Civil Matter

December 9, 2016

Louisiana Supreme Court Will Not Overturn a Fairly and Honestly Obtained Arbitration Award for a Mere Error of Law

yellow-building-1561908 In executing the terms of a construction contract, a builder and its subcontractors may not perform their duties as mandated under the terms of the contract. If a builder fails to perform its duties, then a property owner may file a claim for breach of contract and damages against the builder for defects in performance. However, the property owner’s ability to bring a claim against the builder is limited to a specific period of time prescribed by state law. The state legislature has the ability to pass laws that change the period of time in which a property owner can bring a claim against the builder for defects in performance; and in 2003, the Louisiana Legislature exercised this power to make changes in the law barring this type of claim, reducing the period from seven to five years.

When changes to the law have occurred, parties to a lawsuit may dispute which law is controlling in their claim. A recent example of litigation concerning changes in law occurred in Lafayette, Louisiana. In 2002, a property owner, Crescent City Property Partners, LLC (hereinafter “Crescent”), and a builder, Greystar Development and Construction, LP (hereinafter “Greystar”), entered into a contract for the construction of a mixed-use development in Lafayette, Louisiana. This development was completed in phases with construction of the multiple buildings being completed a year after the parties entered into the contract. Five years later, Crescent filed an arbitration claim under the terms of the construction contract, alleging defects in the builder’s performance, against Greystar and its insurer. In response, Greystar filed a third party demand against various subcontractors.

At the time the construction on the mixed-use development was completed there was a seven-year period of peremption for construction claims; however, only a month after completing the project, the legislature amended the law to provide for a five-year period of peremption. On July 11, 2011, shortly before the parties were scheduled to arbitrate the matter, the Supreme Court of Louisiana decided Ebinger v. Venus Construction Corp., discussing the retroactivity of the 2003 amendment.

December 7, 2016

Louisiana Personal Injury Case Shows Complications with Jury Awards

by Berniard Law Firm

KONICA MINOLTA DIGITAL CAMERA When you are injured by the actions of another person, seeking monetary damages from them in court is one way to ensure that your costs can be met. However, sometimes judges and juries can make factual or legal mistakes that result in damages that are too high or too low, and in these instances it is often up to an appellate court to set the correct monetary amount. If you have received a monetary damage judgment, but you believe it does not represent the true cost of the injuries you suffered as a result of the other person’s actions, you have the option of seeking an appeal from a higher court to modify your damages.

Mr. Becnel did just that in an automobile accident case arising out of a Louisiana trial court. After he was rear-ended in a car accident, Mr. Becnel went to court to recover his past and future medical expenses and general damages, which covers pain and suffering other than the cost of medical treatment itself. Because medical costs are very concrete and measurable, on appeal Mr. Becnel argued only that his general damages award was too low, because he claimed the jury did not take into account any future pain and suffering, only past.

In an earlier Louisiana case, the court had held that any evaluation of the amount a jury awards by an appellate court must be done by first giving a lot of deference to the determination of facts that has already occurred. (Wainwright v. Fontenot (La. 2000) 774 So.2d 70, 74.) The idea behind this is that the jury was able to hear all of the evidence and testimony first hand, and it would be improper for an appellate court that did not get to hear everything first hand to overturn a decision the jury has already made, unless the jury’s amount awarded was clearly wrong.

December 6, 2016

Court of Appeal: Medical Treatment Guidelines Can Be Applied Retroactively

by Berniard Law Firm

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In 2009, the Louisiana Legislature enacted a statute establishing a medical treatment schedule for workers’ compensation claims. This statute took into account the combined concerns of the labor force, insurance companies, and medical providers to establish harmonized guidelines for the treatment of injured employees. The need for this statute stemmed from the formerly burdensome and expensive process of obtaining medical treatment. Since the statute’s enactment, questions have arisen as to whether the medical treatment guidelines should apply retroactively to claims arising before the enactment of the statute and entry into force of the guidelines. The Louisiana Fourth Circuit Court of Appeal resolves these questions in a case arising out of a shooting at Whole Foods.

In 2001, Malord Gales was shot while on the job at Whole Foods Company, Inc. Since the shooting, Mr. Gales has been in a permanent vegetative state. Mr. Gales’ mother has since taking care of him and acting as his representative or “curatrix.” Because of his paralyzed state, Mr. Gales was required to be bowel fed with Isosource 1.5 calorie food which contains the appropriate amount of biofiber for normal bowel function. For many years, Whole Foods paid for this special food. Eventually, it refused to pay. Claiming that the food was too expensive, Whole Foods approved a different food which caused Mr. Gales significant bowel problems.

