Louisiana Personal Injury Lawyer Blog

December 22, 2016

In Louisiana Can A Company Be Held Responsible For Employee’s Car Accidents?

employee-entrance-1-1189151 If you have been injured in an automobile accident, you deserve to be properly compensated for your injuries. Sometimes, unfortunately, the person who caused the injury may not be able to adequately compensate you. This does not mean you are out of luck. If the person responsible for your injury caused it while working as an employee, the employer may be liable as well. That is why is its extremely important to hire a good lawyer who will apprise you of all avenues of recovery under the law. In a recent case, the Louisiana Second Circuit Court of Appeal discusses an employer’s liability for an employee’s accident.

In 2011, Guindolyn Hooper was involved in a four car accident in Shreveport, Louisiana. The crash was caused by a driver who was texting at the time of the accident. The driver of the car that caused the accident, Wayne Austin, just left the site of his employment and was allegedly texting his boss about job-related strategy when he crashed into Mrs. Hopper from behind. For this reason, Mrs. Hooper and her husband added Venator, Austin’s employer as a defendant, seeking to hold them vicariously responsible for Mrs. Hooper’s injuries.

Vernator sought to have the case dismissed and moved for summary judgment. Summary judgment seeks to have the case dismissed when there is no issue of material fact. Here, the Trial Court granted summary judgment in favor of Venator, finding that even if Austin was an employee of Venator, he was not in the course and scope of his employment when he caused the accident. Mrs. Hooper appealed. The Court of Appeal reversed the Trial Court, finding that there were genuine issues of material fact as to whether Austin was a Venator employee and whether he was acting in the course and scope of his employment at the time of the accident.

December 21, 2016

Louisiana Court of Appeal Finds Plaintiffs’ Case Abandoned for Failure to Prosecute

by Berniard Law Firm

sundial-1447016 It is, mildly stated, disappointing for a plaintiff when a court dismisses his or her case based on a technicality, particularly when the lawsuit is about medical malpractice. Unfortunately, even when a plaintiff has a good case, with all the necessary evidence to show that the defendant was wrong, the plaintiff can still lose the case if he or she does not diligently take the necessary steps to move the case forward. In Louisiana courts, the Code of Civil Procedure ensures a fair process for all parties. All civil cases must follow these rules as part of the process. Malpractice cases are no exception. In a recent case of the Louisiana Second Circuit Court of Appeal, the plaintiffs learned this the hard way.

In this case, plaintiffs Eric and Nicki Hudson filed a lawsuit against Town & Country Nursing Center of Minden, Louisiana for malpractice damages. Eric Hudson alleged that he sustained injuries while he was a resident of Town & Country. The Hudsons filed their petition for damages on September 3, 2009. Almost one year later, Town & Country filed a motion to withdraw their lawyer and substitute a new one. The Trial Court granted Town & Country’s motion the same day it was filed. In 2013 – four years after the Hudsons filed their petition – Town & Country moved to have the Trial Court dismiss the case on the ground of abandonment.

In Louisiana, the Code of Civil Procedure regards as abandoned cases where parties fail to take measures in the prosecution or defense of their case. La. C.C.P. art. 561. A step in the prosecution or defense of a case can be making a request for discovery or taking a deposition; essentially, any action by one of the parties that moves the case forward. In order to avoid dismissal of a case on the ground of abandonment, three requirements must be fulfilled. First, the party must take some step to move the case forward. Second, that step must be taken in the Trial Court and must be served on all parties and recorded in the trial record. And third, that step must be taken within three years of the last step taken by any party. See Koutroulis v. Centennial Healthcare Corp, 34 So.3d 503 (La. Ct. App. 2010).

December 20, 2016

Compromise in Louisiana Worker’s Compensation Claim Leads to Moot Issues on Appeal

by Berniard Law Firm

rusty-ladder-1478523 Many workers in Louisiana are exposed to dangers on the job. An injury that occurs during the scope of employment often leads to more problems than just the physical turmoil following the injury. An employee might be denied payment for medical expenses, may face mental and emotional anguish, or could be rendered permanently unable to work. In order to have a successful worker’s compensation claim, an employee must be able to prove that the accident occurred within the scope of employment.

In Louisiana, case law holds that the employee was acting within the scope of employment if the employee was present at the site of the occurrence of the accident as a requirement of the employment. See La. Rev. Stat. Ann. §23:1031. In case that serves as a good example of some of the issues that can pop up in a worker’s compensation claim, Gwendolyn Grady was able to prove that her presence on a ladder at work, which resulted in a wrist injury when she fell, was within the scope of her employment.

