Civil Matter

August 31, 2017

Procedure Reigns Supreme in Dismissal of Plaintiff’s Medical Malpractice Case Out of Acadia Parish

injection-1323678-1024x873 Ignoring instructions when assembling a coffee table, toys, or other household items may not, in the end, prove highly detrimental. In fact, such practices are commonplace. However, failing to follow the correct procedural steps is ruinous in the world of lawsuits. Recently, the Louisiana Third Circuit Court of Appeal was forced to dismiss an appeal because of a plaintiff’s failure to follow the required procedural steps.

On June 20, 2011, Gloria Welch brought a medical malpractice action against Southwind Nursing and Rehabilitation Center. However, Southwind was never served with the lawsuit and did not make any appearances in the lawsuit. On January 7, 2013, Ms. Welch filed a second lawsuit in the same venue against the same parties. Southwind appeared specifically in the case to file two exceptions. First, Southwind filed an exception of lis pendens because the first lawsuit about the same matter as the second was still pending. “Lis pendens” means “suit pending. ” Second, Southwind filed an exception based on Ms. Welch’s failure to serve Southwind in the second lawsuit. Ms. Welch then voluntarily dismissed her first lawsuit.

The Judicial District Court for the Parish of Acadia sustained Southwind’s exception of insufficient service of process and denied the lis pendens exception based on the voluntary dismissal. At the hearing, the District Court issued a judgment specifically denying the lis pendens exception and finding the first lawsuit was abandoned rather than voluntarily dismissed.

August 18, 2017

Insurance Company Not Required to Defend Lawsuit for Intentional Acts in Defamation Case Out of Caddo Parish

by Berniard Law Firm

dentist-1422973-1024x768 Does your homeowner’s insurance policy include coverage for libel or slander? We all make inappropriate comments and write negative reviews online from time to time. But what if you are sued for something you say or write? In a recent case out of Caddo Parish, Louisiana a dentist learned that while your policy may extend coverage for negligent acts, the insurance company may not be so willing to come to your defense for intentional acts.

In this case, the Louisiana State Board of Dentistry (“Board”) revoked Dr. Ryan Haygood’s dental license. On November 8, 2010, after an investigation and disciplinary proceedings, the Board found that Dr. Haygood violated the Dental Practice Act by over-diagnosing patients. Dr. Haygood appealed all the way to the Louisiana Fourth Circuit Court of Appeal which vacated and remanded the case. Dr. Haygood then filed a lawsuit for damages against the Board, Dr. Herman O. Blackwood, III and others. Dr. Haygood specifically alleged that Dr. Blackwood intentionally presented false claims that Dr. Blackwood knew to be untrue. Moreover, Dr. Haygood alleged that Dr. Blackwood conspired with other members of the Board to bring the disciplinary proceedings against Dr. Haygood without good cause for the purpose of causing him to lose his license. Dr. Haygood contended that Dr. Blackwood used his position in the community to essentially force the other Board members to go along with his plan to destroy Dr. Haygood’s career.

Upon notification of the lawsuit, Dr. Blackwood contacted his insurance company, Encompass Insurance Company of America (“Encompass”), seeking defense and indemnity through his homeowner’s insurance policy. However, Encompass declined coverage based upon a provision in the insurance policy which specifically provided that intentional acts of libel or slander are not covered. Encompass filed a motion for summary judgment on the issue of coverage. The Judicial District Court for the Parish of Caddo agreed that the policy did not cover the claims against Dr. Blackwood, therefore, Encompass had no duty to defend the lawsuit. Dr. Blackwood appealed to the Louisiana Second Circuit Court of Appeal.

August 13, 2017

Louisiana Court of Appeal Upholds Jury Award for Bossier Parish Family in School Bullying Case

by Berniard Law Firm

management-school-3-1524193-1024x348 School bullying is a commonly discussed problem in our generation. Parents are often faced with dilemmas on how to protect their children and instruct them in dealing with bullies at school. In earlier eras perhaps this was considered a problem for the individual family to bear alone. In a recent case out of Plain Dealing, Louisiana however, the Louisiana Second Circuit Court of Appeal affirmed that school teachers and the school board can now be held liable for such bullying and its effects.