Finding his symptoms intolerable, Mr. Gales filed a disputed compensation form with the Office of Workers’ Compensation. Mr. Gales sought an order requiring Whole Foods to pay for the formerly authorized Isosource food, and to pay attorney fees for arbitrarily stopping his prescribed food. Whole Foods countered with the dilatory exception of prematurity. In its exception, Whole Foods argued that Mr. Gales claim was premature because he failed to comply with the administrative procedures for filing a claim for medical treatment. The Workers’ Compensation Judge (“WCJ”) granted Whole Foods’ exception and dismissed Mr. Gales’ claim. Mr. Gales’ appealed.

December 4, 2016

Lafourche Parish Sheriff’s Office Found Negligent in Causing a Woman’s Broken Arm in “Self Defense” Class

by Berniard Law Firm

police-5-1572837-1024x768 It’s common sense that self defense class instructors should teach the students how to defend themselves and not inflict pain or broken bones while instructing. However some instructors can go overboard while trying to “teach” these skills. The following case out of Lafourche Parish highlights what can go wrong when simulations in a self defense course get a bit too real for one participant causing her a broken arm and other damages.

In 2010, plaintiff participated in a 3-day Rape Aggression Defense (RAD) self-defense course being taught by the Lafourche Parish Sheriff’s Office. During the course, plaintiff and other participants received instructions for two days and on the third day, participants engaged in a series of exercises simulating attacks upon them by “aggressors”, at this time they were instructed to deploy the defensive techniques they had learned. During one of these simulated attacks, in which a Lafourche Parish Sheriff’s Deputy played an “assailant”, plaintiff’s arm was broken. Plaintiff had to undergo surgery to repair the comminuted fracture, requiring two plates and 21 screws to be inserted into plaintiff’s arm.

At the initial bench trial, the recorded RAD simulations were played on video, showing the RAD instructor was close to plaintiff during the exercise and was constantly giving instructions to the plaintiff on how to properly perform defensive techniques. In the video, the Sheriff Deputy playing the “aggressor” pushes and hugs the plaintiff while the instructor tells the plaintiff how to defend herself. The trial court concluded after watching the video, it did not find the Sheriff’s Office or the Sheriff’s Deputy negligent, as the only way they could have prevented the plaintiff’s injury would have been to not engage physically with the participants, which would have defeated the purpose of the exercising teaching them to defend themselves against aggressive criminals. The trial court subsequently dismissed the defendants with prejudice, and plaintiff appealed.

December 3, 2016

Louisiana Supreme Court Allows Class Action for La. Rev. Stat. § 22:1871 (Balance Billing Act) Violations

by Berniard Law Firm

hospital-s-corridor-1631146-1-1024x765 Class action lawsuit certification is one of the most complex areas of the law to explain. The question of whether a lawsuit would be best as a class action or as individual lawsuits often comes down to a determination of what is the best method for fair and efficient adjudication for both the plaintiffs and the defendant.

Across the state of Louisiana, people are filing lawsuits against health care providers under the Health Care Consumer Billing and Disclosure Protection Act, hereafter referred to as the Balance Billing Act. See La. Rev. Stat. § 22:1871 et seq. As a result of these lawsuits, the Louisiana Second Circuit had denied class certification for a group of plaintiffs while the Louisiana Third Circuit had approved a class certification in their jurisdiction. Thus a split of the circuits existed and therefore it was time for the Louisiana Supreme Court to weigh in.

Certain Plaintiffs filed a class action lawsuit in 2011 claiming the Defendant, Minden Medical Center, “engaged in unlawful billing practices by billing them in an amount in excess of the agreed upon rate negotiated between the hospital and plaintiffs’ respective insurers.” As a result of that lawsuit a question was presented for review to the Supreme Court of the State of Louisiana whether these types of lawsuits (balance bill violations) would be better handled as class action or on an individual basis.

