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stop-san-francisco-1496611-1024x683When it comes to road safety, you can only rely on yourself. Know the rules of the road and always take precautions. In a recent case, a car accident dispute was brought to court to determine the liability of the parties. The case explains the responsibilities of motorists in Louisiana and why you should only rely on yourself for proper road safety and not assume that everyone else will take adequate precautions. The plaintiffs in a recent case learned this lesson the hard way.

On January 23, 2013, Plaintiffs Joseph Solomon and Betty were stopped at a stop sign at the intersection of North 8th Street and Louisville Avenue as they traveled southbound on North 8th Street. Sarah Tugwell was heading westbound on Louisville Avenue, a four-lane east-west thoroughfare. North 8th Street was traffic controlled through a stop sign. However, Louisville Avenue had no traffic control, no lights and no stop sign. This means drivers on Louisville Avenue have right of the way to travel, and those on North 8th Street must yield accordingly. So, Tugwell had right of the way, and Solomon and Blount had the stop sign.

According to the Plaintiffs, there was an unrelated accident on Louisville that slowed down traffic, and to Plaintiffs’ credit, an officer reported having his lights on further down Louisville to indicate officers were present handling an accident.  As a result of the accident, traffic was backed up, and Plaintiffs could not see the inside westbound lane while they were stopped at the stop sign. However, an unknown driver signaled for Plaintiffs to go. Relying on the kind and common gesture, Blount drove into the intersection. Thereafter, the Plaintiffs said Tugwell pulled out from the outside lane towards the inside lane, driving into the intersection. A collision ensued. However, Tugwell had some slightly different details.

scalpel-1316221-1024x768Professionals 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.

dumbbell-1306867-1024x683When a products-related injury occurs, multiple parties may be at fault. In litigating personal injury claims, among the most important legal questions, are whom may the plaintiff recover from, if anyone, and under what theory of liability. The following case provides a good discussion of some typical theories of liability involved in products-related injury cases.

In 2013, Russell Maricle was involved in a serious car accident that resulted in him needing to use a wheelchair. Mr. Maricle’s bad fortune continued after the accident one day as he rolled up a wheelchair ramp. The fabric on the back of his wheelchair ripped causing Mr. Maricle to fall out of his chair and re-injure his neck. Mr. Maricle rented his wheelchair from Axis Medical and Fitness Equipment, L.L.C. (Axis) in Alexandria, Louisiana. The wheelchair was manufactured by Dalton Medical Corporation and Dalton Instrument Corporation (Dalton).

Mr. Maricle filed a lawsuit against Dalton and Axis, alleging that the wheelchair produced by Dalton was defective and that Axis was negligent in failing to inspect it before renting it to him. These are two separate legal theories. Mr. Maricle’s claim against Dalton is a products liability claim. The Louisiana Products Liability Act (LPLA) sets out the exclusive products liability theories against manufacturers caused by their products. La. R.S. 9:2800.52. Under the LPLA, a manufacturer of a product is liable for damages foreseeably caused by a defect in the product which renders it unreasonably dangerous. The damage suffered by the claimant must arise from “reasonably anticipated use” of the product by the claimant or someone else. A product can be considered unreasonably dangerous for purposes of liability in four ways: (1) construction or composition; (2) design; (3) inadequate warning; or (4) nonconformity to an express warrantee.

construction-site-1229346-1024x680If your contractor tells you a job will take a day, you might expect it to actually take a week. But, do you have to pay your contractor for time they are unable to work? Depending on the contract agreement you signed you may be liable for the costs the contractor has even when work is not going according to plan. This may be particularly true if you fail to uphold some part of the bargain. Whenever you enter a contract or feel that a contract may have been breached, it is important that you fully understand your contract. A case out of Baton Rouge in 2001 gives some insight into the necessary proof when trying to recover for contract losses.

In March of 2001, the city of Baton Rouge, Louisiana, entered into a contract with F.G. Sullivan, Jr. to improve Tiger Bend Road. The nearly $4,000,000 contract involved the expansion of the road, as well as the installation of a storm drainage system. Baton Rouge had been acquiring the rights to utilities on the road that would be in the way of the project. Both parties had agreed that the utility lines would be removed prior to Sullivan commencing work. The city informed the contractor that the utilities would be removed by April 1, 2001, and that work was to commence the following day.