The Office of Workers’ Compensation awarded Grady supplemental earnings benefits and medical benefits as reasonably associated with her claim. An employee is subject to the award of supplemental earnings benefits if the employee is unable to earn at least 90 percent of the

December 19, 2016

The Perils of Signing a Non-Compete Agreement in Louisiana

by Berniard Law Firm

rivalry-1371607 Non-Compete agreements can restrict a person’s ability to start and maintain a business. Anyone who plans to work in Louisiana should be very clear what they can and cannot do as a part of a non-compete agreement.

For example, a trial court in Louisiana held that a cardiologist’s business, which he created after he left another medical employer, was too similar and therefore subject to a non-compete in the geography he was operating in. Dr. Abel was a cardiologist in Morgan City, Louisiana. He was employed by the Cardiovascular Institute of the South, where he performed preventative medical treatments in cardiology. He signed a non-compete agreement that restricted his ability to practice medicine in the sub-specialty of cardiology in several parishes surrounding CIS, including East Baton Rouge, Acadia and Evangeline, for a period of two years.

Soon after, Dr. Abel opened a private practice at a Preventative Plus clinic and began practicing preventative and internal medicine. While this wasn’t exactly cardiology, CIS filed an injunction in accordance with Section 8.01 in his non-compete agreement. They argued that Dr. Abel could not perform his medical duties under Preventative Plus since it was similar to the cardiology work he did at CIS and he was in a Parish that he was restricted from practicing cardiology in for two years. After the trial court granted the injunction, Dr. Abel appealed the decision, arguing that his practice was not similar enough to be within the ambit of the non-compete agreement. He also contended that his non-compete agreement with CIS was restricted to the sub-specialty of cardiology and not preventative and internal medicine, which he believed were more general than the sub-specialty of cardiology.

December 18, 2016

Car Crash on Louisiana Highway Shows Importance of Presenting Accident-Related Medical Records

by Berniard Law Firm

Classical spectacle on eye chart Car accidents happen all the time in Louisiana, but not all accidents cause injuries. Unfortunately, that wasn’t the case in Tangipahoa Parish, Louisiana, when Joseph Lohenis found himself rear-ended on Highway 1249 by a vehicle owned by Tammy Rousse. Lohenis’ son was driving the car and Lohenis’ wife was in the passenger seat. Lohenis himself was sitting in the back seat of the car, wearing a lap seat belt. The rear-end collision caused Lohenis’ body to move forward and hit the console, and then move backward, where the back of his head and neck hit the truck’s back glass window.

Lohenis filed a lawsuit to recover damages for the aggravation of pre-existing neck and back injuries. The aggravation of those injuries allegedly occurred due to the car accident. In a bench trial that was focused solely on the issue of the amount of damages to be awarded, the trial court awarded Lohenis $47, 857.50 in damages. The defendant appealed.

In the appeal, the defendant claimed that the trial court erred in assigning the amount of general damages awarded to the plaintiff. In addition, the defendant claimed that the trial court erred in admitting into evidence third-party medical records as a basis to discredit Lohenis’ neurosurgeon. The second error was that the trial court allegedly erred in finding that Lohenis proved an aggravation of pre-existing injuries beyond two months following the accident. The third error asserted by the defendant was that the trial court used the incorrect mathematical formula to calculate damages awarded to Lohenis. Lasty, the defendant asserted that the trial court was incorrect to find that Lohenis would be entitled to damages for loss of consortium when he did not have a loss of consortium claim in his original petition.

December 17, 2016

Court of Appeal Discusses Louisiana’s Presumption of Negligence in Automobile Accident Cases

by Berniard Law Firm

ambulance-1442004 In Louisiana, the law presumes a driver negligent when he or she leaves a travel lane and strikes another vehicle. This presumption stems from the legal obligation all motorists have to maintain control of their vehicle. In personal injury cases, this presumption overrides the normal burden of proof which lies on the plaintiff. In order to defeat the presumption of negligence, the defendant must show that he or she was not guilty of any negligence, however slight. A recent case of the Louisiana First Circuit Court of Appeal considered the presumption of negligence in automobile accident cases.

On August 3, 2009, a multi-vehicle accident occurred on interstate 10 in East Baton Rouge Parish near the Mississippi River Bridge. Loren Arey was driving an eighteen wheeler in the middle lane of the intersection. Traffic in the two lanes beside him started to slow down. Another unknown driver of a white vehicle switched into the middle lane directly in front of Mr. Arey. In order to avoid hitting him, Mr. Arey swerved right, hitting a pickup truck. It caused the pickup to hit the rear of Leandro Carias’ vehicle. The white vehicle shifted back into the left lane and continued driving.

