Civil Matter

May 31, 2013

Tractor Accident Leads to Question of Responsibility for Dead Tree Causing Incident

In 2009, a Louisiana man was driving a tractor/trailer in Caddo Parish when he suddenly hit a large pine tree that had fallen across the road. Despite having already made this same trip on the same road several times that day, since the last time he had made the pass, the tree had fallen in the road. Unfortunately, the man did not have enough time to see the tree and stop his vehicle before driving into it. As a result of the accident, the man suffered serious neck injuries.

In light of this injury, who was to blame and what action could be taken? The man sued the owners of the property from which the tree fell, State Farm and the Parish. The claims against the owners and State Farm were settled, but the claim against the Parish went to court. Ultimately the trial court ruled against the man in favor of the Parish.

Taking the case further, the man appealed, arguing that the trial court had erred in three main regards. These errors had to do with admissibility of evidence, knowledge of the hazardous condition, and corrective action.

May 30, 2013

Asbestos Case Involves Rules for Testimony and Exclusion

by Berniard Law Firm

Joseph Trascher of Slidell, LA, was born in April 15, 1940 and died April 11, 2007. Shortly before his death in March of 2007, he filed a petition in the district court seeking an ex parte order to perpetuate his testimony. He alleged that in August 2006, he was diagnosed with asbestosis, and that it was unlikely that he would survive longer than six more months. In the petition, Trascher also alleged that he sustained occupational exposures to asbestos while working as a tack welder at the Avondale Shipyard from 1960 to 1964, and at the Equitable Shipyard from 1965-1974. He requested service on these parties and a number of other parties he identified as expected defendants in his anticipated suit for damages. The district court granted the order.

The video deposition began on April 3, 2007, but was halted due to Trascher’s failing health and fatigue. He tragically died before his deposition could be continued and before he could be cross-examined by opposing counsel. The district court admitted the deposition as trial evidence, and the admissibility of the deposition reached the Supreme Court of Louisiana. The LA Supreme found that “while most of the video deposition is inadmissible, parts of the deposition are admissible under an exception to the hearsay rule.”

Typically, witnesses are to testify in court during a trial in order for the testimony to be admissible. However, there are exceptions to this general rule, and one such exception is to allow a party to perpetuate testimony. Perpetuating testimony is when testimony is prepared so that it can be used as evidence during a trial, even though the person who made the testimony will not be present at the trial. Article 1430 of the Louisiana Code of Civil Procedure grants perpetuation orders when

May 29, 2013

Pothole Blamed for One-Car Accident in East Carroll Parish

by Berniard Law Firm

After being involved in a one-car accident in 2008, a Louisiana woman sued East Carroll Parish Police Jury, claiming that a pothole on Perry Road resulted in her accident. She later amended her claim to state that other factors had further contributed to her injury and that the road was defective. In response, the Police Jury filed a motion for summary judgment, and the hearing on the matter was set for August 1, 2011.

Because the hearing date was set for August 1, 2011, this meant, according to Louisiana law, that if the woman wanted to file an opposition to the motion for summary judgment, she had until eight days before the already set hearing date to do so. This deadline for filing the opposition materials was then set as July 24, 2011. However, July 24th came and went, and no opposition materials were filed on the plaintiff’s behalf. On July 29, 2011, three days before the hearing, the plaintiff tried to move the hearing back, claiming that she needed more time for discovery. When the day of the hearing came about, the court pointed out that the plaintiff did not file her motion for continuance until after the eight-days before the hearing deadline.

At the hearing, the court did finally grant the motion for continuance, despite the fact that it was filed late, and the hearing was rescheduled for September 20, 2011. The plaintiff was told that any opposition had to be filed on or before September 6, 2011 (even though this would be more than eight days before the newly scheduled hearing). Basically, the court had offered the plaintiff a 45-day extension of her deadline, from July 24th to September 6th.

May 28, 2013

Workers’ Compensation Act Protects Louisiana Employees Injured on Job

by Berniard Law Firm

If you ever become injured in a work-related accident in Louisiana, or if you become ill with an occupation-related condition, workers’ compensation can help cover your expenses while you seek the treatment and take the time off that you need.

The Louisiana Workers’ Compensation Act is a piece of legislation that details the rules and regulations of Workers’ Compensation in the state of Louisiana. Specifically, the Act provides for compensation if an employee sustains a personal injury in an accident arising out of and in the course of his employment. Much like any other legal document or piece of legislation, it is best interpreted by trained and qualified legal representation.

