Articles Posted in Litigation

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In a previous post, we explored the role of the Oil Pollution Act (OPA) and the Oil Spill Liability Trust Fund (OSLTF) in compensating Louisiana residents who incur oil removal and clean-up costs. These funds are also available for coastal residents who suffer property damage as a result of an oil spill.

According to the U.S. Coast Guard’s National Pollution Funds Center web site, the OPA permits filings for oil-related losses to real and personal property. Real property damage is defined as “injury to or economic losses resulting from destruction of land or buildings.” For example, the owner of oil-fouled waterfront property can file for reimbursement of the costs to restore the property to its pre-spill condition. Or, if the owner decides to sell the property without restoring it, he can submit a claim for the difference between its pre-spill assessed value and the reduced price he receives for the fouled property after the spill.

Personal property damage is “injury to or economic losses resulting from damages to other types property you own or lease besides real property.” For instance, a fisherman can submit a claim for the cost of cleaning or replacing a shrimp net, fishing tackle, or clothing that is fouled by oil.

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In Mallett v. McNeal, 939 SO.2d 1254, 2005-2289 (La. 10/17/06), the Supreme Court of Louisiana held that an unconditional payment of a property damage claim constitutes an acknowledgement sufficient to interrupt prescription. Thus, for example, an insurance company’s tender of an unconditional payment to an injured third-party claimant is an acknowledgement, and this acknowledgment interrupts prescription. In appropriate cases, Mallett may be of assistance to plaintiffs’ attorneys, who file actions to help injury-victims recover against tortfeasors and insurance companies after the victim’s case has prescribed on its face.

The Court’s holding in Mallett was based upon two consolidated cases. In the first case, plaintiff Jason Mallett (“Mallett”) suffered injuries on January 8, 2004, when his vehicle was struck from behind by defendant Paola McNeal (“McNeal”). McNeal carried an automobile liability policy issued by defendant United States Automobile Association (“USAA”). In November 2004, USAA issued two checks to Mallett: the first for payment of property damage, and the second for additional repairs. On February, 2005, more than a year after the accident, Mallett filed suit against McNeal and USAA, claiming damages for injuries. Because the one year prescription period had run on its face, Mallett’s claim would have been barred, unless USAA’s November 2004 payments interrupted the prescriptive period.

In the second case, plaintiff Charles Richey (“Richey”) was involved in an automobile collision with defendant Kameron Dixon, who was driving a car owned by Keith Dixon (“Dixon”). Dixon was insured by defendant Infinity Insurance Company (“Infinity”). Following the collision, Infinity issued a check to Richey and stated that the check represented payment for the total loss of Richey’s vehicle. Before the end of the prescriptive period, Richey filed suit in an improper venue. Under Louisiana law, if an action is commenced in an improper venue, prescription is interrupted only as to defendants served with process within the prescriptive period. Unfortunately for Richey, no defendants were served before the end of the prescriptive period. Therefore, Richey’s claim would have been barred, unless Infinity’s issuance of checks had interrupted the prescriptive period.

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A patient visiting Lake Charles Hospital, located in Calcasieu Parish, filed a lawsuit against his treating physician alleging the doctor was negligent while diagnosing his symptoms. After the patient was hospitalized, the doctor ordered a stress test. Just minutes after the start of the test, the patient began to suffer from an abnormally rapid heart rhythm. In the lawsuit, the patient argued the doctor should not have ordered the test in light of the patient’s medical history.

All doctors owe their patients a certain level of care. When a physician breaches that level of care, they can be sued for medical malpractice. The Louisiana Revised Statute 9:2794(A) requires patients who believe they are victims of medical malpractice to establish three main elements. First, a patient must establish the standard of care of the doctor. Second, he/she must show that the defendant breached this standard of care. Lastly, a patient must prove “causation.” Specifically, he/she must be able to show that there was a connection between the doctor’s breach of his duty and the patient’s resulting injury.

