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construction-series-ii-1-2-1577115-1024x683Worker compensation claims arise from being hurt at work.  Even the best worker compensation lawyers cannot help you prove the existence of a work related accident if you were not actually “hurt at work.”  La. R.S. 23:1031(A)  The following case out of New Orleans demonstrates what happens when credibility assessments must be made due to a lack of physical evidence.

In January of 2013, Mark Tubre filed a Disputed Claim for Compensation that arose from the denial of a workers’ compensation claim for a back injury he allegedly sustained while working for the Automobile Club of Southern California, (“AAA”). Mr. Tubre was the manager of the AAA fleet facility located in New Orleans.  As a result of filing the Disputed claim for Compensation a trial occurred.  At that trial Mr. Tubre testified that on Christmas Day in 2012, while he was the only one at work, he slipped on a palette as he was placing a battery back onto a shelf. The accident aggravated a preexisting back injury that Mr. Tubre had and was seeing a doctor for.

In further support of his claims, Mr. Tubre presented three witnesses to speak on his behalf: (1) his neighbor, Daniel Edwin Oser, who testified he went to Mr. Tubre’s home on Christmas day and saw him resting on the sofa; (2) his bother, Henry Larry Tubre, Jr., who testified he spoke with Mr. Tubre on Christmas day and had been told that Mr. Tubre hurt himself doing something with a battery; and (3) his wife, Kim Tubre, who testified Mr. Tubre came home from work on Christmas day stating he had been hurt doing something with a battery.

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more-storm-surge-debris-1560382-1024x683Class actions can be complex cases that lead the parties involved to appeal many of the decisions of the trial court.  Sometimes the appeals court will determine that certain issues need more review at the trial court level prior to any decisions being issued on their part.  A recent case out of Orleans Parish, involving a class action lawsuit for claims of improper insurance claim handling and delay of repair claims discusses the limits of what is proper for appeals court in Louisiana to review.

A condominium complex in New Orleans sustained flood and wind damages following hurricanes Katrina and Rita. The plaintiff’s who were owners of the condominiums filed a class action lawsuit against Harbor Homeowners’ Association, Inc and its insurer as well as the president of the Homeowners’ Association, asserting three claims. The claims included (1) unlawfully increasing the insurance deductible without notice and approval from condo owners, (2) unlawfully entering the condos without authorization as well as discarding, gutting, destroying, and damaging contents, and (3) negligently failing to supervise and administer the rebuilding of the condos, resulting in damages and repair delays.

The plaintiffs filed a motion for class certification twice. After a scheduled hearing, the defendants moved for involuntary dismissal, claiming the plaintiff did not establish the required elements for class certification. Following briefs from post-hearings, the trial court granted the class certification motion for the plaintiff only on the delay of repairs and insurance claims and denied the defendant’s involuntary dismissal motion.  An appeal and oral arguments followed in the Louisiana Fourth Circuit of Appeal.  After those arguments both sides filed motions to file post-arguments briefs in the appeals court.

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another-mobile-home-victim-of-katrina-1560379-1024x683Hurricane Katrina wreaked havoc on Louisiana in 2005.  As a result of the storm insurance claim litigation continued on for years thereafter.  In Louisiana there are short deadlines for filing a lawsuit if you believe you were treated unfairly by your insurance company.  If you do not file your lawsuit on time you might be met with a Motion to Dismiss, as was Lionel Williams who sued Louisiana Citizens Property Insurance Company for claims of mishandling of his Hurricane Katrina insurance claims.

Lionel Williams, of Reserve, Louisiana, sued Louisiana Citizens Property Insurance Corporation (“Citizens”) in state court for claims relating to Citizens’ handling of his insurance claims for property damaged by Hurricane Katrina.  Mr. Williams did not file his lawsuit until September 20, 2011.  After receiving the lawsuit Citizens filed an exception of prescription. Prescription is the set of procedural rules in Louisiana that dictate how long a person has to file a lawsuit after being harmed.  So, in filing an “exception of prescription” what the Citizens was seeking to do was to get Mr. Williams case thrown out of court before any trial of the facts occurred.  To defend against the prescription exception Mr. Williams alleged that he was a putative member of several class actions, that he had not opted out of the class actions, and that because he was a member of those various class actions prescription was suspended in his case. Because Mr. Williams alleged he was a class member of several class actions the trial court was forced to look at the claims made and procedural posture of all of those cases and then make a decision as to what claims could survive in Mr. Williams case.  Some claims were dismissed and some were allowed to continue on.

