Articles Posted in Litigation

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craftsmen_building_scaffold_19584-1024x679The evolving nature of employment now means the relationship between employer and employee can be indirect and through different contracting methods. In addition, many people employed by one company are, in fact, on the job doing work for another. A recent case in Louisiana highlights these distinctions and the risks posed to workers and their families when seeking compensation.

While working in 2013, Michael J. Louque Jr. was crushed to death by a piece of heavy machinery that rolled off the truck it was being loaded onto. Mr. Louque was employed by River Parish Maintenance (RPM) but was working at the Motiva Enterprises, LLC (“Motiva”) manufacturing complex. Upon his death, the family of Mr. Louque filed a lawsuit against Motiva and others, seeking compensation for his wrongful death. 

The contract that brought Mr. Louque to the Motiva manufacturing complex was actually between RPM and Shell Oil Products US (“Shell”). This point is crucial in understanding the state of the Louque’s litigation, as Louisiana law prohibits employees from directly suing their employers in a tort claim rather than pursuing worker’s compensation benefits. See Deshotel v. Guichard Operating Company, Inc.

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boat_baltimore_fire_boat-1024x647Juries are one of the most important foundations in our legal system. Their role is to determine the truth behind the sometimes confusing legal language and provide justice. Juries rely on the information given to them by lawyers in the form of Jury Questions. However, when an alleged ambiguous term appears in the questionnaire, the court must determine if that specific word tainted the jury’s verdict. 

Richard Bosarge filed a lawsuit against his employer Cheramie Marine to recover damages from injuries sustained on a voyage when using one of Cherami Marine’s utility vessels. Borsarge had applied to work at Cheramie Marine, and as part of the pre-employment physical, he was asked if he had any prior back pain or injury. Borsarge told Marine he did not, concealing that he had back pain, and sought medical care. While on board one of Marine’s vessels in July 2014, Bosarge claimed the captain encountered “high waves,” Bosarge was injured when the captain decided to go through them. 

At trial, Cheramie Marine brought evidence that the waves were not, in fact, “violent,” and Bosarge’s pain was not from falling but from being seasick. Marine also brought in a medical expert who testified Bosarge’s pre-injury MRI scan looked worse than the post-injury MRI scan. The jury concluded they did not think Bosarge suffered an accident on July 18, 2014, and he did conceal material medical facts during the pre-employment medical examination and interview process. The trial court agreed with the jury’s findings. 

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paragraph_attorney_judge_process-682x1024The jury process is considered the great equalizer when it comes to the everyday man fighting large corporations. Juries in Louisiana are made up of twelve people tasked with evaluating the evidence and legal arguments of the parties. While juries do, their best mistakes can be made and corrected by the Judge overseeing the case. So what happens if a jury leaves out critical items of a damage award? Can a Judge increase a jury’s award of damages? The following lawsuit out of Lake Charles helps answer this question. 

Dwight Minton was a passenger in a car when he was hit by another vehicle. As a result, he filed a lawsuit against Christopher Gutierrez, the driver of the other vehicle, and GEICO Casualty Company, among others. In addition, Minton sought damages for the injuries sustained in the accident. 

The jury returned a verdict in favor of Minton, awarding damages of fifty-eight thousand five hundred dollars. Believing this award was too low, Minton filed a motion for judgment notwithstanding the verdict (JNOV), asking the trial Judge to increase the award. The Judge granted this motion and awarded damages over five hundred thousand dollars. 

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roof_tile_roofs_house-1024x768If you are injured by someone in their course of employment, you can contact their employer for your compensation. But unfortunately, employers hire independent contractors to skirt around liability when their workers mess up. Below is a cautionary tale about how cascading levels of independent contractors left an injured plaintiff with limited sources for his injuries. 

