Litigation

February 13, 2023

Caddo Parish Trial Court Required to Consider Factual Evidence to Appoint Only One Estate Executor

certificate_bavaria_notary_866100-1024x683 It is a sadly familiar scenario: a family suffers a loss and soon after devolves to fighting over the will. The family may never imagine turning against one another, yet it happens over and over. The Youngblood family from Caddo Parish recently found themselves in such a fight.

Frances Youngblood from Caddo Parish had her longtime family attorney draft a will dividing her estate amongst her three children: Ray, James, and Mary Anne. Frances named her son James as her sole executor, and Ray and James left their estates to one another. The family lawyer, Patricia Miramon, drafted each of these wills. Ms. Miramon also drafted an addition to James’ original will, naming herself his executor.

Frances passed in 2011, Ray in 2012, and James in 2016. Once Frances passed, James granted Ms. Miramon general power of attorney and broad powers to act on his behalf, including as executor of Frances’ estate.

February 12, 2023

Adequate Medical Evidence Required To Establish Causation Of Alleged Injuries

by Berniard Law Firm

ladder_sky_pig_iron-1024x684 Imagine an injury on a ladder, lawnmower, boat, or other manufactured product. The product might appear defective; however, is defectiveness sufficient to win a lawsuit against the manufacturer? Under Louisiana law, to prevail in a lawsuit alleging medical injuries from a defective product, a plaintiff must provide adequate medical evidence to support that the injuries likely resulted from the defective product. This is referred to as “medical causation.” Without establishing medical causation, you may not be able to recover for your injuries.

Craig Andrews was a river pilot. He injured his hip after climbing a ladder that he alleged was negligently rigged. After that, he and his wife sued Lomar Shipping, alleging that his injuries resulted from climbing their negligently rigged ladder.

The United States District Court for the Eastern District of Louisiana granted summary judgment under Fed. R. Civ. P. 56 in favor of Lomar Shipping. Summary judgment means that the court ruled in favor of a party (here, Lomar Shipping) before trial. The District Court explained that Mr. Andrews did not submit adequate medical evidence to support that climbing the ladder he alleged was negligently rigged caused his injuries. Therefore, summary judgment was warranted because there was no genuine issue for trial.

February 11, 2023

Fifth Circuit Court in Louisiana Affirms Dismissal of Asbestos Lawsuit Because Of Prior Settlement Agreement

by Berniard Law Firm

firefighters_equipment_portrait_756828-1024x819 The difficulty of losing a loved one is compounded when death results from a faulty product. Further anguish occurs when a lawsuit against the defective product manufacturer is dismissed, barring recovery. It is essential to be aware that there are many deadlines and requirements to comply with to avoid the dismissal of a lawsuit. This is the situation in which the Lemieux family found themselves following their loved one’s death.

Raymond J. Lemieux Sr. (“Raymond Sr.”) worked in Marrero, Louisiana, from 1956 to 1970. During this time, he was exposed to asbestos and wore a respirator designed by American Optical. Because of this exposure, he developed asbestos-related lung cancer, culminating in his death in 2015.

Before he died, Raymond Sr. sued American Optical based on his use of their respirator. Raymond Sr. entered into a settlement agreement dated February 10, 2011, with American Optical. As part of the settlement, Raymond Sr.’s wife and children had to sign a release of any potential future claims they might have had against American Optical. They individually initialed each page of the settlement agreement and a notarized statement. The agreement stated that the parties had executed it of their own free will after discussing the terms with an attorney.

February 10, 2023

Fifth Circuit Court Finds Succession Administrator Can Bring Civil Rights Action

by Berniard Law Firm

maracaibo_venezuela_building_old-1024x788 What would you do if you were heir to property and found out the City had issued a demolition order for that property? A recent case decided in New Orleans discusses that question. The City of New Orleans, Louisiana, brought administrative proceedings against property owners whose property was allegedly blighted. However, the situation became more complicated because the property owners were deceased.

Before the City of New Orleans (“the City”) held the hearing, it sent the property owners notice by certified mail. The notice stated that if the property owners did not appear for the hearing, their absence would be considered an admission of liability. Even though the U.S. Postal Service returned the notice as “Not Deliverable” and “Unable to Forward,” the City still proceeded with the hearing.

