Articles Posted in Motorcycle Injury

Understanding the distinction between a final judgment and an interlocutory judgment is crucial to making sure your case does not get dismissed as untimely. A final judgment determines the merits of the case in whole or in part while all other judgments are interlocutory.

Interlocutory judgments are intermediate rulings decided by the trial court. These judgments do not dispose of the merits of the claims. Usually, an interlocutory judgment cannot be appealed immediately; only final judgments can be appealed. However, in Louisiana, the Court of Appeals allows for individuals to file a writ for supervisory review within 30 days from when the trial court makes its interlocutory ruling. If the writ was filed in a timely fashion, the appellate court will review the merits of the claims that were decided by the trial court. If the writ was not filed in a timely manner, the appellate court will dismiss the case.

The 30 day period to file the writ is a steadfast rule. Countless cases have been dismissed because writs are filed after the given 30 day time period. Many fail to realize that the 30 day period begins right when the trial court makes its ruling. Filing a writ after this 30 day time period results in a complete dismissal of the case.

In a typical case, either party can move for summary judgment. The defendant can move for summary judgment after the plaintiff files the complaint. The plaintiff can move for summary judgment after the defendant has answered the plaintiff’s complaint.

Summary judgment is a common procedural occurrence within civil and criminal trials. The purpose of summary judgment is “to secure the just, speedy, and inexpensive determination” of actions. A party is granted summary judgment when there is no genuine issue of material fact. In other words, a party is granted summary judgment if the court finds that no reasonable jury would ever find in favor of the non-movant (the party that is not moving for summary judgment) based upon the facts in the record. When it is beyond a reasonable doubt that the movant is entitled to summary judgment, summary judgment is granted and the case never reaches a jury. However, if there is even the slightest chance that a jury could find for the non-movant, summary judgment is not granted and litigation continues until a jury determines who should win the case.

In this particular case, Ricky Whittington Jr., was rear-ended by an eighteen-wheel tractor trailer rig in the Parish of Rapides on June 2, 2009. He sustained extensive injuries from this accident and had to go through back surgery as a result. Mr. Whittington filed suit against the operator of the eighteen-wheel tractor, the operator’s employer, and the employer’s insurer, QBE Specialty Insurance Company (“QBE”). In addition, he also named General Insurance Company of America (“GICA”) as the fourth defendant. The issue on appeal is whether the trial court erred in granting summary judgment to the fourth defendant, GICA.

The jury is the ultimate trier of fact. In our democratic society, we place high value on the idea of being judged by a panel of your peers. In addition, it allows the accused to be judged by the prevailing community standards. The jury is supposed to be more in touch with the average person than the average judge would be. Generally, since the jury is held is such high regard, the court of appeals is hesitant to overturn any of their decisions. The court explained this notion in a case arising from Cameron Parish, Louisiana.

In that case, a truck driver swerved to avoid a sign placed there by the Department of Transportation and Development. The sign was too far on to the road, the truck driver did not notice the misplacement fast enough, and had to swerve to avoid hitting the sign. When he swerved, he lost control and ended up in a ditch that Hurricane Ike damaged. The truck flipped and, although the truck driver was not harmed upon the collision, he was stuck in the vehicle upside-down. After forty-five minutes of being pinned upside-down, the truck driver died of asphyxiation. His wife and three children sued the DOTD based on general damages, lost past and future wages, survival damages, and funeral expenses.

The lower court found that the DOTD was fifty percent at fault and the truck driver was also fifty percent at fault. As such, the lower court awarded damages that amounted to $700,000 in total. Fault determinations are extremely fact intensive, so the lower court, as the trier of fact has broad abilities to make these determinations. As such, they are difficult to overturn in the court of appeals.

In a recent case, Johnson v. University Medical Center in Lafayette, the Louisiana Court of Appeal for the Third Circuit reversed a trial court decision to dismiss a plaintiff’s case for abandonment due to her failure to timely pay the costs of appeal. The plaintiff in the case, Lela Johnson, originally filed a medical malpractice action against both the University Medical Center in Lafayette and the Medical Center of Louisiana in New Orleans. The case has proceeded through courts since the original petition for damages was filed on March 15, 2006.

Both defendants, whose principal places of business correspond with the last word of their names, are operated by the State of Louisiana. After a dismissal of her original suit by the Supreme Court of Louisiana due to her failure to properly notify the defendants of the action because she had requested service of process on individuals who had not been individuals who were authorized to accept such information on behalf of the defendants, Ms. Johnson’s decided to re-file the original suit in trial court. Once again, Ms. Johnson’s service of process was held insufficient by the trial court and she moved to appeal that judgment.

Service of process is a legal term of art which essentially describes the process in which plaintiffs notify defendants of a pending suit. When the plaintiff files a complaint with a court, any defendant in the case must be given notice of the pending case and an opportunity to be heard and defend themselves against the complaint. This requirement is a basic constitutional right conferred upon everyone who has been accused of some wrongdoing and it is the accuser’s responsibility to ensure that the constitutional right of the accused is protected. The importance of service of process to our legal system and the rights of defendants makes it necessary for trial courts to dismiss actions, without regard to the merits of the plaintiff’s claims, if service of process is deficient in some way or another.