In hoping that the appellate court would overrule the dismissal of his certain claims of his lawsuit, Mr. Williams first argued that he was a member of various class actions filed after Hurricane Katrina.  La. C.C.P. art. 596(A)  provides that a class action lawsuit suspends prescription as to all members of the class. That statute further provides that this suspension continues until 30 days after one of three events occurs: “1) a person elects to be excluded from the class by submitting an election form; 2) a person is excluded from the class by the redefinition or restriction of the class (and notice is issued); or 3) the action is dismissed, the demand for class relief is stricken, or class certification is revoked or refused (and notice is issued).” These three “statutory triggers” are exclusive. Unless one of these “statutory triggers” are present, the prescription period continues to be suspended.

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cards-1456946-1-1024x768A night at Harrah’s Casino in New Orleans not only can not only break your bank but it could break your back as well if your not careful.  Unfortunately for one Louisiana man black jack turned into broke back when he slipped and fell on water on the bathroom floor.  Gregory Beggs was out for an evening of black jack at Harrah’s Casino, in New Orleans when he had to use the restroom. Mr. Begg’s noticed that the bathroom floor had a large puddle of water on the floor. Begg’s let a Harrah’s employee know of the situation, and it became clear several other employees already knew the issue existed. The Casino failed to clean up the spill on the floor, and when Begg’s returned to the bathroom needing to go “Urgently” around an hour and a half later the water was still littering the floor. Noticing the liquid, Begg’s attempted to use the urinal but nevertheless slipped and fell injuring his back.

The First City Court of New Orleans found Mr. Begg’s to be 50% at fault for the accident. On Appeal Harrah’s argued that the lower court erred in finding Begg’s only to be 50% at fault, stating instead he should have been seen as 100% responsible for the damages.

In examining this problem, the appeals court looked to the Louisiana Supreme Court, and its decision in Duncan v. Kansas City Southern Railway Co., 773 So.2d 670, 680-81. In the Duncan ruling the Louisiana Supreme Court determined that “‘the trier of fact is owed some deference in allocating fault’ since the finding of percentages of fault is also a factual determination. Clement v. Frey, 666 So.2d 607, 609, 610.” In plain English the court determined that under ordinary circumstance the finding of degree of fault should be left to the trier of fact, or jury, to determine. Only if the amount apportioned is clearly wrong should the court intervene.

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car-crash-1451085-1024x686Insurance policies can be difficult to understand. Litigating disputes arising from insurance policies can be even more difficult because the court must look not only at the policy itself to decide the case but must also consider which state’s law to apply to the case. The complexity of insurance cases makes it important to seek the services of an attorney familiar with the nuances of insurance litigation.

Monica Rios was a passenger in a car, driven and owned by Mr. Eddy Reyes, that was involved in an accident in New Orleans, Louisiana. The other car involved in the accident was being driven at the time by an excluded driver for that car’s insurance policy. The insurance provider for that car, Gramercy Insurance Company, pointed out that not only was the driver of the vehicle a named excluded driver that also the policy had lapsed due to non-payment prior to the accident. As a result, Gramercy was released from any liability.

Ms. Rios had also filed a claim for uninsured/underinsured motorist (UM) coverage under Mr. Reyes’ insurance policy issued by United Automobile Insurance Company. UM is intended to compensate the insured customer when the driver who caused the accident is either uninsured or their insurance does not cover the damages. In this case, since Gramercy had been released from liability by the court, Ms. Rios looked to United, Mr. Reyes’ insurer, for relief.

