Articles Posted in Litigation

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Accidents happen, and sometimes it takes years before the effects of those accidents show up. So what happens in Louisiana if you are exposed to a toxic chemical and go through the traditional lawsuit process including resolving all of your claims but later develop cancer?  Can you come back and file another lawsuit seeking recourse for your newly acquired damages?  It depends on the language of the release that was signed when you settled the first lawsuit. The following case highlights the importance of receiving thorough legal consultation before signing a settlement agreement to ensure you know exactly what rights are being extinguished.

In 1996, Leonard Bracken was exposed to mustard gas while working for the Payne & Keller Company. A tort suit was subsequently filed against the company, but in 1999 before the case reached trial, Leonard agreed to settle his tort suit for $275,531. In addition to settling his tort claim, Leonard signed a compromise agreement where he released Payne & Keller and any other potential tortfeasors from any other claims arising under the Louisiana Workers’ Compensation Act. Under the compromise, Leonard was forever barred from seeking compensation for any medical expenses or any other benefits from the company stemming from the 1996 chemical exposure.

Unfortunately, around six years after settling his lawsuit Leonard developed cancer. Believing that the cancer was related to his exposure to mustard gas Leonard filed a workers compensation claim against his employer, the Payne & Keller company seeking compensation relating to the 1996 incident. Leonard declared no wage benefits had ever been paid, his medical treatment had been discontinued, and his previous attorneys had filed and settled the workers’ compensation claim without his knowledge. Payne & Keller responded by filing exceptions raising the objection of prescription and additionally sought sanctions against Leonard. The Office of Workers Compensation (OWC) sustained Payne and Keller’s exceptions and order Leonard to pay sanctions as the OWC determined Leonard’s pleading violated Civil Louisiana Code of Civil Procedure Article 863 by being frivolous and without merit. Leonard appealed the OWC’s decision. Additionally, Leonard turned to Louisiana Code of Civil Procedure Article 2002(A)(1) in filing a motion with the OWC declaring the 1999 judgment should be nullified, as 2002(A)(1) states a final judgment shall be annulled if it is rendered against an incompetent person. The OWC did not hold a hearing on Leonard’s motion, rather it dismissed Leonard’s motion with no explanation.

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It seems rare in insurance coverage litigation for a court to wholeheartedly agree with an insurer that the coverage requested is not in fact provided for in the contract for insurance.  Yet, the U.S. Court of Appeals for the Fifth Circuit did just that, upholding a decision out of the U.S. District Court for the Eastern District of Louisiana finding without question that Bollinger Shipyards, Inc. was not entitled to defense by its insurers in a lawsuit brought against it by the United States.

Bollinger, a shipbuilder headquartered in New Orleans, won a multi-million dollar “Deepwater” modernization contract to upgrade eight (8) 110-foot U.S. Coast Guard cutters to make them 123-foot vessels.  Despite the Coast Guard’s concerns that the boat hulls were not able to accommodate the 13-foot extensions, Bollinger pushed forward on the project.  On several occasions, Bollinger submitted analyses to the Coast Guard purporting to show that the hull strength was sufficient.  In reality, the hull strength was not sufficient which became apparent when one of the ships “suffered a structural casualty that included buckling of the hull.”  The Coast Guard determined that the seven remaining ships were equally faulty and unusable.

Eventually, the United States filed a lawsuit against Bollinger over the faulty work. The Court allowed the United States to move forward with two claims under the False Claims Act.  Days prior to the government’s filing, Bollinger notified its general maritime insurer, XL Speciality Insurance Company, and its excess insurer, Continental Insurance Company, of the impending claims in an effort to shift the burden of the expense of the defense to the insurers.  In response, XL issued a “reservation of rights” letter stating that it was unsure if Bollinger’s policy included this coverage.

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technology
A Luddite is a person who is opposed to technological innovation. A Luddite will refuse to learn about new technology and will not incorporate it into their skills, either at work or at home. Having this mindset has obvious drawbacks for workers in today’s world, but what happens to the individuals who do not necessarily avoid technology, but are slow to catch up?

In 2015, a 52-year old employee of Jefferson Parish fell into this unfortunate cohort. This employee had been working for Jefferson Parish for over twenty years of service. When it came time for Jefferson Parish to choose who to promote to the position of Executive Assistant, there were two options: Maria Cooper, a young 28-year old employee with technological know-how, or the 52-year old, an experienced and loyal employee.