At the hearing, the City assessed significant fines for code violations and issued a demolition order for the property. After the hearing, the City sent the property owners a notice via certified mail stating the property owners had 30 days to correct the code violations or else the City would demolish the property. The U.S. Postal Service again returned the notice as “Not Deliverable.”

February 7, 2023

Insurance Company Gets Off the Hook In Auto Accident Case Because Driver Never Actually Insured

by Berniard Law Firm

crash_test_collision_60-1024x645 One of the first things that occur after a car accident is the parties exchange insurance information. But, unfortunately, just because someone has an insurance card doesn’t always mean they are covered for the wreck they caused. A driver in Metairie learned that lesson the hard way, as shown by the case below.

In 2012 in the Parish of Jefferson, Miriam Blandino was driving her partner’s car with their children inside when she was rear-ended at a stop sign. She and her partner subsequently sued the driver (from now on “Ms. Doe”) and the driver’s insurance (from now on “USAgencies”) for damages. However, USAgencies was let out of the lawsuit because Ms. Doe never actually obtained insurance through them.

Earlier that year, in February, Ms. Doe had signed up for an automobile insurance plan covering her from February through August, but her initial payment was declined. USAgencies notified her of this failure to pay and allowed her to reinstate her policy: she would need to provide the proper amount and a fifteen-dollar fee within ten days of the notice. Unfortunately, USAgencies never received payment from Ms. Doe, and thus her policy never became effective, so she was never covered.

February 5, 2023

Only Four Out of Five Expert Witness Fees Awarded to Prevailing Plaintiff

by Berniard Law Firm

litigation expert fees louisiana Litigation can be lengthy and costly, especially when expert witnesses get involved. The good news is that a prevailing party can be awarded many of these costs at the trial court’s discretion. The bad news? Not every fee may be granted, as Carlo Conforto learned in a case he brought to the Twenty-Fourth Judicial District Court in Jefferson Parish.

On March 18, 2011, appellant Conforto was injured in a car accident. After that, he filed for damages against appellees Dylan Toscano, United Services Automobile Association and Allstate Insurance Company. The District Court held in favor of Conforto with a judgment of $145,708.36.

Five expert witnesses were used at the trial, and Conforto wanted to know how their fees would be handled. The District Court decided expert witness fees would be determined after the trial with a rule to tax costs—a motion to determine the number of expert witness fees to be paid by the party cast in judgment. On August 9, 2016, Conforto filed a rule to tax costs, and on September 22, 2016, the motion was granted. However, only four expert witness fees were awarded, so Conforto appealed to the Fifth Circuit Court of Appeals of Louisiana.

February 4, 2023

Late Filing Bars Medical Malpractice Claim Against Tulane-Lakeside Hospital

by Berniard Law Firm

late filed medical malpractice claim louisiana Deadlines matter in all areas of life, but in the legal world, they can determine whether a lawsuit will move forward or even get started. In Louisiana, a prescriptive period is a window of time for legal action to be brought and enforced. Depending on the kind of claim, the prescriptive period may be longer or shorter than you think.

On April 29, 2011, Hector Alonso was scheduled for cataract surgery at Tulane-Lakeside Hospital. During the surgery, Alonso claimed to have awoken from anesthesia. In extreme pain, he wanted to have the surgery stopped but claimed that instead, the medical staff fought him—causing him to dislodge and swallow a tooth—held him down, put tape over his mouth, and continued to operate.

On July 14, 2016, Alonso filed a request for medical review with the Louisiana Patient’s Compensation Fund (LPCF). He named his surgeon, two nurses, the certified registered nurse anesthetist (CRNA), and University Healthcare System L.C. defendants. He alleged that they committed medical malpractice by failing to properly treat him, using improper procedures and inadequate safety measures, restricting his freedom, and committing assault and battery. He had previously filed a complaint for malpractice with LPCF in 2012 and a petition for damages in District Court but only named University Healthcare System L.C. and Dr. Ebrahim as defendants. LPCF dismissed found no breach of the standard of care in 2014, and on January 21, 2016, the District Court dismissed Alonso’s case.

