Litigation

June 27, 2016

Redhibition Lawsuit Against Monroe Automobile Dealer Dismissed Due to Prescription

old-truck-1451289-1024x768 Buying a car is a huge endeavor for most people. Most of the time we do our due diligence and make sure we have a fair understanding of what we are purchasing. However, only so much information is under of our control. When buying a used car, we are often forced to go off of what the seller tells us about the vehicle. This can be nerve racking for many. It’s safe to say that the nerves tend to lessen when we are buying a used car from a certified pre-owned dealership, and the car is under warranty. Unfortunately, for two Louisiana men, a truck under warranty purchased from a reputable dealership caused more problems than were conceivable.

In March of 2005, Barnaby Martinez bought a 2004 Ford F-250 truck. In 2008, he began to experience problems with the engine. The problems were so severe that Mr. Martinez alleged that at times have to use both his feet on the break in order to prevent hitting other vehicles. Mr. Martinez asked his brother-in-law David Leija, a mechanic, to take the truck to the Ford Dealer. In July of 2008, Mr. Leija took the truck to Hixson Autoplex of Monroe.

Hixon replaced the EGR valve and injector on the truck and informed Mr. Leija that the problem was fixed. However, 5000 miles later, the same problem came about. Mr. Martinez continued to bring the truck to Hixon several times. He was told that the warranty would take care of the repairs. Hixon kept the truck days, weeks, and even a month at a time. After getting fed up with the truck and its issues, Mr. Martinez sold the truck to Mr. Leija, who was fully aware of the truck’s problems. In 2012, Hixon informed Mr. Leija that they could not fix the problem, and that because the truck was out of warranty, the cost of repairs was $3000. Mr. Leija never took the truck back to Hixon.

June 23, 2016

First Circuit Court of Appeal Affirms Award of Attorney Fees and Expert Witness Fees In Expropriation Lawsuit

by Berniard Law Firm

Farm-Land-expropriation Gerald O”Hara from Gone with The Wind said it best, “The land is the only thing in the world worth working for, worth fighting for, worth dying for, because it’s the only thing that lasts.” While land ownership is a sacred right in this nation it does not prevent the state government from taking your land through a process called expropriation.That process requires that the State of Louisiana pay a fair price for private land that has been expropriated for public needs. The state must be careful in ensuring that they pay full value for the expropriated land as Louisiana statutes allow the landowner to recoup attorney fees if they are successful in proving the payment was less than adequate. The following case out of West Feliciana Parish demonstrates what can happen when expropriation doesn’t lead to fair compensation.

In 2005, the Louisiana Department of Transportation and Development (DOTD) filed a petition under La. R.S. 48:442, in which it sought to expropriate part of a tract of land owned by the James Munson. Munson owned over fourteen acres of land, on which he had operated a bed and breakfast, plant nursery, and gift shop called “Stillwater Farms.” The compensation for the expropriated land was estimated to be $143,654.00, an amount that was deposited into the register of the court, where Munson could withdraw it without prejudice to his right to contest the amount as inadequate.

Munson subsequently filed a demand alleging the amount paid for expropriation of the property was insufficient to cover the value of said property. Munson also requested attorney fees pursuant to R.S. 48:453(E) as well as recovery of expert witness fees. At a jury trial, both Munson and the DOTD offered expert testimony regarding the amount of compensation due for the expropriated property. The jury found that the value of the expropriated property was $148,640.00, that the remaining property was not damaged from the expropriation, and that Munson was not due any additional compensation for loss. At a subsequent hearing on attorney fees, the court ordered DOTD to pay attorney fees, legal interest on the difference between the amount deposited and the determined value of the property, court costs, and expert witness fees.

June 22, 2016

Louisiana Supreme Court Highlights Pleading Requirements for Putative (Unestablished) Parents in Wrongful Death LawSuits

by Berniard Law Firm

Imagine your child passed away in the most horrific way. You seek remedies in the court system, but the court does not recognize your right of recovery as a parent. What a nightmare. In Louisiana, a putative (unestablished) father must timely file an action for avowal (a father’s action to establish paternity) in order to maintain a wrongful death or survivor action for the death of a child born out-of-wedlock. Failure to do so may forfeit your legal rights. A recent case from the Louisiana Supreme Court discusses the pleading requirements regarding paternity in filing wrongful death and survivor actions.