Work began on the drainage system on April 2, but a snag was quickly hit. As construction on the drainage system began the company realized that the utility lines had not been moved. The city refused Sullivan for the time when his idle equipment was unable to work. Sullivan filed a lawsuit against the city seeking recovery for the time his equipment was idle, along with additional overhead expenses resulting from the utilities delays. At a bench trial, which is a trial with only a judge and no jury, just under a $1,000,000 was awarded in damages.

LSUEmployment discrimination can be damaging for both parties involved. It generally involves employee mistreatment, or a perception of such, that causes harm to the plaintiff. The employee must show that the employer treated him or her differently because of a federally protected reason, such as age, race, religion, or disability. Conversely, if the “at will” employee cannot prove he or she was fired for one of these reasons, there is no cause of action. Employment discrimination can be pursued in state court or federal court. However, when one court dismisses the action, a plaintiff cannot bring the same claim to another court. This idea is known as res judicata or claim preclusion, meaning “a matter already judged.” Having a good lawyer who knows the local and federal rules of civil procedure could save a plaintiff the time and money that comes with having their claims barred.

Recently, a professor at Louisiana State University (“LSU”) claimed the school discriminated against him for not obtaining sufficient grant money. The professor, Dr. Madhwa Raj, further alleged that the school administration harassed him and pressured him to retire. Dr. Raj claimed LSU even closed his laboratory in an effort to get him to retire. The harassment exacerbated his diabetes and led to him suffering neuropathy and chest pains. He also tore his rotator cuff, which required him to take an extended sick leave. Dr. Raj sued LSU, its Board of Supervisors (“LSU Board”), and the LSU Health and Sciences Center in New Orleans (“LSU Health”).

The professor’s complaints were dismissed in federal district court. Then, he filed in state trial court but added a Family Medical Leave Act claim. However, LSU used Res Judicata as a defense because the professor’s state court claims arose from the same operative facts as his federal court claims.

money-man-3-1190250When an employee is injured on the job, he or she may be entitled to workers’ compensation benefits. However, if an employer can show that the employee intentionally lied to receive extra reimbursement for a workers’ compensation claim, the employer will not have to pay any benefits that it would otherwise owe to that employee. A recent case out of Hammond, Louisiana, discusses the standard used in determining whether an employee intentionally committed fraud when filing for mileage reimbursements.

In September 2011, an employee of Sanderson Farms (SF) was injured during a work-related accident. SF paid the employee indemnity benefits following the accident. But in December 2011, it terminated those benefits before the employee was scheduled to return to work. After returning to work, the employee continued to work for Sanderson Farms for another month. Then, in May 2012, the employee filed a claim against Sanderson Farms seeking to recover workers’ compensation benefits for the injury he sustained while on the job. Sanderson Farms denied the employee had a present work-related disability and maintained that the employee was not entitled to further indemnity benefits or medical treatment. Sanderson Farms also raised the affirmative defense of fraud, claiming the employee forfeited his right to all benefits when he submitted mileage reimbursement in excess of the actual distance he traveled in visiting various healthcare providers.

The Office of Worker’s Compensation held a three-day trial focusing on SFs’ fraud defense. In support of the fraud allegation, Sanderson Farms sought to prove that the employee lied about the amount of miles he traveled to and from the 15 doctors’ appointments he attended from September 2011 to November 2011. It is unlawful for an employee to willfully make a false statement or representation for the purpose of obtaining any worker’s compensation benefits. An employee violating this law forfeits any right to workers’ compensation benefits. The forfeiture statute must be strictly construed because forfeiture of benefits is a harsh remedy. See Our Lady of the Lake Regional Medical Center v. Mire, 142 So.3d 52 (La. Ct. App. 2014). As such, if an employer fails to prove even one element of the forfeiture statute, it will not be able to avoid liability in a workers’ compensation claim. Here, in order for SF to prove its fraud allegation it had to demonstrate that the employee willfully lied about where he was living and the distance he traveled to and from his medical appointments in an attempt to receive more money for mileage reimbursement than he was due.

arriving-with-the-refraction-4-1573537-1024x768In  certain kinds of car accidents there is a rebuttable presumption of negligence afforded to a party involved. In a collision that happened in Lafayette Parish, The Louisiana Third Circuit Court of Appeals decided that the presumption of negligence remained intact and the other involved parties could not be assigned fault.

