Pain And Suffering Claims

April 5, 2017

Failure to Prosecute Case Results in Dismissal of Lawsuit in Zachary, Louisiana

broken-glass-1221856-1024x769 Filing and pursuing a lawsuit is no small task. Besides the often-significant monetary aspect, a plaintiff (the party filing the lawsuit) should be prepared for a large time commitment and effort in providing the necessary evidence to support their case. Good lawyers know how to aid their clients in gathering evidence and navigating the logistical aspects of a lawsuit as efficiently as possible. Litigation can sometimes take years, but a seasoned lawyer will know how to provide the motivation clients need to successfully pursue their claims and reach recovery. In a recent case out of Zachary Louisiana, the plaintiff filed a lawsuit he was simply not prepared to effectively maintain.

Wayne Boyd was driving past a Regions Bank in Zachary, Louisiana when suddenly a rock flew through his window, breaking the glass and hitting him in the face. Allegedly, the rock was thrown by a lawnmower operated on Regions Bank property by a landscaping service. Boyd filed his lawsuit in 2010 and, after some confusion over the right person to sue, BNL Enterprises, LLC – the landscaping service – was added as the defendant in 2011. In October 2013, the District Court set a trial date of May 20, 2014. Despite the immense amount of time to prepare, on the date of the trial, Boyd requested a continuance of the trial because he felt he was emotionally unprepared. BNL was prepared for trial and opposed the continuance.

The District Court Judge orally denied the request for a continuance. The Judge gave the parties ten days to attempt to resolve the case themselves. After the ten days was up, the Judge stated he would entertain defendant’s motion to dismiss the case for plaintiff’s failure to prosecute.

April 2, 2017

Louisiana Court of Appeal Discusses Calculation of Workers’ Compensation Benefits

by Berniard Law Firm

compensation-1444901-1024x798 Accidents occur everywhere including the workplace. Are you entitled to any benefits if injured while on the job? One common benefit of employment is the availability of worker’s compensation when injured on the job. Worker’s compensation is a type of insurance that grants wage replacement and medical benefits to employees injured in the course of employment. This in exchange relinquishes the right to sue the employer for negligence. Does it matter if you have been recently promoted or demoted? Calculating wage replacement benefits can often not be as clear-cut as it may appear. The following case describes the standards in Louisiana for calculating a salaried employee’s average weekly wage (AWW) for workers’ compensation benefits.

Jerome Augusta was injured in November of 2013 in a work-related accident while employed by Audubon. When Augusta began working for Audubon in November 2012, Augusta’s salary was $43,769.00. But in July 2013, he was demoted and his salary was lowered to $33,000.00. Audubon granted workers’ compensation benefits based on Augusta’s $33,000.00 salary at the time of the accident.

In March of the next year, Augusta filed a disputed workers compensation claim (Form-1008). He claimed that Audubon incorrectly calculated his benefits. This case went to trial before the Office of Worker’s Compensation (“OWC”). During the year before the accident, Augusta’s yearly salary was $42,824.76, factoring in his demotion., Augusta argued that his AWW should have been $823.55. Audubon argued it correctly calculated his AWW.

April 1, 2017

Fifth Circuit Finds that Malpractice Insurer May Settle Malpractice Claim without Consent of Previously Covered Physician

by Berniard Law Firm

scalpel-1316221-1024x768 Professionals in various fields whose work greatly impacts the lives of others may find themselves accused of malpractice. Especially in medicine where a seemingly simple mistake can end one’s life, the lawsuits that stem from malpractice can bring large awards to plaintiffs. This is where malpractice insurance comes in, to make sure these amounts are paid without completely destroying the livelihood of that professional. The Fifth Circuit Court of Appeal discussed malpractice insurance issues in a recent ruling.

Dr. Eileen Lunch-Ballard was an employee of Correct Care, Inc. and working in a hospital in 2008 when her treatment of a patient left that person with an amputated leg and later dead. As a result, she was sued for medical malpractice. The Louisiana Medical Mutual Insurance Company (LAMMICO) provided Correct Care with medical malpractice coverage. In 2009, Dr. Lynch-Ballard had her medical license suspended. The attorney appointed by LAMMICO urged that the lawsuit against her and her employer be settled. Despite her objections and apparently without her knowledge, LAMMICO settled the medical malpractice lawsuit in December 2009 for a total of $90,000.