In a recent medical malpractice case, the jury found that the plaintiffs did not prove, by a preponderance of the evidence, the standard of care applicable to the emergency room doctor they had sued for a medical malpractice allegation. Because the plaintiffs had not proved their case the suit was dismissed. However, on a motion by the plaintiffs, the trial judge issued a judgment notwithstanding the verdict, reversing the jury’s decision and awarding the plainiffs over five million dollars in damages. The doctor and hospital board appealed this decision.

A plaintiff in a medical malpractice case alleging that the doctor was negligent must prove 1) the amount of skill or knowledge possessed by a typical doctor or the amount of care ordinarily exercised by licensed doctors in Louisiana practicing in a similar community or under similar circumstances as the doctor being sued. 2) that the doctor either did not have required level of knowledge or skill or did not use ordinary level of care and 3) that the result of this lack of knowledge, skill or care caused the plaintiffs injuries which would not have otherwise occurred. The jury found that the plaintiffs failed to establish the level of care used by Louisiana emergency room physician in similar circumstances therefore they could not have proved either of the other elements.

A judge may issue a judgment notwithstanding the verdict when the evidence is so strongly in favor of one party that reasonable jurors could not give a verdict for the other party. When a party (the party who lost the jury verdict) moves for a judgment notwithstanding the verdict the motion must be denied if there is evidence for the other party (which won the jury verdict) that could lead a reasonable person to side with the other party. The court should resolved all reasonable inferences and factual questions in favor of the party who won the jury verdict. This is a very difficult standart for the moving party to clear. The jury verdict must have been completely illogical and unfounded for a judge to override it. When an appeals court reviews a trial judge’s decision to grant a judgment notwithstanding the verdict the same standard is used. In this case the courts must evaluate the evidence given my both sides medical experts to determine whether reasonable people could have found that the plaintiffs failed to prove the applicable standard of care.

Regardless of the issue at law, parties in a civil suit can halt further litigation by obtaining a motion for summary judgment. The party seeking summary judgment, known as the movant, must show there is no genuine issue of material fact despite the allegations asserted by the non-moving party. The court will consider a fact “material” if “its existence potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the relevant legal dispute.” Furthermore, a fact will be deemed at issue “if there exists any reasonable doubt as to its existence.”

On July 12, 2006, Raymond Alex, Sr. (hereinafter “plaintiff”) was driving his employer’s, BNSF Railway Company (hereinafter “defendant”), truck south on North Eastern Avenue in Crowley when he was rear-ended by a large tractor-trailer rig driven by Edward Zenon, Jr. (hereinafter “Mr. Zenon”) of Creole Fermentation Industries, Inc. The plaintiff alleged the accident injured his neck and caused radiating pain down his right arm into his hand. His recovery consisted of neck injections and surgery.

Interestingly, the plaintiff signed off on the operating condition of the truck before driving it and after the accident signed a report admitting the defendant was not to blame for his injuries.

Findings of fact refer to the findings of a jury on issues of fact submitted to it and are distinct from conclusions of law. Generally, a jury resolves questions of fact, whereas a judge, or an equivalent resolves questions of law. However, in Rayne, Louisiana, Mary Betty Williams, the plaintiff in a personal injury case, appealed the trial court judge’s determination that she did not carry her burden of proving that the defendant caused the accident at issue.

On December 8, 2009, Ms. Williams and Paula Trahan were involved in an automobile accident in Rayne, Louisiana. Accordingly, Ms. Williams filed suit against Ms. Trahan, asserting that Ms. Trahan caused the accident and was responsible to pay damages to Ms. Williams for pain and suffering, medical expenses, and lost income. At trial, both Ms. Williams and Ms. Trahan offered conflicting testimony that the other was to blame for the accident. Moreover, Ms. Trahan testified that the accident report filed included only portions of the statement she made to Patrolman Joshua Board at the scene of the accident. According to Patrolman Board, he found “a little plastic shard” of debris in the area where the accident occurred, which he believed fell from one of the vehicles involved in the accident. However, Patrolman Board further testified that he never checked either Ms. Williams’ or Ms. Trahan’s vehicle to determine whether the plastic shard had fallen from one of their vehicles or had resulted in damage to either vehicle.

After the accident, Ms. Trahan submitted an amended statement to reflect what she says accurately describes the incident and includes the portions of her statement not included in the initial accident report filed by Patrolman Board. However, at trial, Patrolman Board denied that Ms. Trahan’s amended statement reflected what the she told him at the scene of the accident. Nonetheless, the trial court awarded judgment in favor of Ms. Trahan and dismissed Ms. Williams’s claims, concluding that Ms. Williams had not carried her burden of proof. According to the trial court judge, “the scales are evenly balanced. I don’t feel that the plaintiff has carried her burden, because both versions are plausible, but neither one has more credibility than the other. So this is a case where plaintiff cannot recover, because she could not prove, by a preponderance of the evidence, that the accident was the fault of the defendant in this case.” As a result, Ms. Williams appealed the trial court’s determination and submits that the trial court erred in its conclusion that she did not prove Ms. Trahan caused the accident.