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medical-faculty-1530317-1024x768A recent medical malpractice lawsuit stemming from a surgery performed at West Jefferson Medical Center defines your right to make an informed decision about the course of treatment you wish to take.  The patient in this case suffered from heavy menstrual bleeding primarily resulting from fibrin tumors in her uterus.  A General Practitioner previously prescribed the patient Depo-Provera, a steroid injection that alters hormone levels associated with the menstrual cycle.  The prescription had little effect treating the symptoms and caused the patient to gain over twenty-five pounds.  Unhappy with the treatment, the patient consulted her OBGYN, who recommended a hysterectomy to completely remove the tumored uterus.  The OBGYN recommended the operation two more times before the patient consented to the surgery, over two years after the initial consultation.  Unfortunately for everyone involved, the patient’s bowel was perforated during the surgery.  The patient subsequently sued, claiming that the OBGYN failed to inform her of all the potential treatment options before the operation and that she would never have gone through with the operation had she known of less risky treatments.

The doctrine of informed consent protects a patient’s right to choose which therapeutic or surgical treatment to pursue by requiring doctors to provide the patient with the information needed for that decision.  Exactly what information the doctor must disclose is the primary issue in this case.  The patient contends that all information pertaining to the associated risk and any potential treatment options should be disclosed while the doctors believe they must disclose only those risk and options that are feasible or appropriate given the patient’s unique circumstances.  The law favors the doctors.  In 2013, the Supreme Court of Louisiana, when faced with a similar question, decided that doctors must provide sufficient information and disclose reasonable alternatives rather than all information or all alternatives. See Snider v. La. Med. Mut. Ins. Co., 130 So. 3d 922 (La. 2013).  What constitutes “sufficient” information and “reasonable” alternatives changes depending largely on the medical history of the patient.  The doctor is given some discretion determining what is reasonable and sufficient, but he or she must adhere to the standard of the profession.  The doctor must do what most other doctors would have done in the same situation.

In this case, the OBGYN told the patient that her options were limited to a hysterectomy, a mastectomy, or continued injections of Depo-Provera.  She also told the patient that, as with any hysterectomy, there was a risk of bowel perforation during the surgery.  The patient signed an informed consent form stating that she was aware of the options and the risks; however, a couple of months after the surgery, and after the perforated bowel, the patient found an article published by the American Congress of Obstetricians and Gynecologists (ACOG article) that listed options beyond those disclosed by OBGYN.  One option in particular, Lupron, was an injection that has been shown to reduce the size of fibrin tumors.  In her suit, the patient specifically claims that had she known of Lupron, she would not have needed nor consented to a hysterectomy and that the OBGYN was liable for her injury for failing to inform her of the option.

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car-accident-2-1449295-1-1024x681A rear-end collision in Opelousas has led to a demonstration on how complex lawsuits concerning insurance companies can be. The Third Circuit Court of Appeal reversed a trial court’s decision regarding damages suffered in the accident, focusing on the amount owed to the plaintiffs by two different insurance companies.

The facts of the case are as follows: a vehicle operated by Ms. Rodgers, insured by Allstate Insurance, and owned by a Ms. Kennerson, rear-ended a vehicle operated by Ms. Bell, insured by Progressive Insurance, and owned by Compass LLC. The vehicle operated by Ms. Bell had an additional five passengers in the vehicle, while Ms. Rodgers was the sole occupant of the vehicle she was operating. Three of the passengers in Ms. Bell’s vehicle filed a Petition for Damages alleging entitlement to Uninsured Motorist Coverage (UM), naming Progressive as a defendant in its capacity as the UM insurer of the vehicle Bell was driing when the accident occurred. The other two passengers in Ms. Bell’s vehicle filed a Petition for Intervention, also naming Progressive as a defendant. Finally, Ms. Bell filed a Petition for Intervention, naming Rodgers, Allstate, and Progressive as defendants.

Compass LLC had purchased a combined single limit (CSL) auto insurance policy from Progressive which provided liability coverage in the amount of $1 million. In 2007, a Compass representative executed an Uninsured/Underinsured Motorist Bodily Injury (UMBI) Coverage Form issued by the Commissioner of Insurance in compliance with La. R.S. 22:680. The representative would testify he did not recall executing the form but identified his initials and signature on the form as his own. The form declared the representative selected UMBI Coverage to compensate for economic and non-economic losses with limits lower than any Bodily Injury Liability Coverage limits. Additionally, the term “$100,000” was inserted in a black preceding “each person”, with the word “person” scratched out and replaced by “CSL”.

