Articles Posted in Litigation

black-calculator-near-ballpoint-pen-on-white-printed-paper-53621-1024x603Businesses face many liability risks or risks of being sued. These include injuries to their employees on the job. Workers’ compensation is designed to address such injuries. In Louisiana, businesses in specific industries may agree to pool together with one another in order to “self-insure” these claims.  This means that the businesses pay the claims from a specific fund rather than handle them through outside insurance companies. The concept of indemnity is important in these sorts of arrangements. Indemnity involves the paying back of money or the defense in court of one party by the other. Of course, money is not unlimited, and organizations providing may exclude certain coverage in particular situations. The business affected may not agree with this.  The Fourth Circuit Court of Appeal recently considered such a dispute.  

Two employees of The Columns Hotel in New Orleans got into a physical altercation while at work.  One of them was injured and sued the hotel and his coworker. As part of this same lawsuit, the Columns Hotel (“the hotel”) brought in the Louisiana Restaurant Association Self-Insurers Fund.  The hotel claimed that the indemnity agreement between the parties should have applied in this situation. The fund disagreed, filing for summary judgment to have the court dismiss the claim on the basis that the agreement was not insurance.  The trial court agreed and dismissed these particular claims. The hotel appealed.

The issue for the Fourth Circuit Court of Appeal ultimately dealt with how to interpret the indemnity agreement.  Although the hotel argued that insurance law should apply to this contract, Louisiana law specifically excludes self-insurance organizations from the Louisiana Insurance Code. La. R.S. 23:1195(A)(1).  Thus, the Fourth Circuit looked at the indemnity agreement between the hotel and the fund itself to determine how it should be applied.  Contracts in Louisiana must be interpreted only to determine what the parties intended the terms to mean. La C.C. art 2045 Here, the parties disagreed as to what situations would be excluded from coverage by the fund.  The exclusions the fund relied on were bodily injury, as well as assault and battery. The exception for bodily injury excluded from coverages situations where someone was injured by actions that should have been reasonably expected to cause such an injury.  The court applied this to the fight between the employees. Their actions during the altercation would have been reasonably expected to cause injury. Thus, the Fourth Circuit found that the bodily injury exclusion would have applied. Therefore, the fund had been entitled to summary judgment on that point.    The other exclusion was that of assault and battery. The exclusion includes reference to bodily injury caused by assault and battery. In Louisiana, battery is a “harmful or offensive contact” and assault is any action that would threaten such contact. Lawson v. Straus, 750 So. 2d 234 (La. Ct. App. 1999).  Under these definitions, the fight between the employees would be considered assault and battery.  Thus the agreement would not cover the se bodily injuries. Because these two exclusions applied to the situation, the Fourth Circuit found that summary judgment had been correctly granted.  

1-us-bank-note-47344-1024x724Benjamin Franklin had good reason to make the statement, “neither a borrower nor a lender be.” The potential for risk on either side of the transaction is significant. Be it the likelihood of not getting paid, or the possibility that you will not be able to repay the debt, many find that it is better to avoid the perils of money lending altogether. But that is just not practical. The way big plans are realized is often with money we do not yet have. And loaning money at interest is usually a great short-term investment, if you have the cash to spare. How do we assure our debt agreements will hold up in court?

On February 24, 2014, New Orleans resident Lois Guillory made a $40,000 loan to Percy Goulette and Alan Sagely, with interest totaling $5,000 and due in one year’s time. The parties signed a promissory note memorializing all the terms. But once February 24, 2015 came around, Goulette and Sagely refused to pay the obligation. When Ms. Guillory filed a lawsuit to recover her investment, Mr. Goulette tried to have the claim dismissed, stating that his business Goulette Ice actually borrowed the money. Goulette claimed he and Sagely did not borrow the money individually, but signed the note in their capacity as agents of Goulette Ice. In fact, the note identified the men as owners of Goulette Ice in two places, one of which was below the signature line. This, in Goulette’s eye, meant he and Sagely were not personally guaranteeing repayment, and not liable for the loan. The Trial Court granted Goulette’s peremptory exception of no cause of action, and Ms. Guillory appealed. 

A peremptory exception for no cause of action is essentially one party asking the court to dismiss the case because there has been no offense for which to sue. These exceptions are judged solely on the pleadings, and neither party may introduce evidence to support or object to the exception. La. C.C.P. art. 931. Ms. Guillory’s original petition contained a copy of the promissory note, and the Appellate Court closely reviewed that document. 

close-up-photo-of-vehicle-engine-1409999-731x1024When a party to a lawsuit waits too long to respond to a lawsuit or flat out declines to respond, courts have the ability to resolve the case with a default judgment. This default judgment resolves the case and the non-responding party must live with the court’s decision. While not ideal, it is a needed mechanism for times when a party does not comply with the rules. With the help of an excellent attorney an injured driver won his lawsuit when a Leesville vehicle repair shop failed to properly respond to his lawsuit.

