Articles Posted in Motorcycle Injury

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After being involved in a one-car accident in 2008, a Louisiana woman sued East Carroll Parish Police Jury, claiming that a pothole on Perry Road resulted in her accident. She later amended her claim to state that other factors had further contributed to her injury and that the road was defective. In response, the Police Jury filed a motion for summary judgment, and the hearing on the matter was set for August 1, 2011.

Because the hearing date was set for August 1, 2011, this meant, according to Louisiana law, that if the woman wanted to file an opposition to the motion for summary judgment, she had until eight days before the already set hearing date to do so. This deadline for filing the opposition materials was then set as July 24, 2011. However, July 24th came and went, and no opposition materials were filed on the plaintiff’s behalf. On July 29, 2011, three days before the hearing, the plaintiff tried to move the hearing back, claiming that she needed more time for discovery. When the day of the hearing came about, the court pointed out that the plaintiff did not file her motion for continuance until after the eight-days before the hearing deadline.

At the hearing, the court did finally grant the motion for continuance, despite the fact that it was filed late, and the hearing was rescheduled for September 20, 2011. The plaintiff was told that any opposition had to be filed on or before September 6, 2011 (even though this would be more than eight days before the newly scheduled hearing). Basically, the court had offered the plaintiff a 45-day extension of her deadline, from July 24th to September 6th.

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You have probably heard the phrase “accidents happen.” But if you are in an accident, the first thing that you want to ask is who is at fault. With all of the chaos that can be part of an accident, sometimes the answer to this question isn’t always clear. This is when comparative fault, also known as comparative negligence, comes into play. In general, negligence refers to conduct that falls below the standards of behavior established by law for the protection of others against unreasonable risk of harm. Comparative negligence is different from ordinary negligence in that ordinary negligence is a failure to exercise the care that a reasonable person would exercise in similar circumstances whereas comparative negligence describes conduct that creates an unreasonable risk to one’s self.

In 1979, Louisiana Civil Code Article 2323 was amended to provide for a pure comparative negligence regime where a plaintiff’s own contributing negligence did not bar the recovery of damages, but merely reduced it by his or her own portion of fault. The Louisiana Legislature, in 1996, further amended the Code, making Louisiana a “true” comparative fault jurisdiction and the language of that amendment provided:

In an action for damages where a person suffers injury … the degree or percentage of fault of all persons causing or contributing to the injury … shall be determined, regardless of whether the person is a party to the action, and regardless of such person’s insolvency, ability to pay, immunity by statute …

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When cases are appealed, the appeals court must grant a great deal of deference to the lower court as the fact-finder. The lower court sees both parties at trial and deals extensively with all of the circumstances of the case. The appeals court, however, may see the parties, but does not listen to testimony or review the facts nearly as extensively as the lower court. Often, the only facts that are presented are those in the record of the lower court. Where the lower court has leeway to find additional facts, the appeals court has no such ability. However, the appeals court does have the discretion to adjust findings of the lower court should they find that the lower court’s determination is not supported by the evidence in the record. Damages are generally vulnerable to changes at the appeals level.

Deference to the trial court may occasionally produce some results that one might question. For example, in a case appealed from the Abbeville City Court in the parish of Vermillion, the plaintiff, who was also the sole witness, and evidence seemed questionable, but because the lower court found in her favor, the appeals court had to defer to the lower court’s version of the facts. In that case, the plaintiff sought damages related to a car accident. The question of fault in the car accident was clearly on the other driver, but the issue in the case revolved around the plaintiff’s request for damages related to her injuries.

The plaintiff was involved in at least six car accidents in the past twenty years. The two most recent occurrences, however, were the issue in this case. The first accident involved the other driver in question. The second accident occurred one month later; she was at fault and it was much more serious because the air bag deployed in the second crash, but not in the first. Nonetheless, the plaintiff attributed back pain, neck pains and severe headaches to the first accident, which was not her fault.

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Automobile accidents create questions of coverage and liability – the only problem is how to answer those questions. Who is liable? Are you covered? If you are covered, to what extent are you covered? If you are covered, are your passengers covered? The final point is a more complex question to which recent case law has provided guidance for us.

