Articles Posted in Litigation

Car Accident uninsured motorist coverage louisianaWhat happens when a motorist is injured in an automobile accident while operating a vehicle owned by an employer? While Louisiana law often permits named insured employees to receive reciprocal coverage under an employer’s insurer, insurance law is a complex and, at times, unclear field, especially in relation to uninsured/underinsured motorist coverage. In the case of Chris Loudermilk of New Roads, Louisiana, the Louisiana First Circuit Court of Appeal felt that Loudermilk was not permitted to recover under the language of his employer’s insurance policy.

Loudermilk was injured in an automobile accident while operating a vehicle owned by his employer, Environmental Safety and Health Consulting Services Inc. (ES&H). Loudermilk filed suit against the drivers at fault and their insurers, as well as XL Specialty Insurance Company, ES&H’s insurer.

In acquiring insurance for ES&H, the company’s CFO executed a valid Uninsured Motorist Bodily Injury Coverage Form to reject uninsured motorist coverage completely on June 23, 2010. The policy was renewed in June 2011 through June 2012, and it was in effect at the time of Loudermilk’s accident. At the time of the renewal, ES&H added two entities to the “named insured” section of the policy.

Bankruptcy personal injury louisiana When there’s no other option, bankruptcy is an effective tool to shield you from your creditors. But often, those filing bankruptcy do not consider how intrusive a bankruptcy can be. After filing bankruptcy, your remaining assets are put under a microscope by the bankruptcy trustee. Every transaction you make while in bankruptcy, and 90 or more days beforehand, are scrutinized, questioned, and may even be reversed.

Any windfall you acquire while in bankruptcy must immediately be reported to the bankruptcy trustee to be distributed to your creditors, or added to your payment plan. Winning lottery tickets, inheritances, bonuses, and, surprisingly enough, pending lawsuits, may all be considered assets which must be reported to the trustee. It sounds odd, but if you are a plaintiff in a lawsuit and stand to be awarded some money, the lawsuit needs to be disclosed to the bankruptcy court so that the proceeds can be distributed to the creditors. 

Delivery driver Willie Thomas suffered devastating injuries when his delivery truck was struck from behind by Defendant Wanda Harris. Thomas was pinned between the two vehicles, later needing multiple surgeries to repair the extensive damage the collision caused. Thomas filed a lawsuit against Harris and her insurer. During the deposition, it came out that Thomas had filed a Chapter 13 bankruptcy about 15 months before the accident. The defendants filed a motion for summary judgment on the grounds of judicial estoppel. 

Uninsured Motor Coverage Post
Car accidents are scary. Whether any parties are injured or not, dealing with the insurance company for vehicle damage or personal injury is not an enjoyable activity for the general public. The situation is even less enjoyable when the person dealing with the insurance company is not the policyholder.

 In March 2007, Brian Duplichan’s daughter and the mother of his daughter were passengers in a car driven by Beverly Hooper. Although his daughter, Kadie, survived the accident, her mother, Sarah, did not. Both Sarah and Kadie lived with Sarah’s mother, Mary Elizabeth Reeves. Duplichan brought a lawsuit against State Farm Mutual Automobile Insurance for recovery of damages.

 Kadie and her mother were riding with Beverly Hooper when Hooper swerved off the road into a culvert. These facts are not disputed—it’s the aftermath of the accident that put Spears’ mother—Mary Reeves—and Duplichan through the wringer. 

We often imagine slipping and falling on company property to be an instant payday for the injured party. Slip and fall injuries, however, can occur as a result of a variety of conditions and in numerous locations. One recent unusual situation involved algae in a parking lot that caused a customer to slip and fall. The outcome of the case hinged on whether the algae was an obvious and apparent danger. 

Leslie Martin (“Martin”) parked her car in the parking lot of Delta Downs, a racetrack/casino/hotel that Boyd Racing, L.L.C. and Boyd Gaming Corp. (“Boyd”) owned and operated. She then walked around to access a walkway leading to the entrance. She claimed that while walking past her car, she slipped on some algae and fell, sustaining injuries. Martin filed a lawsuit against Boyd, seeking damages from the injuries she suffered from the fall. Martin claimed that Boyd failed to maintain its property free from unreasonably dangerous conditions and did not warn of the dangerous condition. 

