Litigation

November 2, 2019

Classification of Offshore Drilling Platform as “Immovable Property” Under Louisiana Law Results in Dismissal of Worker’s Personal Injury Lawsuit

image-for-post-69-from-email-5-14-19-1024x384 Offshore drilling platforms enable petroleum companies to access oil deposits beneath the ocean floor. Although these platforms are anchored to the sea floor, they are technically movable and can be relocated. Whether a platform is considered “immovable property” under Louisiana law became a central issue in a case involving an injured worker because different prescription periods apply to personal injury claims depending on the nature of the property at which the injury occurred.

In 2002, McDermott, Inc. designed and delivered the Front Runner Spar, an offshore facility used for removing and processing petroleum from the seabed of the Gulf of Mexico, to Murphy Exploration & Production Company. Murphy affixed the platform to the sea floor at the edge of the continental shelf offshore from Louisiana. James Hefren was hired by Murphy as the lead operator. In June, 2011, Hefren was injured when he was struck in the face by the flange of a valve. He filed a lawsuit suit against Murphy for negligence under the Jones Act, as well as specifically alleging that McDermott failed to properly design and construct the facility. The U.S. District Court for the Western District of Louisiana entered summary judgment for Murphy, dismissing Hefren’s tort claims as barred by the exclusive remedy provision of the Longshore & Harbor Workers’ Compensation Act.

McDermott filed a motion for summary judgment arguing that Hefren’s claims were barred by Louisiana’s rule that actions arising out of deficiencies in construction or design must be brought within five years after the date the property was accepted by the owner. See La. R.S. 9:2772. Holding that the Front Runner Spar was an “immovable object” under Louisiana law, and considering that nine years had passed between Murphy’s acceptance of the facility and the date Hefren’s lawsuit was filed, the district court dismissed the claim against McDermott.

October 31, 2019

Favorable Interpretation of Filing Deadline by Appellate Court Saves Monroe Medical Malpractice Petitioner from Summary Judgment

by Berniard Law Firm

adult-ambulance-care-263210-1024x802 Often, in litigation – as in life generally – timing is everything. Courts and legislatures set certain time periods for each step in a legal proceeding to establish fairness and to impose reasonable order on the disposition of the case. Occasionally, these deadlines can be ambiguous or open to various interpretations. Louisiana’s Second Circuit Court of Appeal considered such a situation in a medical malpractice case.

In 2011, Francis Grayson was admitted as a patient at Northeast Louisiana Kidney Specialists in Monroe, Louisiana. After contracting an infection from a catheter used for his treatment, he underwent surgery that left him a quadriplegic. A medical review panel requested by Grayson found that his doctors and the medical facility adequately met the standard of care in his kidney treatments and surgery. In February 2015, Grayson initiated a lawsuit for medical malpractice against his physicians and the facility. The following month, the defendants filed a motion for summary judgment on the basis of the medical board’s decision. A hearing was set for August 17. On August 7, ten days prior to the scheduled hearing, Grayson served the defendants with a memorandum opposing summary judgment. The memorandum was accompanied by an affidavit from a medical expert who would testify on Grayson’s behalf about the medical errors that led to his initial infection. Grayson filed the motion with the court on August 10, seven days prior to the scheduled hearing. The defendants then argued that Grayson’s opposition memorandum and affidavit were invalid because they were filed with the court less than eight days before the hearing, as required by the district court rules. The trial court eventually granted the summary judgment in favor of the defendants and dismissed Grayson’s claims.

In 2015, when Grayson’s original petition was filed, Louisiana district court rules required that memoranda opposing summary judgment must be served on the opposing parties at least eight days prior to the hearing. La. Dist. Ct. R 9.9. The defendants, citing a number of cases, argued that the courts had routinely interpreted that the memoranda must also be filed with the court within that same eight-day period. However the Second Circuit noted that in each of the cases relied on by the defendants, the documents in opposition to summary judgment was either filed within an extremely short time—one even being minutes before the hearing—or had some other defect. The Second Circuit focused on the fact that Grayson had properly served the defendants with the memorandum and affidavit within the required time; that the motion was not filed with the court until some days later was not controlling. Therefore, the Court reversed the trial court’s granting of summary judgment in favor of the defendants and remanded the case for further proceedings.