Mr. Carias filed a lawsuit against Mr. Loren and several co-defendants, including his trainer, Mr. Rickie Williams, the driver of the pickup truck, and the drivers’ respective insurance companies. Mr. Arey, Mr. Williams, and C.R. England, Inc. the owner of the eighteen wheeler (collectively referred to as “the defendants”) filed motion for summary judgment seeking to have the claim dismissed before trial. The defendants’ motion for summary judgment argued that the accident was caused by the white “phantom vehicle,” and that there was no evidence as to any of the defendants’ liability. The Trial Court granted the motion for summary judgment, dismissing all claims against all Defendants. Mr. Carias appealed.

December 16, 2016

Louisiana Man Suffering from Broken Foot on the Job Seeks Recovery Using Intentional Tort Claim

by Berniard Law Firm

just-a-forklift-1439915 If your employer is knowingly putting you in harm’s way and you suffer an injury, you may have an intentional tort claim against your employer. In Louisiana, remedies against an employer for on-the-job injuries are limited to cases of intentional acts, rather than negligence. In a recent case the Louisiana First Circuit Court of Appeal discussed what is required to succeed on a tort claim against an employer.

On July 24, 2012, Adrian Cador was injured while on the job at KPAQ Industries. Mr. Cador’s foot was run over with a forklift operated by another employee. Mr. Cador and the other employee were unaware that the backup alarm on the forklift was not working. According to Mr. Cador, KPAQ knew about the malfunction.

Mr. Cador filed a lawsuit in February of 2013 alleging that the company that rented the trucks were negligent because they had knowledge, or should have had knowledge, that the alarm was not functioning. In July of 2013, Mr. Cador amended his petition naming KPAQ, his employer, as another party to the lawsuit. In this amendment Mr. Cador alleged that KPAQ knowingly and intentionally subjected him to danger with knowledge that injury was substantially certain or at least a possibility. KPAQ responded by filing a peremptory exception of no cause of action, arguing that Mr. Cador’s claims were barred by the Louisiana Workers’ Compensation Act.

December 15, 2016

Court of Appeal Discusses Fraud and Forfeiture in Hammond Employee’s Workers’ Compensation Claim

by Berniard Law Firm

money-man-3-1190250 When 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.

December 14, 2016

Baton Rouge Based Furniture Rental Company Let the Bed Bugs Bite

by Berniard Law Firm

bed bugs There are rules involved in the evidence that a court can allow into a case, even when the case revolves around something as small as a bed bug. If a party believes that the rules have been violated, they can appeal the case and have a higher court review the evidence to make sure nothing inappropriate had an effect on the case.

In this case, the plaintiff, temporarily residing in Baton Rouge for work, decided to rent a twin mattress, box spring, and bed frame from a furniture rental company. The apartment complex he was staying was brand new, and he was the first occupant.

A day after renting the furniture, the plaintiff developed a skin condition that quickly spread “from his earlobes to his toes.” Thinking he had a rash, he sought treatment at Lake After Hours, where they prescribed an over the counter cream for his “rash, papules and vesicles” which gave him lesions.

December 13, 2016

East Baton Rouge Court Emphasizes Importance of Timely Service

by Berniard Law Firm

Being on time is important. In legal matters, being on time is absolutely crucial to the workings of the court and the survival of the case. There are rules that determine the timeframes and time limits involved in a legal battle and it is always best to follow them to the letter.

In an East Baton Rouge lawsuit seeking to recover unpaid insurance premiums, the defendant, Insurer’s Salvage Auction, Inc., learned the vital importance of timely serving a memorandum in opposition to the plaintiff’s motion for summary judgment. The First Circuit Court of Appeal, in Retailers Casualty Insurance Company v. Insurer’s Salvage Auction, Inc., stated that the 19th District Court properly excluded the defendant’s untimely served memorandum in opposition and supporting affidavit. As such, the First Circuit Court of Appeal affirmed summary judgment in favor of Retailers Casualty Insurance Company.

According to the applicable Louisiana rules, La. C.C.P. art. 966B(1) and La. Dist. Ct. R. 9.9(c), all parties must receive a defendant’s memorandum in opposition and supporting affidavits at least eight calendar days before the hearing on a plaintiff’s motion for summary judgment. In the instant case, Retailers Insurance Company filed its motion for summary judgment on December 29, 2013, and the hearing was originally set for March 17,2014. The hearing was later rescheduled for May 19, 2014.