In Harvey v. Brown, the Second Circuit Court of the State of Louisiana recently examined the Louisiana Workers’ Compensation Act in the context of whether an employee/employer relationship existed and, if so, whether the injury arose out of and in the course of this employment. On October 8, 2009, McNeil C. Harvey died when a piece of farm equipment he was working under fell and crush him. Subsequently, his daughter, Valerie Harvey filed a suit seeking survivor’s damages and wrongful death damages against Joseph Patten Brown, Jr., Gailliard Farms, Inc., and Gailliard Gin, Inc. According to Valerie Harvey, the accident was caused by the parties’ negligence in: (1) exposing McNeil to ultra hazardous perils; (2) assigning McNeil to work outside the course and scope of his employment; and (3) other fault and negligence to be discovered. Moreover, Valerie Harvey added MAPP, Inc. as an additional defendant and claimed that MAPP was negligent for the same reasons as the original defendants.

May 27, 2013

5th Circuit Throws Out Whistleblower Case Against Premier Rehabilitation Center in Monroe

by Berniard Law Firm

When a company defrauds the government, the taxpayers literally pay the costs for that crime. A whistleblower is someone who brings that fraud to the attention of the government or the public. At times, whistleblowers are fired from their jobs, and some seek to bring suit against the company. The whistleblower has to send the complaint to the government first, and if the government refuses to take over the case, then the whistleblower can bring suit on behalf of the government and seek recovery of the money that was fraudulently obtained. Under federal law, such actions are known as qui tam cases.

In qui tam cases, the whistleblower is known as the relator, as they are the one who relates information about the fraud to the government or the public. Depending on the specifics of the case, a relator is entitled to receive a portion of any award obtained on behalf of the government. While this may sound like easy money, the case of Stennett v. Premier Rehabilitation Center shows that qui tam actions can be very difficult to win in court.

From March 2007 to September 2007, George Stennett served as the Administrator of the Premier Rehabilitation Center in Monroe (Premier). He oversaw the company’s financial practices and business relationships. Mr. Stennett claimed that he discovered some of Premier’s billing practices violated both Medicare and Medicaid requirements; and he also claimed that he informed the company’s owners, Mr. Joubert and Mr. Markstrom.

May 24, 2013

Slip at Large Retail Store Leads to Summary Judgment and Subsequent Appeal

by Berniard Law Firm

A summary judgment is strong medicine. When a trial court grants a motion for summary judgment, it precludes the non-moving party from having their case go to the jury and in some cases from presenting any evidence at all. Because this remedy is so potent, the granting of a motion for summary judgment is reviewed de novo on appeal. A summary judgment is a matter of law not a matter of fact so the trial court is not in any way in a better position to make this decision. The appellate court uses the same standard of review as the district court.

Wal-Mart Louisiana, L.L.C. was granted a summary judgment against Jean and Robert Gray. The trial court found that they had not presented any genuine disputes of material fact. The plaintiffs appeal was granted and a new trial ordered because the appellate court found that there were genuine issues of material fact. The appellate court reversed the trial court’s decision after commenting upon the meanings of the words “genuine” and “material.”

The appellate court found that a fact was “material” if when it is resolved in favor of one party or another it affects the outcome of the case under the governing law. A fact will only be found to be material if it could actually matter to the trial court’s decision. If a fact would not have any bearing on the case it cannot be deemed material. Facts that are presented that are immaterial do nothing to prevent a trial court from granting a motion for summary judgment.

May 23, 2013

Difficult Custody Issue Shows Responsibility of Administrators

by Berniard Law Firm

Back in 2000, a woman, Ms. Cheney, left her children with a man she knew in Louisiana, Mr. Peters. Shortly thereafter, Ms. Cheney gave Mr. Peters provisional custody of the children. Mr. Peters cared for the children just as a father would.

In 2004, the children were attending Oakdale Middle School when their mother suddenly showed up to take them out of school and move them to Texas. At this time, Ms. Cheney showed the principal of the middle school her provisional custody mandate. On the mandate, it said that the mandate would be effective until it was revoked in writing or one date from the signing date (August 2, 2001), whichever is shorter. Ms. Cheney also showed the principal the children’s birth certificates, which showed that she was their biological mother.