To Jefferson Parish, the choice was obvious. Since the essential job requirements of the position of Executive Assistant included working knowledge in the maintenance and updating of all computers, servers, and wiring of the computer network, as well as experience in setting up Excel spreadsheets, Ms. Cooper seemed like the best fit. But what about the 52-year old? She was left in the dust. After being passed up for the position, the 52-year old filed a lawsuit against Jefferson Parish, alleging age discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq.  

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Employees Only
In the law, it is common for a case to turn on the definition of one word.  A word that ordinarily may conjure a single image can explode with possibilities, nuances, and sometimes disastrous consequences during a lawsuit.  For Mr. D that word was “employee.” In a recent case, the Louisiana Third Circuit Court of Appeal helped define the term “employee” as regards workers’ compensation law and employment discrimination law.

In this case, Mr. D was hired by Lofton Industries, Inc., a staffing services company, that assigned Mr. D to work with National Oilwell Varco, L.P. (“NOV”). While at NOV, Mr. D alleged that he suffered both verbal and sexual harassment from coworkers.  The harassment lasted until Mr. D was fired by NOV.  Mr. D filed a lawsuit for sexual harassment against his harassers and NOV, as well as a separate negligence claim against NOV for the negligent hiring and supervision of its employees.  This is where the definition of “employee” becomes important and interesting.

In order to maintain his claims against NOV, Mr. D had to meet the definition of employee under the Louisiana Employment Discrimination Law (“LEDL”) but avoid being considered an employee under the Louisiana Workers’ Compensation Act (“LWCA”).  Confusingly, the District Court dismissed both Mr. D’s claims, finding that he was both an employee (for LWCA purposes) and not an employee (for LEDL purposes) at the same time.

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lemon-1329098-1024x683Buying an automobile can be an exciting experience regardless of whether one is trading in an old gas-guzzler for a newer, more efficient model or buying brand new.  However, the process of buying an automobile can be a hassle if one happens to purchase a “lemon.”  In Louisiana, a “lemon” is defined as a new automobile that has a defect that is significant enough to severely impair the automobile’s use and/or market value.  With this being said, it is surprising that even with the abundance of information readily available via Internet, many individuals hastily purchase automobiles, rather than taking the time to gather information and make an informed decision.  It is important to remember, as the buyer, that you should be in control throughout the entire process by (1) knowing the style of automobile you desire; (2) calculating the price you can afford; (3) researching the safety, quality, expert opinions, and owner opinions of the automobile you are planning to purchase; and (4) investigating the types of warranties readily available.  In the event that one finds his/herself in the aforementioned situation, it is pertinent to retain an attorney, who specializes in Redhibition Law (i.e., Lemon Law) who will file a redhibition claim (i.e., lemon law claim) on your behalf.

The following redhibition action out of Houma, Louisiana discusses the conditions that must be proven by the buyer in order to obtain a favorable judgment.  On September 3, 2013, Ms. Melissa Cadiere purchased a 2000 Lincoln LS with 199,684 miles from Wholesale Autoplex, L.L.C.  Ms. Cadiere drove the Lincoln for thirty-seven days before her Lincoln failed to start, at which time she contacted Wholesale Autoplex.  Wholesale Autoplex advised Ms. Cadiere that her Lincoln would need a new engine.  After Wholesale Autoplex failed to repair or replace the engine, Ms. Cadiere filed a petition for redhibition.

Redhibition, in the context of automobiles, is the avoidance of a sale of some vice or defect in the automobile, which renders the automobile either absolutely useless, or severely compromises the function of the automobile in a matter that if known by the buyer at the time of purchase, the buyer would have chosen not to purchase the automobile.  See La. C.C. art. 2520.  In a redhibition claim, the buyer (i.e., plaintiff) must prove (1) that the seller (i.e., defendant) sold the good in a manner that renders the good absolutely useless for its intended purpose or its use is compromised in a manner that if known at the time of purchase, a reasonable person would have chosen not to purchase the good; (2) the good contained a hidden defect at the time of purchase; and (3) the seller was provided the opportunity to repair the defect. Crow v. Laurie, 729 So. 2d 703, 705-06 (La. Ct. App. 1999).    