February 2, 2023

New Orleans Court of Appeal Determines Obligation of Insurance Company Does Not Increase From Providing Coverage to Both Parties

by Berniard Law Firm

reserved_sign_wedding_decorations-1024x683 Car accidents can be a problematic scenario for the parties involved emotionally and financially. This situation can become even more complicated when the insurance company provides coverage to both parties involved in the accident, and the injured party files a lawsuit against the insurance company, arguing that the injured party is a first-party claimant. The Fourth Circuit Court of Appeals for Louisiana recently addressed the issue.

In August 2009, Mr. Sapp drove a vehicle down Prytania Street in New Orleans, Louisiana. Unfortunately, Mr. Sapp collided with the car driven by Mr. Lee. After the accident, Mr. Lee filed a lawsuit in the Orleans Parish of Louisiana against Mr. Sapp and State Farm Insurance Company. In the case, Mr. Lee alleged that the accident resulted in personal injuries. All the parties reached a settlement agreement seven years after the accident occurred.

The settlement agreement covered all claims from the accident in 2009, except for the exception of “Reserved Claims.” The agreement between the parties provided that “Reserved Claims” meant all claims of bad faith by Mr. Lee against State Farm Mutual Automobile Insurance Company. One month after the settlement agreement was entered, State Farm filed an exception. In this exception, State Farm sought to dismiss all reserved claims except one. This one was for Mr. Lee’s misrepresentation claim, pursuant to La. R.S. 22:1973(B)(1). The Trial Court ruled in favor of State Farm, sustaining the exception and dismissing all of Mr. Lee’s bad faith claims except for misrepresentation. Mr. Lee then appealed the decision of the Trial Court.

January 31, 2023

Louisiana Court Finds Medical Malpractice Allegations Broad Enough to Proceed

by Berniard Law Firm

Louisiana medical malpratice Medical procedures are never an enjoyable process. However, the process becomes even more miserable when recuperation is delayed because of infections. Darrin Coulon found himself in this situation after receiving shoulder surgery in 2011 from Dr. Mark Juneau at the West Bank Surgery Center. His recovery became even more difficult as he navigated the complex procedural requirements of filing a medical malpractice claim.

After receiving shoulder surgery, an infection required Coulon to undergo numerous additional surgeries and treatments. As a result, Coulon and his wife filed a Request for Medical Review Panel, alleging medical malpractice. Specifically, Coulon alleged that (1) the Surgery Center failed to develop, maintain, and enforce appropriate policies to prevent infections and (2) the Surgery Center was liable under a theory of respondeat superior for its employees’ actions. The Medical Review Panel found no evidence that the Surgery Center or doctor failed to meet the required standard of care or did not maintain appropriate policies and procedures to prevent infections.

Coulon and his wife subsequently filed a lawsuit for damages against the Surgery Center. In addition to the claims previously raised for the Medical Review Panel, they added that the Surgery Center failed to supervise and train the nurses who treated Coulon. The Surgery Center responded by filing a partial exception of prematurity, claiming that the claims that they failed to train and supervise the nurses were premature because Coulon and his wife did not previously raise those claims in the Medical Review Panel complaint. Coulon and his wife argued that the language in the prior complaint was sufficiently broad to include the additional claims in their subsequent lawsuit for damages.

January 30, 2023

If You Give a Horse a Carrot – When are Visitors Covered by the Equine Immunity Statute?

by Berniard Law Firm

Horse bite lawsuit Feeding a horse a treat can seem all fun and games until the horse bites you. This is a lesson Danielle Larson, a visitor to Equest Farm in City Park in New Orleans, learned the hard way in 2013 when a horse bit her while she was feeding it a carrot.

Larson was from Illinois but came to New Orleans often to visit her boyfriend. She had ridden horses since childhood and had been previously shown the correct way to feed a horse. Larson had been visiting Equest Farm for a few years before the horse bit her in September 2013. Larson went to see the school horses on the day of the incident. On her way there, two riders told her to be careful because, at the school, ponies had purportedly bitten a child. While Larson was feeding a horse a carrot, the horse knocked the carrot from her hand, and then the horse bit off her thumb as she reached for the dropped carrot. As a result, Larson required extensive medical care and will likely have to use a prosthetic thumb or transfer a toe to her hand.

There was some dispute about whether there was a sign posted warning people not to feed the horses. The horse at issue overall had a good reputation but had previously bitten a child who had held the horse’s ears while riding him.