The case arises out of a three-car collision which happened in Lafayette, Louisiana, on March 16, 2012. For this decision, the plaintiff Linda Leblanc was appealing a summary judgment ordered in favor of the defendants, Abbie Norris and Louisiana Farm Bureau Casualty Insurance Company. The Three drivers involved where plaintiff Leblanc, defendant Norris, and Brody Bouzon. Leblanc stopped at a red light with Norris stopping behind her. Bouzon who was behind Norris failed to stopped and rear-ended Norris’ car pushing her into the rear of Leblanc’s vehicle. Bouzon was given a ticket for careless operation of his vehicle at the scene of the accident. Leblanc claims that she sustained physical pain and mental anguish from the accident stemming from Norris and Bouzon’s negligence and she filed her lawsuit against the defendants along with Bouzon and his insurer seeking medical damages and lost wages. Norris and her insurer Farm Bureau filed a motion for summary judgment on her liability based on several allegations coming down to Bouzon having the presumption of negligence. The District Court granted the motion for summary judgment and the Court of Appeals affirms.

To successfully motion for summary judgment the party asking for the motion must show that there is no genuine issue of material fact and that the party is entitled to the judgment as a matter of law. The motion is granted if facts and records of the case show these two things. With a summary judgment a court can decide certain issues of a case in advance of the trial to efficiently dispense with those matters.

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In Louisiana, you cannot “disinherit” your children. What does this mean exactly? It means that upon death, Louisiana law will allow a decedent’s children to share in his or her estate, even if the decedent left those children out as beneficiaries. The left-out children are called “forced heirs,” and will take a portion of the decedent’s estate (called the “legitime” or “forced portion”) unless the decedent has a just cause for leaving them out. La. C.C. art. 1494. A recent case of the Louisiana First Circuit Court of Appeal describes the rights of forced heirs to take in a decedent’s estate.

This case arose out of the death of Geronimo Ji Jaga, and the division of his annuity account at Western National Insurance Company. Mr. Ji Jaga had five children from various marriages: Shona Pratt, Hiroji Pratt, Nikki Michaux, Kayode Ji Jaga, and Tkumsah Geronimo Jaga. He named his eldest two children, Shona and Hiroji (“the Pratts”), as the beneficiaries to the annuity. After Mr. Ji Jaga’s death, one of his surviving spouses – Jojuyounghi Cleaver – filed a lawsuit in the Parish of St. Mary against Wester National alleging that her son, Kayode, should be considered a forced heir and entitled to share in the annuity.

In response, Western National filed asserted that the Pratts, the named beneficiaries of the annuity, should be joined in the lawsuit. After Mrs. Cleaver amended her petition adding the Pratts as defendants, the Pratts filed, among other exceptions, a peremptory exception of no cause of action. Tkumsah’s mother, Laila Minja, later filed a petition to intervene. She claimed that Tkumsuh was also a forced heir. The Pratts filed the same exceptions against Mrs. Minja as they did against Mrs. Cleaver. The Trial Court sustained the Pratt’s exception of no cause of action and dismissed Mrs. Cleavers’ and Mrs. Minja’s claims. The Trial Court considered the Pratt’s other exceptions as moot. Mrs. Cleaver and Mrs. Minja appealed the Trial Court’s judgment.

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Under Louisiana workers’ compensation law, employees injured in on-the-job accidents may be entitled to workers’ compensation benefits. If awarded by a court, such benefits must be paid as soon as possible. When an employer fails to pay benefits in a timely manner, penalties and attorney fees may be assessed against the employer. Such penalties are governed by statute. A recent decision of the Louisiana Third Circuit Court of Appeal discusses the application of penalties in workers’ compensation cases.