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marching-band-1565457-683x1024When bringing a negligence lawsuit to recover damages for injuries sustained as a result of another person’s failure to act with due care, it is important to ensure that that sufficient evidence has been gathered in advance of the trial. A good lawyer knows that in order to properly safeguard against the tactic employed by the opposing party, one must be prepared to back up one’s claim. A case from the Louisiana First Circuit Court of Appeal highlights exactly this point.

In this case, Robert Lee Iles brought a lawsuit on behalf of his minor daughter, Jannah, who was a member of the color guard at Northshore High School (“NHS”) until she sustained an injury. As a member of the NHS color guard, Jannah attended a two-week band camp during the summer. At band camp, she practiced for two hours, two to three times a week after school, and worked alongside her color guard teammates in a daily one-hour class. She and her teammates received between nine to ten hours of instruction each week. Additionally, she received special training sessions to prepare for the Martin Luther King, Jr. (“MLK”) parade. According to Mr. Iles’ petition, Jannah sustained an injury while marching as a member of the NHS color guard while performing alongside the band at a MLK parade in Slidell, Louisiana.

Iles petition claimed that his daughter’s injury entitled the family to damages. The petition named a number of defendants, including: St. Tammany Parish School Board, NHS Band Boosters, Inc. and its insurer, the band director, the color guard director, the school principal, and the parents of her fellow NHS color guard member, Gabrielle Haley. Iles claimed the School Board was liable for the actions of its employees, thus justifying the inclusion of the band director, and that the Boosters paid the color guard director, so his inclusion was justified as well. Iles’ lawsuit further posited that the School Board and Boosters had failed to properly supervise or train the color guard students, giving rise to this action. Iles also sought additional damages from the defendants for failing to properly administer medical attention.

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on-patrol-1565455-1024x683In Louisiana, employers are considered to be vicariously liable for the wrongdoings of their employees. La. C.C. art. 2320. This means that an employer is held liable for damages that their employee may cause while performing designated job duties. In a recent case, the Louisiana First Circuit Court of Appeal discussed whether vicarious liability could apply to hold the City of Baton Rouge responsible for injuries caused by the wrongful conduct of one of its police officers.

On March 4, 2007 Officers Nicholas Batiste and Nathan Davis were dispatched to the home of Brian Townsend in Baton Rouge, Louisiana due to a noise complaint. Mr. Townsend, who was hosting a house party at his Highland Road residence, was instructed by Officer Davis and Officer Batiste to shut the party down. Though the parties disputed what transpired after the officers asked that the party be shut down, it was undisputed that Officer Davis tackled Mr. Townsend from behind. Officer Davis landed on Mr. Townsend with such force that Mr. Townsend involuntarily defecated on himself.

Once Mr. Townsend was brought to the police station, he was made to sit on the floor due to his condition. As he was sitting on the floor, he continually asked to use the restroom. His requests were denied. He was then pepper sprayed multiple times and kicked in the groin by Officer Davis. Additionally, Mr. Townsend was dragged across concrete and gravel as he was being moved for processing. Mr. Townsend was brought to the hospital for his cuts from being dragged. There, it was discovered that Mr. Townsend’s bladder was ruptured. Mr. Townsend underwent surgery to repair his bladder. Following Mr. Townsend’s release from the hospital, he returned due to a urinary tract infection, deep vein thrombosis, a non-functioning bowel, and pneumonia.

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IMG_1055-e1477861245822-768x1024When land is expropriated by the government, there are many questions concerning how much money the government will owe you. Courts consider factors such as the appraised value of the property, relocation costs, inconvenience, and other possible damages. See La. Const. art. I, §4(B)(5). The best lawyers are familiar with the different approaches the court could use to determine the amount of damages and are prepared to get the best results for their client. A recent case from the Louisiana First Circuit Court of Appeal highlights several different approaches than can be taken by a court in deciding land expropriation damages.

In 2008, the City of Baton Rouge and the Parish of East Baton Rouge expropriated a portion of land on which Baton Rouge Rentals & Sales was located. In this property taking, the city took 0.101 acre of land (4,380.9 square feet) and the business was forced to close their doors and vacate the building. Fifty-one percent of the property was owned by two sisters, Charlene McDonald Nelson and Kathleen McDonald, and forty-nine percent was owned by an employee of Baton Rouge Rentals & Sales, Connie Hyde. The original owner, Charles Hyde, transferred the forty-nine percent to Hyde shortly before he died. Hyde paid rent to the sisters and continued to operate the business until 2008.