On December 10, 2012, a fourth-grade boy, J.B., at Carrier Martin Elementary School in Plain Dealing, Louisiana broke his arm during playground recess when three boys knocked him to the ground to keep him from tattling. J.B.’s parents filed a lawsuit on behalf of their son against the Bossier Parish School Board (“Board”), and teacher Tricia Huckaby seeking damages. After a trial before the Judicial District Court for the Parish of Bossier, Louisiana, the jury found in favor of the parents and awarded $125,000 in general damages, $12,674.14 in special damages, and $25,000 to the mother for the loss of consortium for a grand total of $166,784.63 with legal interest. The Board appealed the finding of liability and argued that the award was excessive.

A school board, through its agents and teachers, owes a duty of reasonable supervision over students pursuant to La. C.C. art. 2320. For liability to be imposed on a school board for inadequate supervision of students, there must be (1) proof of negligence and (2) proof of a causal connection between the negligent supervision and the resulting damage to a student. See Creekbaum v. Livingston Parish School Board, 80 So. 3d 771 (La. Ct. App. 2011). The standard of care required by the school supervisors over the students is only what would be expected of a reasonably prudent person in same or similar circumstances. The risk of injury had to be both foreseeable and preventable if a requisite degree of supervision had been exercised. In awarding damages, a jury is empowered with great discretion and the award will only rarely be disturbed on appeal if an abuse of discretion is found.

August 12, 2017

Informal Letters Insufficient to Resurrect Abandoned Livingston Parish Case

by Berniard Law Firm

closed-window-1218252-1024x683 It is no secret that lawsuits are expensive creatures. It is perhaps baffling then that a party would retain an attorney, file a lawsuit, and maintain that lawsuit for over thirteen years without sufficiently actively pursuing that lawsuit. Yet, that is exactly what happened in a recent case out of Livingston Parish. And as the case explains, such inactivity within a case subjects the lawsuit to dismissal for abandonment. Money and time wasted for all parties involved.

In 2001, R.L. Hall and Associates, Inc. (“R.L. Hall”) filed a lawsuit against Brunt Construction, Inc. (“Brunt”) and Fidelity Deposit Company of Maryland (“Fidelity”) over a lien arising out of a construction contract. The next action on record does not occur until 2005 when R.L. Hall filed a motion to compel discovery. Then, in 2007, R.L. Hall filed the first motion to set a scheduling conference. After the 2007 telephone conference between the parties, nothing else appeared in the record until the plaintiff filed a second motion to set a conference in December of 2010. After the court established discovery deadlines following the 2010 conference, nothing appeared in the record again until the plaintiff filed a third motion to set a conference on June 4, 2014. During 2011 however, counsel for R.L. Hall did send letters to lawyers for the defendants in an attempt to schedule depositions. The informal correspondence, however, was not filed and does not appear in the court record. The defendants then filed a motion to dismiss R.L. Hall’s claim because there were no steps taken to further the action in over three years. The Judicial District Court for the Parish of Livingston dismissed the matter as abandoned.

R.L. Hall appealed the dismissal to the Louisiana First Circuit Court of Appeal. Pursuant to La. C.C.P. art. 561 an action “is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years[.]” Upon the passage of three years without any steps taken in the case, the case is automatically dismissed without the need for a court order. To maintain a case, a party needs only to take some step within three years of the last action toward the prosecution or defense of the action and the step must be in the proceeding and on the record. See Clark v. State Farm Mutual Automobile Insurance Corporation, 785 So.2d 779 (La. 2001). Attempting to schedule a deposition through informal correspondence without a filed formal notice of deposition does not constitute a “step” which would interrupt the abandonment clock.

August 10, 2017

Louisiana Employment Discrimination Case Fails Due to Lack of Evidence

by Berniard Law Firm

eastern-state-penitentiary-1215643-1024x685 Unfair treatment at work can, unfortunately, be a common occurrence. While always annoying, the treatment can sometimes rise to such an egregious level that an employee feels justified in filing a lawsuit against the employer; especially if the aggrieved employee feels that there are racially motivated variances in treatment. As with all cases, however, the evidence is the key that unlocks the door to a successful lawsuit. For Rosie Washington, a former employee of the Louisiana State Penitentiary, an employment discrimination case devoid of evidence kept her victory behind locked doors.

