Articles Posted in Civil Matter

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black-calculator-near-ballpoint-pen-on-white-printed-paper-53621-1024x603Businesses 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.  

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1-us-bank-note-47344-1024x724Benjamin 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. 

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close-up-photo-of-vehicle-engine-1409999-731x1024When 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.

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close-up-court-courthouse-hammer-534204-1024x569After a hard fought jury trial, an appeal can be expected. But, what cannot be anticipated is a transcribing error by the court that renders the judgment as invalid and makes any appeal impossible. Excellent attorneys can catch errors by other parties and avoid multiple extra steps before a lawsuit can be resolved. That was the case here as mismatching damage award classification labels extended a lawsuit well beyond its anticipated end.

Willie Brown, Jr., was a customer at the Silver’s Casino in Breaux Bridge. After a power outage at the casino and at the direction of an employee of the Casino, Mr. Brown tripped over a sidewalk while he was entering the premises. Mr. Brown suffered injuries to his right knee, left shoulder, and also his head.

Mr. Brown saw a doctor for his injuries and was diagnosed with a cervical disc issue. The doctor recommended surgery to repair the injuries and estimated that the surgery would cost $85,000. Mr. Brown also saw a doctor at the request of Silver’s Casino and received a much lower medical cost estimate. Silver’s doctor suggested that Mr. Brown did not need surgery and instead only needed an injection for pain that would cost $1,000.

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accounting-black-budget-53621-1024x603If you and the opposing party in your lawsuit reach a settlement agreement, it might seem like your legal battle is over. However, trouble can arise if the other party does not do what they promised to do. This is the situation Cheri Gardner found herself in following a car wreck and the resulting settlement with State Farm.  

In July 2009, Gardner was involved in a car wreck. Just under a year later, she filed a lawsuit against State Farm, Lisa Haefner, and AllState Insurance for her injuries. Gardner had to have spinal cord surgery and amassed medical bills exceeding $70,000. 

In May 2011, Gardner and State Farm underwent mediation and entered a “10-Day Option to Settle” contract that State Farm’s attorney drafted and provided to Gardner. The settlement stated that any liens for medical expenses that State Farm would agree to pay as part of the settlement had to be presented before July 13, 2013. After the parties signed the settlement agreement, Gardner’s attorney provided State Farm with a letter for a medical lien from BlueCross BlueShield of Louisiana from May 28, 2010 for a lien of $7,143.10. 

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blond-hair-desk-employee-1181534-1024x684Employment discrimination can take many forms. One common form is gender discrimination. However, an employer may be able to avoid liability if they can provide legitimate and nondiscriminatory reasons why they decided to hire someone else that are not based on the candidate’s gender.

Tensas Parish School Board (“TPSB”) needed a head football coach and athletic director for Tensas High School, so they posted a job advertisement in March 2011. Due to budgetary constraints, TPSB requires that all coaches also teach. Sue Ann Easterling, who had prior experience coaching high school basketball, softball, gymnastics, volleyball, and track and field, applied for the job. Including Easterling, a total of seven people applied for the job. Easterling called the superintendent, Carol Johnson, after submitting her application in order to express her interest in the job. During the call, Easterling and Johnson discussed how Easterling had no experience as a football coach or as an athletic director, although she was a certified teacher. Easterling was not one of the three applicants contacted for follow-up interviews. 

The first man to whom Johnson offered the position turned down the job at the last minute. The next man, Rex McCarthy, who was offered and accepted the job was already the interim head football coach at the high school. When Easterling learned she had not received the job, she requested that she be considered for any job openings the following year. McCarthy resigned from the position the following year. Easterling still was not hired for the position.

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auditorium-benches-chairs-207691-1024x731Generally, terminating an employee on the basis of race is a violation of the Louisiana Employment Discrimination Law, which is similar to Title VII of the Civil Rights Act of 1964. La. R.S.23:301; 42 U.S.C.A. § 2000. Generally, to establish a case of racial discrimination under the Louisiana Employment Discrimination Law, the plaintiff must show that: (1) she belongs to a protected group; (2) she had appropriate qualification for the position; (3) she suffered an adverse employment action; and (4) she was replaced by someone not in her protected group. Mbarika v. Board of Sup’rs of Louisiana State University, 992 So.2d 551, 562 (La. Ct. App. 2008).

In this case, three employees of Education Management, Inc. d/b/a Blue Cliff College (“Blue Cliff”) filed a lawsuit alleging that they were fired due to being Caucasian. On November 7, 2008, a customer at Blue Cliff’s cosmetology school’s beauty salon made a comment regarding recently elected President Barack Obama, which caused a disruption in the salon. Two Blue Cliff employees, Nedina Chaisson (“Chaisson”) and Melissa Shapcotte (“Shapcotte”), were working with the students in the salon when the incident occurred. Joe Rogalski (“Rogalski”) subsequently expelled four African American students who were involved in the November 7th incident. Shortly after the four students were expelled, they were reinstated by Blue Cliff, and Chaisson, Shapcotte and Rogalski were discharged for “inappropriate professional behavior” and mishandling the November 7th incident.