Jarrett Lemmon was in an accident involving Jonathan De La Mora that resulted in damage and injury. Lemmon sued Jonathan for causing the accident. Later, Lemmon amended his suit to add Jonathan’s employer, Rosendo De La Mora, and RoofCorp USA, LLC, as responsible for the accident, claiming that Jonathan was working within the scope of his employment when he struck Lemmon. RoofCorp USA, LLC was the parent company that hired Rosendo De La Mora to install roofs as an independent contractor. Rosendo De La Mora then hired his son Jonathan to help install the roofs, separate from RoofCorp’s payroll. RoofCorp filed a motion for summary judgment at the district court level, claiming they could not be held responsible; it was granted.  Unhappy with the ruling, Lemmon appealed.

The First Circuit Court of Appeals was then tasked with deciding if the trial court properly awarded RoofCorp summary judgment. To do so, the appeals court must determine if Jonathan was an employee of Roofcorp at the time of the accident, and the court must decide if Jonathan was in the scope of his employment when the accident occurred. Lemmon claims that Jonathan was an employee of RoofCorp in the court of his employment when he hit Lemmon. 

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hospital_corridor_operating_room-1-1024x681Some mistakes can cost you your job. Rules and regulations are drafted and enacted in the medical field to ensure a safe work environment. Before breaking a rule to get your job done, consider the danger in which you could place yourself or your interests. The following lawsuit from Slidell shows how unemployment benefits can be taken away due to employee misconduct. 

Rita Jimenez was a supervisor of phlebotomy for the Slidell Memorial Hospital. Her boss tasked Jimenez to handle scheduling for her area. Jimenez created a schedule that included several employees that lacked the required CPR certification; their certifications had expired, or they needed more training. Jimenez was caught and warned about this scheduling. The problem is that Jimenez could not short-staff her area, but there needed to be more certified employees. She scheduled more uncertified workers; she was fired after her third scheduling error. 

Jimenez sought a judgment certifying her right to unemployment benefits. Her workplace administrative review board (Board of Review) found that she was rightly denied unemployment because she was fired for misconduct. Jimenez appealed that ruling to the district court, which affirmed the Board’s decision. Jimenez then appealed that district court decision to Louisiana’s First Circuit Court of Appeals. In the appeal, Jimenez argued even though she was responsible for scheduling employees, her boss was ultimately responsible for terminating employees who lacked the requisite certifications. Therefore Jimenez argued there was no misconduct in her actions.

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cellphone_camera_phone_mobile-1024x683Courts often hear contradicting testimony and must decide who to believe or who is more credible. For example, the following Calcasieu Parish case involves two individuals who were married at the time of the altercation but have since divorced and the importance of providing the most credible testimony.   

Although Mr. and Ms. Cooper agreed there was an altercation in their home, they disagreed with the subsequent facts of this case. Mr. Cooper alleged Ms. Cooper handed him her phone to show him a picture. He then alleged that Ms. Cooper angrily began demanding the return of her phone, and when Mr. Cooper refused, she battered his testicles. Mr. Cooper claimed he sustained permanent damage due to Ms. Cooper’s actions and subsequently filed a lawsuit seeking damages. 

Ms. Cooper, on the other hand, alleged that Mr. Cooper took her phone out of her hands with substantial force. She then alleged she pleaded for the return of her phone, but Mr. Cooper refused, and he then put her phone in his pocket. Ms. Cooper claimed she attempted to remove the phone from his pocket and may have unintentionally come into contact with his testicles and penis. However, she alleged she never intentionally grabbed or battered him. At trial, Ms. Cooper moved for an involuntary dismissal of Mr. Cooper’s claim. The 14th Judicial District Court for the Parish of Calcasieu granted Ms. Cooper’s motion and dismissed Mr. Cooper’s claim. This appeal to the Louisiana Third Circuit Court of Appeal follows. 

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parking_asphalt_parking_lot-1024x768In automobile accident cases, determining the drivers’ liability is often the core issue in determining damages. Unfortunately, who is at fault in a car accident in a parking lot can be tricky. The following lawsuit out of Lake Charles shows how courts weigh the evidence and come to conclusions in parking lot collisions. 

 The case stems from an automobile accident in a business parking lot. Johnnell Duncan alleged that she was traveling through an intersection and stopped at a “stop line” painted on the pavement another vehicle driven by Alexa Miller hit her.  