In response, Boyd filed for summary judgment, claiming that Martin was unable to prove that the open and obvious condition (the algae) that led to her accident was an unreasonable risk of harm, as required under Louisiana negligence law. Summary judgment means that there is no genuine dispute of the facts, and that the opposing party cannot recover by law. Although Martin stated that she was looking straight ahead and did not see the algae, Boyd argues that she would have seen it if she had been looking down. After Martin fell, an employee of Delta Downs immediately inspected the area. The employee testified that the algae were visible, which was confirmed with photographs the employee took immediately following the accident. The district court granted summary judgment in favor of Boyd, finding that there was no genuine issue of material fact about whether the algae were unreasonably dangerous and not visible. 

StockSnap_3FVC73VWBH-1024x683In the wake of Hurricane Ida, there will be hundreds of thousands of insurance claims. Insurance companies will be overrun, but that’s no excuse for those companies to fail to pay your claims timely. Unfortunately, that’s not always how claims are handled.

You undoubtedly have seen numerous posts giving general advice such as “document every interaction with the insurance company.” That is true and great advice, but documenting every interaction can become burdensome when you are already overwhelmed.

So here’s a quick tip to help achieve the goal of “document everything” by using the phone in your hand. How to record phone conversations with your insurance company:

grey-steel-grill-1687067-819x1024In a civil case, you do not have the classic “speedy trial” right. Instead, courts will seek expediency by granting summary judgments when appropriate. The purpose of summary judgment is to avoid frivolous and unnecessary trials, or at a minimum, to simply reduce trial time by dispensing of some claims. A motion for summary judgment may be granted upon a finding that there is “no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(A)(3).

In this case, Danny Givens (“Mr. Givens”) was released from prison and subsequently sued James LeBlanc, Secretary of the Louisiana Department of Public Safety and Corrections (collectively, “DPSC”) for false imprisonment. Mr. Givens alleged that DPSC improperly calculated his release date from prison and that he should have been released earlier; thus, he was falsely imprisoned by DPSC.

DPSC proceeded to file a motion for summary judgment, and as a result, DPSC became the “mover” under La. C.C.P. art. 966(A)(3). When filing for summary judgment, the mover has the burden to show there is no genuine issue of material fact. However, the adverse party in this case, Mr. Givens, has the burden to produce factual support to establish the existence of a genuine issue of material fact. La. C.C.P. art. 966(A)(3).

adult-blur-boss-business-288477-1024x768The equivalence of “dotting the i’s and crossing the t’s” in the law is making sure to comply with court procedural rules. One such basic civil court procedure rule is proper service. Proper service is critical in establishing that a court has legal jurisdiction over a defendant. The defendant has a right to know that they are being sued, and they have the right to be present at any hearing or to appear through an attorney. Without proper service, a court may dismiss a lawsuit. One can have a valid and strong claim for a lawsuit, but without proper compliance with court rules, the case may never even be heard. The importance of following procedure is highlighted in this Workers’ Compensation case heard in the Louisiana Fourth Circuit Court of Appeals.

The issue revolves around whether appellant A-1 St. Bernard Taxi & Delivery (“A-1”) was (1) properly served and (2) whether the Office of Workers’ Compensation erred in rendering judgment in Veronica Gordon’s claims for compensation. Ms. Gordon was involved in a car accident on May 2, 2015, while working for defendant A-1 as an independent contractor. She suffered injuries to her left arm, shoulder, neck, and back and filed a claim for compensation on August 7, 2015 (the “Original Claim”).

The Office of Workers’ Compensation (OWC) notified Ms. Gordon’s attorney that service on A-1 was unable to be performed at the address Ms. Gordon listed an incorrect address for A-1 in her Original Claim. Ms. Gordon listed a second incorrect address on an amended claim that also led to the failure of service. Ms. Gordon filed a motion to appoint a special process server and filed a second amended claim. In this claim, she stated that the special process server tried and failed several times to serve A-1. The OWC appointed the Secretary of State as A-1’s agent for service of process. The claim was sent to A-1’s last known address and the case moved for trial. Neither A-1 nor counsel for A-1 was present. The OWC ruled in favor of Ms. Gordon and denied A-1’s motion for a new trial, which A-1 appealed.

close-up-photo-of-black-car-2470657-683x1024Summary judgments are a common tool in litigation to not only expedite the drawn out trial process, but they can also be used to cut down on the cost of a lawsuit. Yet, there are different standards about what kinds of documents can and cannot be considered when a party makes a motion for summary judgment. For two Baton Rouge individuals, their claims against an insurance company survived because of this technicality.