In February of 2009, an uninsured motorist crashed into a vehicle owned by Ann Bernard. Ann was the driver and she had two passengers with her, Andrea and Norell Bernard, both members of her family not living in her household. Ann filed suit against her insurance provider, Imperial Fire & Casualty Insurance Company in order to obtain uninsured/underinsured motorists coverage under Ann’s Imperial policy. This type of coverage was named “UM” coverage. Ann believed that herself, Andrea, and Norell were all “using” the vehicle and were, accordingly, all insured persons as defined under her policy; thus statutorily entitling them all to coverage under Louisiana law.

In her filing, Ann referenced La. R.S. 22:1295 which states, in relevant part:

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A Saint Martinville, Louisiana, construction company, Cole’s Construction Crews, Inc., recently had a judgment against it reversed and remanded back to the trial court. Back in 2007, Cole’s had filed a lawsuit against J-O-B Operating Company. A few months after filing suit, Cole’s requested production of documents and sent interrogatories (or a list of probing questions) to JOB. Almost two years later, in July of 2009, JOB finally answered the requests. Then, in June of 2011, JOB filed a motion to dismiss the suit, claiming that Cole’s had abandoned the lawsuit. Ultimately, the motion to dismiss was signed, and Cole’s then attempted to get the motion set aside. The trial court denied this attempt, and Cole’s appealed the case to the appellate court to get it reviewed.

Cole’s claims that granting the motion to dismiss was an error that should be reversed. First, JOB had just answered the interrogatories less than two years earlier, and second, JOB did not file the requisite affidavit with its motion to dismiss. Ultimately, the appellate court disagreed with the trial court’s ruling and decided that granting the motion to dismiss had been done in error. They came to this conclusion by considering the various aspects of the complex Louisiana abandonment law, which is discussed below.

In Louisiana, Article 561 of the Louisiana Code of Civil Procedure imposes three requirements on plaintiffs in order for their lawsuit to not be considered abandoned. The first requirement is that the plaintiff has to take some sort of formal action before the court with regard to the lawsuit. Next, this action needs to take place during a court proceeding and must be in the suit’s record, unless it is part of formal discovery. Finally, this action has to take place in the requisite amount of time. If three years have passed without an appropriate action as described above taken by either party, then the suit is automatically abandoned. Even though abandonment is self-executing, defendants are encouraged to get an ex part order of dismissal, just like JOB did in this case, to make sure that their right to assert abandonment is not waived.

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In continuing the last post, an automobile accident took place where a variety of damages awarded to the plaintiff were mitigated by the allocation of fault. After the court of appeals reversed the allocation of fault and rendered that Mr. Artigue was 100% at fault, the court addressed four remaining assertions of error. Ms. Richard asserted that the jury committed manifest error in determining each of the four monetary values defined, arguing that the values were lower than the lowest reasonable value that could be determined by the facts at trial.

The jury’s determination of damages is a finding of fact, and much discretion is left to the jury (or judge in a bench trial where he or she is the trier of fact). Therefore, a trial court’s finding of fact cannot be reversed unless it is clearly wrong. i.e. that a reasonable factual basis does not exist for the finding. The court of Appeals affirmed the loss of future wages, past wages, and general damages. However, the court held that the award for future medical expenses demonstrated manifest error and amended the judgment for future medical expenses

Ms. Richard also argued that the amount reached by the jury for future earnings was erroneous because it was below what either economist testified to as her future lost wages. However, both estimations assumed that she could not ever work again, and the facts show that Ms. Richard didn’t cease working until slightly over 2 years after the accident (when she was fired). Therefore, the jury could have reasonably found that Richard may return to work in the future.

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On a rainy morning in Lafayette Parish there was an accident on I-49, and traffic was even more congested than usual. However, a subsequent accident is the subject of this post. Ms. Richard was driving southbound when she came upon the accident and stopped. The vehicle behind her did the same. A third automobile, a truck driven by Mr. Artigue, failed to stop, struck the second vehicle and pushed it into Richard’s vehicle. In the wake of the accident, Richard filed a claim and Artigue subsequently asserted the affirmative defense of sudden emergency.

The Jury determined the damages to be $225,000.00 for future lost wages, $555,833.00 for future medical expenses, $10,000.00 for past lost wages and $325,000.00 for general damages. However, the jury only allocated 60% of the fault to Mr. Artigue. The jury attributed the remainder to sudden emergency/third party fault.

Ms. Richard appealed, asserting seven assignments of error. The first three issues relate to the jury’s allocation of fault, and are the subject of this post. The final four relate to the jury’s damage awards and are the subject of the following post.

