Louisiana Personal Injury Lawyer Blog

January 1, 2017

High Pressure New Orleans Time Share Sales Lead Buyers to Attempt Joinder Action

street-sales-1-1553280 Be careful what your getting into when you attend a timeshare presentation. While you may get a “free” vacation for sitting through the sales pitch, you could be getting into more trouble then it is worth. This was the case for over one hundred purchasers of timeshares who bought from Festiva Resorts, LLC and Festiva Development Group, LLC. Festiva held sales presentations in New Orleans, Louisiana, for points based timeshares memberships.

In two separate suits, plaintiffs sought for damages alleging they were subjected to high pressure sales tactics coercing the buyers into signing purchasing documents without reading them. Moreover, the plaintiffs stated in their petitions they were not provided with documents as described in the selling documents. Essentially, the claim boiled down to being the victims of unfair and deceptive practices on the part of Festiva. The group of people seek for the contracts to be declared null and void, in addition to money back for all of the charges they had incurred and reversal of negative actions taken by creditors.

Festiva argued to the court that the cases did not satisfy the requirements for joinder and therefore the trial court erred in not requiring each case be tried individually. The law applying to joinder in Louisiana is “Two or more parties may be joined in the same suit, either as plaintiffs or as defendants, if: (1) There is a community of interest between the parties joined; (2) Each of the actions cumulated is within the jurisdiction of the court and is brought in the proper venue; and (3) All of the actions cumulated are mutually consistent and employ the same form of procedure.” La. C.C.P art. 463. Essentially if the parties contain similar community of interest, venue where the harm took place, and procedure by which the harm occurred it is proper for the court to allow the cases to be joined together.

December 31, 2016

New Orleans Essence Festival Production Company Appeals Court’s Denial of Coverage Decision

by Berniard Law Firm

Putting on a festival at the New Orleans Superdome is a lot of work. One vital part of that work is to confirm that the insurance policy actually covers the activities and location of the festival. Festival Productions, Inc. – New Orleans (“FPINO”) learned this lesson the costly and hard way. The Louisiana Fourth Circuit Court of Appeal’s decision shows the gaping hole in FPINO’s coverage that was entirely avoidable.

In July 2005, Deborah Daniels slipped and fell on an unknown substance at the New Orleans Superdome when she was attending the Essence Festival. A year later, she filed a lawsuit in Orleans Parish alleging she suffered injuries from the fall, naming a host of defendants including FPINO, the producer of the festival, and its insurer, Maryland Casualty Company (“MCC”).

MCC did not believe that it was required to indemnify or defend FPINO in the suit and so it filed a motion for summary judgment against FPINO. MCC argued that FPINO’s policy did not cover damages sustained by the plaintiff because the Superdome was not a designated premises covered under the policy. FPINO filed a cross-claim against MCC and Essence, alleging that as an insured under the policy, MCC owed FPINO a defense and indemnity, and MCC refused to do so.

December 30, 2016

Inconsistent Testimony Leads to Lost Lawsuit in New Orleans Case

by Berniard Law Firm

pentothal-1531760 Credibility is an important factor that the court requires in a witness to determine truthfulness in their testimony. If the court does not believe a plaintiff or a defendant he could lose his case. In this case, the plaintiff, lacked credibility due to inconsistencies in his testimony about his pre-existing medical condition.

Mr. Jones was injured in New Orleans on December 31, 2009, when Mr. Brevaldo, the defendant, sideswiped his SUV when he tried to merge his recreational vehicle into the far right lane. Mr. Jones’s SUV sustained damage and Mr. Brevaldo received a citation from the New Orleans police. Two days after the accident, Mr. Jones went to the emergency room at Ochsner Baptist Hospital and was treated for injuries to his neck, shoulder and upper back. Mr. Jones received a $700 dollar settlement from Mr. Brevaldo’s insurer, American Reliable Insurance Company (“American”), for damage to his side-view mirror. Later, Mr. Jones sued for his personal injuries and damages. On April 3, 2014, a bench trial was held. A bench trial is a non-jury trial where the judge determines the verdict. During the trial, Mr. Jones was the only witness who testified. The district court ruled in favor of Mr. Brevaldo and American and dismissed Mr. Jones’ lawsuit with prejudice.

The appellate court reviewed the Mr. Jones argument to determine whether the district court findings in the case were reasonable. Mr. Jones believed that the district court should have awarded him damages and not relied heavily on his testimony because the evidence submitted proved Mr. Brevaldo was liable. However, when a plaintiff gives testimony in court, they must be consistent because the court relies on their testimony to make a judgment. The court gave great deference to the Mr. John’s testimony because he was the only witness that testified. Other evidence was presented, however, inconsistencies in Mr. Jones’s testimony gave the court a reason to give greater weight to his testimony.