December 1, 2016

Non-parties Cannot Bring an Action for Sanctions Against a Party or Attorney for Violating Discovery Rules In Louisiana Automobile Accident Lawsuit

by Berniard Law Firm

law-education-series-3-1467430-1024x769 In litigation, “discovery” is the legal procedure by which parties obtain evidence from other parties or non-parties. Examples of common discovery tools include depositions (a witness’s out-of-court testimony) or requests to produce documents or other things. In Louisiana, attorneys must sign discovery requests, responses, and objections to discovery requests. This certifies that the request, response, or objection is consistent with the rules of discovery and is warranted by existing law or a good faith argument for extension, modification, or reversal of existing law. ( See La. C.C.P. art. 1420.) It also certifies that the request, response, or objection is reasonable and not issued for an improper purpose such as to harass a party or to cause increases in litigation expenses. If a court determines that an attorney’s certification violates the rules of discovery, it will impose sanctions upon the attorney who made the certification and/or the represented party. A 2015 case from the Louisiana Fifth Circuit Court of Appeal discusses discovery sanctions, holding that non-parties to lawsuits cannot bring actions for sanctions against a party or attorney for violating discovery rules.

In 2011, Deadre Thiel and Germaine Dyer were involved in a motor vehicle accident and sought treatment from Dr. David Wyatt. Dr. Wyatt’s practice is conducted through a medical entity, Orthopedic Care Center of Louisiana (“OCCL”). OCCL was not a party to the initial lawsuit brought by Mr. Theil and Dyre against State Farm, David Podewell and Banu Gibson. After conducting initial discovery, State Farm became aware of evidence suggesting that Dr. Wyatt may have been improperly influenced by bias and financial motive in treating Mr. Thiel and Mr. Dyer. It then deposed Dr. Wyatt and determined that OCCL – a non-party to the lawsuit – was the only source of discovery concerning OCCL’s billing processes and any contingency fee relationship with the Womac Law Firm.

State Farm then issued a notice of deposition to OCCL and a subpoena duces tecum (a court order requiring the recipient to appear before court and produce documents or other evidence). In response, OCCL filed a motion to quash (void) the subpoena duces tecum. It also sought to have to have the Trial Court issue a protective order and award sanctions. The Trial Court granted OCCL’s motion to quash and awarded sanctions in favor of OCCL and against State Farm. State Farm then filed an application for a supervisory writ, seeking to have to the Court of Appeal reverse the Trial Court’s ruling.

November 30, 2016

Just the Facts: Fifth Circuit Court of Appeals Articulates Summary Judgment Standards in Employment Lawsuit Out of Monroe

by Berniard Law Firm

the-bank-1469518-682x1024 Countless lawsuits are decided under the legal standard of summary judgment. Summary judgment occurs when lawyers request a court to decide whether there are enough facts in dispute to even proceed with a lawsuit. The party requesting summary judgment must show that there is simply no dispute of any material fact and that the person requesting summary judgment is entitled to judgment as a matter of law. In answering this question, judges determine whether there is enough evidence in a case that a jury would be able to side with the person not requesting summary judgment. As a tactical matter, good lawyers often request summary judgment to dispense with certain claims early on in a lawsuit thus saving their clients time and money.

A recent decision by the United States Court of the Appeals for the Fifth Circuit, demonstrates the principles of summary judgment within the context of an employment discrimination lawsuit. See Fed. R. Civ. P. 56(a). The Western District of Louisiana (the lower court) determined that summary judgment was appropriate for all causes of action and thus dismissed the entire case. The Court of Appeals however only agreed with the lower court on certain claims thus providing guidance on surviving summary judgment in age discrimination, retaliation, disability, and defamation claims.

The case involves a lawsuit between Lloyd Flanner and his former employer JP Morgan Securities, L.L.C (JP Morgan). Mr. Flanner worked at JP Morgan at their branches in Monroe Louisiana from August 2003 to August 2010. In April 2010, Mr. Flanner underwent surgery and was granted medical leave under the Family Medical Leave Act (FMLA). Shortly after returning to work, Mr. Flanner was involved in an incident wherein he withdrew $25 from his personal bank account, purchased a money order, and gave it to his attorney’s assistant. Learning about the incident, JP Morgan investigated and subsequently fired Mr. Flanner. Mr. Flanner was replaced by two employees, aged 53 and 32. Mr. Flanner was 59 at the time of his termination.

November 19, 2016

Court of Appeal Describes How “Forced Heirs” Force Their Way into Inheritance

by Berniard Law Firm

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In Louisiana, you cannot “disinherit” your children. What does this mean exactly? It means that upon death, Louisiana law will allow a decedent’s children to share in his or her estate, even if the decedent left those children out as beneficiaries. The left-out children are called “forced heirs,” and will take a portion of the decedent’s estate (called the “legitime” or “forced portion”) unless the decedent has a just cause for leaving them out. La. C.C. art. 1494. A recent case of the Louisiana First Circuit Court of Appeal describes the rights of forced heirs to take in a decedent’s estate.