In June 2015, Brenda Jones was driving with her step-son, Mario Jones, Jr., when she stopped at an intersection on Florida Boulevard. Her car was rear-ended by Mr. Jason Anderson, a driver in another vehicle.  After the accident, Mr. and Ms. Jones both sued Mr. Anderson for damages arising from the accident. GoAuto Insurance Company (GoAuto), Mr. Anderson’s car insurance provider, was also included in the lawsuit. In response to the lawsuit, GoAuto filed a motion for summary judgment and sought to have the claims against them dismissed. GoAuto claimed that Mr. Anderson’s car insurance had been cancelled in May 2015, a month prior to the accident, because Mr. Anderson had failed to  pay for his insurance. Because of this, GoAuto said that it should not be liable since it was not Mr. Anderson’s car insurer when the car accident occurred. 

Further, GoAuto claimed that Mr. Anderson’s insurance was financed through an insurance premium finance agreement between Mr. Anderson and Auto Premium Assistance Company (APAC).  To support their claim, GoAuto provided the court with several documents, including affidavits by the company’s operations manager, Mr. Anderson’s insurance finance agreement, and email notices that were sent to Mr. Anderson informing him his insurance would be cancelled.  In August 2016, the Nineteenth Judicial District Court granted GoAuto’s summary judgment, finding that GoAuto correctly cancelled Mr. Anderson’s insurance after he failed to pay and affirming that he did not have insurance when the accident occurred. Additionally, the trial court found that GoAuto did not have a legal duty to give Mr. Anderson a defense in the still-pending case against him. Mr. and Ms. Jones appealed.

multi-drug-screen-test-and-kit-boxes-3474084-1024x696On TV, lawyers are often shown dramatically acting out speeches in courtrooms and confronting witnesses. Those litigators do often have to speak and cross examine individuals, but in reality, much of an attorney’s role is to make sure the procedural and pleading aspects of a lawsuit are done correctly. Some of this procedure is based on a strategy of knowing what court to file a claim in in order to gain the best opportunity for recovery for your client. A St. Mary Parish School crossing guard’s lawsuit was dismissed when the court found that he had already filed an identical claim which had been dismissed.

Belva Webb, a school crossing guard, was instructed by St. Mary Parish School District to complete a drug screening test.  This request came after parents complained to the school district that Webb seemed “unstable” when completing his crossing guard duties. The notice of this request came on February 17, 2012, and on February 23, Webb was told that the results of the test showed his prescription medication was “safety sensitive,” so he should not be working while on these medications. Due to the results of the test, the school district informed Webb that he should not come back to work unless he was contacted to do so.

Webb and his wife brought a lawsuit in federal court against several parties and alleging a violation of his constitutional rights, and that the various defendants had conspired to have Webb fired. All defendants filed a motion to dismiss Webb’s claims, which the federal court granted on the grounds that Webb failed to state a plausible claim for relief under 42 USC §§1983, 1985, and 1986.

abundance-bank-banking-banknotes-259027-1024x683Perhaps one of the biggest myths about the law is that you can bring a lawsuit anywhere about anything. In reality, a court must have jurisdiction in order to hear a case. Jurisdiction is the power of a legal body to make binding decisions over the people involved.  In addition to having jurisdiction over the parties to the case, the court must also have subject matter jurisdiction. Subject matter jurisdiction is the ability for a court to hear the type of lawsuit brought to it. As one East Baton Rouge man found out, contesting a court’s subject matter jurisdiction can cause quite a headache. 

Carey Holliday brought a lawsuit against the Louisiana Workforce Commission (“LWC”) in December 2015 for wages allegedly unpaid. Specifically, Holliday claimed that he deserved $5,868.34 of “premium pay” for performing administrative work which he was not paid for.

LWC claimed in response that the Civil Service Commission never authorized the premium pay and, therefore, they are not required to pay Holliday.  LWC stated that premium pay approvals are under the Louisiana State Civil Service Commission’s exclusive jurisdiction and that there was no subject matter jurisdiction of the district court to hear the case. Further, LWC claimed that Louisiana Wage Payment Act, which Holliday had filed his claims under, did not apply.

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