of Xtreme Machines to install a lift kit on his pickup truck. Shortly after the lift kit was installed, Mr. Bryant was driving when the front left wheel of his truck completely came off. The lack of wheel caused Mr. Bryant’s truck to swerve off of the road and into a group of trees. Mr. Bryant blamed Xtreme for cutting off the lug bolts on the wheel and brought a negligence lawsuit to recover the damages he sustained to his body and vehicle.

Mr. Bryant won the lawsuit by a default judgment in the Trial Court. The default judgment win was because Xtreme did not respond to the lawsuit in time. In total, he was awarded $11,857.50 for his medical costs, $7,900 for the damage to his vehicle, and $50,000 for his injuries, pain, and suffering. Xtreme responded to the loss at trial with an appeal. In the appeal, Xtreme claimed the Trial Court made an error by determining that Xtreme was negligent. This claim was based on the argument that improper evidence of negligence as well as the costs was admitted by the Trial Court.