Articles Posted in Wrongful Death

Getting seriously injured on the job is always a terrible experience, but what if it is unclear for purposes of a lawsuit who you even work for? You know that someone owes you compensation for your injuries, but in this recent case out of Natchitoches Parish that “someone” may not be where your employment application was filed.  

International Paper Company (“IPCO”) hired Turner Industries Group, LLC (“Turner”) to perform maintenance work on IPCO’s recovery boiler.  Garred Whotte, an employee of Turner, was sent to IPCO to construct scaffolding necessary to the maintenance work. While on the job, his feet started burning, resulting in chemical burns to his feet and ankles. Mr. Whotte brought a personal injury lawsuit against IPCO. IPCO filed a successful motion for summary judgment arguing that it was immune from a personal injury lawsuit under the Louisiana Workers’ Compensation Act (“Act”) which limits recovery to the provisions of the Act. The Tenth Judicial District Court for the Parish of Natchitoches specifically found that Mr. Whotte was a “statutory employee” of IPCO at the time of the injury limiting Mr. Whotte to workers’ compensation benefits. Mr. Whotte appealed to the Louisiana Third Circuit Court of Appeal.

The remedies provided to a worker under the Act are the exclusive remedy an employee can seek against his employer or principal pursuant to La. R.S. 23:1032(A)(1)(a).  A “principal” is a person who has contracted with another to perform work as part of the business at the time of worker’s injury.  The principal, as the statutory employer, is protected from tort lawsuits and given the protections of the Act as the exclusive remedy for those injured on the job.  La. R.S. 23:1061.  In the event of a contract between the principal and employer, the contract must contain language recognizing the principal as the statutory employer.  Language to this effect creates the presumption of a statutory employer, however, this presumption can be overcome only by showing that the work is not an integral part of or essential to the ability of the principal to generate their goods, products, or services.  

If you are injured at work, it is imperative that you follow the appropriate procedures under workers’ compensation law to ensure that you are fully and fairly compensated for your injuries. A failure to properly report or address your injuries can result in a lesser payment or no payment at all. It is also important to keep your place of employment apprised of your injuries and treatment, and written records of your contact, so that if it becomes necessary to bring an action against your employer you have sufficient evidence to support your position. A recent case of the Louisiana Third Circuit Court of Appeal is illustrative.

On November 2010, Plaintiff Jason Montou was injured in Calcasieu Parish while employed with Boise, the Defendant. He immediately made a report of his injuries to his supervisor per company policy but referred originally only to a shoulder injury. He was sent home and told to follow up with a doctor if necessary. He went through with a doctor’s appointment a few days later and was treated for his shoulder. He was also referred to a separate doctor for treatment of a back injury. The medical records indicate that Plaintiff complained of arm, shoulder, and back pain as early as December of 2010 and March of 2011. Plaintiff’s doctors disagreed about when it was appropriate for him to return to work. He eventually stopped treatment with one of the doctors because his employer would not approve his MRI tests. In October of 2013, Defendant sent Plaintiff to a different doctor, who determined that Plaintiff could return to work immediately and that there was no connection between his neck and back injuries and the work accident. The company then immediately terminated Plaintiff’s benefits.

Worker’s compensation cases are unique because those with claims against their employer must file a claim with the Office of Workers’ Compensation before proceeding to court. In this case, the Office determined the Plaintiff was still injured and needed benefits. It ordered the Defendant to accept Plaintiff’s injuries as compensable, approve the MRIs requested by his doctors, and reimburse him for existing treatment. The Plaintiff proceeded to court because the Office of Workers’ Compensation chose not to award him penalties and attorney fees.

A slippery floor can be a real hazard but even the slickest surface, for all its danger, doesn’t cause every problem. The Louisiana Court of Appeal for the First Circuit made that clear in a recent decision involving a CVS Pharmacy in Metairie, Louisiana.

Georgia Clesi and her husband, John Ellis, were visiting the CVS store when John slipped on an unknown liquid while he was walking to the store’s bathroom. Not long after falling at CVS John and his wife filed a lawsuit against the store seeking a reward of damages for his injuries. John sustained only minor personal injuries at the time of his slip and fall.  However, while the lawsuit was still pending he unfortunately died after succumbing to cirrhosis. Georgia, beset by the tragic loss of her husband, amended the couple’s lawsuit for damages against CVS on the theory that John’s fall triggered significant injury and illness and the store was therefore responsible for John’s wrongful death.

The case proceeded to trial wherein John’s doctor, Dr. Parnell, testified that John suffered from MRSA – a chronic bacterial infection – as the result of an earlier hip surgery. The injuries from the fall, according to Dr. Parnell, could have caused the infection to become active again. To further bolster the case John’s widow Georgia also tried to submit various articles from medical journals that she believe supported their position.  However, those medical journals were found to be inadmissible hearsay by the trial court and therefore the court would not consider the veracity of the claims contained within.  See LA Code Ev 802 .

When a person dies due to the fault of another, such as in a car accident, the surviving family may seek compensation for their loss by filing a wrongful death claim in civil court. A wrongful death claim is similar to a personal injury claim in which the injured person is no longer available to bring his own case to court. However, if a judge decides that no real facts or evidence support the all the claims within a wrongful death lawsuit, certain claims can be dismissed early on saving both parties and the court from incurring litigation costs for meritless claims. This is what happened to Nancy and Zachary Miller when they filed a wrongful death claim after their son was killed in a tragic accident.

In July 2012, Lafource Parish bicyclist, Ethan Miller, was struck and killed by a vehicle driven by Brent Tauzin. The circumstances surrounding Ethan’s untimely death are undisputed. After spending all day drinking at Lake Verret, Brent and Monica Tauzin (his wife) returned to their home. Upon arriving at their home, Brent told his wife that he was hungry, and she agreed to get him food after she had taken a bath. However, while she was bathing, Brent grew impatient to eat fast food and took the keys to their car from the kitchen counter to go to Burger King. On the way to Burger King, Brent was involved in Ethan’s fatal accident. Brent was arrested the same night for driving while intoxicated, and subsequently pled guilty to negligent homicide.

Ethan’s parents, Nancy and Zachary Miller (the Millers), decided to pursue a claim in civil court and filed a wrongful death suit, naming several defendants: Brent and Monica Tauzin, as well as their car insurer, Allstate Insurance Company, and their home insurer, ASI Lloyds. The Millers argued that Monica had assumed responsibility of her husband by driving him home and failing to secure the car keys when they had arrived home constituted a breach of her duty to prevent her intoxicated husband from driving. In response, Monica filed a motion for summary judgment, stating that she did not breach a legal duty owed to the Millers’ son, nor did she contribute to her husband’s accident. The lower court dismissed the case against Monica, granting Monica’s motion for summary judgment, and the Millers appealed the decision.