This case arose out of the death of Geronimo Ji Jaga, and the division of his annuity account at Western National Insurance Company. Mr. Ji Jaga had five children from various marriages: Shona Pratt, Hiroji Pratt, Nikki Michaux, Kayode Ji Jaga, and Tkumsah Geronimo Jaga. He named his eldest two children, Shona and Hiroji (“the Pratts”), as the beneficiaries to the annuity. After Mr. Ji Jaga’s death, one of his surviving spouses – Jojuyounghi Cleaver – filed a lawsuit in the Parish of St. Mary against Wester National alleging that her son, Kayode, should be considered a forced heir and entitled to share in the annuity.

In response, Western National filed asserted that the Pratts, the named beneficiaries of the annuity, should be joined in the lawsuit. After Mrs. Cleaver amended her petition adding the Pratts as defendants, the Pratts filed, among other exceptions, a peremptory exception of no cause of action. Tkumsah’s mother, Laila Minja, later filed a petition to intervene. She claimed that Tkumsuh was also a forced heir. The Pratts filed the same exceptions against Mrs. Minja as they did against Mrs. Cleaver. The Trial Court sustained the Pratt’s exception of no cause of action and dismissed Mrs. Cleavers’ and Mrs. Minja’s claims. The Trial Court considered the Pratt’s other exceptions as moot. Mrs. Cleaver and Mrs. Minja appealed the Trial Court’s judgment.

November 16, 2016

Slidell Hospital Not at Fault in Lawsuit for Independent Contractor Worker’s Alleged Negligence

by Berniard Law Firm

hospital-s-corridor-1631146-1024x765 If your unlucky enough to slip and fall at a business the first person you would think about suing is the business itself. However, businesses today contract out many aspects of cleaning and other maintenance and in doing so also alleviate their responsibility for negligence on their property. The following case out of St. Tammany Parish discusses the concept of who might be at fault for a slip and fall when the cleaning of floors is contracted out to another party.

In 2005, Joy Smith was visiting a friend who was a patient at Northshore Regional Medical Center (Hospital) in Sidell, Louisiana. As Ms. Smith was walking down the hall, she slipped and fell in some water near where the floors had just been buffed. Ms. Smith filed a lawsuit against the Hospital alleging they were negligent in failing to properly warn her of the hazard that caused her fall. The Hospital answered the lawsuit and filed a third party demand, adding as third party defendants Hospital Housekeeping Systems (HHS), and the employee of HHS who had just buffed the floor. The Hospital had a contractual relationship with HHS to provide the Hospital with housekeeping services for the hospital.

The Hospital filed a motion for summary judgment in the lower court seeking to have Ms. Smith’s claim against the hospital dismissed. The Hospital alleged that it was merely the property owner, and it should not be held liable for conditions created by HHS as they contracted with them to clean the floors. See LSA-C.C.P. art. 969. Within the contractual obligations of the Hospital and HHS, HHS was responsible for maintaining the area where Ms. Smith had fell. The lower court agreed, and granted the summary judgment.

November 11, 2016

The Plight of the Luddite: Increasing Concerns for Plaintiffs of Age Discrimination Claims

by Berniard Law Firm

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A Luddite is a person who is opposed to technological innovation. A Luddite will refuse to learn about new technology and will not incorporate it into their skills, either at work or at home. Having this mindset has obvious drawbacks for workers in today’s world, but what happens to the individuals who do not necessarily avoid technology, but are slow to catch up?

In 2015, a 52-year old employee of Jefferson Parish fell into this unfortunate cohort. This employee had been working for Jefferson Parish for over twenty years of service. When it came time for Jefferson Parish to choose who to promote to the position of Executive Assistant, there were two options: Maria Cooper, a young 28-year old employee with technological know-how, or the 52-year old, an experienced and loyal employee.

To Jefferson Parish, the choice was obvious. Since the essential job requirements of the position of Executive Assistant included working knowledge in the maintenance and updating of all computers, servers, and wiring of the computer network, as well as experience in setting up Excel spreadsheets, Ms. Cooper seemed like the best fit. But what about the 52-year old? She was left in the dust. After being passed up for the position, the 52-year old filed a lawsuit against Jefferson Parish, alleging age discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq.