Civil Matter

June 21, 2017

Competing Contract Terms Complicate New Orleans Hotel Shareholder’s Life Insurance Policy

hotel-hilton-santo-domingo-1222125-1024x768 Securing a loan with collateral might seem like a simple and everyday task, but even the smallest of mistakes in the process can carry severe consequences. Brent Kovach (Mr. Kovach), a shareholder in a few New Orleans French Quarter hotels, experienced the repercussions of a simple oversight when one paragraph in his collateral assignment nearly offset his entire life insurance policy. The following case delves into just how critical hiring an excellent attorney might be when interpreting seemingly straightforward contracts and when those contract disputes turn to a lawsuit.

Mr. Kovach was a shareholder of St. Peter Inc.’s Hotel and a member of A Creole House, LLC, which managed a French Quarter hotel. In the wake of Hurricane Katrina, these hotels required refinancing and in order to secure the necessary loans, Mr. Kovach personally guaranteed them with his life insurance policy as collateral. Mr. Kovach and his wife, Ellen Kovach (Mrs. Kovach), acquired the one million dollar life insurance policy on Mr. Kovach in 1995 from New England Mutual Life Insurance Company.

After receiving the refinancing, the hotels failed to make loan payments and in May 2010 the bank requested a cash surrender of the value of the policy from New England Mutual Life Insurance Company. The life insurance company paid the value of the policy, $52,316.33, to the bank based upon the terms of the assignment and canceled Mr. Kovach’s life insurance plan without any notification to him.

June 18, 2017

Life Lesson: Be Diligent or Be Forced to Litigate in Indiana!

by Berniard Law Firm

the-old-red-barn-1233750-1024x736 In litigating claims, parties (particularly the attorneys) must exercise diligence. This means being timely when it comes to gathering evidence, complying with a court order, or filing a pleading, motion, appeal etc. In its Commentary to the Model Rules of Professional Responsibility, the American Bar Association specifically warns that procrastination can seriously harm a client’s cause. Good attorneys heed this warning. Procrastination can and will often prompt the court to dismiss a litigant’s claims or objections. Illustrative is a recent case from the U.S. Fifth Circuit Court of Appeal.

In 2011, Red Barn Motors, Inc. entered into a financing agreement with Dealer Services Corporation (“DSC”). Under the financing agreement, DSC would finance Red Barn’s purchase of vehicles at auction. But soon, things went sour. In March of 2013, Red Barn stopped making payments on its line of credit with DSC and DSC began seizing some of Red Barn’s assets. The next month, Red Barn delivered several vehicles to Louisiana’s First Choice Auto Auction, L.L.C. First choice was supposed to sell the vehicles, but instead, it delivered them to DSC. Red Barn eventually declared bankruptcy. At some point, DSC was absorbed by another company, NextGear Capital Inc.

Red Barn filed a lawsuit in the U.S. District Court for the Middle District of Louisiana against NextGear and First Choice. Red Barn alleged that NextGear breached the financing agreement and benefited from unjust enrichment and that NextGear and First Choice committed conversion. According to Red Barn’s petition, sometimes six to eight weeks would pass before the auction house could transfer title to DSC, and DSC would refuse to pay the auction house until it received the title, though it would charge interest and fees starting from Red Barn’s initial purchase.

June 14, 2017

Louisiana Second Court of Appeal Affirms West Monroe Vehicle Conversion Case

by Berniard Law Firm

no-parking-1445079-768x1024 Have you ever wondered what happens when someone wrongfully takes or destroys your personal property? Conversion occurs when one sells or disposes of property belonging to another without permission. The case discussed in this post describes the conversion of a vehicle that was towed and sold to a third party after the title was wrongfully obtained in violation of the Louisiana Towing and Storage Act (“LTSA”).

After Kimberly Wilson’s car broke down at the West Monroe AutoZone on February 11, 2013, she left the car in the parking lot. On May 14, 2013, AutoZone’s manager received instructions from the West Monroe Police on how to remove the car. Wilson noticed her car was no longer parked at AutoZone and was informed that T & T Auto Repair and Towing, LLC (“T & T”) had towed the car.