October 28, 2019

Master-Servant Relationship Involving Multiple Employers Scrutinized After Laplace, Louisiana Accident

by Berniard Law Firm

action-business-cargo-2449454-1024x683 Christmas is usually a busy time for families, especially those traveling to visit loved ones. For many businesses it is also a time for increased sales and higher profits. For this reason, it is common for companies to set strict targets and deadlines for employees to meet in order to capitalize on the opportunity. Such deadlines, however, can be dangerous if they push employees beyond their capacities for safety.

On the night of December 25, 2008, Tammy Westbrook, an employee of Western Star Transportation, was driving a truck carrying plants belonging to Nurserymen, Inc. on Interstate 10 near Laplace, Louisiana. Westbrook collided with a GMC Yukon, the impact of which caused the GMC to strike the rear of a Lincoln sedan. The occupants of the vehicles suffered major injuries and a fatality. At the time of the accident, Westbrook had been driving for 33 the prior 36 hours.

The victims of the accident filed a lawsuit for personal injuries and wrongful death against Westbrook, Westerm Star, and Nurserymen. After the jury concluded that Westbrook was not within the scope of a master-servant relationship with Nurserymen at the time of the accident, the trial court entered judgment in favor of the plaintiffs and awarded damages against Westbrook and Western Star. The plaintiffs appealed the judgment to Louisiana’s Fourth Circuit Court of Appeals.

October 26, 2019

Summary Judgment Granted in Favor of Defendants for Accident on Gause Boulevard

by Berniard Law Firm

blur-car-drive-451590-1024x665 Have you ever been in an accident where you were found at fault, but you know in your heart it wasn’t your fault? In this case, the trial court granted summary judgment in favor of the defendants because the plaintiffs failed to provide evidence that the driver of the car, in which they were passengers, was not at fault for the accident. The issue addressed by the Louisiana Court of Appeal in this case was the appropriate time for summary judgment.

A motion for summary judgment may only be granted when there is no genuine issue of material fact, and it is used to avoid the cost of a full-scale trial. Johnson v. Evan Hall Sugar Co-op, Inc, 836 So.2d 484 (La. Ct. App. 2002). Moreover, a motion for summary judgment is properly granted only when the pleadings, depositions, answers to interrogatories, and admissions on file, show that there is no genuine issue of material fact and that the mover (i.e., the party moving for summary judgment) is entitled to judgment as a matter of law. La. C.C.P. art. 966(B)(2).

In this case, Lachona Charles, Tranika Charles, and Qu’Von Charles (collectively “the Charles”) were passengers in Latrica Robinson’s (“Ms. Robinson”) car, when she entered the center lane of traffic through a gap between cars, colliding with John Guidry (“Mr. Guidry”). Mr. Guidry was making a delivery for Cintas Corporation (“Cintas”). The police were called, and Ms. Robinson was found to be at fault for failing to yield, although she was not issued a citation. See La. R.S. 32:123. The Charles family filed a lawsuit against Cintas for personal injuries sustained during the accident. Cintas moved for summary judgment providing that Ms. Robinson was at fault, regardless of whose version of events was accepted, because she failed to yield when entering the center lane. In support of its motion for summary judgment, Cintas submitted the deposition of the on-scene officer, excerpts from Mr. Guidry’s and Ms. Robinson’s depositions, and an aerial image of the intersection where the accident occurred. In response to the Cintas motion for summary judgment, the Charles family faxed their opposition memorandum, using essentially the same evidence Cintas used in their motion.