When she discovered this, Dr. Lynch-Ballard demanded that her name is removed from the settlement documents. Although it was briefly removed, the documents were ultimately not changed. Dr. Lynch-Ballard sued LAMMICO as well as its appointed attorney for the settlement without her consent and the refusal to remove her name from the documents. She claimed tort damages of a damaged reputation as well as mental anguish. She also claimed LAMMICO had breached the contract by failing to advise her to seek outside counsel. In response, LAMMICO filed a motion to dismiss her tort claims on the basis that since she was no longer working for Correct Care, they were not required to obtain her consent to settle. They also argued that her contractual claim should be considered prescribed and no longer valid. The Trial Court eventually ruled in favor of LAMMICO, dismissing the claims. Dr. Lunch-Ballard appealed to the Fifth Circuit.

March 29, 2017

Oil Rig Worker Shot on the Job Loses Appeal After Failing to Prove Defendant is the Liable Party

by Berniard Law Firm

oil-1441845-1-768x1024 It’s a common scenario: someone is injured or property is damaged because another party failed to use reasonable care. This situation is far from rare in the legal profession, and the responsible party is usually held accountable for their negligence with civil lawsuits. But what happens when the injured person attempts to hold the wrong party responsible? It seems unlikely, but as James Johnson discovered, it is possible and the consequences can alter the course of a lawsuit’s final outcome.

James Johnson was shot in the leg while working as a superintendent on a drilling rig located near the coast of Nigeria. On November 8, 2010, Nigerian gunmen invaded Johnson’s rig and an attacker shot him, causing a severe injury that triggered months of complications. The night before the incident, rig hands moved a piece of equipment in front of the stairs that connected the rig to the platform in order to work on a device connected to the moving equipment. When rig hands noticed the assailants’ boat approaching the next day, they attempted to raise the stairs from the platform but were unable to do so because the equipment blocked the stairs. The gunmen used the lowered stairs to board the rig.

Johnson attempted to hold the rig hands’ employers responsible. Under the concept of vicarious liability, an employer can be held responsible for employees’ wrongful actions if those actions took place during the course of employment. Stoot v. D & D Catering Serv., Inc., 807 F.2d 1197, 1199 (5th Cir. 1987). Johnson brought multiple claims for negligence under maritime law and the Jones Act against many parties, one of which was GlobalSantaFe Corporation (GSF). Each of the companies Johnson named related to one another through a complex corporate structure.

March 28, 2017

Carpenter Unable to Recover Damages from Employer After Losing Fingers in Saw Accident on the Job

by Berniard Law Firm

carpentry-1-1241107-768x1024 Accidents frequently occur in construction zones and they may be the fault of the injured party or someone else involved in the renovation site. Courts are often tasked with deciding whether the injured person is responsible for his or her own injury or if a different party is at fault. A recent case in Metairie highlights the complexities of identifying the responsible party.

Peter Dimitri and his company, Beck Housing, LLC, hired Patrick Chaplain to perform carpentry work during a home renovation. Mr. Chaplain used a table saw, owned by Mr. Dimitri, during the process of his work, but Mr. Chaplain did not use the saw’s safety guard. The saw went rogue and struck Mr. Chaplain’s hand. As a result, he lost several fingers.

Mr. Chaplain filed a lawsuit against Mr. Dimitri to recover for his injuries. He believed Mr. Dimitri was responsible because he owned the saw. The Trial Court disagreed. The Trial Court concluded, without citing many reasons, that Mr. Chaplain could not bring his claim and granted Mr. Dimitri summary judgment, which allows a court to enter a judgment in favor of one party over the other without entering into a full trial. Mr. Chaplain needed to present evidence that “showed a genuine issue of material facts” in order for the lawsuit to move on to a trial, which the Trial Court did not believe he did sufficiently. See La.C.C.P arts. 966 and 967.

