Louisiana Personal Injury Lawyer Blog

November 12, 2016

Insurers Owe No Duty to Defend Against Exempted Claims in Bollinger Shipbuilder Lawsuit

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It seems rare in insurance coverage litigation for a court to wholeheartedly agree with an insurer that the coverage requested is not in fact provided for in the contract for insurance. Yet, the U.S. Court of Appeals for the Fifth Circuit did just that, upholding a decision out of the U.S. District Court for the Eastern District of Louisiana finding without question that Bollinger Shipyards, Inc. was not entitled to defense by its insurers in a lawsuit brought against it by the United States.

Bollinger, a shipbuilder headquartered in New Orleans, won a multi-million dollar “Deepwater” modernization contract to upgrade eight (8) 110-foot U.S. Coast Guard cutters to make them 123-foot vessels. Despite the Coast Guard’s concerns that the boat hulls were not able to accommodate the 13-foot extensions, Bollinger pushed forward on the project. On several occasions, Bollinger submitted analyses to the Coast Guard purporting to show that the hull strength was sufficient. In reality, the hull strength was not sufficient which became apparent when one of the ships “suffered a structural casualty that included buckling of the hull.” The Coast Guard determined that the seven remaining ships were equally faulty and unusable.

Eventually, the United States filed a lawsuit against Bollinger over the faulty work. The Court allowed the United States to move forward with two claims under the False Claims Act. Days prior to the government’s filing, Bollinger notified its general maritime insurer, XL Speciality Insurance Company, and its excess insurer, Continental Insurance Company, of the impending claims in an effort to shift the burden of the expense of the defense to the insurers. In response, XL issued a “reservation of rights” letter stating that it was unsure if Bollinger’s policy included this coverage.

November 11, 2016

The Plight of the Luddite: Increasing Concerns for Plaintiffs of Age Discrimination Claims

by Berniard Law Firm

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A Luddite is a person who is opposed to technological innovation. A Luddite will refuse to learn about new technology and will not incorporate it into their skills, either at work or at home. Having this mindset has obvious drawbacks for workers in today’s world, but what happens to the individuals who do not necessarily avoid technology, but are slow to catch up?

In 2015, a 52-year old employee of Jefferson Parish fell into this unfortunate cohort. This employee had been working for Jefferson Parish for over twenty years of service. When it came time for Jefferson Parish to choose who to promote to the position of Executive Assistant, there were two options: Maria Cooper, a young 28-year old employee with technological know-how, or the 52-year old, an experienced and loyal employee.

To Jefferson Parish, the choice was obvious. Since the essential job requirements of the position of Executive Assistant included working knowledge in the maintenance and updating of all computers, servers, and wiring of the computer network, as well as experience in setting up Excel spreadsheets, Ms. Cooper seemed like the best fit. But what about the 52-year old? She was left in the dust. After being passed up for the position, the 52-year old filed a lawsuit against Jefferson Parish, alleging age discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq.

November 10, 2016

Louisiana Appeals Court Defines “Employee” in Sexual Harassment Lawsuit From Iberia Parish

by Berniard Law Firm

Employees Only
In the law, it is common for a case to turn on the definition of one word. A word that ordinarily may conjure a single image can explode with possibilities, nuances, and sometimes disastrous consequences during a lawsuit. For Mr. D that word was “employee.” In a recent case, the Louisiana Third Circuit Court of Appeal helped define the term “employee” as regards workers’ compensation law and employment discrimination law.

In this case, Mr. D was hired by Lofton Industries, Inc., a staffing services company, that assigned Mr. D to work with National Oilwell Varco, L.P. (“NOV”). While at NOV, Mr. D alleged that he suffered both verbal and sexual harassment from coworkers. The harassment lasted until Mr. D was fired by NOV. Mr. D filed a lawsuit for sexual harassment against his harassers and NOV, as well as a separate negligence claim against NOV for the negligent hiring and supervision of its employees. This is where the definition of “employee” becomes important and interesting.

