Articles Posted in Litigation

by

Wrongful death. Negligence. We hear these terms thrown out all the time when we read the newspaper or watch TV. Both terms have a similar connotation. We know something “bad” happened to someone, something that should never have happened. However, most people don’t really know what these terms mean.

The legal concept of negligence means that someone has suffered physical and/or mental injuries caused by someone else being careless. Negligence is not derivative of an accident – someone else was not diligent and that failure to act properly was the cause of the injury. An example is featured on <a href="http://realestate.nola.com/?classification=real+estate&temp_type=search&tp=RE_nola&tl=42&guid=114135"NOLA.com when a family suffered damage to their home because of an inspector’s negligence in failing to report defects in the house.

A wrongful death claim arises when the victim died as a result of someone’s negligence. This type of claim, the victim’s surviving family is eligible for the amount of damages. This differs from a typical negligence claim because there, the actual victim is alive and able to receive the damages. Originally, a wrongful death claim was nonexistent because presumably the claim for damages died with the victim. Today, luckily, that is not the case and the grieving family is eligible for compensation for their loss.

Continue reading

by

Residents of Monroe, Louisiana, and the surrounding area are fortunate that a train derailment appears benign. The train derailed the evening of Saturday, February 20th, in the vicinity of Highway 165. Fortunately, other than the damage sustained by the derailed cars and the train tracks, the accident seems to have caused little harm.

According to a report by Zack Southwell that appeared on thenewsstar.com, the cause of the accident was initially unclear and under investigation. But Caldwell Parish deputies have assured the public that the accident poses no danger to the surrounding area. The report quoted Chief Deputy Glen Gilmore as saying, “We had (hazardous materials) crews out here also, making sure the wreck caused no danger. They declared the area safe shortly after midnight [on Sunday].” A representative of Union Pacific indicated that “most of the cars that derailed were empty,” but she added that some were carrying a non-hazardous fuel oil additive.

The folks living near the accident site are indeed lucky that the derailed cars were not carrying more hazardous substances. Train derailments are not always so harmless. For example, during a 2008 derailment near Lafayette, the damaged BNSF cars leaked 11,000 gallons of toxic hydrochloric acid onto the ground surrounding the accident site. As reported by newsinferno.com, the acid gathered in yellow pools and emitted vapors that formed a toxic cloud around over Lafayette. The spill forced the evacuation of 3,000 local residents, shut down businesses and closed roads until officials could neutralize the acid and remove all contaminated soil. In addition to lost business and property damage resulting from the accident, several folks required treatment for medical ailments related to the spilled acid.

Continue reading

by

According to a recent article in New Orleans’ Times Picayune, Kenneth Allain of Tailsheek pled guilty last month to charges that he permanently injured a 75 year old woman by ramming his car into her while under the influence of prescription drugs. The accident occurred on Louisiana 41 about three miles south of Louisiana 21 in northeastern Tammany Parish. The injured woman, Edythe Proze, was driving in front of Allain and stopped to make a left turn when Allain continued driving, slamming into the back of her vehicle. Troopers at the scene determined that Allain was intoxicated and took a blood sample.

Allain pled guilty to first degree vehicular negligent injuring and was sentenced to ten years in prison: five years for the crash (the max allowed under state law), and five years because he was a repeat offender.

Proze was taken from the scene with moderate injuries. She is now faced with “life-changing” injuries and is living in an assisted-living facility.

Continue reading

by

When Kimberly Carter, a Little Rock, AR, resident, was visiting family in Louisiana in November of 2001, a misstep in a hole in the ground led to a legal battle that would not be resolved until 2010. After suffering an injury from the hole, Carter was transported to Women’s and Children’s Hospital in Lake Charles. Dr. Clark Gunderson, an orthopedic surgeon, viewed Carter’s x-rays and determined she suffered a spiral fracture in her right tibia that would require surgery. Carter chose to stay in Louisiana to have Dr. Gunderson perform the surgery.

After the surgery and some time had passed, Carter would later sue Dr. Gunderson for medical malpractice when a mal-rotation in excess of fifteen degrees was discovered by Dr. Johannes Michael Gruenwald, a board-certified orthopaedic traumatologist at the University of Arkansas Medical Center. Dr. Gruenwald was providing Carter’s post-operative care. In August of 2007, Carter filed a suit alleging malpractice by Dr. Gunderson. A three-day trial resulted in a jury verdict finding that Dr. Gunderson had not deviated from applicable standards. This judgment was affirmed on appeal.

According to the Supreme Court case Martin v. East Jefferson General Hospital

Continue reading

by

Imagine the following scenario: you are involved in a fender-bender in the parking lot of the grocery store. Your car is taken to the body shop for repairs. Since you need transportation to get to work and other places in the mean time, you rent a car from the local agency. When picking up the car, you’ll no doubt be offered liability insurance through the agency–at an additional cost, of course. There may also be coverage available through the credit card you use to pay for the rental. And then there is the policy you maintain on your regular car. Does it extend coverage to the rental?

Louisiana law recognizes a “temporary substitute vehicle,” which is commonly defined by insurance companies as a short-term substitute for a car that is out of service due to breakdown, repair, servicing, theft, or destruction. State statute requires automobile insurance companies to “extend to temporary substitute motor vehicles … any and all such insurance coverage in effect in the original policy.” La. R.S. 22:681. In other words, the auto insurer must provide the same coverage to the rental car as was already in place on the regular vehicle.