In the lawsuit, the trial court granted summary judgment in favor of Blue Cliff, dismissing all of the plaintiffs’ claims with prejudice. The plaintiffs appealed, arguing that the trial court erred in admitting the affidavit of Reginald L. Moore, the president and CEO of Blue Cliff. The plaintiffs claimed that this affidavit was improper, as it contained 12 unverified, unsworn witness statements. Generally, an affidavit may be challenged via a motion to strike.

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14-1024x682Often times during a lawsuit, cases involve a classic “battle of experts,” where each side presents an expert with an opinion which differs from their respective opponent’s side. The recent Jefferson Davis Parish case involved this exact situation.

Hayes Fund for the First United Methodist Church of Welsh, L.L.C. and other groups brought a lawsuit against a group of defendants including Kerr-McGee Rocky Mountain, LLC, alleging monetary losses which resulted from defendants’ mismanagement of two oil and gas wells in which the plaintiffs’ had royalty interests. Nevertheless, when it reached the Louisiana Supreme Court, it was mainly about the standards of appellate review.

The wells in question were both located in Jefferson Davis Parish. Plaintiffs alleged that defendants, when drilling the wells, did not follow the customary and industry-wide accepted protocols. For example, one of the well’s drill pipe was stuck, and later abandoned. Because of the remaining drill pipe, the hole could not properly be cemented, resulting in extraneous water to enter the reservoir and damage it, and causing loss of production and royalties for the plaintiffs. In another of the wells, the use of triple permanent packer caused the well to be “sanded up,” and resulted in the loss of lower zones. Overall, the alleged royalty loss of plaintiffs from both wells was $13.4 million.

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asphalt-automobile-automotive-125514-1024x576The “burden of proof” may be a familiar concept to everyone, even those inexperienced with the courts.  The idea is that the party in a lawsuit holding the “burden of proof” is tasked with providing evidence that reaches the level of proof required to meet the burden.  In car accidents, where amount of fault decides how damages may be determined, this burden is especially important. The evidence in some car accidents makes the division extremely obvious, both as to fault and to extent of damage.  Other cases, however, especially when the accident is relatively minor, may not be so clear cut. In an unpublished opinion, the Louisiana Third Circuit Court of Appeal considered such a case where the burden of proof was the main issue.  

In 2014, Meagan Lemoine was driving a truck owned by the father of her children near Marksville, LA.  With her were her young children and her sister. She had stopped at a traffic light when she was rear-ended by a white Jeep.  No one in the car was able to identify the driver of the Jeep. After stopping to assess the damage to her vehicle, Ms. Lemoine followed the Jeep to a nearby AutoZone where the driver, a woman, exited the vehicle and entered the store.  Ms. Lemoine took pictures of the Jeep. Later that afternoon, she reported the accident to the local police. A few months later, the owner of the Jeep, Lionel Augustine, and his wife received a letter from tMs. Lemoine’s attorney regarding the accident.  Both Mr. and Mrs. Augustine denied they had been involved in an accident on that date. Mrs. Augustine claimed she had driven that day and visited AutoZone, but denied being in an accident. They both pointed out that there had been no damage visible on the Jeep.  The insurance agent for the Augustines spoke about damage in the form of a “black smudge” on the front of the vehicle, but it did not match the position of the trailer hitch on the truck Ms. Lemoine was driving. The trial court eventually ruled in favor of Ms. Lemoine and her sister.  Both parties appealed.

In Louisiana, the burden of proof is upon the person seeking damages in a lawsuit. Big D Dirt Servs., Inc. v. Westwood, Inc, 653 So.2d 604, 609 (La. Ct. App. 1995)  This means the party must show enough evidence to convince the finder of fact in a case, whether it be jury or the judge, that the allegations of damage are factual.  While both sides seemed to be telling what they believed to be the truth, their stories were completely contradictory. The Third Circuit considered the facts and how the trial court had handled them.  The fact that there was white paint on the truck’s trailer hitch after the accident seemed to indicate that an accident had occurred. Also, the court considered that the heavy traffic in the area at the time made it very likely that such an accident could easily occur, and that a driver might not actually be aware they have hit another vehicle.  The Third Circuit considered that the plaintiffs had observed the accident and were able to track the same Jeep. There was also uncontroverted evidence that Mrs. Augustine was in the area that day. With this evidence, Ms. Lemoine and her sister met the burden of proof that both the accident occurred and Mrs. Augustine was the responsible party. Although Mrs. Augustine disputed the evidence, the Third Circuit held that the trial court’s ruling was reasonable.  The Third Circuit does not have to determine that the trial court was right or wrong, just whether or not the decision was a reasonable one given the evidence. Rosell v. Esco, 549 So. 2d 840 (La.  1989).

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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. 

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