In March of 2011, six-year-old La’Derion Miller was killed shortly after being involved in a gruesome accident with a school bus. While La’Derion was attempting to board the school bus his was caught in the door. Harold Thibeaux, the bus driver, was unaware of La’Derion’s predicament and La’Darion was dragged for approximately eighty feet. When La’Derion’s arm was dislodged, he fell beneath the wheels of the bus and was critically injured. La’Derion died less than an hour later. His six years of life were cut short. Tragically, La’Derion’s mother, Heather Jagneaux, watched the entire incident from her front yard, but was unable to reach him in time.

La’Derion’s father, Marcus Miller, filed a lawsuit individually and on behalf of the estate of his deceased son. Mr. Miller sought damages for La’Darion’s pain and suffering inflicted by the bus driver’s negligence, as well as damages arising out of the wrongful death of his son. Mr. Miller’s lawyers named as defendants the bus driver, his insurance insurer, his employer, and his employer’s insurer.

June 21, 2016

West Monroe Woman’s Slip and Fall Lawsuit Revived by Appeals Court on Constructive Knowledge Grounds

by Berniard Law Firm

Handrails-768x1024 As the old saying goes, “accidents happen.” But, in personal injury lawsuits, like in many matters, another saying is more on point: “The devil is in the details.” And on that point the Second Circuit Court of Appeals reversed a summary judgment in favor of the City of West Monroe in a lawsuit brought by an elderly woman who claimed she was injured in a fall. The lawsuit against the city arose from purported negligence in maintaining the handrails of a handicap ramp located at the West Monroe court facility. The plaintiff, Bernice Walters, alleged that the handrail collapsed as she was using it to lower herself into her vehicle, which was in a parking space adjacent to the handicap ramp. Walters alleged that the city had constructive knowledge of the defective condition of the handrail. In response, the City of West Monroe moved for summary judgment and the motion was granted by the trial court.

The trial court cited a lack of evidence that the city had actual or constructive notice of the condition of the handrail; there was insufficient circumstantial evidence to prove that the city knew of the defective handrail. Appealing the summary judgment, Walters asserted that the city violated the Americans with Disabilities Act by failing to maintain the handicap ramp in a manner consistent with the ADA regulations. This violation of the ADA allegedly satisfied the burden of proof for constructive knowledge, since the existence of relevant regulations suggests that the city should have known that their lack of maintenance was negligent.

Upon review, the appellate court accepted Walters’ theory of constructive knowledge and reversed the summary judgment. The appellate court examined the relevant Civil Code statute concerning public entities. See La. R.S. 9:2800. As a result, the court concluded that constructive knowledge does not require circumstantial evidence proving actual knowledge; instead, the standard for constructive knowledge is satisfied if a reasonable custodian or owner should have known of the defect while exercising reasonable care.

June 20, 2016

Decision of Livingston Parish Jury Reinstated in Multiple Car and Tractor Crash Lawsuit

by Berniard Law Firm

tractor-1454432-1 On the back roads of Louisiana it is not uncommon to see tractors and other farm equipment traversing the highway. If that farm equipment is involved in an accident with a car everyone involved might have a different story on how it occurred. If that happens it takes the best lawyers to help the court figure out who is at fault. The following case out of Livingston Parish shows how the courts deal with opposing views of fault in cases where cars and tractors collide.

On August 13, 2009, a multiple-vehicle collision occurred between drivers Yearn Thomas, Breanna Cloud, and tractor operator Stephen Jones on Louisiana Highway 1026 in Livingston Parish. Predictably so, the parties contested the sequence of events that led up to the incident, exactly how it came to fruition, and who was at fault.

Thomas and Cloud claimed that Jones unexpectedly swerved into the roadway from the shoulder and caused the multiple-vehicle accident when the tractor collided with Cloud, causing Thomas to subsequently collide with Cloud, then overturn into a ditch. Jones testified that Cloud collided with the left side of his bush hog and immediately after the initial impact, he heard the loud noise of Thomas colliding with Cloud and reacted by turning his tractor into the ditch on the right to avoid any more damage.

