Motorcycle Injury

December 3, 2017

Exclusions from a Release May be Just as Important as Inclusions

motorcycle-stunt-1390738-1-1024x768 Suffering through an accident is bad enough, but dealing with the aftermath of that accident can be even worse without the help of a great attorney. An often overlooked but critical step in dealing with the consequences of an accident is deciding who to include or exclude from a release, which is a contractual agreement in which one party agrees to give up their right to bring a claim against another party. As Trena and Thomas Garrison learned after their accident in Baton Rouge, a small oversight on a seemingly standard release could result in a substantial loss of potential recovery.

On April 21, 2010, the Garrisons were on their motorcycle driving down O’Neal Lane in Baton Rouge, Louisiana when Mr. Garrison lost control of the motorcycle and crashed. In the months following the accident, Mrs. Garrison released Mr. Garrison, his insurer State Farm Insurance, and all other persons, firms or corporations from any and all claims resulting from the accident in exchange for $25,000.

About one year later, the Garrisons filed a petition for damages against James Construction Group, LLC. The Garrisons alleged that the accident was caused by a large hole or trench in the road in an area that was under the custody of and being maintained by James Construction. On September 16, 2011, Mrs. Garrison signed an amended release that specifically reserved her rights to bring a claim against James Construction resulting from the April 21, 2010, accident.

October 23, 2017

Parish of Lafayette Harley Davidson Dealership Not Liable to Motorcycle Rider Killed During Promotional Demonstration

by Berniard Law Firm

motorcycle-1418201-1024x683 Automobile accidents are unavoidable tragedies that happen on our roadways daily. All drivers owe a duty to other drivers to keep each other safe, but how far does that duty extend and to whom does it extend to? That was the case when a Parish of Lafayette man was struck by a distracted driver while taking part in a promotional motorcycle ride sponsored by a local Harley Davidson dealership.

Ralph John Doucet was participating in a motorcycle demonstration ride sponsored by the Harley-Davidson Motorcycle Company and hosted by a local dealer, Cajun Harley. The ride began at Cajun Harley’s showroom in Scott, Louisiana. The ride involved ten to twelve motorcycle riders and was to proceed about eleven miles. The motorcycles were provided to give the riders a means of test-driving them.

Mr. Doucet was killed when Keith Alleman veered off the road, overcorrected, and crashed into Mr. Doucet. The widow and son of Mr. Doucet brought a lawsuit against Cajun Harley alleging that the dealership did not take the necessary safety precautions to ensure the safety of the riders. Cajun Harley filed a motion for summary judgment which was granted by the District Court for the Parish of Lafayette. The Doucet heirs appealed claiming that Cajun Harley breached their duty to conduct the demonstration ride in a reasonable manner by failing to choose a safer demo route.

September 18, 2017

Lafayette Medical Malpractice Claim Dismissed for Untimely Filing

by Berniard Law Firm

lab-work-1575843-683x1024 Generally, claimants interested in bringing any cause of action are required to stick to certain procedures including filing the claim within a specified time period. Medical malpractice claims are no different. Failure to file a claim within the statutorily imposed time frame will likely result in the dismissal of that claim. Without even considering liability, a court will be forced to terminate a lawsuit merely because it was filed too late. This, unfortunately, was the case for Linda Snavely in a recent case out of Lafayette.

Linda Snavely brought a medical malpractice action on behalf of her deceased son, Brian Snavely, on June 24, 2014. Brian was a patient of Dr. Margaret Rice from November 2005 until his death on August 18, 2012. Brian had been receiving treatment for injuries sustained in a series of serious accidents. Dr. Rice was familiar with Brian’s medical issues, which included chronic back pain, polycystic kidney disease, and a history of pulmonary emboli. Brian sustained several injuries from a motorcycle accident and was expected to undergo surgery on August 1, 2012. At the surgeon’s suggestion, Brian discontinued use of his chronic pain medication in anticipation of surgery. Ms. Snavely noticed Brian was acting differently and potentially hallucinating and on July 30, 2012, took him to the emergency room. Brian was diagnosed with drug withdrawal and admitted to Acadia Vermillion Hospital for controlled detoxification. On August 13, 2012, Brian met with Dr. Rice to discuss rescheduling his surgery. During that visit, Dr. Rice prescribed Brian daily doses of Oxycodone, Soma, and Xanax. Five days later Brian was dead. Brian’s cause of death was polydrug toxicity (an overdose).

Dr. Rice filed an exception of prescription asking that the claim be dismissed because the claim was filed in an untimely matter. The Fifteenth Judicial Court for the Parish of Lafayette agreed with Dr. Rice that the claim was untimely filed. Ms. Snavely appealed to the Louisiana Third Circuit Court of Appeal asserting that the claim was timely filed because it was filed within a year of her having discovered the alleged malpractice.

April 25, 2017

Delay in Appeal Costs Grieving Wife an Opportunity for Recovery in Louisiana

by Berniard Law Firm

In Louisiana, the law benefits those who take timely action in pursuit of their claims or defense. It can also punish the untimely. In a very unfortunate case, the Plaintiff, a grieving widow, missed an opportunity to overturn an adverse trial court decision. In the case, the Fourth Circuit Court of Appeal discusses the procedural avenues of supervisory review available to litigants, highlighting the need to be diligent in meeting procedural requirements.