On May 16, 2013, T & T sent Wilson a “Right to Hearing” notice for the balance of $204.12 by regular mail. Wilson did not receive the notice. On July 1, 2013, T & T sent Wilson a “Final Notice” for the balance of $1,060.02. Wilson did not receive Final Notice either. On October 16, 2013, paperwork was prepared for a “Permit to Sell” so the title of Wilson’s car could be transferred to T & T and sold for nonpayment. On January 24, 2014, Wilson’s attorney was notified that title had been transferred. T & T then sold the car, but could not provide a copy of the Bill of Sale.

June 5, 2017

Louisiana Court Uses Statutory Construction to Overturn Dismissal Based Upon Procedural Issue

by Berniard Law Firm

old-courthouse-1221033-1024x683 Legal issues can be separated into procedural and substantive categories. Although some may view procedural requirements as mere technicalities, they are essential to the efficient and fair operation of the legal system. Parties to a lawsuit must ensure that they meet all procedural requirements of a lawsuit, or else risk the lawsuit being decided against them. In a recent case, the defendant attempted to have the case dismissed based on an alleged procedural failure by the plaintiff. It demonstrates the importance of procedural requirements, as well as the complexities of some procedural issues.

This case arises from a petition for damages made by Immaculeta Anyanwu against defendants, East Baton Rouge Parish Sheriff’s Office and Sheriff Sid J. Gautreaux III, for injuries Ms. Anyanwu allegedly sustained. Ms. Anyanwu attached an in forma pauperis (initiation of a legal action without having to pay for court fees or costs due to lack of financial resources) affidavit with her petition. On January 5, 2012, the Trial Court denied her in forma pauperis request as “incomplete.” Ms. Anyanwu was informed of the Trial Court’s denial and made a payment of $710.00 to Court on March 16, 2012, seventy-eight days after the filing of her petition. The Sheriff was served with Ms. Anyanwu’s citation on July 23, 2012.

The Sheriff alleged that Ms. Anyanwu’s service of citation was not timely under La. R.S. 13:5701(D)(1) because it was not within ninety days. The Sheriff requested that the proceedings against him be dismissed under La. C.C.P. art. 1201(C). The Sheriff also argued that service could not be considered made without the payment of filing fees. The Trial Court with the Sheriff that the service of process was insufficient and dismissed the suit. Ms. Anyanwu appealed the trial court’s decision.

June 2, 2017

What Happens When a Trial Witness is “Unavailable” to Testify? Tangipahoa Parish case of woman hit by car while on horse answers that question.

by Berniard Law Firm

horse-at-fence-1344364-1024x681 Imagine going for a horseback ride to clear your head and take a time-out from the hectic everyday happenings of life. Now imagine that the relaxing ride comes abruptly to an end when both you and the horse are involved in a collision with an automobile. A similar situation occurred on Hano Road in Tangipahoa Parish, Louisiana when Taresa Graves and her horse were hit by a car driven by Andre Freeman. Aside from the injuries suffered during the accident, the real headache began for Ms. Graves once the trial began out of a lawsuit she filed against both Mr. Freeman and Safeway Insurance of Louisiana, the company having previously insured the car that Mr. Freeman was driving.

The trial court in Ms. Graves’ case determined that, because the car was not owned by Freeman and had not been insured by Safeway for years, Safeway was not liable for the damages that occurred as a result of the accident. Ms. Graves argued that although Safeway had not insured the car, the company was still liable to pay for the damage of the accident because Elaine Jackson (Freeman’s mother), had a separate policy which covered her as well as her relatives, with relatives being defined in the policy as a related person that lives on the same premises. Graves alleged that Freeman lived with his mother and was therefore under her Safeway policy, making Safeway partially liable.

