by

building-on-fire-1214366-706x1024The case may have seemed simple enough to the courts at first: interpret a contract.  The main question in the case before the U.S. Court of Appeals for the Fifth Circuit was whether to apply the business’ projected income versus the actual income when calculating the coinsurance reward.  The Court had to determine whether the language in the insurance policy and contract was clear as to which income it referred to.  The Court applied Louisiana law, and indicated that courts must apply the contract as a whole, rather than in separate parts.  The Court also applied the same law, which prior Louisiana Supreme Court decisions established, in determining that a court must enforce a contract as it is written when the contract’s meaning is clear and unambiguous.

Advance Products & Systems, Inc., (APS) of Scott, Louisiana, purchased an insurance policy in from Mt. Hawley Insurance Company in November of 2009 for its commercial property.  Mt. Hawley Insurance Company is an Illinois company with a Baton Rouge agent.  A fire damaged APS’s facility in September of 2010, about ten months after Mt. Hawley issued the policy.  A dispute subsequently arose between Mt. Hawley and APS during the claims-adjustment process, and Mt. Hawley then sued APS in a Louisiana federal court – the United States District Court for the Western District of Louisiana.  Mt. Hawley had the option to sue in federal court since the two parties were incorporated in different states.

The dispute stemmed from two provisions in the insurance policy.  The first provision involved coverage for income lost – business income coverage; the second, a coinsurance clause, required APS to be responsible for a percentage of certain losses because APS chose to purchase a limited level of coverage, as opposed to the full value of its income.  The policy applied the coinsurance clause as a penalty when the policy limit amounted to less than 90 percent of the sum of the net income and operating expenses ‘that would have been earned or incurred’ over a 12-month period.  APS’s coverage limit was $500,000; whereas it claimed to have lost $723,109 of income as a result of the fire.

Continue reading

by

paper-patriotism-1476481-1024x768It  costs money to file a lawsuit against a party who has wronged you, and it also costs money to defend yourself when another party brings a lawsuit against you. Imagine taking on those costs only to lose the case in the end — and then imagine having to also pay for the winner’s attorney’s fees.

The general rule in the United States, known as the American Rule, is that each party only pays their own attorney’s fees, regardless of who wins. This is unlike some other countries, such as England, where courts often require the losing party to pay the other side’s attorney’s fees. One leading policy behind the American Rule is to ensure that potential plaintiffs aren’t discouraged from bringing meritorious lawsuits out of fear that, if they lose, they will have to incur even more costs by having to pay the other side’s lawyer. There are exceptions to the American Rule, however. One common exception is where there is a statutory provision requiring the losing side to pay attorney’s fees to the winning party, as illustrated in a recent case in Baton Rouge.

In Heck v. Triche, the district court found (and the appellate court affirmed) that the defendant, Wayne Triche, was liable under state law — not federal law — for securities fraud. After this finding, however, the plaintiffs requested an award of attorney’s fees pursuant to Louisiana laws (La. Rev. Stat. Ann. § 51.712 & 51.714; Local Rule 54.2). The plaintiffs eventually submitted the documents needed for the district court to determine the reasonable amount of attorney’s fees. The district awarded attorney’s fees pursuant to a federal statute, 15 USC § 78r, in the amount of $121,800.

Continue reading

by

asbestos-1483119-1024x768It  seems that asbestos can be toxic not only to people, but also to companies as well. Anco sold, distributed, repaired, and installed insulation materials containing toxic asbestos that can cause mesothelioma and cancer from 1972 until the early 1980’s. The company based in Louisiana conducted business in Louisiana, Mississippi and Texas during that time. As a result, it has faced upwards of 2700 lawsuits across the three states.

In 1987 Anco took out a general liability insurance policy with the National Union. This policy failed to include an exclusion of asbestos coverage. Beginning in April 2009 Anco forwarded all pending asbestos related lawsuits to National Union. When National Union failed to pay claims made by Anco, Anco launched suit against the insurer claiming that National Union should be held liable for the defense costs incurred by Anco. However, the court granted summary judgment to many of the claims made by Anco. This meant the trial court found for National Union and dismissed many of Anco’s allegations.