The government contended that the total expropriation value of the property was $143,205, a value determined by a court-approved appraiser, Sharon Pruitt. There are three ways to determine the expropriation value of the property before the taking: cost approach, sales approach, and income approach. The cost approach values the taken property based off similar properties. The income approach determines the value by future potential income from the property. And the sales approach, the approach accepted by the trial and appellate courts, is the estimated cost of replacement after the improvements plus the value of the land. The sales approach generated a “before expropriation value” of $329,000 for the property, the income approach was $322,000, and the cost approach was $335,000. In Ms. Pruitt’s expert opinion, the sales approach was the best value determination for this property.

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surgeon-3-1562055-1024x768Doctors – we literally put our lives, and the lives of our loved ones, in their hands. It is the most frightening feeling to know that your loved one is in surgery, the possibility of death or complications is always imminent, no matter how small or standard of a surgery. This feeling of fright often turns to anger and pain once someone has lost a loved one. Especially, where we believe the death is due to the negligence of the very doctor we put in control of the fate of our lives.

In this case out of LaSalle Parish, Edith Blackshear died a week after having a percutaneous endoscopic gastrostomy (PEG) tube replacement surgery performed by Dr. Eulogio Tan at Hardtner Medical Center. A PEG tube is commonly known as a feeding tube. Rodney Blackshear, the son of Ms. Blackshear, brought a medical malpractice lawsuit on behalf of his deceased mother and himself. A jury trial was conducted on the matter and the jury found that Dr. Tan had breached the standard of care while treating Ms. Blackshear, but that he did not cause harm to her. Mr. Blackshear appealed the verdict, but the Louisiana Third Circuit Court of Appeal affirmed the lower court’s decision.

Ms. Blackshear was eighty-four years old and a nursing home resident. When she had pulled out her PEG tube, she was treated by Dr. Tan, an emergency medical physician at Hardtner. Dr. Tan conducted a physical exam of Ms. Blackshear, where she had normal vital signs, was not in any distress, had a soft and tender abdomen, and had a normal heart rate and respirations. Dr. Tan did not confirm how long the PEG tube had been in place, or when Ms. Blackshear had pulled it out. Dr. Tan merely replaced the PEG tube, he set forth that he had used a clinical method to ensure the placement was proper, but this was not documented in medical records.

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law-offices-1477311-1-1024x743When something goes wrong in a legal case, how long does a party have to make their claim? Louisiana has statutes concerning the time frame in which a party has to bring a claim against an attorney for malpractice and the courts will uphold the time limitation depending on the facts of the case.

In 2007, Ms. Coté, was living with her daughter in Shreveport. The circumstances leading to the original litigation were started when, Leon Bell, who was employed by City’s water department, was sent to a neighborhood to tell the certain residents about the water being shut off. He ended his shift and then hours later entered Ms. Coté’s residence and held her by force. Luckily Ms. Cote’s daughter escaped and alerted the police. Mr. Bell was arrested and charged with aggravated battery and second degree kidnapping; he pled guilty to certain charges and was given a sentence of many years in jail.

Ms. Cotè’s filed a lawsuit against the City of Shreveport (the City) the following year.  In that lawsuit she alleged great mental suffering due to the unlawful intrusion. Ms. Cotè alleged that city’s employee had actually been let into her home on a few instances prior because he requested the same as part of his job. On one visit she had would not let him in and notified the City at that time of the incident. The City could not locate any documents detailing Ms. Cote’s grievances. Ms. Cotè argued that the City should be held vicariously liable because the harm she incurred was a result of their employee performing his job duties. The City in return argued that the the criminal activities did not occur as part of their employees’ job duties, therefore they should not be held in concert with him for his negligent actions. Ms. Cotè’s attorneys advised her that the City’s motion on the vicarious liability issue was on solid ground, and she would have a tough time proving her case in court. Ms. Cotè was very hands on with her case, and when her attorneys provided her with an affidavit they intended to present in response to the City’s she indicated discouragement with their handling of her case.

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