On March 17, 2011, Mr. McGinn, the Plaintiff’s husband, was killed in a motorcycle accident that occurred on the Claiborne Avenue entrance ramp to Highway 90 in New Orleans. The Defendant, Mr. Lavigne, arrived at the scene of the accident acting in his official capacity as an officer for the Crescent City Connection Bridge Authority (CCCBA). At the scene of the accident, Mr. Lavigne was unable to located Mr. McGinn and would eventually leave the scene of the accident without ever locating Mr. McGinn. Mr. McGinn was subsequently found, deceased, near the exit ramp the next morning. It was discovered that he died there a whole 14 hours after the initial accident.

As a result, the Plaintiff, Mrs. McGinn, brought a lawsuit against Officer Lavigne, the CCCBA, and several insurers for the wrongful death of her husband. The CCCBA was served through its director and Mr. Lavigne was not served personally, but the service was accepted by a colleague of his. As the proceedings went on, the Plaintiff eventually sought a default judgment which was granted on August 26, 2015. In the default judgment, the Trial Court found the Defendants to be at 50% fault for Mr. McGinn’s death and awarded the Plaintiff $4,300,665 in damages.

March 7, 2017

Dismissal of Motorcycle Accident Insurance Claim Upheld in Louisiana Since Liability Policy Clearly Excluded Motorcycles

by Berniard Law Firm

cold-weather-rider-1438885-1024x683 People get car insurance to protect themselves in the event of a car accident. It is thus important that one takes care to research and consider what insurance plan is best for one’s needs. Liability insurance is designed to protect a person who owns or drives a vehicle from the costs of a lawsuit that might happen if that vehicle is in an accident. Insurance contracts define the scope of what sort of vehicles or potential plaintiffs will be considered covered under the policy. Generally, courts prefer to preserve the “freedom of contract“, meaning that as long as the contract was not forced upon one party or contains terms that will unfairly restrict the party’s rights, the court will not attempt to break or redraft it.

Whether an insurance contract can restrict certain coverage is in Louisiana, an issue that can be determined in summary judgment. Summary judgment is a method by which a case that does not raise any major issues of fact for a jury (or judge in a non-jury trial) to determine can be decided without the formality of a trial. Anyone who wishes to sue under an insurance contract to determine its scope must prove the facts of the incident as well as that the accident is covered by the insurance. Otherwise, the court will probably decide for the insurance company and not require it to pay out.

The Louisiana First Circuit Court of Appeals recently reaffirmed the idea that courts will not disturb a contract like insurance between two parties, as long as there is no ambiguity or unfairness. In August 2012, Lauren Stafford was riding on a motorcycle driven by Steven Fugler, when the motorcycle ran off the road and into a ditch, and both of them were thrown off as a result of the accident. Neither of them owned the motorcycle. It was in fact owned by another person uninvolved in the case. About a year later, Ms. Stafford sued Mr. Fugler and State Farm as his insurance company for serious injuries she received in the accident. State Farm responded by denying her allegations and also by stating that his policy did not insure a motorcycle owned by another person. The company argued that the policy only covered a non-owned car, defining a car as a motor vehicle with at least four wheels designed for road use. This, they claimed, excluded a two-wheeled motorcycle like the one that crashed. Because the insurance policy did not cover such a vehicle State Farm filed a summary judgment motion to effectively end the case. The trial court, agreeing with State Farm, granted this motion and dismissed the claim

October 19, 2016

Fatal Injury Occurs During Demo Motorcycle Ride In Lafayette Parish, is Harley Davidson to Blame?

by Berniard Law Firm

harley-day-in-arnhem-1432748-1024x683
The loss of a loved one is a terrible experience that no one should have to go through. When that loss is caused by a car accident lawsuits are sure to follow. But what if your loved one was on a demo ride sponsored by a motorcycle company when tragedy strikes, can the motorcycle company be held at fault for the accident as well? The following lawsuit out of Lafayette Parish tries to answer that question.

In 2010 in Scott, Louisiana Ralph Doucet was participating in a “demo ride” sponsored by Harley-Davidson and Cajun Cycles when he was fatally struck by car driven by Keith Alleman. Mr. Alleman alleged that he was distracted by the demo ride and this caused his inattentiveness. The family of the deceased filed a lawsuit naming various defendants including the sponsors (Harley Davidson) of the event alleging claims of negligence. In response to the lawsuit Harley Davidson filed a motion for summary judgment stating that the plaintiffs could not carry their burden of proof at trial. In the motion Harley Davidson was essentially saying that the Plaintiffs would not be able to prove they were negligent at trial and therefore they should be let out of the case now. After a hearing on that motion the trial court agreed with Harley Davidson and the plaintiffs appealed that decision to the Louisiana Third Circuit Court of Appeals.