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helicopter-1450413-1-683x1024Many people have nightmares of falling and nobody being there to catch them. For Tommie Hebert, that nightmare became a reality when he fell from a moving helicopter, landing directly on his back, causing severe injuries such as a broken back and a damaged hip that would likely require replacement. To make matters worse, the company he worked for, Industrial, was not there to catch him.

J. Oran Richard, owner of Industrial, owned another company, Game Management Inc., ( GMI) that leased large tracts of land for hunting, fishing and farming in Louisiana and Texas. GMI did wildlife surveys in Mexico by helicopter, where deer were tracked and netted. It was common for employees to work for both companies.  Tommie Hebert was primarily a truck driver for Industrial, and would only go on the helicopter trips because Michael Richard, the owner’s son, was someone he considered his friend.  Typically Hebert would only go when another person could not make the trip.  Unfortunately for Herbert on one of these trips he fell from the helicopter and a lawsuit against his employers followed.

One would assume that netting deer in Mexico would not be considered in the scope of employment for someone whose job is to drive a freight truck. But that is exactly what Industrial was claiming in the lawsuit that Hebert brought against them. In the original lawsuit, a jury found in favor of Industrial that Herbert was working for them when injured, mainly because they had determined through testimony that Hebert had been on the job and had done this type of work many times before.  Therefore Herbert could not recover damages from Industrial or its owner, J. Oran Richard, or his son, Michael Richard in tort.  Herbert would only be allowed to recover workers compensation benefits. GMI was found to have no legal duty to Hebert, Industrial was found to be forty-four percent at fault, and Hebert, the man who was determined to be permanently disabled, was found to be fifty-six percent at fault for his injuries.

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the-old-sawmill-hdr-1209113-1-1024x759If  you are injured while at work, there are many paths that you may take for financial relief. The path that you choose along with how you navigate that path will be a decision that will affect you for the rest of your life. The following case out of  Tangipahoa parish demonstrates why it is necessary in workers compensation cases to comply with certain orders and if you don’t why objections to rulings based on your lack of responses will not be considered.

On May 2, 2008, Mr. Carlton Williams was injured during the course of his employment at a sawmill as a delivery driver when a forklift driver dropped several pallets on top of him, knocking him unconscious. Mr. Williams alleged injuries to the head, shoulder, neck, left foot, right knee, lumbar, and various other injuries. Mr. Williams filed a tort claim against the forklift operator’s employer and the employer’s insurer, which settled out of court.

After being injured at the sawmill Mr. Williams received workers compensation benefits because the injury occurred at his job. If a third party is responsible for someones injuries that occur at work, which occurred in this case, the injured worker can file a lawsuit against that third party and at the same time receive workers compensation benefits.  However, when you resolve the lawsuit against the third party you will be forced to pay back the workers compensation carrier all the benefits they paid you.

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workers-1215831-1-1024x683It  seems an insurance company’s first response to a claim is to deny the claim. The Louisiana Workers’ Compensation Corporation (“LWCC”) is no exception. The following case out of Loreauville Louisiana demonstrates the  arguments that can be made and standards to assess whether an injured employee is due LWCC’s benefits or benefits as a longshoreman.

Luis Hernandez was working on the Bayou Teche in Loreauville when he suffered an injury while cutting timber. Mr. Hernandez was hired to build a boat ramp into the Bayou Teche. He was injured  while working in a grassy area between thirty and one hundred feet away from the boat ramp. Mr. Hernandez filed a claim for compensation with the Office of Workers’ Compensation in 2014 after  receiving his injuries. He was employed by UNO Enterprises, LLC and Louisiana Workers’ Compensation Corporation was UNO’s workers’ compensation carrier. LWCC denied  coverage of the claim asserting that Mr. Hernandez was a longshoreman under the Federal Longshoreman & Harbor Workers’ Compensation Act (“LHWCA”) found in the United States Code in Title 33. Therefore,  the LWCC reasoned that their policy did not provide for coverage for Mr. Hernandez but rather the LHWCA applied.

Good lawyers know to challenge an insurance company’s claim denial, which is what Mr. Hernandez’s  attorney did in this case. After a lower court decision an appeal was filed and the Louisiana Third Court of Appeals received the case to utltimately decide whether the LHWCA did apply and thus whether LWCC would be required to provide workers’ compensation coverage to Mr. Hernandez.

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