June 19, 2016

Bogalusa Slip and Fall Lawsuit, Is Travis’s Grocery and Market Liable?

by Berniard Law Firm

Grocery-Store Anyone who has purchased chicken from a grocery store knows that for some reason the packing always seems to leak. But what happens if that leakage occurs in a grocery store and you slip on it and hurt your back, is the grocery store responsible? The following case out of Washington Parish Louisiana clarifies the standards used by courts when addressing that question.

On July 5, 2011, Sylvia Jackson-Silvan visited Travis’s Grocery & Market on Derbigny Street in Bogalusa, Louisiana. While waiting in line in the check-out aisle, she slipped on “blood drippings from chicken” that had pooled on the floor. Mrs. Silvan was helped up by store employees, who quickly mopped up the liquid, before leaving the premises without further assistance.

Mrs. Silvan and her husband, James Silvan, filed a lawsuit the following February, arguing that Travis’s Market was “strictly liable for allowing dangerous conditions to exist in the store, which posed an unreasonable risk of harm and caused injury to Mrs. Silvan.” The Silvans then filed a motion for summary judgment, stating there was no material issue of fact to be decided at trial. No memorandum, exhibit, or statement of fact accompanied the motion. Travis’s Market filed its own motion for summary judgment, which was accompanied by a memorandum and numerous exhibits, stating that the essential elements of the Silvans’ claim could not be supported. A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine factual dispute. Dickerson v. Piccadilly Restaurants, Inc., 1999-2633 (La. App. 1Cir. 12/22/00).

June 18, 2016

Baton Rouge Collision Highlights Difficulties in Assessing Witness Testimony in Motor Vehicle Accidents

by Berniard Law Firm

The Louisiana Revised Statutes along with rules of jurisprudence help Louisiana courts determine whether or not a particular driver is at fault for an accident. For example, La. R.S. 32:81(A), provides that drivers must not follow another vehicle unreasonably close and must take into account the speed of the vehicle in front of them and the overall traffic conditions. Under La. R.S. 32:79(1), drivers must stay within a single traffic lane and must not move from the lane unless they can do so safely. For the purpose of assessing liability, the rear-driver in a rear-end collision is presumed negligent and in breach of these standards of conduct. Yet, a rule of jurisprudence allows the rear-ending driver the opportunity to overcome this presumption of negligence by showing the existence of a sudden emergency caused by the driver in front of him or her. In determining whether a sudden emergency existed, courts will often rely on the testimony of the drivers and the passengers in their vehicles. As a recent decision of the Louisiana Third Circuit Court of Appeal shows, sorting through and making sense of such testimony is not always an easy task.

On August 7, 2012 Jessica Dauzat and Marcus Cooper were involved in an automobile collision in Baton Rouge, Louisiana. Both were travelling eastbound on Interstate I-10 when Ms. Sauzat’s vehicle struck Mr. Coopers’. Both drivers had passengers in their vehicles. Mr. Cooper’s car was insured by Progressive Security Insurance Company and Southern Casualty Insurance Company insured Ms. Dauzat’s vehicle for uninsured or underinsured motorist coverage.

In February 2013, Ms. Dauzat and a passenger in her vehicle, Lacey Lachney, filed a lawsuit against Mr. Cooper, Progressive, and Southern Casualty seeking damages for their injuries. Ms. Dauzat and Mr. Lachney claimed that Mr. Cooper caused the accident by suddenly switching lanes without warning. The Trial Court found that Mr. Cooper was solely at fault for causing the accident and awarded $35,165.38 to Ms. Dauzat and $34,850.12 to Mr. Lachney in damages. Progressive appealed the Trial Court judgment, arguing that it erroneously concluded that Mr. Cooper was the sole and exclusive cause of the accident.

June 17, 2016

Pre-Existing Injuries Complicate Maintenance and Cure Remedies Against Vessel Owners in Louisiana

by Berniard Law Firm

Jones-Act-Maritime-1024x681 Maritime law provides special remedies for seamen who are injured at sea such as maintenance and cure. These remedies may be sought from the seaman’s employer or vessel owner. Maintenance is a daily stipend for day-to-day living expenses for seamen who fall ill or are injured while in service of a vessel. See Jauch v. Nautical Servs., Inc., 470 F.3d 207, 212 (5th Cir. 2006). Cure is the payment of medical expenses. See Guevara v. Maritime Overseas Corp., 59 F.3d 1496, 1499 (5th Cir. 1995). These maritime damages are not dependent on the vessel owner’s or employer’s fault, but are treated as an implied term of any contract for maritime employment. A seaman may even recover maintenance and cure for preexisting medical conditions. This is unless the seaman knowingly or fraudulently conceals his or her condition from the vessel owner at the time he or she was employed. A recent case from the United States Fifth Circuit Court of Appeal explains how pre-existing injuries can complicate claims for maintenance and cure.