The appeals court task was to decide whether or not the Plaintiffs provided enough evidence to negate Harley Davidson’s arguments. The court first looked to the standards of establishing negligence in Louisiana. In order to establish a case for negligence the plaintiff has to prove five elements (1) that the party had a duty to the injured party (2) that the party breached the duty (3) the party’s breach was the cause-in-fact for the injury (4) the party’s scope of duty and the scope of risk (5) that there are actual damages or injuries. Pinsonneult v. Merch. & Farmers Bank & Trust Co., 01-2217 (La. 4/3/02),816 So. 2d 270.

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 9, 2014

Rear-End Collision Case Examines Liability, Statutes in Louisiana

by Berniard Law Firm

A case arising out of a St. Martin Parish accident has shed light on the responsibility placed on drivers following behind another vehicle. According to Journet v. Mouton out of the Court of Appeal for the Third Circuit, a driver following another vehicle must exercise great care. The case arose out of an accident where a man and his family swerved to miss a slowing sheriff’s deputy, crossed the center line, and slammed into a ditch on the other side of the road. The driver of the vehicle was severely injured and was left quadriplegic.

Reports indicate the deputy was responding to an emergency call but had missed the driveway and was slowing to turn around in another drive. The driver of the following vehicle, who was driving without a license, knew the officer knew him and knew he did not have a license. Therefore, the following driver deliberately chose not to pass the deputy and claimed there were no brake lights and no turn signal used by the deputy. However, the plaintiff’s wife contradicted this testimony, stating that she did see brake lights and a turn signal. The defendants filed for summary judgment, which was granted by the trial court and affirmed by the Court of Appeal.

To reach its decision, the court looked to relevant Louisiana statutes. Most pertinent amongst these is La.R.S. 32:81(A), which states a driver shall not follow another vehicle more closely than is reasonable and shall have regard for the speed of the other vehicle. The court also looked to a Louisiana Supreme Court interpretation of the matter, which held that it is the duty of the following driver to exercise a great deal of care and to keep a safe distance behind the lead car.

December 28, 2013

Car Accident Leads to Examination of Mutual Responsibility

by Berniard Law Firm

We’ve all been there: you’re running late for work, so you rush out the door and into your car. You drive ever so slightly above the speed limit, and all the traffic lights you come across are green. Fortune seems to be on your side. Suddenly, a car seemingly comes out of nowhere and hits you. Are you partially to blame because you were in a rush and drove over the speed limit? If you are liable, how does it affect your ability to collect damages from the other driver and his or her insurance company?

Laura McKinney of Shreveport, Louisiana, faced those very questions after she collided with another driver on the morning of July 23, 2009. She was running late for her 6:00 a.m. shift at Holy Angels Residential Facilities, and the accident occurred just as she turned into its parking lot. A co-worker was leaving the parking lot and cut across several empty parking spaces to enter the main travel lane when she collided with McKinney. Neither party reported any injuries at the time, but McKinney developed left knee pain three weeks later and was diagnosed with a left knee contusion. She subsequently filed a lawsuit against the other driver and her insurance company.

At trial, several witnesses to the accident provided vital eyewitness accounts to help the court determine who was at fault. One witness testified that it appeared that McKinney was driving faster than the parking lot’s signed speed limit of 15 miles per hour. Another witness, however, testified that she did not think McKinney was driving above the speed limit. After weighing the evidence, the trial court ruled that McKinney was 40 percent at fault and the other driver was 60 percent at fault. McKinney’s damages award was therefore reduced by 40 percent, and the trial court entered a judgment in her favor in the amount of $7,632.60. McKinney appealed, arguing that the trial court erred in finding that she was 40 percent at fault and that the trial court also erred in awarding her an excessively low amount of damages.

December 20, 2013

Employer-Employee Relationship Must Be Defined In Car Accident Lawsuits

by Berniard Law Firm

Under the respondeat superior legal theory, an employer can be held liable for his employees’ acts that occur within his scope of employment. This means that a truck company, for example, may be held responsible for an accident caused by one its drivers who was speeding or intoxicated while driving his route. This doctrine can be complicated when questions arise as to whether or not the employee was within the scope of his employment, or whether the person who caused the injurious accident was in fact an employee.

To determine scope of employment, one must look to what the employer pays the employee to do and what, exactly, the employee was doing when the accident occured. If a truck driver deviated from his route to go to a bar, for example, then it will likely be determined the driver was engaged in frolic for his own benefit and therefore was not within the scope of his employment. This means if an accident occurs while that truck driver is on his way to the bar, then the truck company will not be held liable. If, on the other hand, the truck driver had to deviate from his standard route because of a flooded road, then the detour is still considered to be to the employer’s benefit and within his scope of employment. An accident that occurs while on detour will still be imputed to the truck company.

A recently decided case by Court of Appeal for the First Circuit helps illustrate issues of determining the employee/employer relationship. The importance of this aspect is if the party responsible for the accident is found to be an independent contractor rather than an employee, liability cannot be placed on the employer. So, in the case heard on appeal by the First Circuit, a woman who was injured by the negligent driving of a delivery van driver sought to join the subcontracting broker and the delivery service that hired the individuals responsible for the accident. To determine whether an independent contractor relationship existed, the court looked to case law and the facts before it.