In order to maintain his claims against NOV, Mr. D had to meet the definition of employee under the Louisiana Employment Discrimination Law (“LEDL”) but avoid being considered an employee under the Louisiana Workers’ Compensation Act (“LWCA”). Confusingly, the District Court dismissed both Mr. D’s claims, finding that he was both an employee (for LWCA purposes) and not an employee (for LEDL purposes) at the same time.

November 9, 2016

CVS’s Wet Floor Not The Cause of Metairie Man’s Death

by Berniard Law Firm

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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 .

November 8, 2016

Do Drivers Entering Louisiana Highways Have a Duty to Yield to Traffic?

by Berniard Law Firm

truck-on-hwy-1615510 You are driving down a highway in Louisiana minding your own business when all of the sudden an eighteen wheeler pulls out of nowhere. BAM, you slam into the side of it, your back aches, your car is wrecked and now you are involved in a lawsuit. Who is at fault for this unfortunate circumstance? While this might seem like a no brainer many times great car accident lawyers will argue that the driver who was just driving down the road somehow caused the accident. The following case out of Port Allen, Louisiana demonstrates how the Courts assess liability when accidents happen between cars traveling down the highway and those that are entering into the highway.

In 2010 a motor vehicle accident occurred on Lobdell Highway. The highway is a four-lane stretch of road in Port Allen, Louisiana. Leroy Edmond was driving a GMC Sierra truck when he struck a flatbed trailer that was being pulled by an eighteen wheeler driven by Sherbaston Wilson. Wilson was attempting to make a lefthand turn out of a truck stop and at the time of impact Wilson’s trailer had not cleared the northbound lane. Edmond filed a lawsuit against Wilson, his employer, Jowin Express, Inc., and their insurer, Cherokee Insurance Company. Edmond alleged that Wilson was negligent in failing to yield to oncoming traffic while exiting from a private driveway and that Edmond sustained permanent injuries from the accident.

A trial occurred and the jury returned a verdict assessing 95% fault or the accident to Wilson and 5% to Edmond. The damages awarded in favor of Edmond were as follows:

November 7, 2016

Burger King Employee Loses Out On Workers’ Compensation After Misrepresenting Injuries

by Berniard Law Firm

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When someone brings a workers’ compensation claim against an employer or former employer, they must not falsely represent any material fact, or the entire workers’ compensation claim will be forfeited. When the court finds that a plaintiff has misrepresented a material fact, they dismiss that claim in favor of the employer.

An example that illustrates this point occurred in Baton Rouge, Louisiana, where an employee at the Burger King on Coursey Boulevard said she was injured when she stepped on a bread tray a co-worker had left on a walkway. Mrs. Watson, the employee who was injured, filed a workers’ compensation claim against Strategic Restaurants Acquisition Company and Broadspire, Strategic’s third party administrator. Strategic argued that Mrs. Watson’s claim was invalid under La. R.S. 23:1208 due to false statements willfully made by Mrs. Watson while attempting to recover benefits. The Workers’ Compensation Judge dismissed Mrs. Watson’s claim, finding that she forfeited it due to her false statements. The Louisiana First Circuit Court of Appeal agreed, and affirmed the Workers’ Compensation Judge’s ruling.

According to Mrs. Watson, the injury she suffered while working at Burger King had a dramatic effect on her daily life, severely limiting the activities she was capable of performing. She claimed she could not bend at the waste, drive a car, walk without help, and had lost the regular use of her left hand, arm, and knees. In a deposition given seven months after she sustained the injury, Mrs. Watson insisted that she suffered significant pain and suffered from the fall, which continued to affect her on a day-to-day basis. During the deposition, she testified that the pain in her arm was at an “8 or 9” out of ten, and claimed she couldn’t carry anything heavier than a cup.