October 23, 2019

Bogalusa Police’s Partial Summary Judgment Request Denied For Lack of Appellate Jurisdiction

by Berniard Law Firm

adult-city-democracy-2422395-1024x679 Parties are entitled to immediately appeal during litigation as long as a decision has been properly designated as the final judgment. However, the Louisiana First Circuit of Appeal (“the Court“) also has a policy against multiple appeals and piecemeal litigation. So, how does a system balance the right of parties to immediately appeal while considering the workload of the court? The following case discusses this issue regarding the appellate jurisdiction (the legal authority of a court to decide on a particular case).

The claimant, Timothy Stewart (“Stewart”) was injured in the course and scope of his employment of the Bogalusa Police Department on July 9, 2013. The City of Bogalusa paid Stewart workers’ compensation medical and temporary total disability benefits. On March 17, 2015, Stewart filed a lawsuit seeking compensation for permanent total disability, as well as statutory penalties and attorney’s fees for the late payment of temporary total disability benefits. The City of Bogalusa timely denied Stewart’s claims and filed a motion for partial summary judgment regarding the permanent disability issue. The workers’ compensation judge (“WCJ”) granted this motion and dismissed Stewart’s claim for permanent total disability on August 4, 2015. Stewart then filed a motion for devolutive appeal (in which the appellate courts can determine on some issues while the trial court continues on separate issues) and requested that the August 4, 2015 judgment be made final and appealable pursuant to La. C.C.P. art. 1915(B). On September 4, 2015, the WCJ granted Stewart’s request and designated the August 4, 2015 judgment as final and appealable.

The court has a duty to decide whether the court has appellate jurisdiction to review the partial summary judgment, because the designation of WCJ is not determinative of the court’s jurisdiction. Stewart argues that the appellate process should not be delayed. The Appellate Court found that the WCJ did not provide a reason as to the determination of a final judgment, so it must re-evaluate the designation before hearing an appeal. The Appellate Court should consider two factors: (1) the goal of the Workers’ Compensation Act as achieving speedy resolution of injured workers’ claims, and (2) allowing piecemeal appeal causes delay and inefficiency. Marquez v. Jack Ussery Construction, 965 So. 2d 400 (La. Ct. App. 2007). The immediate appeal is justified if it can speed up the adjudicative process. Partial judgment should not prolong and complicate the process.

October 21, 2019

Monroe Couple Fails to Win Additional Award After Judgment in Their Favor

by Berniard Law Firm

beauty-body-hands-56884-1024x683 An automobile accident is not a lottery ticket. It is not an opportunity to take a negligent party to court and “sue their pants off” in an effort to win a hefty money judgment sufficient to pay for a bed-and-breakfast getaway in Natchitoches. But it should not leave the plaintiff in the lurch, either, without enough money to even cover medical bills. And sometimes, when you strive for one, you end up missing out on the other. One Louisiana couple learned the limits of revenue-generating potential for automobile accidents the hard way.

Eureka Ellis was driving up the onramp to the I-20 in East Monroe when she was sideswiped by Gregory Brown’s vehicle. Ellis also had her three children in the car with her. Brown apparently merged into Ellis’ lane prematurely. Brown did not deny he was at fault, but he asserted that the impact was minimal, reportedly asking after the collision if they even needed to call the police. The resultant “tap” of Brown’s vehicle left a few scratches on the driver’s side quarter panel of Ellis’ Charger; whether or not there was even a dent was a matter of dispute. When police arrived at the scene, none of the parties reported injuries, and no ticket was issued.

Despite the mild nature of the collision, 12 days later, Ellis and her children all went to see a chiropractor. This chiropractor, Dr. Holt, diagnosed them with neck and back pain. Over the course of the next three months, Dr. Holt saw Ms. Ellis and her three children twice a week, over 20 times each, billing them in excess of $15,000. The Ellises then filed a lawsuit against Brown and his insurer for general damages, special damages arising from the chiropractor visits, loss of consortium, and lost wages. Though the Trial Court denied a few of the claims, it determined that some damages were in order, and awarded the Ellis family a grand total of $7,692.50. This figure was far below their total claim requested and barely half of what they owed the chiropractor.