Establishing a Physician’s Duty to His Patient

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The Louisiana Third Circuit Court of Appeals recently ruled in favor of the owner of a Lafayette hardware store and affirmed the trial court’s granting of Summary Judgment against a customer who was bitten by a spider while shopping there.

While in the store, Lee Johnson picked a rosebush from an outdoor display at the Ace Hardware store owned by Defendant Stine LLC (Stine Lumber/Ace Hardware). An employee carried the bush inside so Johnson could buy it. When Johnson picked it up from the checkout counter several wolf spiders emerged, one of which bit Johnson’s finger. He suffered extreme swelling, slurred speech, and memory loss as a result of the bite and sued the owner of the store for damages.

Two significant issues came up in the Court of Appeals’ opinion that provide insight into what must be proven in a case like this one. First, the Court found that spoilation of evidence with respect to the spider did not apply.

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In the aftermath of the explosion of the Deepwater Horizon and the disastrous oil spill that now encroaches on Louisiana’s coastline, many individuals and business will be looking for a way to handle the massive financial burden associated with clean up and recovery. Luckily, the law provides a way for them to collect some damages.

The Oil Pollution Act

In 1989 the Exxon Valdez spilled over 11 million gallons of oil into Prince William Sound in Alaska. At the time, the U.S. did not have adequate funds to respond to the spill and only very narrow compensable damages could be recovered. The Oil Pollution Act (OPA) was passed by Congress in 1990 (33 U.S.C. 2701-2761) to address these shortcomings. The OPA created a comprehensive regime to prevent, respond to, and compensate for vessel and facility caused oil pollution. The law also provided for federal oversight of maritime oil transportation through increased environmental safeguards.

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The massive oil slick drifting ominously in the Gulf of Mexico has state officials worried for the health of Louisiana residents who live along the coast. Since April 20, when the oil rig Deepwater Horizon exploded and subsequently sank, oil has been flowing into the Gulf at a rate of up to 200,000 gallons per day. The fact that the oil has not yet reached land is largely the result of favorable winds and currents, both of which are subject to change at any moment. As of Friday afternoon, underwater robots had begun positioning a four-story tall, 100-ton box made of concrete and steel over the gushing well on the sea floor. The device will permit crews to recover most of the oil from the well, but it will not entirely stem the flow. It will also do nothing to address the oil that has already escaped and looms ever closer to the coast.

According to an AP story carried by Yahoo News on May 7, state and federal authorities are gearing up to deal with the many hazards to human health that will result if and when the oil reaches land. Officials are advising coastal residents to take precautions now. “We don’t know how long this spill will last or how much oil we’ll be dealing with, so there’s a lot of unknowns,” Dr. Jimmy Guidry, Louisiana’s state health director, said. “But we’re going to make things as safe as humanly possible.”

Last week, in what many saw as a preview of things to come, a foul stench drifted over parts of lower Louisiana. According to Alan Levine, secretary of the Louisiana Department of Health and Hospitals, the oil was likely to blame. Levine’s office received numerous complaints, some from state legislators in New Orleans, who were more than 130 miles from the epicenter of the disaster.

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Employees injured on the job are usually bared from filing a claim against their employers because they are fully compensated under the Louisiana Workers Compensation Act. However, while the act provides for most injuries, it does not provide for all. Whether or not your injuries are covered by Workers Compensation requires a look at recent Louisiana statutes.

In the case of employee’s claiming injuries due to asbestos exposure, Louisiana’s Workers Compensation Act can may be tricky to pinpoint. Because asbestos usually manifests itself years after initial exposure, deciding which statute applies, and thus which injuries are covered, may be difficult. The time at which a claim arises is usually measured from the injury producing event, that is in this case, the initial exposure to asbestos. The injury producing event, in addition to providing a timeline for a cause of action, also determines the law controlling the event. Laws are amended and changed over time, so the date of asbestos exposure actually determines which statute will be applied to the injury claim.