November 6, 2016

Court of Appeal Discusses Louisiana’s “Lemon Law” Regarding Used Automobile Sales

by Berniard Law Firm

Buying an automobile can be an exciting experience regardless of whether one is trading in an old gas-guzzler for a newer, more efficient model or buying brand new. However, the process of buying an automobile can be a hassle if one happens to purchase a “lemon.” In Louisiana, a “lemon” is defined as a new automobile that has a defect that is significant enough to severely impair the automobile’s use and/or market value. With this being said, it is surprising that even with the abundance of information readily available via Internet, many individuals hastily purchase automobiles, rather than taking the time to gather information and make an informed decision. It is important to remember, as the buyer, that you should be in control throughout the entire process by (1) knowing the style of automobile you desire; (2) calculating the price you can afford; (3) researching the safety, quality, expert opinions, and owner opinions of the automobile you are planning to purchase; and (4) investigating the types of warranties readily available. In the event that one finds his/herself in the aforementioned situation, it is pertinent to retain an attorney, who specializes in Redhibition Law (i.e., Lemon Law) who will file a redhibition claim (i.e., lemon law claim) on your behalf.

The following redhibition action out of Houma, Louisiana discusses the conditions that must be proven by the buyer in order to obtain a favorable judgment. On September 3, 2013, Ms. Melissa Cadiere purchased a 2000 Lincoln LS with 199,684 miles from Wholesale Autoplex, L.L.C. Ms. Cadiere drove the Lincoln for thirty-seven days before her Lincoln failed to start, at which time she contacted Wholesale Autoplex. Wholesale Autoplex advised Ms. Cadiere that her Lincoln would need a new engine. After Wholesale Autoplex failed to repair or replace the engine, Ms. Cadiere filed a petition for redhibition.

Redhibition, in the context of automobiles, is the avoidance of a sale of some vice or defect in the automobile, which renders the automobile either absolutely useless, or severely compromises the function of the automobile in a matter that if known by the buyer at the time of purchase, the buyer would have chosen not to purchase the automobile. See La. C.C. art. 2520. In a redhibition claim, the buyer (i.e., plaintiff) must prove (1) that the seller (i.e., defendant) sold the good in a manner that renders the good absolutely useless for its intended purpose or its use is compromised in a manner that if known at the time of purchase, a reasonable person would have chosen not to purchase the good; (2) the good contained a hidden defect at the time of purchase; and (3) the seller was provided the opportunity to repair the defect. Crow v. Laurie, 729 So. 2d 703, 705-06 (La. Ct. App. 1999).

November 5, 2016

Father of Color Guard Member Unable to Prove Negligence after MLK Parade Injury

by Berniard Law Firm

When bringing a negligence lawsuit to recover damages for injuries sustained as a result of another person’s failure to act with due care, it is important to ensure that that sufficient evidence has been gathered in advance of the trial. A good lawyer knows that in order to properly safeguard against the tactic employed by the opposing party, one must be prepared to back up one’s claim. A case from the Louisiana First Circuit Court of Appeal highlights exactly this point.

In this case, Robert Lee Iles brought a lawsuit on behalf of his minor daughter, Jannah, who was a member of the color guard at Northshore High School (“NHS”) until she sustained an injury. As a member of the NHS color guard, Jannah attended a two-week band camp during the summer. At band camp, she practiced for two hours, two to three times a week after school, and worked alongside her color guard teammates in a daily one-hour class. She and her teammates received between nine to ten hours of instruction each week. Additionally, she received special training sessions to prepare for the Martin Luther King, Jr. (“MLK”) parade. According to Mr. Iles’ petition, Jannah sustained an injury while marching as a member of the NHS color guard while performing alongside the band at a MLK parade in Slidell, Louisiana.

Iles petition claimed that his daughter’s injury entitled the family to damages. The petition named a number of defendants, including: St. Tammany Parish School Board, NHS Band Boosters, Inc. and its insurer, the band director, the color guard director, the school principal, and the parents of her fellow NHS color guard member, Gabrielle Haley. Iles claimed the School Board was liable for the actions of its employees, thus justifying the inclusion of the band director, and that the Boosters paid the color guard director, so his inclusion was justified as well. Iles’ lawsuit further posited that the School Board and Boosters had failed to properly supervise or train the color guard students, giving rise to this action. Iles also sought additional damages from the defendants for failing to properly administer medical attention.