The essential elements necessary to form a binding contract are usually described as: (1) an offer, (2) an acceptance, (3) a legal purpose or objective, (4) a “meeting of the minds,” (5) consideration, and (6) competent parties. Ambiguities typically arise with offers and acceptances that often lead to litigation. An offer is generally defined as the manifestation of the willingness to enter into a deal so as to justify to another party the offeror’s assent to the deal. Although an acceptance of an offer can occur in several ways, it is most typically described as the assent to the terms made by the offeror. In a recent case in Lake Charles, Louisiana, a finding made by a trial court that an offer and acceptance were ambiguous is under appeal.

On December 13, 2006, a woman robbed Jalil Abushanab as he was about to enter the Isle of Capri Casino in Lake Charles. While attempting to chase the woman, Mr. Abushanab was struck by an SUV and suffered bruises, abrasions, and a broken hip. After Mr. Abushanab’s death in early 2008, his surviving spouse and ten children were substituted as party plaintiffs and asserted claims against the Isle of Capri Casino for wrongful death and survivor damages. In May of 2011, the Isle of Capri Casino filed a motion for summary judgment seeking to dismiss the plaintiff’s claims for lack of liability. But on August 6, 2011, before the hearing, the casino made a written offer to the plaintiffs seeking to settlement the matter for $250,000.00. Prior to the hearing, the plaintiffs accepted the casino’s offer with a signed acceptance letter.

On October 6, 2011, a trial court ruled in the plaintiffs favor and agreed with their motion that the offer made by the casino was exclusive of medical and statutory liens and court costs. At that time, Mr. Abushanab’s family was awarded a lump sum payment of $250,000.00, plus any Medicare/Medicaid liens, a lien on behalf of a drug company, and court costs. Accordingly, Isle of Capri Casino appealed, contending that the trial court was legally incorrect in its finding and that based on the law and on the totality of the circumstances, the offer and acceptance were ambiguous. The casino contends that not only did the trial court err in refusing to consider the casino’s intent when it made the offer, but that the court erred in concluding that there was a “meeting of the minds” and that the parties had reached a compromise agreement.

It is well established that an appeal court gives deference to a trial court’s finding of fact (ruling) unless the court was clearly wrong or acted in extreme error. In other words, even if the appellate court is convinced that they would have decided upon the evidence differently, the trial court’s findings cannot be reversed if it was reasonable that it could rule in the manner it did. Moreover, if there are two permissible rulings that could be determined, the trial court’s choice between the two cannot be found manifestly erroneous or clearly wrong.

On March 29, 2009, plaintiff Franklin Scott (“Mr. Scott”) was driving his tractor/trailer rig carrying saltwater west on Keatchie-Marshall Road in Caddo Parish (“Caddo”) where he failed to observe and avoid a fallen tree blocking the road. Mr. Scott’s truck slid 350 feet after the collision and hit several other trees before stopping. Among other injuries resulting in the crash, Mr. Scott suffered a “serious injury” to his neck.

Mr. Scott filed a personal injury suit in District Court against Caddo, property owners Roger and Marilyn Connell (“property owners”) and State Farm Fire and Casualty Company (“State Farm”) for failure to maintain the road from potentially hazardous conditions. After weighing the oral testimony of several witnesses, the District Court found in favor of Caddo. Mr. Scott appealed.

Medical testimony after an automobile accident is complicated enough. When two accidents close in time are involved, it can get downright confusing. All the more so when a court is trying to determine which accident is to blame for not one but several different injuries. But despite questions of accuracy and the sufficiency of evidence, the role of a court of appeals is not to second-guess or set aside the trial court’s facts – provided they are reasonably arrived at and not obviously wrong.

This principle was on display in a case out of Vermilion Parish. Wanda Turner was involved in two accidents in 2010 – one in September and one in October. After the second accident, Turner filed suit against the insurer of the vehicle from the first accident, alleging neck pain, back pain, and migraines. She attributed all of her injuries to the first accident, rather than the second one, despite the fact that the second was more serious. The trial court ruled in Turner’s favor and awarded $8,500 in general damages ($3,500 for the migraines; $3,000 for aggravating her back condition; and $2,000 for her neck pain) and $1,800 in special damages to cover her medical expenses related to the first accident.

The defendant insurance company appealed the ruling, claiming a lack of medical evidence and unsupported testimony. The appellate court even noted numerous inconsistencies in Turner’s testimony. Despite this, and citing past legal precedent, the court explained that it was obligated to give great deference to the factual findings of the trial court. Unless those findings are obviously unreasonable or rife with manifest error, the appellate court will not set them aside. This was the standard applied to Turner’s claims.

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