Mrs. Washington was a licensed practical nurse for the Louisiana State Penitentiary from 2001 to 2011. Mrs. Washington claimed that she began to suffer racial discrimination in 2008 after she refused to switch from the night shift to the day shift to accommodate a white couple who wanted to work together. After Mrs. Washington refused to switch shifts, she was disciplined three times and three Employee Violation Reports were created to document the disciplinary action. Mrs. Washington cited the disciplinary action and reports as evidence of racial discrimination along with instances where her leave requests were denied while others leave request was granted and where her absences from work were over counted. She also claimed that she was disciplined more harshly than white employees for the same conduct and that she was fired because of her race. In 2011, Mrs. Washington sued multiple defendants including the state of Louisiana, the Department of Public Safety and Corrections, the Louisiana State Penitentiary, and several other state actors for employment discrimination pursuant to Title VII of the Civil Rights Act. Mrs. Washington also sought an injunction to prohibit the penitentiary from firing her.

Following the dismissal of the non-Title VII claims by the United States District Court for the Middle District of Louisiana, the case proceeded for almost two years. During that two-year period, no pre-trial preparations or discovery occurred. Subsequently, the employment relationship between Mrs. Washington and the penitentiary ended in a manner that was unclear on the record. There being no evidence in support of Mrs. Washington’s claims, the defendants filed a motion for summary judgment. A human resources manager for the Louisiana Department of Corrections submitted an affidavit with the motion for summary judgment supporting that no discrimination occurred. As the record was devoid of any other evidence, the District Court granted the summary judgment motion and Mrs. Washington appealed.

August 6, 2017

Lack of Clarity as to the Law Entitles Officers to Qualified Immunity in Louisiana Lawsuit

by Berniard Law Firm

public-train-1439534-768x1024 We all know that each U.S. citizen is entitled to certain rights contained within the Constitution. For example, the right to bear arms, the right to free speech, and the right to practice any form of religion. But what about rights that were not explicitly stated within the Constitution, like the right to privacy or the right to marry. Courts have long grappled with these “non-explicit rights” and whether those rights are protected under the Constitution. Recently, the Fifth Circuit Court of Appeals faced a question over a “non-explicit right.” Does an individual have the right to enter a public, government owned, building, and, if so, then what procedure is required to deny that right?

This controversy began when Carol Vincent became hostile during a visit to the bank. After threatening to kill a city councilman and the mayor of the City of Sulphur, Louisiana, city officials issued a no-trespass order against Mr. Vincent. The order prohibited Mr. Vincent from entering certain public official buildings, to prevent Mr. Vincent from coming into contact with whom he threatened to kill. Eventually, city officials dropped the order. A disgruntled Mr. Vincent sued, claiming that the city officials violated his constitutional rights.

The city officials asserted that they had qualified immunity. Qualified immunity protects government officials performing their duties from civil liability when their conduct does not violate a constitutional right, by prohibiting individuals from suing government officials over the performance of their duties. To disprove qualified immunity, the plaintiff must show whether a constitutional right was violated and whether the allegedly violated right was “clearly established.” McClendon v. City of Columbia, 305 F.3d 314, 322-23 (5th Cir. 2002). In determining whether a right is “clearly established,” courts look at whether a reasonable government official would be aware of the right. The plaintiff has the burden of showing that the government official is not entitled to qualified immunity. Wyatt v. Fletcher, 718 F.3d 496, 502 (5th Cir. 2013).

August 5, 2017

Case in Jefferson Parish Deemed “Abandoned” After Three Years of No Activity

by Berniard Law Firm

old-abandon-farm-house-1408741-1024x768 A good lawyer must be on top of his or her case. Not only must a lawyer know the facts of the case and the applicable law, but the lawyer must also meet certain deadlines and procedure requirements by the court. While little activity on a case might mean it has gone stale, no activity at all can mean abandonment, which is exactly what happened to one plaintiff in Jefferson Parish.

George Segerstrom brought a personal injury claim against police officer Desmond Julian and the City of New Orleans. Mr. Segerstrom alleged that Officer Julian crashed into him with a police car. Three years after Mr. Segerstrom’s filing of the case, the City of New Orleans filed a motion asking the trial court to consider the case abandoned and dismiss the action. The trial court agreed with the City of New Orleans, finding the case abandoned and dismissing it.

Abandonment occurs when there is inactivity in a case for three or more years. La. C.C.P. art. 561. If a lawsuit is considered by abandoned, then the trial court must dismiss the case. Abandonment is automatic and a side cannot “breathe new life into the [case]” once the case is abandoned. Clark v. State Farm Mut. Auto. Ins. Co., 785 So.2d 779, 784, 789 (La. 2001). Acceptable ways to ensure that a case stays active is by filing motions, going through discovery (the information gathering part of a trial), and other formal trial procedures.