During discovery, depositions of both Andre Freeman and his mother Ms. Jackson were taken. The crux of the legal issue, in this case, is that, on the day of the trial, neither Freeman nor Jackson appeared at the courtroom, despite having been subpoenaed by Safeway. The court sent Sheriff’s deputies to locate and retrieve Jackson and Freeman, but neither of the individuals could be found. Safeway then sought to offer the depositions as evidence in lieu of their testimony, and, over Ms. Graves’ objections, the trial court allowed the depositions to be submitted as evidence, citing the unavailability of Jackson and Freeman. The depositions stated that Freeman had not lived with his mother since he was twelve and that he had been living with elsewhere for some time. The trial court ruled that Freeman did not live with Jackson, and therefore Jackson’s policy with Safeway did not cover Freeman nor the car he was driving. Moreover, the court found Freeman 50% at fault for the accident, ruling in favor of Graves but dismissing the claim against Safeway.

June 1, 2017

Louisiana Court Distinguishes between “Insurance Claim” and “Court Judgment”

by Berniard Law Firm

claim-check-1166752-1024x766 When plaintiffs sue based upon statutes, legal decisions often hinge upon how the statute is interpreted. In many cases, this can depend on how the court interprets the meaning of a single word within the statute. In order to interpret legal statutes, courts employ a process known as statutory construction. In this case the court utilized statutory construction to determine that the meaning of “claim” used in the Louisiana Revised Statutes did not apply to a final “judgment” issued by a court.

Byard Edwards Jr. sought to recover underinsured motorist (UM) benefits via his insurance policy with Louisiana Farm Bureau Mutual Insurance Company after he sustained injuries in an automobile accident. After Edwards won at trial, he began a proceeding to recover statutory penalties and attorney fees from Farm Bureau because it failed to pay the judgment from the UM case within either 30 or 60 days of the final judgment. Edwards sought these penalties and fees under La. R.S. 22:1892 and La. R.S. 22:1973. These Sections require insurers to pay out “claims” to an insured party within specified time frames. The Trial Court granted summary judgment in favor of Farm Bureau and Edwards appealed the decision.

The issue, in this case, was whether or not the final “judgment” issued by the court constituted a “claim”, as used pursuant to the aforementioned statutes. The Court of Appeal interpreted the meaning of the term “claim” by following the rules of statutory construction. The first step the Court took was to consider the language of the statute itself. However, the word “claim” is not defined in either Section.

May 28, 2017

Defamation Claims Prove Hard To Prevail In Case Against St. Tammany Parish Hospital And Treating Physician

by Berniard Law Firm

Imagine you go to a hospital for a medical emergency such as leg weakness, back pain, and paresthesia. While you are at the hospital, you feel that you are treated harshly and unprofessionally by the physician that examines you. Later, you find out that the physician wrote insulting things about you in your consultation report, which is now a part of your permanent medical record. This situation was a reality for Ms. Michelle Conner.

Because of these unfortunate events, Ms. Conner filed a lawsuit claiming defamation, intentional infliction of emotional distress, and negligent infliction of emotional distress against Dr. Taylor, the physician, and the hospital, St. Tammany Parish (the “Hospital”). Ms. Conner later added a medical malpractice claim after a medical review panel found Dr. Taylor free of any wrongdoing.

Dr. Taylor and the Hospital filed a motion for summary judgment on Ms. Conner’s medical malpractice claim. The Trial Court granted the motion and Dr. Taylor filed another motion for summary judgment as to the claims of defamation and intentional infliction of emotional distress. Again, the Trial Court granted the motion. The Trial Court dismissed Ms. Conner’s claims of negligent infliction of emotional distress and invasion of privacy, as well. Ms. Conner appealed this second summary judgment ruling, but not the summary judgment on her claim of medical malpractice.

May 24, 2017

Can the Winner of a Lawsuit Receive the Costs of Pursuing the Case? Louisiana Court of Appeal Answers That Question.

by Berniard Law Firm

In Louisiana, district courts (the lower level trial courts) have great discretion in awarding costs to a bell-county-texas-courthouse-1549054-1-1024x768 party. These costs can include expert witness fees, deposition fees, exhibit costs, costs for the clerk of court, the cost of obtaining medical records and related expenses. See La. R.S. 13:3666, and La. C.C.P. art. 1920. Certain costs, such as clerk costs, sheriff’s costs, and the cost of taking a deposition are taxed by the court. La. R.S. 13:4533. Although La. R.S. 13:4533 defines the term “costs,” it does not discuss who is entitled to costs and under what circumstances. In a recent case, the Louisiana First Circuit Court of Appeal discusses the assignment of costs upon a party.