Anco appealed the partial summary judgment found by the trial court. In particular, Anco attempted to appeal the dismissal of the duty of National Union to pay legal costs. Anco cited three main reasons for their appeal. “(1)a genuine dispute of material fact exists as to the date that Anco first tendered claims under the Policy; (2) even if Anco’s tender of the claims was untimely, the district court erred in not excusing Anco’s tardiness; and, (3) the court erred in concluding that Anco’s failure to tender claims timely under the terms of the Policy relieved National Union of its defense obligations because National Union did not claim that it was prejudiced by Anco’s late tender.”

Continue reading

by

poker-hand-1522811-1024x769Discrimination can come in many forms and if you are faced with a potential workplace discrimination issue it is important to take your concerns to a good lawyer because the contours of discrimination cases can be very complicated.  Esma Etienne, a waitress and bartender, found herself in just such a situation when she alleged that the general manager at the Spanish Lake Truck & Casino Plaza in New Iberia, Louisiana refused to trust and promote qualified employees simply because their skin was of a darker shade.  According to Etienne, she was passed over for promotion to a managerial position at Spanish Lake because she was “too black.”  Based on this belief that she had faced discrimination in the workplace, Etienne filed a Title VII suit in the Western District for Louisiana Federal Court.    

In support of her claim, Etienne presented an affidavit from a former manager at Spanish Lake stating that the general manager did not trust darker skinned black people with certain responsibilities, such as handling money.  Further, the manager alleged that the general manager and his wife made several statements that Etienne was “too black to do various tasks at the casino.”  In response, Spanish Lake argued that it hired a more qualified candidate than Etienne and the decision was based purely on merit.  The district court agreed and granted summary judgment in favor of Spanish Lake.  The court based its decision on its finding that Etienne had merely supplied circumstantial evidence, shifting the burden away from Spanish Lake and on to Etienne, and pointed to the fact that a majority of the managers at Spanish Lake were black.  The court seemed to believe that the fact that so many managers were black was dispositive under Title VII and that the allegation that the discrimination was based on shade of skin was insufficient.  The Fifth Circuit Court of Appeals did not agree.  It reversed the grant of summary judgment in favor of Spanish Lakes and remanded the case for consideration by a jury.

The Fifth Circuit pointed out that while there had never been an explicit ruling in the circuit that color was an unlawful basis for discrimination in the workplace, the text of Title VII is clear that employment discrimination is prohibited on the basis of an individual’s “race, color, religion, sex, or national origin.”  It was improper for the district court to rely so heavily on the fact that Spanish Lake had hired numerous black managers when the issue at bar was discrimination based on skin shade.  Etienne was alleging that Spanish Lake discriminated based on the fact that she was too dark, not the fact that she was black.

Continue reading

by

truck-on-hwy-1615510-1-1024x682Renting a U-Haul truck can be a necessary burden when you are tasked with moving a lot of stuff from place to place. During the rental process you might be asked whether or not you want supplemental insurance policies.  But who do you sue when an accident happens?  In the following case out of New Orleans, Louisiana one plaintiff finds out who definitely cannot be sued when a U-Haul and Fedex truck collide.

JR was driving a rented commercial truck (U-Haul), when his truck crashed into a delivery truck (Fedex)  in New Orleans. JR filed a lawsuit against the delivery truck and also named the insurer of the company he rented the truck from as a Defendant as well. JR named the company from whom he rented a truck as a Defendant because he claimed to have purchased “risk protection” from that company in the course of his rental agreement with the company.  JR believed that the risk protection insurance would provide him with uninsured motorist coverage. The plaintiffs went on to add RW Insurance Company as another defendant, apparently believing that RW was the commercial company’s insurer.

However, RW insurance apparently is only a claims administrator for the commercial company and not an insurance company.  Upon receipt of the lawsuit RW wanted out as soon as possible.  To do so they filed a motion for summary judgment (MSJ).  If RW could prove that there was no genuine issue as to the material fact that they were not an insurer for the commercial company and thus owed no coverage to JR they could be dismissed from the case.  See Louisiana Code of Civil Procedure article 966.  They did just that and the trial court granted their motion.

Continue reading

by

law-series-3-1467437-1024x769When attempting to bring a lawsuit in court, timing is everything. If a potential claim is brought too late your day in court may never come. However, Louisiana courts of law are generous in extending the deadline to file a lawsuit in instances of fraud.  In the following case out of Jefferson Parish Louisiana, a Plaintiff learned that the deadline to file a legal malpractice lawsuit can be relaxed when fraud is employed to hide negligent representation.