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A high percentage of personal injury lawsuits are based upon claims of negligence. Negligence and intentional torts are both similar in that they result in harm to others. However, negligence actions differ from intentional torts because they are the result of a non-intentional action. There are essentially four elements of a negligence claim that must be met in order to prevail in a lawsuit. There must be a duty of cared owed to another, a breach of this duty of care, actual harm as a result of this breach, and causation. An individual will be on the hook for any harm that arises due to his or her’s negligence actions. If one’s standard of care deviates from that of a reasonably prudent person under same or similar circumstances, then the individual’s actions may be considered negligent.

The concept of the first element of a negligence claim of a duty of care is highlighted in this recent case. Ms. Ponceti and her daughter, Katilynn, lived in an apartment complex located in Louisiana owned by First Lake Properties (“First Lake”). While Katilynn was playing in the courtyard of the apartment complex, a teenager lost control of his bicycle and injured her. Ms. Ponceti sued First Lake, claiming that it was negligent in allowing the teenager to ride bicycles on the sidewalks of the apartment complex.

This is a personal injury lawsuit based upon the previously discussed negligence tort theory. In claiming First Lake was negligent in allowing bikes on the sidewalks, Ms. Ponceti needed to show that First Lake owed her daughter a duty to take reasonable care by preventing people from riding bicycles on its sidewalks that may potentially cause injury. Here a critical issue comes into play: does First Lake owe her such a duty?

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You are sitting in your car, stopped at a stop sign, patiently waiting for the right moment to go. Suddenly, the distracted driver behind you rear-ends you. You go through the hassle of filing a report and you exchange information. Shortly thereafter, feeling some slight pain from the accident, you head over to a medical center just to make sure that everything is okay. To cover the costs of the medical bills, you file a lawsuit against the reckless driver.

While the lawsuit in this case seems pretty straight forward, you need to make sure that you hire a competent attorney that will claim the requisite damages on your behalf. This is especially important because if the damages are not requested at the appropriate times, these damages may be waived. Once a trial court has made its findings of fact, unless those findings are blatantly wrong or were made in manifest error, a reviewing court cannot reverse them.

Because the trial court has the duty to hear the findings of fact, the plaintiff’s attorney must submit any testimony or evidence of damages at this level and in a timely manner. At the trial court level, evidence needs to be submitted regarding not just medical bills, but also testimony and any evidence of lost wages, lost earning capacity, the full extent of any medical injuries, and any pain or suffering if these damages are to be awarded. A plaintiff can recover more than just the exact medical bills that have been paid to that point, but the proper evidence and/or testimony need to be presented. If any general damages are sought, they must be requested at the trial court level and entered into the record. If any on-going physical therapy will be required, records of this need to be presented so that it can be properly taken into account. If the plaintiff will not be able to work because of injuries incurred, evidence of this must also be presented so that the trial court can make a proper judgment.

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The Berniard Law Firm’s principal attorney, Jeffrey Berniard, recently taught an Introduction to Personal Injury course. Having been an active part of Continuing Legal Education (CLE), Mr. Berniard was selected to teach the topic due to the firm’s specialization in medical malpractice, first party insurance disputes, and premises liability claims. Some of the topics covered included: Personal Injury Protection and First Party Benefits in auto policies; medical records disclosure including mental health and substance abuse treatment records; recoverable personal injury damages.

Under many state’s no-fault insurance laws, a claimant’s insurance company will only pay for Personal Injury Protection, or the first $10,000 out-of-pocket expenses. The remainder of expenses must be recovered from the Defendant. Many auto insurance companies do offer First Party Benefits packages, an optional supplement that will cover all medical expenses in the event of an accident for the policyholder or anyone else listed on the plan. However, many auto insurance companies also use a computer program that performs a calculation to value the severity of a victim’s injury. The program does not take into consideration the stress, pain, inconvenience, loss of enjoyment of life that a victim may have suffered.

Medical records unrelated to a victim’s injury, but pertaining to his/her health, are discoverable if “good cause” can be shown. Both state law and the federal Health Insurance Portability and Accountability Act (HIPAA) apply to a consent for release of medical records. The consent must contain ten items, including a statement that the health care provider cannot condition treatment upon the signing of the consent for release. However, because of the broadness of the item language requirements, HIPAA, and state law, a health care provider may refuse to honor the consent. If a consent cannot be obtained from the patient, HIPAA continues to allow health care providers to release information with a court order or a subpoena. If an attorney issues a subpoena without a court order, the health care provider will not release information unless certain assurances are made.

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