In 1996, Royce Thomas filed a claim against his former employer, Anco Insulations (“Anco”). He claims that his job, from 1968 to 1971, exposed him to large quantities of asbestos, and he contracted lung cancer and asbestosis as a result of the exposure. His employer challenged the claim, alleging that the injuries were covered under workers’ compensation. This is where the importance of the injury producing event becomes evident. Royce claimed that his lung cancer and asbestosis were related to pre-1975 exposure to asbestos. Under Louisiana law at that time (pre-1975), asbestos was not a substance covered under the Workers’ Compensation Act. Therefore, Royce had a valid cause of action because the injury producing event occurred at a time when asbestos, and lung cancer for that matter, were not injuries covered by the state’s Workers’ Compensation Act.

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A February 1996 car accident led the First Circuit Court of Appeals of Louisiana to find that testimony indentifying an ample history of car accidents near a sharp curve in Addis, Louisiana, established that the curve had presented a problem for a significant period of time. The Court found that the testimony was sufficient to support a finding of constructive notice of a problem with the roadway to the Louisiana Department of Transportation and Development (DOTD). Constructive notice, one of the requirements necessary to find an entity responsible for a faulty element, is highly essential when trying to prove responsibility after an accident or incident involving injury.

Around 7:45 p.m. on the evening of the accident, Jerry Goza was traveling westbound on Louisiana Highway 989-1. While traveling, he came upon a sharp curve at the point where Highway 989-1 intersects with Highway 989-2. Goza’s vehicle ran off the roadway into a cane field, eventually running into a ditch, striking a culvert, and flipping over. Goza sustained serious injuries requiring surgery and rehabilitative treatment.

Goza filed a suit for damages against the DOTD alleging that the design, construction, and signage of Highway 989-1 were defective. Following a four-day jury trial, a verdict was rendered in favor of Goza, and the DOTD was allocated twenty five percent fault. The DOTD filed a motion for a judgment notwithstanding the verdict (JNOV). The trial court granted the motion in part, amending the jury’s award of damages, but maintaining the awards and fault allocations rendered by the jury. The DOTD appealed both the original jury verdict and the JNOV.

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If you or someone you know has been injured on the job, there’s a good chance that

workers compensation was a topic of conversation. By law, employees injured during and in the course of their employment are entitled to monetary benefits. However, the right to collect worker’s compensation does not stretch indefinitely. Most jurisdictions place a “statute of limitations” of a “prescription period” on personal injury claims, limiting the amount of time an injured party has to file a compensation claim. As soon as the injury occures, the statutory “clock” starts ticking. When that clock reaches the statute of limitation period, any workers compensation claim is effectively barred. This is a serious issue for many workers injured on the job and is important to know to report an injury as soon as possible.

In 2002, City of Brusly’s Chief of Police was injured during the course of employment. His claim for compensation, however, was not filed until December 2004, nearly two and half years after his injury. The question at issue in this case was whether prescription, that is, the filing of his claim after Louisiana’s one-year limitation placed on personal injury claims, prevented the Chief from filing his action for worker’s compensation benefits.

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Many people believe that the term “medical malpractice” means a doctor can be sued any time a doctor harms or makes a mistake while treating a patient. Like most states, Louisiana’s Medical Malpractice Act protects doctors from frivolous, or meritless litigation, meaning incidental harm or minor mistakes made by a doctor will probably not result in a malpractice violation. The person bringing a malpractice claim against a doctor must prove certain elements exist, most commonly that: (1) the patient suffered a significant injury; (2) the doctor or hospital staff did not meet the standard of care typical of medical professionals; and (3) the medical mistake or lack of care was the direct cause of the patient’s injury.

To help you understand, please consider the following examples:

(A) A patient comes into a doctor’s office complaining of chest pains and indigestion. The doctor fails to make a diagnosis or provide treatment and sends the patient home. The patient suffers a heart attack the next day.

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