Dexton Bryant purchased the services of Xtreme Machines to install a lift kit on his pickup truck. Shortly after the lift kit was installed, Mr. Bryant was driving when the front left wheel of his truck completely came off. The lack of wheel caused Mr. Bryant’s truck to swerve off of the road and into a group of trees. Mr. Bryant blamed Xtreme for cutting off the lug bolts on the wheel and brought a negligence lawsuit to recover the damages he sustained to his body and vehicle.

Mr. Bryant won the lawsuit by a default judgment in the Trial Court. The default judgment win was because Xtreme did not respond to the lawsuit in time. In total, he was awarded $11,857.50 for his medical costs, $7,900 for the damage to his vehicle, and $50,000 for his injuries, pain, and suffering. Xtreme responded to the loss at trial with an appeal. In the appeal, Xtreme claimed the Trial Court made an error by determining that Xtreme was negligent. This claim was based on the argument that improper evidence of negligence as well as the costs was admitted by the Trial Court.

close-up-court-courthouse-hammer-534204-1024x569After a hard fought jury trial, an appeal can be expected. But, what cannot be anticipated is a transcribing error by the court that renders the judgment as invalid and makes any appeal impossible. Excellent attorneys can catch errors by other parties and avoid multiple extra steps before a lawsuit can be resolved. That was the case here as mismatching damage award classification labels extended a lawsuit well beyond its anticipated end.

Willie Brown, Jr., was a customer at the Silver’s Casino in Breaux Bridge. After a power outage at the casino and at the direction of an employee of the Casino, Mr. Brown tripped over a sidewalk while he was entering the premises. Mr. Brown suffered injuries to his right knee, left shoulder, and also his head.

Mr. Brown saw a doctor for his injuries and was diagnosed with a cervical disc issue. The doctor recommended surgery to repair the injuries and estimated that the surgery would cost $85,000. Mr. Brown also saw a doctor at the request of Silver’s Casino and received a much lower medical cost estimate. Silver’s doctor suggested that Mr. Brown did not need surgery and instead only needed an injection for pain that would cost $1,000.

accounting-black-budget-53621-1024x603If you and the opposing party in your lawsuit reach a settlement agreement, it might seem like your legal battle is over. However, trouble can arise if the other party does not do what they promised to do. This is the situation Cheri Gardner found herself in following a car wreck and the resulting settlement with State Farm.  

In July 2009, Gardner was involved in a car wreck. Just under a year later, she filed a lawsuit against State Farm, Lisa Haefner, and AllState Insurance for her injuries. Gardner had to have spinal cord surgery and amassed medical bills exceeding $70,000. 

In May 2011, Gardner and State Farm underwent mediation and entered a “10-Day Option to Settle” contract that State Farm’s attorney drafted and provided to Gardner. The settlement stated that any liens for medical expenses that State Farm would agree to pay as part of the settlement had to be presented before July 13, 2013. After the parties signed the settlement agreement, Gardner’s attorney provided State Farm with a letter for a medical lien from BlueCross BlueShield of Louisiana from May 28, 2010 for a lien of $7,143.10. 

blond-hair-desk-employee-1181534-1024x684Employment discrimination can take many forms. One common form is gender discrimination. However, an employer may be able to avoid liability if they can provide legitimate and nondiscriminatory reasons why they decided to hire someone else that are not based on the candidate’s gender.

Tensas Parish School Board (“TPSB”) needed a head football coach and athletic director for Tensas High School, so they posted a job advertisement in March 2011. Due to budgetary constraints, TPSB requires that all coaches also teach. Sue Ann Easterling, who had prior experience coaching high school basketball, softball, gymnastics, volleyball, and track and field, applied for the job. Including Easterling, a total of seven people applied for the job. Easterling called the superintendent, Carol Johnson, after submitting her application in order to express her interest in the job. During the call, Easterling and Johnson discussed how Easterling had no experience as a football coach or as an athletic director, although she was a certified teacher. Easterling was not one of the three applicants contacted for follow-up interviews. 

The first man to whom Johnson offered the position turned down the job at the last minute. The next man, Rex McCarthy, who was offered and accepted the job was already the interim head football coach at the high school. When Easterling learned she had not received the job, she requested that she be considered for any job openings the following year. McCarthy resigned from the position the following year. Easterling still was not hired for the position.

auditorium-benches-chairs-207691-1024x731Generally, terminating an employee on the basis of race is a violation of the Louisiana Employment Discrimination Law, which is similar to Title VII of the Civil Rights Act of 1964. La. R.S.23:301; 42 U.S.C.A. § 2000. Generally, to establish a case of racial discrimination under the Louisiana Employment Discrimination Law, the plaintiff must show that: (1) she belongs to a protected group; (2) she had appropriate qualification for the position; (3) she suffered an adverse employment action; and (4) she was replaced by someone not in her protected group. Mbarika v. Board of Sup’rs of Louisiana State University, 992 So.2d 551, 562 (La. Ct. App. 2008).