November 4, 2016

Court of Appeal Contemplates City of Baton Rouge’s Vicarious Liability for Police Misconduct

by Berniard Law Firm

on-patrol-1565455-1024x683 In Louisiana, employers are considered to be vicariously liable for the wrongdoings of their employees. La. C.C. art. 2320. This means that an employer is held liable for damages that their employee may cause while performing designated job duties. In a recent case, the Louisiana First Circuit Court of Appeal discussed whether vicarious liability could apply to hold the City of Baton Rouge responsible for injuries caused by the wrongful conduct of one of its police officers.

On March 4, 2007 Officers Nicholas Batiste and Nathan Davis were dispatched to the home of Brian Townsend in Baton Rouge, Louisiana due to a noise complaint. Mr. Townsend, who was hosting a house party at his Highland Road residence, was instructed by Officer Davis and Officer Batiste to shut the party down. Though the parties disputed what transpired after the officers asked that the party be shut down, it was undisputed that Officer Davis tackled Mr. Townsend from behind. Officer Davis landed on Mr. Townsend with such force that Mr. Townsend involuntarily defecated on himself.

Once Mr. Townsend was brought to the police station, he was made to sit on the floor due to his condition. As he was sitting on the floor, he continually asked to use the restroom. His requests were denied. He was then pepper sprayed multiple times and kicked in the groin by Officer Davis. Additionally, Mr. Townsend was dragged across concrete and gravel as he was being moved for processing. Mr. Townsend was brought to the hospital for his cuts from being dragged. There, it was discovered that Mr. Townsend’s bladder was ruptured. Mr. Townsend underwent surgery to repair his bladder. Following Mr. Townsend’s release from the hospital, he returned due to a urinary tract infection, deep vein thrombosis, a non-functioning bowel, and pneumonia.

November 3, 2016

Land Expropriation Damages in Baton Rouge: Different Approaches, Different Outcomes

by Berniard Law Firm

IMG_1055-e1477861245822-768x1024 When land is expropriated by the government, there are many questions concerning how much money the government will owe you. Courts consider factors such as the appraised value of the property, relocation costs, inconvenience, and other possible damages. See La. Const. art. I, §4(B)(5). The best lawyers are familiar with the different approaches the court could use to determine the amount of damages and are prepared to get the best results for their client. A recent case from the Louisiana First Circuit Court of Appeal highlights several different approaches than can be taken by a court in deciding land expropriation damages.

In 2008, the City of Baton Rouge and the Parish of East Baton Rouge expropriated a portion of land on which Baton Rouge Rentals & Sales was located. In this property taking, the city took 0.101 acre of land (4,380.9 square feet) and the business was forced to close their doors and vacate the building. Fifty-one percent of the property was owned by two sisters, Charlene McDonald Nelson and Kathleen McDonald, and forty-nine percent was owned by an employee of Baton Rouge Rentals & Sales, Connie Hyde. The original owner, Charles Hyde, transferred the forty-nine percent to Hyde shortly before he died. Hyde paid rent to the sisters and continued to operate the business until 2008.

The government contended that the total expropriation value of the property was $143,205, a value determined by a court-approved appraiser, Sharon Pruitt. There are three ways to determine the expropriation value of the property before the taking: cost approach, sales approach, and income approach. The cost approach values the taken property based off similar properties. The income approach determines the value by future potential income from the property. And the sales approach, the approach accepted by the trial and appellate courts, is the estimated cost of replacement after the improvements plus the value of the land. The sales approach generated a “before expropriation value” of $329,000 for the property, the income approach was $322,000, and the cost approach was $335,000. In Ms. Pruitt’s expert opinion, the sales approach was the best value determination for this property.