Willie Meche was the captain of the crew boat Miss Catherine, which served as a drilling rig off the Louisiana coast. On June 20, 2008, the crew boat was under tow to a location near Cote Blanche, Louisiana. Mr. Meche claimed that he was injured while lifting a hatch to check the oil on the vessel. He alleged that stormy conditions that day caused a wave to hit his boat and throw him over a railing. Mr. Meche filed a lawsuit against his employer and owner of the vessel, Key Marine Services, as well as his supervisor, Alex Doucet. Mr. Meche sought compensation under the Jones Act and general Maritime law, including claims for maintenance and cure against both defendants.

The District Court held that the defendants wrongfully refused to pay Mr. Meche maintenance and cure. It that Mr. Meche could recover maintenance and cure from both defendants because he aggravated a preexisting spinal injury when he lifted the hatch on the vessel. While the defendants argued that Mr. Meche forfeited his right to these remedies by lying about his preexisting medical conditions on his pre-employment questionnaire, the District Court rejected this argument. It found that Mr. Meche did not intentionally conceal his medical history, and was thus entitled to maintenance and cure.

January 16, 2014

Prescription an Integral Element of Lawsuits After Wrongful Death

by Berniard Law Firm

A few months after being in a car wreck, the unthinkable happens, and as a result of the accident, your loved one passes away. As you are mourning the loss, you also have to start thinking about your legal options that stem from the crash and the possible avenues you have as a “survivor” of your loved one in order to receive some damages from the liable person. While this seems somewhat callous to talk about, especially in light of the pain you are already in from losing someone close to you, it is necessary to begin thinking about this somewhat quickly if you are going to actually be able to bring a survival action.

First, though, what exactly is a survival action? In simple terms, a survival action is an action for damages (an award of money) for injuries incurred by the deceased right before dying. You can think of a survival action as a lawsuit for injuries incurred that the actual deceased would have been able to bring had he or she not passed away. Since the decedent is not able to bring the suit himself or herself, the decedent’s estate has to bring the suit. This is typically a child or other close relative. (States will specify exactly which family members are allowed to bring a survival action in that state.)

Along with deeming who can bring a survival action, states also specify during what timeframe individuals are allowed to bring such a lawsuit. This is not because the state or the courts do not want individuals to be able to recover, but rather because a timeframe has to be set so that the liable individual does not have an indefinite period of time during which to worry about the possibility of a lawsuit.

January 12, 2014

Personal Jurisdiction Reviewed in Case With International Implications

by Berniard Law Firm

The U.S. Court of Appeals for the Fifth Circuit affirmed a judge’s dismissal of the People’s Republic of China and a Chinese company, Xiamen, from litigation in the U.S. District Court for the Eastern District of Louisiana. The appeals court agreed with the trial court that the federal judiciary lacked personal jurisdiction and subject matter jurisdiction over the Chinese company and the PRC, respectively. The result was that the district court could not enforce an arbitral award under the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, also known as the New York Convention.

The underlying issue is a contract dispute between Covington Marine Corporation and Xiamen Shipbuilding. Pursuant to their contract’s arbitration clause, the dispute went to arbitration under the rules of the London Maritime Arbitration Association. The tribunal found neither side liable, but issued a separate award requiring Covington to pay 40% of the costs and Xiamen 60%. Xiamen then filed a petition in a Chinese court to have the liability award recognized and enforced. Covington did the same with the costs award.

Meanwhile, Covington appealed to the English High Court. The High Court found Xiamen liable, ordered Xiamen to pay 100% of the costs to Covington, and sent back the case to the tribunal for modification of the award. The arbitral tribunal changed their ruling and Covington petitioned the Chinese court to recognize the new awards.