August 1, 2017

Strict Adherence to Flood Insurance Policy Requirements is Crucial to Obtaining Recovery

by Berniard Law Firm

willow-1385791-1024x766 The National Flood Insurance Program, or NFIP, was Congress’ approach to providing flood coverage at affordable rates. Generally, through the program homeowners can buy a Standard Flood Insurance Policy, or SFIP, from the Federal Emergency Management Agency, or from private insurers. According to the Court of Appeals for the Fifth Circuit, the SFIP outlines the conditions and requirements under which federal funds may be distributed to eligible policyholders. See Marseilles Homeowners Condo. Ass’n, Icn. v. Fidelity Nat’l Ins. Co., 542 F.3d 1053, 1054 (5th Cir. 2008). It is these requirements, or rather not following them to the letter, that sometimes stop homeowners from receiving their coverage.

Ron and Patricia Ferraro own a house at 133 Somerset Road, in Laplace, Louisiana. They had an SFIP from Liberty Mutual. Unfortunately, Hurricane Isaac in 2012 caused extensive damage to their home; nonetheless, their insurance policy with Liberty Mutual was in effect.

The Ferraros filed a claim for benefits, and Liberty Mutual sent an independent adjuster. The adjuster recommended a payment of $103,826 and prepared a proof-of-loss form in this amount. The Ferraros signed and submitted this form along with a signed proof-of-loss form. Important to their case, they also included a handwritten note stating that they would send supplements later. Liberty Mutual paid the full amount of $103,826.

July 31, 2017

Be Careful Whistleblowers: Louisiana Court Upholds dismissal of Qui Tam Action

by Berniard Law Firm

whistle-1423801-1-1024x768 Whistleblowers play a controversial role in the United States. Without Mark Felt, also known as Deep Throat, the world would have never known about the corruptions in the Nixon Administration and without Edward Snowden, the world would have never known the extent of the NSA’s surveillance on both U.S. citizens and foreign individuals. Congress recognized the importance of whistleblowers when it passed the False Claims Act. The False Claims Act allows individuals to bring lawsuits (called a qui tam action) on behalf of the United States when an individual or entity defrauds the United States Government. See 31 U.S.C. § 3729 (2015). The purpose of the False Claims Act is to incentivize individuals to monitor and prevent fraud against the United States by enabling the individuals to get a portion of any damage award that the court gives.

Gregory D. Guth brought a qui tam action against a law firm (RP) arising from the firm’s representation of Louisiana State University (“LSU”) in an expropriation proceeding against him. An expropriation proceeding is an action by a governmental authority where the governmental authority takes property from its owner for public use or benefit.

This case arose after Hurricane Katrina. The U.S. Department of Housing and Urban Development made federal funds available to the City of New Orleans (“the City”) in the form of Community Development Block Grants. The City set aside a portion of the block grants to build a medical center for the U.S. Department of Veteran’s Affairs and a teaching hospital for LSU. The City and the State of Louisiana entered an agreement assigning LSU the power and funds to acquire or expropriate property for the medical facilities. LSU then hired RP to acquire the necessary property.

July 29, 2017

Prisoner Sues Prison For Denial of an Extra Pillow And Mattress

by Berniard Law Firm

pillow-and-sheet-1499969-1024x769 Is it cruel and unusual punishment for a prison to not provide an extra pillow and mattress to an injured prisoner? According to Fifth Circuit Court of Appeals, it is not. It is unsurprising that inmates often complain about mistreatment from prison officials. But what is required for a prison official’s conduct to be considered cruel and unusual punishment?

Amongst other things, the Eighth Amendment prohibits cruel and unusual punishment. U.S. Const. amend. VIII. Prisoners have a very high standard of proof when claiming that prison officials are guilty of such conduct. The prisoner must show that the prison official acted with “deliberate indifference to a prisoner’s serious medical needs, constituting an unnecessary and wanton infliction of pain.” Easter v. Powell, 467 F.3d 459, 463 (5th Cir. 2006).

In this case, Mr. Davis, an inmate at Avoyelles Bunkie Detention Center, was involved in an accident while traveling in an Avoyelles Parish Sheriff’s Office transport vehicle. The driver of the transport vehicle hit another vehicle while in reverse. Mr. Davis and the other inmates involved in the accident were taken to the hospital two hours after the accident occurred.