December 29, 2016

Can an Insurance Policy still be in Effect in Louisiana if the Insured Does not Pay the Premium?

by Berniard Law Firm

thrown-rubbish-1561470 Insurance policies can still be intact even if the insured fails to pay if the insurance company fails to follow the proper protocol in informing the insured that he or she no longer has coverage. State Farm found themselves liable for coverage in just a situation.

Thomas Sapp was insured under a Florida State Farm policy. The policy ran from December 3 until June 3, 2008, and the policy was renewed thereafter for consecutive six-month terms. Sometime during Sapp’s insurance coverage, Sapp moved from Florida to New Orleans, Louisiana. State Farm was aware of his move. On August 15, 2009, Sapp was involved in an automobile accident with Roderick Lee. Subsequently, Lee sued Sapp and State Farm seeking damages for his personal injuries incurred in the accident as the result of Sapp’s alleged negligence. State Farm denied coverage, arguing that the policy was not renewed.

In support of State Farm’s claim that they were not responsible for Lee’s damages because the policy was not renewed, State Farm presented evidence that Sapp was no longer covered by State Farm because Lee stopped making payments in February of 2009. In response, both Lee and Sapp argued that the State Farm policy was still in effect because State Farm did not send the legally required notice of cancellation for renewal. The trial court agreed with Lee and Sapp, and granted their motions for partial summary judgment, while denying State Farm’s motion for summary judgment. The Louisiana Fourth Circuit Court of Appeals agreed with the trial court and affirmed. In determining the claim, the Fourth Circuit recognized that although the incident occurred in Louisiana, the Court had to apply Florida law because the contract arose out of Florida. However, the Court also noted that even if the Court were to have applied Louisiana law the outcome would have been the same.

December 28, 2016

Beauregard Parish Medical Malpractice Lawsuit Fails for Lack of Expert Testimony

by Berniard Law Firm

medical-school-frontispice-1214363 Medical malpractice generally involves subpar medical treatment that causes injury or death. The plaintiff, either the injured person or that person’s family, would need to show the court that the healthcare provider was negligent while administering the medical treatment. On the other hand, the healthcare provider as the defendant may argue that there was no negligence. The provider may also argue that the court should dismiss the case all together because the plaintiff does not have the evidence to show any wrong-doing. In the face of such opposition from defendants, there is a need for a good lawyer to build the strategy and prepare the case.

Two Louisiana brothers unfortunately lost their mother a few years ago after two operations. The two brothers decided to file a claim for wrongful death against several defendants, including two of the doctors involved, as well as Beauregard Memorial Hospital in DeRidder, Louisiana. The plaintiffs, David Durham and Robert Durham, alleged that the defendants provided deficient medical treatment to their mother leading to her death.

In general, a plaintiff complaining of medical malpractice needs to show three connected facts. First they have to show that there is an expected and defined quality of practice that the healthcare provider must meet, second, that the defendant, as a healthcare professional, provided care that fell below that expected level of quality, and third, that the failure to meet the required level of quality caused the injury or death. La.R.S. 9:2794.

December 27, 2016

Pineville, Louisiana, Car Accident Leaves Insurance Company Battle in its Wake

by Berniard Law Firm

Anytime you get in a car can be a life and death situation. While no one ever wants to think about the worst, what will your insurance cover if the worst does happen. Your policy may not only need to cover you and those injured, it could need to cover your employer if you were driving in the scope of your employment.

On February 9^th, 2009, a fatal automobile accident occurred between Croom and Rhonda, Edward, and Barbara Hickey. Croom, died after he crossed the centerline of a street in Pineville, Louisiana, and colliding with the Hickey’s vehicle. Croom was insured by Allstate insurance company, who provided his estate with a defense.

The Hickeys claimed in there suit against Croom’s estate, (represented by Allstate) that he was operating a vehicle in the “Course and Scope” of his employment with the Express Company. Express was insured by two separate policies, one from Federal Insurance Group, and an excess policy by Scottsdale Insurance Company.

December 26, 2016

“A Matter Adjudged”: Court Discusses How Res Judicata Prevents Parties From Relitigating Issues

by Berniard Law Firm

curb-1-1571125 Our court system includes rules that aim to promote court efficiency. Some of the rules may sound intimidating, but having a good attorney, one who is able to build a strong strategy and with strong knowledge of the rules, makes the necessary difference. One such rule is called res judicata – Latin for “a matter judged.” Unfortunately, Mr. Springer, a resident of Nannie O’Neal Senior Apartments on Oneal Street in DeRidder, Louisiana recently lost his case because of failing to understand how this rule applied.

When a party asserts that res judicata applies, the goal is to prevent the litigation of issues that have already been adjudicated in a previous lawsuit between the same parties. See Atheron v. Rosteet Law Firm, 137 So.3d 1246 (La. Ct. App. 2014). In other words, it prevents the opposing party from getting a second chance in court. The rationale for the rule are logical, after all it would be strange and unreasonable to allow a plaintiff to continuously sue the same defendant, on the same matter, until the plaintiff receives a favorable decision.