The recent case of Smith v. Louisiana Farm Bureau Casualty Insurance Company, No. 45,013, Ct. of App. of La., 2d Cir. (2010), explored the definition of “temporary substitute vehicle” in detail. On the morning of May 28, 2005, Brian Smith was driving a 2003 Nissan Altima on U.S. Highway 425 in Morehouse Parish. At the same time, Joshua Pruett was driving a 1998 Dodge Ram pickup truck on the highway in the opposite direction. Pruett’s truck was pulling a utility trailer containing crawfish and ice that had been loaded in Crowley. The ball on the truck’s trailer hitch was too small for the trailer and Pruett did not use any safety chains to ensure that the trailer remained attached to the truck. The trailer eventually disconnected from the truck, at which point it crossed the highway’s center line and collided with Smith’s Altima. Smith died at the scene from the severe trauma he sustained in the accident.

Continue reading

by

In litigation, the term venue means “the location where an action or proceeding may properly be brought and tried under the rules regulating the subject.” In other words, for each suit, there is a particular court where the plaintiff should file based on the situation’s unique facts. The Louisiana Code of Civil Procedure’s general rule of venue states that a defendant must be sued in the parish where he is domiciled (where he lives). LSA-C.C.P. Art. 42.

However, the Code also provides the following exception:

“An action for the recovery of damages for an offense … may be brought in the parish where the wrongful conduct occurred, or in the parish where the damages were sustained.” LSA-C.C.P. Art. 74.

Continue reading

by

When you file a claim alleging asbestos exposure, what do you need to prove? This is an important question that, if not satisfied, may be the end of your lawsuit. Simply being exposed to any asbestos is not sufficient to maintain a claim. You, as the plaintiff, have the burden of showing that you were exposed to the defendants asbestos-containing product, and that particular exposure was a substantial factor in causing the damage. Simply showing that exposure to asbestos occurred will not be sufficient.

A 2008 Jefferson Parish case, Thibodeaux v. Asbestos Corp. Ltd., illustrates the importance of producing adequate evidence to support your asbestos claim. Here, the Thibodeaux’s filed suit against Eagle Asbestos and its insurer, OneBeacon, alleging personal injuries as a result of their exposure to asbestos, namely mesothelioma. Mrs. Thibodeaux died from mesothelioma that her family claimed was the result of her exposure to Eagle’s asbestos at Charity Hospital, where she worked. The Thibodeauxs would eventually lose this case because the court found that the evidence they provided was insufficient to support the claims they alleged. They did not prove that Mrs. Thibodeaux was exposed to Eagle asbestos. Without that, their argument was simply speculation.

So what do you need to prove exposure to a particular defendants asbestos?

Continue reading

by

As the last couple posts have described, some aspects of asbestos cases do not fit within the traditional mold of other personal injury cases. Because these cases continue to be treated as personal injury matters, some of the rules must be relaxed or modified. The Louisiana Supreme Court dealt with some of these modifications in the case of Cole v. Celotex, 599 So.2d 1058 (1992). We look now to explore what the Court had to say about prescription rules that place time limits on a plaintiff’s right to file suit for an injury.

Typically, the rules of prescription give an injured party one year from the date they are injured to file a lawsuit seeking damages against the person(s) responsible for the injury. As we have already noted, the time when an asbestos-related injury actually “occurs” is difficult to determine. Thus, the Court in the Cole case ruled that, for legal purposes, the repeated exposure to hazardous substances give rise to a claim. That is true even if the asbestos-caused disease does not manifest itself until later.

Because the time of the injurious event is difficult to pinpoint, the prescription rules are also hard to apply. Indeed, the Court recognized that a brief one year prescriptive period is incompatible with long latency diseases. An injured party may not even realize that he has suffered any harm for years. Thus, Lousiana courts can apply the “discovery” rule to asbestos cases. Under the discovery rule, the prescriptive period does not begin until “the plaintiff knows or through the exercise of due diligence should have known of the injury.” Cole, 599 So.2d at 1084. Even then, the prescriptive period only runs on injuries the plainiff knows about or should know about. In other words, a plaintiff will not miss his chance to seek damages for disease he does not know about:

Continue reading

by

As research has revealed more about the dangers of asbestos and the mechanics of how it causes certain types of lung disease and cancer, medical and social opinion of asbestos has changed. Likewise, the law of asbestos-related injuries has changed in the last half century. For example, one of our blog posts recently discussed how workplace asbestos cases are now typically addressed through workers compensation proceedings rather than traditional personal injury tort law. A decision issued by the Louisiana Supreme Court in 1992 illustrates another change in the law related to asbestos injuries.

Background

The background and procedural history of Cole v. Celotex Corp, 599 So.2d 1058 (1992), is complicated. However, knowing the case is important when trying to understand the significance of asbestos litigation. The plaintiffs in the case suffered asbestos exposure in the course of their work duties and filed suit against twenty individual defendants. The defendants included manufacturers of the asbestos materials the plaintiffs encountered on the job as well as officers of their former employers. Additionally, the plaintiffs added as a defendant Insurance Company of North America (“INA”), the primary liability insurance provider for the officers.

Continue reading
Contact Information
1140 St Charles Ave
New Orleans, LA 70130
Phone: (504) 521-6000
Fax: (504) 617-6300

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

Please do not include any confidential or sensitive information in a contact form, text message, or voicemail. The contact form sends information by non-encrypted email, which is not secure. Submitting a contact form, sending a text message, making a phone call, or leaving a voicemail does not create an attorney-client relationship.

Copyright © 2016 – 2025, Berniard Law Firm
JUSTIA Law Firm Blog Design