Ms. Michelle Myer-Bennett was primarily a divorce attorney, but represented clients in related matters: division of property, custody, and other family law matters. Ms. Myer- Bennett was hired by Tracy Lomont to represent her in her divorce. Ms. Lomont wished to receive her home in Jefferson Parish as a result of the divorce. Ms. Myer- Bennett followed standard protocol to draft this documentation, but failed to record this information in the mortgage or property records.

Sometime later in 2010, Ms. Lomont attempted to refinance her house, but was denied. After reviewing her application, Ms. Lomont discovered that her application was denied due to a lien on her property. Ms. Lomont found out that her attorney had not completed the proper paperwork. According to Ms. Lomont, she contacted her former attorney, Ms. Myer-Bennett who made no mention of her mistake in filing. In contrast, according to Ms. Myer-Bennett, she confessed her malpractice to her client and informed her of all possible proceedings including suing her for malpractice.

Continue reading

by

hospital-1233639-1-1024x768
Procedures involving the heart or a patient’s heartbeat carry a high risk of injury or even death, and a pacemaker implant is no exception. Pacemaker implantation involves the risk of bleeding and/or infection. These risks carry grave consequences and therefore the doctors carrying out such procedures must follow the acceptable standards of care. However, determining what constitutes the “acceptable standard of care” can be a complicated matter wherein various courts can disagree.  The following case out of Lake Charles, Louisiana shows how the best medical malpractice lawyers use of experts becomes critical to a lawsuit involving an infected heart.

In August of 2007, Mr. Clyde Snider, Jr. (“Mr. Snider”) sought treatment at the Beauregard Memorial Hospital (“Beauregard”) emergency room in DeRidder, Louisiana for shortness of breath, chest pains, dizziness, lightheadedness, and faintness. Mr. Snider’s heart rate fell dangerously low, prompting Dr. Robin Yue (“Dr. Yue”) to recommend heart catheterization and implantation of a pacemaker. Mr. Snider consented to the procedure, which was performed later that day. Bad luck continued to plague Mr. Snider as he sustained an unrelated injury to the area of his pacemaker on the day after his discharge from Beauregard. He then returned to the Beauregard emergency room that evening with various complaints. Dr. Yue was unavailable so he was left in the care of a different doctor. Six days later he was discharged.

The very next day believing his heart troubles were unresolved Mr. Snider decide to go back to the hospital.  This time he went to Christus St. Patrick Hospital (“St. Patrick”), in Lake Charles, Louisiana instead of Beauregard and was admitted for treatment. The cardiologist at that hospital found symptoms of infection at the pacemaker surgical site and a decision was made to remove the pacemaker.

Continue reading

by
supermarket-1-1419299-1-1024x681Would you expect a routine trip to your local grocery store to end with a herniated disc and a possible need for surgery? Probably not.  Trips to the grocery store are often without incident. However, people do get hurt sometimes, either from their own clumsiness or — as the Louisiana Court of Appeal, Second Circuit, found in a recent case — by the negligence of the store.

Donna Guerrero (the “Plaintiff”) was shopping at Super 1 Foods (the “Defendant”) in West Monroe one evening in January of 2010. Looking upward on the shelves for coffee, the Plaintiff tripped and fell over a 10-inch-tall rectangular box on the floor, which had been placed there for restocking purposes. The Plaintiff suffered from a T1-2 herniated disc, she continued to suffer from pain thereafter, and there is a possibility that surgery may be required in the future if the injury continues to worsen. The Plaintiff filed a lawsuit against the Defendant. The trial court found that the Defendant was not liable, and the Plaintiff appealed.

In order to impose liability on a merchant — that is, a store like that of the Defendant — for a patron’s injuries resulting from an accident, a plaintiff must prove that: (1) the condition presented an unreasonable risk of harm that was reasonably foreseeable; (2) the merchant either created or had actual or constructive notice of the dangerous condition; and (3) the merchant failed to exercise reasonable care. La. R.S. 9:2800.6(B).

Continue reading

by

count-house-in-diatlovo-belarus-1218986-2-768x1024
Imagine that you and your spouse have spent years planning, waiting, and paying for the construction of your new home. Upon its completion, you excitedly move in, relieved that the wait is over and that you no longer have to stay in a little trailer next to the construction site. Things are great for the two of you. However, in the eight years that follow, a list of complaints about your newly built home grows longer and more serious. To name a few, the rooms are rotting, doors are sagging, the sheetrock is cracking — and, just like that, your dream home has become nothing less than a nightmare. This is exactly what happened to Joseph and Joann Catalanotto and their home in Hammond, Louisiana.