In a jury trial held February 2014 in Louisiana’s Twenty-Second Judicial District Court, plaintiff Yvonne Arnaud was found to be one-hundred percent at fault for a vehicle collision that occurred on U.S. Highway 11 in Millard, Mississippi. The defendant driver, Silas Sumner was found to be zero percent at fault. Following the trial, Mr. Sumner and his co-defendants C.O.B. Enterprises and its insurer, Scottsdale Insurance Company, filed a motion seeking $53,346 in costs from Ms. Arnaud. About twenty-one thousand dollars of this amount was for expert witness fees. The District Court charged Ms. Arnaud for $30,589.95 in litigation costs, a little over half the amount sought by the defendants.

Ms. Arnaud appealed to the Louisiana First Circuit Court of Appeal. She argued that most of the expert witness fees charged to her were for work done by unknown individuals outside the courtroom. She also argued that the $30,589.95 costs in total litigation were excessive and that the District Court abused its discretion in charging any costs to her because she was indigent.

May 19, 2017

Louisiana Court Highlights Left-Turning Driver’s Presumption of Negligence in Monroe Accident Case

by Berniard Law Firm

train-sign-1445304-683x1024 When a driver fails to satisfy the standard of care, the driver’s negligence during an automobile accident may be considered in a lawsuit. The standard of care is the amount of caution that must be exercised by a person who is under a duty of care. A case out of Ouachita Parish demonstrates the special rules that a left-turning driver must follow and the presumption of negligence that attaches to a left-turning driver.

On the evening of November 11, 2011, while attempting to turn left, Cheryl Baker collided into Eloise Square’s vehicle at the intersection of Winnsboro Road and Highway 165 in Monroe, Louisiana. The traffic light was green in both directions. Baker’s vehicle was damaged across the front. Square’s vehicle was damaged along the front driver’s side.

On March 13, 2012, Baker filed a lawsuit against Square and her insurer, State Farm Mutual Automobile Insurance. On March 26, 2012, Square filed a lawsuit against Baker and her insurer, USAgencies. On May 12, 2012, these lawsuits were consolidated. On December 14, 2012, Square’s lawsuit was settled and dismissed.

May 16, 2017

Elderly St. Tammany Parish Woman Denies the Need for Interdiction

by Berniard Law Firm

old-woman-1437938-681x1024 According to the Alzheimer’s Association, 5 million people are currently living with Alzheimer’s disease. Statistics also show that people age 70 are 61% more likely to die from the disease before they turn the age of 80, compared to 30% of the people living without it. So what is Alzheimer’s disease? It is a type of dementia that causes problems with memory, thinking, and behavior. Symptoms worsen over time, rarely get better and are so severe that they can interfere with the daily lives of these individuals. A recent case out of the Louisiana First Circuit Court of Appeal is illustrative of just some of the hardships those who suffer from Alzheimer’s disease face.

In 2014, A St. Tammany Parish Trial Court decided that Shirley Fichtel, an elderly woman, needed an interdiction. Interdiction requires another person or persons to help the interdicted person to care for themselves and/or their personal affairs. This decision came after three different doctors determined that Shirley was no longer capable of caring for herself, her property or her finances. She could not keep her house clean and on several different occasions she had gotten lost while driving, experienced hallucinations, and had her utilities cut off. She was diagnosed as having “Alzheimer’s dementia” and tremors by all three doctors. Her son Matthew testified that Shirley repeated the same things over and over again while speaking and could not remember one conversation to the next. Shirley’s daughter Gretchen testified that she had been handling her mom’s finances for over twenty years.

Shirley believed that her property could have been handled by less restrictive means other than an interdiction and therefore she is appealing her interdiction. She believed that her current caregiver could take care of her as she had been the five weeks before trial. The Court of Appeal found that the caregiver had not been around Shirley enough to handle this task and believed the testimony of her lifetime doctors and her children, who had more time to spend with her, were more valuable than the caregiver.