October 17, 2019

Prior Attorney Unable to Receive Portion of Settlement Check

by Berniard Law Firm

balance-commerce-composition-261658-1024x768 Trials are an economic drain on society. Though they serve an important role in our society, they are costly and time-consuming. As a result, courts cannot take every case to trial, and the judicial system must be selective. Thus, sometimes a court makes a judgment without a trial because there would be no purpose for a trial. These judgments are called summary judgments. Below is a case in which the Trial Court granted summary judgment because one of the parties did not even have a valid legal claim.

In 2002, Kimberly Moe incurred injuries from a car accident in the Orleans Parish of Louisiana. She hired Allen Borne, Jr. to be her attorney. After four months, however, Ms. Moe decided to hire a different attorney, Darryl Carimi. Mr. Carimi filed a personal injury lawsuit against the driver at fault, Frank Bastian, and his insurer, Allstate. But Mr. Borne, despite no longer being Ms. Moe’s lawyer, asked Allstate to put his name on any settlement checks that were to be issued. While the litigation was ongoing, Ms. Moe died. Upon her death, her surviving spouse filed a wrongful death claim, but eventually settled with Mr. Bastian and Allstate. The settlement check did not have Mr. Borne’s name. In fact, though Mr. Borne had filed a claim against Allstate in order to receive some portion of the settlement, Allstate filed a motion for summary judgment. The Trial Court granted Allstate’s motion.

For an appellate court to consider whether a trial court properly granted a motion for summary judgment, the court must determine whether there is any genuine issue of material fact and whether the movant is entitled to judgment as a matter of law. Citron v. Gentilly Carnival Club, Inc., 165 So.3d 304, 313 (La. Ct. App. 2015); La. C.C.P. art. 966 A(3). A party wishing to defeat a motion for summary judgment must show that there are sufficient facts the party can show at trial to support its claim. La. C.C.P. art. 966 C(2).

October 16, 2019

Appellate Court Affirms Second Motion for Summary Judgment After Rejecting the First

by Berniard Law Firm

hospital-bc-laboratory-form-with-syringe-1-1315580-1024x768 Trial courts can make mistakes. Some mistakes are permanent, so a redo is impossible. In other cases, the mistakes can be reversed on appeal by an appellate court. When an appellate court reverses a trial court’s decision, the trial court could have to revisit the entire case and put things in correct legal standing between the parties.

Gordon Serou, Sr. resided at the Specialty Hospital of New Orleans, Inc. (“SHONO”), which is a long-term care facility located in the Touro Infirmary (“Touro”). He suffered from Parkinson’s disease and a number of other illnesses. Unfortunately, he was also a patient at SHONO when Hurricane Katrina struck New Orleans in 2005. Two days after Hurricane Katrina struck New Orleans, Mr. Serou passed away due to a generator failure. Upon his death, Mr. Serou’s family members sued Touro, SHONO, and the manufacturer of the faulty generator, Aggreko. Touro then sued Aggreko to recover any damages that the court found Touro liable for in relation to the faulty generator. Aggreko filed a motion for summary judgment, claiming the company was not at fault for the generator failure. Though the Trial Court granted this motion, the Appellate Court reversed and sent the case back to the Trial Court. Aggreko filed another motion for summary judgment, again claiming that the company was not at fault for the generator failure. The Trial Court again granted Aggreko’s motion. Touro argued that this was inappropriate because Aggreko had submitted the motion without any alterations and the Appellate Court had already overturned the granting of this same motion.

