Litigation

February 23, 2017

Court of Appeal Upholds Class Action Against Housing Authority of New Orleans For Mold

Class action lawsuits are nontraditional litigation procedures. The ultimate purpose is to not only get relief for a defined class of persons but also a relief for all others similarly situated. See Brooks v. Union Pacific R.R. Co., 13 So.3d 546 (La. 2009). Oftentimes, the issue of who is in the defined class can be complicated in its own right, apart from the substantive issues of the particular case. The trial court has broad authority in deciding whether to certify a class. See Chiarella v. Sprint Spectrum LP, 921 So.2d 106 (La. Ct. App. 2005).

Recently, the Housing Authority of New Orleans (HANO) was facing a class action lawsuit for breach of contract. HANO failed to uphold its responsibilities and duties to the tenants of a housing development pursuant to a lease agreement. The District Court defined the class to include all leaseholders and permanent residents under HANO’s jurisdiction who were adversely affected by the presence of toxic mold in their apartments. The class action plaintiffs asserted that HANO’s failure to keep the apartments and common areas free of mold violated its contractual duty to the federal government, specifically the Department of Housing and Urban Development (HUD).

This case centers on whether plaintiffs, Janice Claborne and Sheryl Jones, could rightfully bring a class action under Louisiana law. In other words, were Claborne and Jones part of the defined class of persons. There are several requirements that must be satisfied before a class action can be brought under Louisiana law: (1) numerosity, (2) commonality, (3) typicality, (4) adequacy of representation, and (5) predominance and superiority.

February 22, 2017

Failure To Follow Correct Procedure Proves Fatal for Appeal

by Berniard Law Firm

One important process in our legal system is the ability to petition a higher court to review a lower court’s decision that you feel was wrongly decided. This appellate process is vital in making sure justice is upheld because it allows a losing party in a lawsuit to get a second opinion on how the particular issues of their case were handled. However, as with most other court procedures, the process of appealing a case can be complicated. Seeking counsel from an excellent attorney can make all the difference in whether your case succeeds or fails.

The Louisiana Fourth Circuit Court of Appeal recently heard a case that dealt with what the proper appeal procedures were. In this case, Mr. Ramirez and Iokon, LLC were appealing a partial summary judgment in favor of their opposition, Mr. Bagot and Evonir, LLC. Their appeal was dismissed as their failure to recognize certain procedures resulted in their forfeiting their right to appeal. Before the appeal process is available, the lower court must issue a final judgment. Here, the judgment was not finalized and instead, the proper procedure was to file for supervisory relief, which Ramirez and Iokon did not do.

One prerequisite before you’re able to appeal a decision in your case is that the case must be decided. This seems common sense – if a case is still ongoing, you can’t claim that the case has been wrongly decided. On the other hand, it is not always obvious whether a judgement from the court is final. Sometimes, as in this case, the judge will give a non-final judgement and it will take a good attorney to know the difference between this type of judgment and a final judgement.

February 21, 2017

What Authority, If Any, Do Courts of Law Have In Reviewing Arbitration Awards?

by Berniard Law Firm

When entering into a contract it is important to read all the terms, especially the general provisions near the end of the agreement. Oftentimes those provisions state that a party must waive their right to a jury trial and settle all disputes arising from the contract by arbitration. Arbitration is an alternative to the judicial system when it comes to settling disputes. Each party chooses an arbitrator, which is usually a lawyer or former judge with experience in the subject matter, and then agree on a third, neutral arbitrator to comprise a panel. Generally, their decision is binding and final. It pays to hire a good attorney if you find yourself on the wrong end of an arbitration decision.

Recently, Medistar Home Health of Baton Rouge (“Medistar”) contracted to buy from Lakeview Home Care, LLC (“Lakeview”) the property rights and assets used in the operation of a home health agency. The parties agreed on a purchase price of $4,250,000. Lakeview financed a portion of the price through a $1,250,000 promissory note. The note required Medistar to make five annual payments of $250,000 with a seven percent interest rate.

Medistar did not make its first payment and claimed that Lakeview owed it for breaching their Asset Purchase Agreement and causing Medistar to suffer losses. An arbitration panel awarded Medistar $350,000 in costs and attorney’s fees. However, in Louisiana there is a law that permits parties to request a court to confirm an arbitration award or vacate or modify the award within one year after an arbitration decision. The court will only vacate an arbitration award if it was procured by corruption or misconduct of the arbitrators.