March 24, 2017

After Bus Injury, Louisiana Man Must Prove Validity of Medical Expenses to Receive Award

by Berniard Law Firm

bus-wreck-1390308-1024x768 In Louisiana, a party is responsible for the full extent of injuries he or she causes to another. Lawsuits stemming from these incidents usually arise over which party is more at fault or if any of the injuries were actually caused by the event at issue. Whether the party at fault has to pay the undisputed medical expenses is rarely at the center of these disputes, however, the following case from St. Bernard Parish, details why an injured party had to bring that very issue to appeal.

In 2010, Alfred Ronsonette, who was disabled and used a wheelchair, boarded a St. Bernard Urban Rapid Transit bus. Mr. Ronsonette placed himself in an open space on the bus, but the bus driver, Edith Cantrell, did not tie down his wheelchair, as is standard. The bus made a right turn, and the wheelchair fell over and took Mr. Ronsonette with it. He was immediately taken to the emergency room.

Mr. Ronsonette, and his wife, Darrall Ronsonette, filed a lawsuit against the St. Bernard Parish Government (St. Bernard). The trial court found St. Bernard 100 percent at fault for the accident, but only awarded Mr. Ronsonette $10,155.76 in general damages and medical expenses. The court did not award Mrs. Ronsonette anything in loss of consortium damages. The Ronsonettes appealed this decision based on all three of these awards.

March 21, 2017

LSU Student Sues University After Falling Thirteen Feet From Indoor Rock Climbing Wall

by Berniard Law Firm

rock-climbing-1-1357430-683x1024 Lest anyone think college is all about classrooms and books, many universities today offer a panoply of extra curricular amenities for students to enjoy. One of the main attractions is student recreation centers. At Louisiana State University (LSU), the University Student Recreation Center (UREC) is a place where students can go with friends and guests to exercise and participate in recreational activities such as indoor rock wall climbing.

On the evening of December 3, 2008, LSU Senior Brandy Fecke and a fellow classmate visited the indoor rock climbing facility at the UREC to complete a required assignment for an Outdoor Living Skills Activity course. Ms. Fecke signed a Rock Climbing Wall Participation Agreement and stated that she had previous rock wall climbing experience. Ms. Fecke indicated that she wanted to climb the easiest wall, which was a wall that did not require her to wear a harness or ropes. Ms. Fecke’s classmate was required to stand behind her and act as a spotter in case Ms. Fecke needed assistance.

After Ms. Fecke and her classmate received instructions and a climbing demonstration, Ms. Fecke began climbing up the wall. Upon reaching the top of the wall, Ms. Fecke fell thirteen feet to the ground where she sustained multiple fractures to her left ankle. Ms. Fecke’s injury was so severe that she underwent three major surgeries and required additional surgeries at the time of the lawsuit, including either a permanent ankle fusion or an ankle replacement. Ms. Fecke and her parents, Stephen and Karen Fecke, sued the LSU Board of Supervisors (Board) for damages Ms. Fecke sustained as a result of the accident. A jury returned a verdict in favor of Ms. Fecke and her parents and the Trial Court adjusted the award amount to $1.4 million. The Board appealed the Trial Court’s judgment and award to the Fecke family.

March 20, 2017

Coroner’s Outrageous Actions Result In Loss of Statutory Immunity in Louisiana Lawsuit

by Berniard Law Firm

graves-1-1504523-1024x686 Facts are one of the foundations of a successful lawsuit. In an effort to thwart a plaintiff’s chance at relief, a defendant may file an exception of no cause of action in response to a plaintiff’s complaint. An exception of no cause of action alleges that the plaintiff’s lawsuit has no legal validity, and therefore, the plaintiff has no claim. The following case out of Orleans Parish illustrates such an objection and the importance of facts, especially when those facts validate a claim that could be barred by immunity.

In 2013, Patrick and Crystal Simmons’ children were placed in foster care. In April of that same year, the State of Louisiana notified Mr. and Mrs. Simmons (Plaintiffs) that their son Eli had been transported to a Hospital in New Orleans. Eli died shortly after being admitted, prompting Plaintiffs to file a lawsuit asserting gross and/or intentional negligence by the coroner’s office and intentional infliction of emotional distress. See Hanks v. Entergy Corp., 944 So.2d 564 (La. 2006). Plaintiffs alleged that the coroner’s office received Eli’s body, but failed to perform an autopsy to determine the child’s cause of death. Furthermore, in an amendment to their initial complaint, Plaintiffs averred that their son’s body was misplaced by the coroner’s office because the coroner’s office could not find the body of the child until many months after the child passed. When the child’s body was finally recovered, the coroner’s office, without notifying the family, disposed of the body by cremation and buried the remains in an undisclosed burial location.