In this case, three employees of Education Management, Inc. d/b/a Blue Cliff College (“Blue Cliff”) filed a lawsuit alleging that they were fired due to being Caucasian. On November 7, 2008, a customer at Blue Cliff’s cosmetology school’s beauty salon made a comment regarding recently elected President Barack Obama, which caused a disruption in the salon. Two Blue Cliff employees, Nedina Chaisson (“Chaisson”) and Melissa Shapcotte (“Shapcotte”), were working with the students in the salon when the incident occurred. Joe Rogalski (“Rogalski”) subsequently expelled four African American students who were involved in the November 7th incident. Shortly after the four students were expelled, they were reinstated by Blue Cliff, and Chaisson, Shapcotte and Rogalski were discharged for “inappropriate professional behavior” and mishandling the November 7th incident.

In the lawsuit, the trial court granted summary judgment in favor of Blue Cliff, dismissing all of the plaintiffs’ claims with prejudice. The plaintiffs appealed, arguing that the trial court erred in admitting the affidavit of Reginald L. Moore, the president and CEO of Blue Cliff. The plaintiffs claimed that this affidavit was improper, as it contained 12 unverified, unsworn witness statements. Generally, an affidavit may be challenged via a motion to strike.

24A 2016 case demonstrated the importance of making sure our universities remain safe and secure. While one would like to think our schools would be free from the dangers of larger society, Tulane learned the necessity of vigilance.

While a student at Tulane University, the Plaintiff, Stephanie Boyd, shared a dorm suite with shared bathroom. One of her suitemates guests, Defendant Andrew Cebalo, took advantage of the shared bathroom to sneak into Stephanie’s bedroom at night and molest her.

In the initial trial, Ms. Boyd alleged Tulane University was negligent for failing to properly secure the premises, provide safe housing, and comply with industry standards regarding door locks and security. In response, Tulane filed an exception of no cause of action. Boyd filed an opposition to the exception of no cause of action, and an amended and supplemental petition alleging a failure to implement measures protecting students from foreseeable criminal harm. The trial court sided with Tulane, and dismissed the case with prejudice (meaning the lawsuit could not be filed again in the future).

14-1024x682Often times during a lawsuit, cases involve a classic “battle of experts,” where each side presents an expert with an opinion which differs from their respective opponent’s side. The recent Jefferson Davis Parish case involved this exact situation.

Hayes Fund for the First United Methodist Church of Welsh, L.L.C. and other groups brought a lawsuit against a group of defendants including Kerr-McGee Rocky Mountain, LLC, alleging monetary losses which resulted from defendants’ mismanagement of two oil and gas wells in which the plaintiffs’ had royalty interests. Nevertheless, when it reached the Louisiana Supreme Court, it was mainly about the standards of appellate review.

The wells in question were both located in Jefferson Davis Parish. Plaintiffs alleged that defendants, when drilling the wells, did not follow the customary and industry-wide accepted protocols. For example, one of the well’s drill pipe was stuck, and later abandoned. Because of the remaining drill pipe, the hole could not properly be cemented, resulting in extraneous water to enter the reservoir and damage it, and causing loss of production and royalties for the plaintiffs. In another of the wells, the use of triple permanent packer caused the well to be “sanded up,” and resulted in the loss of lower zones. Overall, the alleged royalty loss of plaintiffs from both wells was $13.4 million.

21-card-game-black-jack-blackjack-1871508-1024x644In order to successfully handle a lawsuit addressing the duty a business has to its patrons, an injured party should know that under Louisiana’s duty-risk analysis the main questions are: (1) whether a duty was owed; (2) whether that duty was breached; and (3) whether the breach caused the patron’s harm. Additionally, for a lawsuit in which the premises of the building are alleged to be dangerous, the plaintiff must prove that the building defect in question was “unreasonably dangerous.” Broussard v. State ex. Rel Office of State Buildings, 113 So.3d 175 (La. 2013).

A skilled attorney, and a successful injured party, will also be aware of how to win a motion for summary judgment (or survive the other party’s request for summary judgment). A motion for summary judgment is granted when there is no genuine issue as to material fact and a judgment as a matter of law is appropriate. La. C.C.P. art. 966. This essentially means that the dispute does not hinge on determining whether facts are true or false, but instead hinges on whether elements of the law have been met using the facts that both parties agree to be true.

On February 12, 2015, Lee Edmison fell down an escalator at Harrah’s New Orleans Casino and sustained severe injuries. Mr. Edmison’s blood alcohol content was 0.244 at the time of injury, three times Louisiana’s legal limit for driving. Mr. Edmison brought a lawsuit against Caesars Entertainment, the owner of Harrah’s, and Schindler, the manufacturer and servicer of the escalator.