February 17, 2017

Insurers in Louisiana Have Duty to Defend Unless Complaint Unambiguously Excludes Coverage

by Berniard Law Firm

home-sweet-home-1228389-1024x768 Insurance is such a lucrative business because while almost everyone will purchase some form of it, very few will ever make a claim against the insurance company, and even fewer will be successful. This allows insurance companies to generate huge profits on premiums paid by policyholders. Unsurprisingly, those who do make claims against insurance companies can count on being challenged at every turn, as the insurance companies will hire some of the best attorneys in order to avoid shelling out a dime to cover the policyholder. That is exactly what happened when Shelter Mutual Insurance Company became a party to a suit brought by a University of Louisiana Lafayette student after her professor, the insured, went on a tirade in class.

The incident began in 2004 when UL Lafayette student Kacie Renee Spears attended a class taught by Dr. Louis Houston. During that class, Dr. Houston became extremely agitated and, in a fit of rage, threatened to kill Ms. Spears if she attempted to leave the classroom, spat in her face, and physically struck one of her fellow students. Ms. Spears was so severely distressed by the experience that she sued for damages associated with emotional and physical trauma and medical expenses, naming Dr. Houston, his homeowner’s insurer Shelter Mutual Insurance Company, and the Board of Supervisors for the University of Louisiana System as defendants.

In her complaint, Ms. Spears alleged that the University of Louisiana System was liable due to its negligent hiring, retaining, and supervising of Dr. Houston, given that he had a history of delusional and outrageous acts and had a previous delusional episode while employed by the University. Ms. Spears also asserted that Dr. Houston suffered from bipolar disorder, a mental illness that causes delusions and that, at the time that Dr. Houston exhibited the aforementioned behavior, he was suffering a delusion that may have manifested from his mental illness.

February 16, 2017

Plaintiff in Minor Car Accident Unable to Recover Damages Because of Failure to Meet Burden of Proof

by Berniard Law Firm

louisiana-swamp-2-1489252-1024x674 Minor car accidents occur on a daily basis. Many of us have probably been involved in a fender bender or two, ourselves. The usual course of action includes exchanging information and getting insurance companies involved, but even the smallest car accidents can lead to litigation. It is imperative to understand everything that is necessary in order to prevail at trial in such matters. Unfortunately for one plaintiff in Crowley, Louisiana, the complexities involved with these seemingly small lawsuits left him unable to overcome his burden of proof at trial.

In March of 2013, Jahlia Joubert (Mr. Joubert ) was involved in a minor car accident at the West Hutchinson Avenue and North Western Avenue intersection. Mr. Joubert was driving west on West Hutchinson Avenue when he came to a four-way stop. Shella Poullard (Ms. Poullard) was traveling southward on North Western Avenue when she came to the same four-way stop.

There was a dispute as to which party failed to stop at the intersection. The police were called, but because of the conflicting accounts of the events by the parties involved, the officer at the scene could not assess fault. None of the parties involved reported injuries at the scene of the accident, but Mr. Joubert and his passenger both later complained of injuries and were treated by a chiropractor for roughly three and a half months.

February 15, 2017

An Avoyelles Hardwood Company Found In Contempt of Court for Failing to Comply with the Specifics of a Court Order

by Berniard Law Firm

forest-2-1550924-1024x768 Parties to a lawsuit are required to submit evidence in support of their claim. Depending on the piece of evidence, the court may demand very specific evidence; and in such circumstances, complying with the mere spirit of the order to produce evidence may not be enough for the court. A party who does not provide the evidence requested by the court may be held in contempt as one Louisiana plaintiff recently found out the hard way.

The case arose from a dispute regarding the right to harvest particular tracts of timber. The plaintiffs in the original case were the owners of the land, Paradise Land and Lake, LLC, and Paradise Rod and Gun, Inc. (“Paradise”). In 1998, an Act of Exchange was executed between Paradise and Roy O. Martin Lumber Company, Inc. (“Martin”). According to the document, Martin bought the merchantable timber, but with a limitation of one harvest during a twenty-five period. In 2008, as a result of a pair of Timber Rights Agreements between Martin and Louisiana Hardwood Products, LLC and Louisiana Hardwood Forestlands, LLC (“Louisiana Hardwood”), Martin’s right to harvest timber was transferred to Louisiana Hardwood for the remainder of the twenty-five years stipulated by the original agreement.