Duncan filed a lawsuit against Miller and her insurance company State Farm Mutual Automobile Insurance Company. The two parties offered contrary views of evidence in the trial court. Miller claimed she was not speeding while turning, while Duncan didn’t stop at the stop line. In addition, Duncan alleged that Miller was holding a cell phone at the time of the accident, which Miller denied. The trial court ruled in favor of Duncan. Miller and State Farm appealed the ruling to the Court of Appeal, Third Circuit.

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coins_currency_investment_insurance_0-1024x683One’s life is forever altered after an incapacitating injury. While the situation comes with enough issues, problems are enhanced when medical providers merge and change the disability benefits you have relied upon for a year. Unfortunately, this is precisely what happened to Michael Swinea after Humana Inc. bought Kanawha Insurance Company. 

Swinea required a total knee replacement after he was injured in March 2012. After this surgery, Swinea attempted to return to work. After working for about six months, Swinea’s physician instructed him to stop working again. Starting in April 2012, Swinea was given $2,700 per month in disability benefits through Kanawha. In November 2013, however, Humana bought Kanawha, and Swinea’s payments ceased. Humana informed Swinea that he would no longer be covered in a letter mailed to his home address.

After receiving the letter, Swinea contacted the appeals body specified in the letter. The Humana appeals body instructed Swinea to send any pertinent documents that he would like to be considered during the review. After complying, Swinea received a letter from a Humana Grievance and Appeals Specialist notifying him that his request for disability benefits was denied. 

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safety_medical_ocean_rescue-1024x683When subcontractors get injured at work, it can be confusing to determine who is liable for damages. This case shows a company’s failed attempt at using the “two contract defense” to dismiss claims in a slip and fall case. It also helps answer the question; What is a two-contract defense in Louisiana Lawsuits?

In 2013, Quiana Lorden worked for Southern Care Hospice (“SCH”). At the time of the underlying incident, she was assisting a hospice patient living at Merryville Rehabilitation (“Merryville”), a skilled nursing facility (SNF). While helping the patient out of the shower, she noticed a large amount of water had pooled on the floor and called a housekeeper to clean it. However, the housekeeper spread the water to other areas of the floor while attempting to clean, causing Lorden to slip and injure her knee. 

Lorden filed a lawsuit against Merryville, among other related parties, to recover damages. Merryville filed for summary judgment, arguing that they were exempt from tort claims because they were Lorden’s “statutory employer” under La.R.S. 23:1061. The court granted their motion and dismissed the claim. Lorden appealed, arguing that material issues of fact remained as to whether Merryville was her statutory employer. 

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car_accident_accident_dig-1024x775Have you ever been involved in a car accident? It’s a scary experience that can have serious consequences. If you’ve been injured in an accident, you may be entitled to compensation for your injuries and damages. But what happens when multiple parties are involved? That’s the question at the heart of a case out of Louisiana, where a car accident resulted in a lawsuit between multiple parties. The case raises important questions about the legal responsibility of parties in a car accident and the process for resolving disputes in court.

Shaw, a construction engineering company, allegedly had a labor agreement with HKA Power. The parties were bound by the Master Supplemental Labor Services Agreement (“Agreement”), which originally existed between HKA Power and Energy Delivery Services but was acquired by Shaw after the agreement was in place. According to Shaw, HKA Power was required to name Shaw/EDS as an additional named insured on their insurance policies once Shaw acquired EDS. The issue arose after a truck accident where Gregory Beasley, an HKA Power employee, was driving a truck owned by Shaw and rear-ended another truck driven by Justin Parker, injuring him and his passenger Gregory Gumpert.

Parker and Gumpert filed a lawsuit against Shaw, Zurich (Shaw’s alleged liability insurer), and Beasley. Zurich and Shaw then filed a third-party claim against HKA Power, alleging Beasley was an HKA Power employee and performed services for Shaw under the Agreement. HKA Enterprises, Inc. was later added as a third-party defendant, with Zurich and Shaw alleging HKA Enterprises was the parent company or successor entity to HKA Power and breached the labor agreement by not naming Shaw/EDS as an additional named insured.

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