The Catalanottos moved into their home in March of 1996. In 2004, the couple sent a letter to to Jim Walter Homes, Inc. (“JWH”) detailing several major problems they had encountered with the home. The listed problems included the following: (1) The piers are sinking and leaning out; (2) The kitchen floor is swelling, the living room floor has a large dip, and the master bedroom floor is uneven; (3) The utility room is rotting; (4) The back porch is pulling away from the house and rotting; ( 5) The corner fascia boards are pushed away from the house; (6) The front porch does not have the correct pitch to it, causing water to come to the front door; (7) The doors are sagging; (8) The sheetrock has cracks; (9) The hardiplank siding is cracking and breaking. Although JWH sent various supervisors and contractors to address some of the complaints, JWH notified the Catalanottos in 2005 that the home was out of warranty and that JWH would not undertake any further repairs unless any given problem is deemed (that is, by a court) to have resulted from a structural failure covered by a ten-year warranty.

Accordingly, the Catalanottos turned to the courts to make such a determination about the home’s defects. The couple filed a lawsuit against JWH in 2006 alleging that JWH violated the New Home Warranty Act, LSA-R.S. 9:3141, et. seq., (“NHWA”) by not constructing the home in conformity with the applicable building standards. In June 2013, the Catalanottos’ retained an expert witness, Darrel Fussel (“Fussel”), who testified at the trial. Although JWH also retained an expert for trial, JWH did not call on its expert at trial. As such, after hearing and considering the trial testimony, albeit only from the Catalanottos’ expert witness, the trial court ruled in favor of the plaintiff couple, finding that the home was not free from structural defects within ten years of its purchase (note: although the NHWA currently protects new homes for only five years instead of ten, the time limit that governs is that which was in force at the time the home was finished in 1996 — ten years). The court accordingly awarded the Catalanottos $60,000 plus seventeen-and-a-half years of interest at eight percent (totaling, $166,068), $12,000 in attorney fees, and judicial interest and court costs.

Continue reading

by

metal-1314941-1024x680
When chain reaction accidents occur it can sometimes feel like mayhem on the highway.  One car hits another, then another one hits another and so on and so on.  But who’s at fault for all the injuries and wrecked cars?  The car that initially caused the accident?  The one after that which ran into another car that was trying to stop to avoid the accident?   The following case out of Avoyelles parish sheds some light on who’s at fault for what in multi-car pile ups.

Lacey Berthiaume was driving on a Louisiana highway when ahead of her a car entered the roadway without yielding to oncoming traffic.  The car in front of Ms. Berthiaume suddenly stopped.  Ms. Berthiaume successfully stopped her automobile within a foot of colliding with the car in front of her.  However, the truck behind Ms. Berthiaume was not able to stop, and the truck rear-ended her vehicle causing injuries to Ms. Berthiaume.  Ms. Bethiaume filed a lawsuit in the Twelfth Judicial District Court, Parish of Avoyelles, alleging the driver of the truck, Mr. Gros, was negligent and caused the accident.

In the trial court, Ms. Bethiaume filed a motion for summary disposition.  Ms. Bethiaume argued that Mr. Gros rear-ended her vehicle, and under Louisiana law, in a rear-end accident, the following motorists is presumed to have violated La R.S. 32:81(A), and therefore presumed negligent.  In summary, La 32:81(A) states a driver shall not follow another motorist too close to react to traffic and highway conditions.  Mr. Gros admitted he caused the accident, but he also argued that the motorist that entered the roadway causing Ms. Berthiaume, and the motorist in front of her, to stop short was also at fault.  In short, Mr. Gros argued that this other driver shared some of the fault underlying this accident.  The trial court disagreed with Mr. Gros and held he was solely at fault for this accident.

Continue reading
Contact Information
1140 St Charles Ave
New Orleans, LA 70130
Phone: (504) 521-6000
Fax: (504) 617-6300

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

Please do not include any confidential or sensitive information in a contact form, text message, or voicemail. The contact form sends information by non-encrypted email, which is not secure. Submitting a contact form, sending a text message, making a phone call, or leaving a voicemail does not create an attorney-client relationship.

Copyright © 2016 – 2025, Berniard Law Firm
JUSTIA Law Firm Blog Design