Before transferring rights to Louisiana Hardwood, Martin had harvested timber on two portions of the property. Per the terms of the original agreement, Louisiana Hardwood did not have the right to harvest timber from either of these two areas; however, when Louisiana Hardwood attempted to harvest timber from other portions of the property, timber from the disallowed area was taken.

February 12, 2017

Outcome of Edgerly Case Dependent On Qualification and Use of Expert Witnesses

by Berniard Law Firm

ski-sign-1525674-1024x768 When asserting a cause of action or maintaining certain legal defenses in court, parties bear the burden of proving their case. This is done by presenting evidence to the court such as documents and witness testimony. Often, certain issues will require the court to make findings of fact which require scientific expertise or specialized knowledge. Expert witnesses assist the trial court in understanding complex issues of fact that could be determinative to the outcome of a case. A recent decision discusses how a court qualifies experts and utilizes their testimony.

The dispute, in this case, arose when a utility trailer pulled by John Guidry (Mr. Guidry) crossed an electric line owned by Beauregard Electric Cooperative, Inc. (BECi). In October 2013, Mr. Guidry and his colleague, Karen Gorum (Ms. Gorum) left a property in Edgerly, Louisiana, traveling east on Houston River Road with a utility trailer in tow. According to Mr. Guidry, the truck suddenly went in the air and stopped in mid-air. After emerging from the truck, Mr. Guidry, and Ms. Gorum saw an electrical line lying in the roadway. Both Mr. Guidry and Ms. Gorum suffered various injuries in the accident.

Several lawsuits were filed. In the first lawsuit, Mr. Guidry sought damages from BECi and its insurer, Federated Rural Electric, for the injuries he sustained. BECi answered alleging that Mr. Guidry was negligent and contributed to the accident. In the second suit, Ms. Gorum alleged that BECi and Mr. Guidry were both negligent in causing the accident and the injuries she sustained. She also sued Federated. In the third suit, Mr. Guidry and his insurer, State Farm, alleged that BECi was negligent in causing the accident. State Farm sought to recover the amount it paid Mr. Guidry for his property damages pursuant to the automobile policy it issued to him. Mr. Guidry sought to recover the $250 deductible required by State Farm’s policy. BECi moved to consolidate the three cases and all three parties agreed. The three suits were consolidated and tried together.

February 7, 2017

Marksville Automobile Accident Lawsuit Lost Because Plaintiffs Failed to Name Proper Defendant

by Berniard Law Firm

time-1223809-1024x681 Failing to name all potentially liable parties in a lawsuit in a timely manner could result in the loss of the right to add those parties to the lawsuit at all. A case out of Avoyelles Parish, Louisiana illustrates the importance of finding a good lawyer after an automobile accident to ensure that all potentially liable parties are named before it is too late.

Alexis Hunt, Genae Hunt, and Jakalyn Hunt (the Hunts) were involved in an automobile accident on June 21, 2012, with a city-owned vehicle. On May 9, 2013, the Hunts filed a lawsuit against Louisiana Municipal Risk Management Agency (LMRMA), who acted as an insurance agency for the city. The Hunts did not list the city as a defendant in this matter, which prompted the LMRMA to file for an exception of no cause of action. This action allows a defendant to object to a plaintiff’s lawsuit when they feel there is no valid legal claim. In response, the Hunts filed a supplemental and amending petition to add the city as an additional defendant on July 26, 2013, but the city responded with an exception of prescription. This exception allows the dismissal of a lawsuit, without actually hearing the merits of the case, because the time during which the lawsuit should have been brought lapsed and the plaintiff’s right to bring the case expired.

The incident occurred on June 21, 2012, but the Hunts did not list the city as a defendant until July 26, 2013. Under Louisiana law, the plaintiff has a one year prescriptive period after the incident to bring a claim. LA. C.C. art. 3492 . Because the Hunts filed after the one-year period, the issue, in this case, became whether the Hunts’ initial suit against the LMRMA could also be considered a suit against the city. The court used criteria to determine whether this amendment to change the identity of the party sued could relate back to the date of the filing of the original petition. If it could relate back, the charges would apply to the newly identified party.