In Mr. Springer’s case, Mr. Springer first filed a complaint with a state court in Beauregard and MAC-RE. Beauregard and MAC-RE own and manage Nannie O’Neal Senior Apartments respectively. Mr. Springer is handicapped. He alleged that he tripped and fell over a curb in the apartment building’s parking lot, and that the apartment complex did not have the required access for the handicapped. He also alleged that the owner and the managing company were aware of this, but failed to address the situation.

December 25, 2016

Louisiana Man’s Injury Claims Fail to Pay Because of Failure to Act in Time

by Berniard Law Firm

Failing to seek timely legal advice could not only keep you out of the back of a police car, but could also help ensure you are able to get the compensation you deserve for your injuries. When one man from Lake Charles, Louisiana was injured during an arrest he made some critical mistakes that lead to his personal injury case being dismissed.

Stanley Savoie filed a lawsuit to recover injuries he sustained when he was arrested by the Lake Charles Police Department (“LPCD”) on September 13, 2008. In Savoie’s first attempt to file his lawsuit he incorrectly named as the defendant the Calcasieu Parish Sheriff Office rather than the LCPD. He further mistakenly listed the date of the incident as one year after it happened on September 13, 2009. Soon after learning of this mistake, Savoie filed an amendment to his original complaint naming the LCPD as the defendant.

However, this mistake prevented the LCPD from being served notice of the lawsuit within the period of prescription. Prescription is essentially the period of time you have in which to file your claim of a lawsuit before your right to bring that suit ends. Because the police department was not served within the mandated time of one year the LCPD moved to have the case dismissed. The Trial Court allowed Mr. Savoie 15 days to amend his petition and after he failed to do so dismissed his case.

December 24, 2016

What Happens When Nobody Witnesses Your On the Job Injury?

by Berniard Law Firm

worker-sculpture-1-1564773 In workers’ compensation cases, the employee has the burden of proving that an on-the-job accident occurred. He or she must do so by a preponderance of evidence. Generally, an employee can do this by presenting witness testimony and documentary evidence. But what happens when there is no witness to the alleged accident? A recent case from the Louisiana Third Circuit Court of Appeal discusses how an employee can establish his or her workers’ compensation claim when there is no witness to the alleged on-the-job injury.

Ronald Sorile worked for Lott Oil as a fuel truck operator. He alleged that on February 26, 2013, he injured his back while on the job. Nobody witnessed the accident. He filed a Disputed Claim for Compensation Form seeking indemnity benefits, medical expenses, penalties and attorney fees from Lott Oil. Lott Oil denied that any work accident occurred and that his claimed injury was related to his employment. It also asserted that Mr. Sorile forfeited any potential benefits because he made false statements for the purpose of obtaining a higher reimbursement. The Workers Compensation Judge (“WCJ”) found that Mr. Sorile sustained an injury in a work related accident and awarded him total temporary disability (“TTD”) benefits, supplemental earning benefits (“SEB”), and medical benefits. It also ruled that Mr. Sorile committed no fraud, finding that Lott Oil failed to prove that Mr. Sorile made false statements for the purpose of obtaining benefits. Lott Oil appealed.

In its first ground of appeal, Lott Oil argued that the WCJ erroneously found that Mr. Sorile met his burden of proving the existence of an on-the-job accident.

December 23, 2016

Louisiana Court of Appeal Highlights Procedure for Workers’ Compensation Claims

by Berniard Law Firm

worker-from-luxor-1241068 In Louisiana, the Workers’ Compensation Act allows injured employees to recover workers’ compensation benefits from their employer. This act establishes a medical treatment schedule and procedure under which an injured employee can request authorization for medical treatment from his or her employer. A recent decision of the Louisiana Third Circuit Court of Appeal discusses these specific procedures, and how injured employees may appeal denials of requests for medical procedures.

Jacquenette Guidry, a registered nurse, injured herself on her job at American Legion Hospital. Her orthopedic surgeon, Dr. Mark McDonnell, submitted a Form 1009 Disputed Claim for Medical Treatment seeking approval from the Office of Workers’ Compensation Medical Director to perform a lumbar surgical procedure Guidry. The Medical Director, denied the requested procedure in a Medical Guidelines Dispute Decision (“MGD”). The MGD stated that the documents presented by Dr. McDonnell did not support approval of the requested services. Specifically, the clinical findings, natural history of the disease, and diagnostic tests did not support the requested services.

Mr. Guidry appealed the Medical Director’s decision to the Office of Workers’ Compensation, putting forward a Form 1008 with an addendum outlining the reasons why the denial was erroneous. After a hearing, the Workers’ Compensation Judge (“WCJ”) held that there was clear and convincing evidence that the Medical Director erroneously denied Mr. Guidry’s request by failing to consider the guidelines under which the request was made. The WCJ overturned the Medical Director’s decision and approved the requested procedure.