A party whose summary judgment motion gets denied at the appellate level may be able to file the motion again. Zeno v. Colonial Mortgage & Loan Corp., 4 So.3d 93, 100 (La. Ct. App. 2008). In fact, a trial court may grant the motion even if the party does not submit new evidence. Paragon Lofts Condo. Owners Ass’n, Inc. v. Paragon Lofts, L.L.C., 32 So.3d 303, 306 (La. Ct. App. 2010). This is because a party files an initial summary judgment motion before the actual trial. Therefore, if an appellate court decides to reject an initial summary judgment motion, it is not making a final judgment on the case. Because the appellate court does not make a final judgment, the party can file a second motion for summary judgment. Hargett v. Progressive Ins. Co., 996 So.2d 1199, 1202 (La. Ct. App. 2008).

October 15, 2019

Don’t Hesitate: Lawsuit Dismissed After Six Years For Failure to Prove Defendant Jointly Liable

by Berniard Law Firm

Navigating a lawsuit is a difficult task. Not only do you have to prove the merits of the case, but you also have to navigate the judicial system’s complex procedural requirements. Even if your case seems likely to succeed on the merits, failure to comply with procedural requirements can leave you without recourse.

On March 22, 2001, the Meladines’ boat struck an unknown object submerged at Lake Hermitage while they were fishing in the early morning. In 2002, the Meladines sued six companies in a lawsuit for personal injuries. In the lawsuit, the Meladines alleged that the companies were the owners and/or operators of oil and gas platforms and pipelines located in the Lake Hermitage area. The Meladines alleged that their boat collided with what seemed to be an unmarked, old gas pipeline. They alleged that the defendants had failed to adequately mark or maintain the pipeline or warn of its potential harm. All six of the defendants denied having any ownership interest or control of the object that struck the plaintiffs’ boat.

Over the next three years, the plaintiffs dismissed the claims they had brought against all the defendants except Stone Energy and Chevron USA. In 2007, the plaintiffs added Jefferson Lake and Plaquemines Parish Government (“PPG”) as defendants. A year later, Jefferson Lake filed an exception of prescription because it had not been renamed as a defendant until over six years since the accident. Jefferson Lake also argued that prescription was inappropriate because there was no solidary liability between Jefferson Lake and any original defendants. The case then proceeded to trial.

October 13, 2019

Hard Rock Hotel Partially Collapses in New Orleans

by Berniard Law Firm

advertisement-architecture-big-2380891-683x1024 Around 9am on Saturday, October 12 the Hard Rock Hotel partially collapsed over Canal Street in New Orleans after the top six to eight floors buckled onto the structure. According to New Orleans Fire Department Superintendent Tim McConnel, the remaining structure of the building remains unstable and could possibly collapse entirely. In response, nearby buildings have been evacuated as the two construction cranes are also unstable. Currently, one person has been reported dead, eighteen have been taking to the hospital in unspecified conditions, and two workers are still reported missing. In terms of the next steps to be taken, it is unknown just how long it will take crews to clean up the piles of debris and get the project back on schedule. This is particularly stressful for the city of New Orleans considering the site of the collapse is a major transportation hub for the city – consisting of bus and streetcar lines in addition to the major traffic arteries of the city. An accident such as the Hard Rock Hotel accident will impact much more upon closer inspection spanning to issues such a personal injury, workers compensation, wrongful death, and much more. Considering the complex litigation that can arise out of an incident such as this one it is important to have a good attorney at the ready.

Personal injury lawsuits can arise out of many different circumstances – car accidents, slip and falls, and even injuries on the job. When filing a personal injury case it is incredibly important to have a knowledgeable attorney because filing a personal injury claim too late or even waiting too long to collect damages can result in having your personal injury claim denied. It is important to be persistent in personal injury cases and staying on top of filing deadlines and dates and having a diligent advocate can makes a difference in your case.

Workers compensation is intended to pay for the medical expenses of injured workers and provide a remedy for lost wages. However, workers compensation claims are often complex from start to finish. There are cases in which it can be difficult to determine if someone is considered an ‘employee’ despite being injured while working on a project. This is especially prevalent if a contractor hires subcontractors in order to complete a project. Moreover, it can also be difficult to receive your workers compensation payments with companies often being uncooperative in the workers compensation process.