January 31, 2017

Louisiana Lawsuit Moves Forward After Arbitration Provision Deemed Inapplicable

by Berniard Law Firm

to-sign-a-contract-2-1236630-1024x683 How do you know whether an arbitration provision in a contract applies? The easy answer: read the contract. If you are a member of a company that provides services to you, such as financing your small business needs, you must be sure to closely read any and all documentation relating to the services provided and what you can do if you are dissatisfied with the company’s work. Companies will often include an arbitration and mediation clause in their contracts with individual members. This means that instead of suing the company in a court of law, the dispute would first have to be arbitrated by an independent third party and an attempt at mediation would have to be made. In Louisiana, companies frequently create operating agreements that function as contracts between owners and members. These operating agreements use a lot of boiler plate language that is ultimately enforced. In fact, Louisiana law favors arbitration. See La. R.S. 9:4201; see also v. Auction Mgmt. Corp., 908 So.2d 1, 18 (La. 2005).

In May 2014, eleven members of a small business financing company, North Louisiana Bidco, LLC (NLB), filed a lawsuit to enforce their rights to examine NLB’s financial and other records. The eleven members became concerned when NLB was sued by various clients and incurred a bad debt expense of $6 million, which showed on the company’s 2013 financial statements. In response, NLB raised the exception of prematurity. NLB argued that the company’s operating agreement required the members of the company to mediate their disputes amongst themselves and if mediation failed, to submit disputes for arbitration. The members that were suing the company in this instance opposed the prematurity argument and asserted that this dispute was not one “among members” but instead was between the body of the membership itself and the management of the company. The Trial Court upheld the prematurity exception. It held that this was indeed a dispute between members and the mediation and arbitration clause applied.

When the members of NLB appealed the Trial Court’s decision they argued that this dispute was a demand by the members of the company against the company itself. The members were attempting to enforce their own rights to view the company’s records rather than trying to enforce any rights against the other members. The Second Circuit Court of Appeal agreed with the eleven members stating that this was not a dispute between members. Therefore, in the absence of such a dispute between members, the arbitration clause could not be enforced. In addition, the Court of Appeal pointed out that for the arbitration clause to be triggered, the action must have been a dispute arising among members relating to the operating agreement. The operating agreement at issue here made it clear that members had the right to inspect the company’s books and records and no party disputed this fact. Because there was no dispute relating to the agreement and because the dispute was ultimately not between members, the Court of Appeal held that the arbitration clause did not apply and the members would be allowed to bring a lawsuit against the company.

January 22, 2017

Details are the key in Insurance Policy Contracts in Louisiana

by Berniard Law Firm

No one likes to deal with insurance matters. Shopping for insurance and understanding the terms of an insurance policy can be complex. Most people are happy to just pay their monthly premiums and know that they have insurance when they need it – and then hope they never need it at all. One woman learned how complex insurance matters can be when she was injured in July of 2012 when the Pontiac Sunfire that she was driving was involved in an auto accident in Ouachita Parish.

The insurer of the other driver who was involved in the accident tendered payment to the plaintiff, Sonya Rodgers, in an amount equal to the policy limits. At the time of the accident, Rodgers was insured by State Farm. Rodgers sued State Farm alleging that she should be provided uninsured motorist coverage for the injuries she suffered in the accident. State Farm filed a motion for summary judgment arguing that uninsured motorist coverage was not provided because Rodgers rejected such coverage in April of 2010.

Rodgers contended in opposition to the motion that there was a genuine issue of material fact as to whether there was uninsured motorist coverage at the time of the accident. Rodgers argued that after the original vehicle covered under her State Farm policy became inoperable, she turned its license plate into the DMV, alerted her State Farm agent that she would no longer need the coverage because the vehicle was broken down beyond repair, and she stopped paying premiums to State Farm. Rodgers said that she considered the policy to be cancelled after she took those steps. Rodgers further said that after acquiring the Pontiac Sunfire she contacted her State Farm agent and negotiated a new policy and she believed that she had uninsured motorists coverage because State Farm never asked her to execute a new rejection of uninsured motorist coverage form. See La. R.S. 22:1295.