In response to Plaintiffs’ cause of action, the coroner filed motions with the court seeking to dismiss the case. The Trial Court granted Defendant’s motions, reasoning that statutory duties imposed on Defendant are for the benefit of the public, not for the private individual. As such, the Trial Court held that Plaintiffs did not have a private cause of action and that the coroner’s office was entitled to statutorily limited immunity from Plaintiffs’ claims.

March 17, 2017

Court of Appeal Allows Tenant to Continue Pursuit of Lawsuit Against Landlords in a Personal Injury Dispute

by Berniard Law Firm

chairs-2-1489343-1024x768 In Louisiana, the law allows a person to seek financial compensation against another person who has caused his or her injuries or failed to prevent the injuries if such a duty existed. A person has a responsibility not to harm others by their actions or with things in their possession. A Louisiana landlord has a special duty to his or her tenants to provide a safe building and will be held responsible if a tenant is injured as a result of the Landlord’s failure to repair a defect in the building that he or she knew about or should have known about. The following case illustrates some of these issues.

Jennifer Hooper was injured on the porch of her rented apartment when her crutches got stuck in a small, preexisting hole. As it turns out, the floorboards were rotten and Ms. Hooper fell right through the porch, fracturing her right femoral neck. Ms. Hooper sued her landlords, Val and Mary Brown, and their insurance company, Encompass Property and Casualty Company. The Browns attempted to terminate the case before it started by filing what is called a Motion for Summary Judgment. By filing this motion, the Browns asked the Trial Court to decide the case in their favor, without going through the formal development of the case. This would have ended the case before a jury had the opportunity to hear it. The Trial Court denied the motion, however, because there was a dispute as to whether the hole that Ms. Hooper stepped in was “open and obvious to all.” The Browns appealed the denial of the motion to the Louisiana Fourth Circuit Court of Appeal.

Ms. Hooper signed an apartment lease with the Browns in January 2011 and renewed the lease in 2012. Upon moving into the apartment, the Browns alerted Ms. Hooper to the hole in one of the porch floor boards. Several times over the course of her tenancy, the Browns promised to fix the hole but never did. Ms. Hooper argued that the Browns were responsible for her injuries by failing to adequately inspect and maintain the premises and warn her of the unreasonably dangerous condition. The Browns averred that the hole in the porch floor was open and obvious to all and thus, they had no duty to warn Ms. Hooper of the hole. Effectively, the Browns argued that Ms. Hooper should have seen the hole and avoided it all on her own.

March 14, 2017

Slip and Fall Sidewalk Accident Liability Rests With Lessee Due to Lack of Notice to Lessor

by Berniard Law Firm

sidewalk-cross-1177206-1024x681 Each year, thousands of people suffer from slip and fall accidents. From a legal perspective, it can be difficult to determine who, if anyone, is at fault. For example, in some slip and fall cases, a property owner can be held liable for the other party’s injuries. Property owners owe a duty of care to persons who use their premises. Owners are expected to keep the grounds in a reasonably safe condition.

The following case provides a good illustration of some of the issues that can arise when litigating a slip and fall accident. Reba Campbell suffered injuries after she slipped and fell on a mildewed area of sidewalk adjacent to the Evangeline Parish Medicaid Office. Mrs. Campbell and her husband (Plaintiffs) filed suit against the Evangeline Parish Police Jury, as owners of the Medicaid Office building, and the State of Louisiana, Department of Health and Hospitals, as lessee of the building. The State interjected a cross-claim against the Police Jury that called into question their liability as leaseholders. The State believed that the Police Jury should be held liable because it owned the property on which the hospital was located. The Police Jury countered that the State had the responsibility for maintaining the sidewalks in front of the building.

Plaintiffs sought a declaratory judgment from the Trial Court and the Trial Court held that the State was liable because it failed to put the Police Jury on notice of the problems with the sidewalk. The Trial Court granted the Police Jury’s oral motion for judgment and dismissed the Police Jury from the lawsuit.