In 1997, Homer Landry was injured while employed by Petroleum Helicopters, Inc. (“PHI”) a corporation headquartered in Lafayette, Louisiana. The injury aggravated a pre-existing seizure condition and damaged his brain’s frontal lobes. This caused him to experience serious behavior changes, such as impulse control issues. His treating physicians concluded that he needed to be institutionalized for his own well-being. Mr. Landry’s attorney and counsel for PHI hired Dr. Cornelius Gorman, a licensed vocational rehabilitation counselor and certified life-care planner. Dr. Gorman then sent Mr. Landry to be evaluated by the staff at NeuroRestorative Timber Ridge, a facility in Benton, Arkansas that houses and treats people with brain injuries. Mr. Landry was accepted at the facility and his treatment has included environmental engineering and medication. Dr. Gorman created a life care plan for Mr. Landry that estimated the cost of his future care would be approximately $14 million and that the care Mr. Landry’s wife gave him was $13.4 million.

At trial, the Workers’ Compensation Judge (“WCJ”) ordered that PHI’s insurer pay for Mr. Landry’s treatment at Timber Ridge. The WCJ also awarded Mr. Landry $2,000 in penalties for the underpayment of his indemnity benefits, $2,000 in penalties for delaying Mr. Landry’s admission to Timber Ridge, and $2,000 in penalties for each late payment of several medical bills. The penalties were subject to the $8,000 cap on pursuant to La. R.S. 23:1201(F). The WCJ denied Mr. Landry reimbursement for the care his wife gave him between his accident and the time he was admitted to Timber Ridge. Mr. Landry appealed the cap on penalties and the WCJ’s denial of his claim for reimbursement of his wife’s attendant care. More specifically, Mr. Landry argued that the Trial Court erroneously: (1) applied res judicata; (2) failed to apply the law in effect on the date of the accident; (3) failed to award multiple penalties; (4) failed to award Tena Landry damages for attendant care; and (5) failed to grant his Motion to Accelerate benefits.

erasure-1237046-1024x768Courts are not perfect, and sometimes they do not always render the correct decision. When a court makes an error in their judgment it can be very frustrating for all of the parties involved. Error can be very costly especially when a major issue, like finding coverage for a victim of an automobile accident under an umbrella insurance policy, needs to be determined. Both the plaintiff and defendant wants the court to look in their favor, but it is also the responsibility of the court to make an error free and accurate decision that is fair and just to both sides.

One such case where the trial court made an error in rendering a final judgment comes from St. Tammany Parish, Louisiana. On May 26, 2010, Gary Michael Brown (“Mr. Brown”) was driving a truck that was owned by his employer J&J Diving Corporation. While driving, Mr. Brown got into an accident with St. Tammany Parish Sheriff’s Deputy, Scott Jarred (“Mr. Jarred”). Mr. Jarred filed a lawsuit against Mr. Brown, J&J Diving Corporation, and Progressive Insurance Company. On May 22, 2012, Mr. Jarred amended his original complaint and added two more defendants. These defendants were XL Specialty Insurance Company and Valiant Insurance Company, and they provided a Marine Excess Liability Policy, or Bumbershoot policy, for J&J Diving Corporation. Two days later, Mr. Jarred entered into a Gasquet release. A Gasquet release is where the plaintiff settles all claims with the primary insurance provider for a smaller amount than policy limits, but does not settle with the umbrella policy insurer. Gasquet v. Commercial Union Ins. Co., 391 So.2d 466 (La. Ct. App. 4th Cir. 1980), writ denied, 396 So.2d 921 (La. 1981). Mr. Jarred settled all of the claims against J&J Diving Corporation, Mr. Brown, and Progressive; but he reserved his claims against both XL Specialty Insurance and Valiant Insurance.

XL Specialty Insurance and Valiant Insurance filed a motion for summary judgment on December 5, 2013. Their main argument surrounding the motion, was that the Bumbershoot policy only provided coverage to J&J Diving Corporation for their commercial diving contractor operations. The accident between Mr. Jarred and Mr. Brown was not related to those commercial diving contractor operations. Because there was no relation, the Bumbershoot policy should not provide any coverage for Mr. Jarred’s accident. Mr. Jarred filed a cross-motion for summary judgment on February 14, 2014 and requested that the trial court should find coverage for him under the Bumbershoot policy provided by XL Specialty Insurance and Valiant Insurance. Mr. Jarred’s main argument was that because the policy contained the word “contractor,” the Bumbershoot policy therefore expanded the coverage and should be provided to him. The trial court granted summary judgment in favor of Mr. Jarred on June 5, 2014 and certified that their decision was a final judgment because there was no just reason for delay.