When the principal began reviewing the children’s records, however, she noticed a note saying that Mr. Peters has custody. Just to make sure that she was doing everything right, the principal called the police and the district attorney to make sure that she properly dealt with the custody issue. Just to be extra cautious, the principal was told to make sure that Ms. Cheney fill out paperwork to expressly revoke the custody mandate. The school counselor helped her make sure that all of the proper paperwork was filled out.

May 22, 2013

Statute of Limitations Key to Alleged Insurance Fraud Case

by Berniard Law Firm

Many laws or actions include a statute of limitation which provides for a certain length of time for claims to be brought. After that time runs out, the claim can no longer be brought in court. The case of Joseph v. Bach & Wasserman illustrates just how important the statute of limitations can be to a case.

The case arose out of an alleged insurance fraud regarding several retail food trailers in Jean Laffite. The Josephs alleged that Wasserman defrauded them by charging them rent from properties he had illegally possessed from them. They also allege that Wasserman was supposed to place them on the insurance policy for the properties in question, but never did despite charging them insurance premiums. Wasserman in turn claimed that the Josephs owed him $375,000 in back payments. In 2004, the Josephs state that they found out that they did not owe Wasserman any back payments and he had charged them exorbitant fees. They filed suit in Orleans Parish in December 2004. In January 2005, the state court found deficiencies in the Josephs’ claim and gave them fifteen days to correct the problems, but the Josephs failed to respond and their state claim was dismissed with prejudice.

In 2011, the Josephs filed a complaint in federal district court alleging violations of the Racketeer Influenced and Corrupt Organizations Act (RICO) and various state law claims. On February 8, 2012, the federal district court granted Wasserman’s motion to dismiss and declined to exercise jurisdiction over the state law claims. This case deals with the Joseph’s appeal of the district court’s decision.

May 21, 2013

Prematurity Raised in Nursing Home Injury Case

by Berniard Law Firm

The exception of prematurity determines whether a plaintiff has fulfilled a condition prior to filing suit. That is, in some occasions, Louisiana law requires a complaining party to bring the case somewhere else before they can actually file the case in court. Generally, that means that an administrative remedy exists elsewhere, and the complaining party should use that avenue first instead of the court.

There are two burdens involved in the exception of prematurity. The first is on the party raising the exception. The party raising the exception should prove that there is another remedy elsewhere available and that the complaining party failed to exhaust their administrative options before bring the case to court. Once the party raising the exception has satisfied their buren, then the burden shifts to the plaintiff to prove that he or she has actually exhausted all of the options before bringing the case to the courtroom. See Mosley v. Louisiana Dept. of Public Safety & Corrections, et. al., 07-1501 (La. App. 3d Cir. 4/2/08), 980 So.2d 836.

A case arising from Deridder Louisiana in the Parish of Beauregard shows an example of the exception of prematurity. In that case, the plaintiff was a patient at Westwood Manor Nursing Home following a surgery on his skull. While an attendant was moving the plaintiff, the plaintiff struck his head against a wall and had to have immediate surgery. It is alleged that one worker moved the plaintiff while the other watched, but the second person did not help the first when the first lost his balance, causing the plaintiff to hit his head against the wall. The plaintiff allegedly suffered permanent damage as a result of the collision with the wall.

May 20, 2013

Statements Made at End of Trial Reviewed for Propriety in Workplace Lawsuit

by Berniard Law Firm

The case of Williams v. C&E Boat Rental shows how important it is to hire attorneys who navigate court proceedings in line with judicial expectations. This post’s case arose out of a maritime injury claim and centered around comments made by the defense attorney during closing arguments.

In 2007, Williams was a deckhand on a boat owned by C&E. He alleged that he was injured by fumes while cleaning out the vessel’s lube oil tanks. Later that year, he hired an attorney and filed suit against C&E. The suit was voluntarily dismissed the day after it was filed. In 2009, Williams re-filed his suit against C&E alleging negligence and unseaworthiness. After the defense made its closing statement, Williams moved for a new trial claiming that statements the defense made during its closing argument were inappropriate and prejudicial. The defense made six different statements that Williams argued were prejudicial, specifically regarding the fact the statements alleged various types of misbehavior on the part of Williams’ attorney.

When discussing closing statements, an important evidentiary requirement is that statements made during closing argument must have some basis in evidence that was presented to the court. This is an issue of fundamental fairness as the opposing side would not be able to challenge the validity of such statements.