Louisiana Personal Injury Lawyer Blog

August 17, 2016

Calcasieu Parish Pro Se (Litigant Without Lawyer) Has Appeal Dismissed Due to Lack of Procedural Knowledge

justice-1426299-768x1024 In the law, it is quite rare for a case to ever be considered simple. Though the issues may seem quite obvious and clear to a plaintiff, it is almost never a good idea to represent oneself “pro se”. This is partially because of the subtle procedural pitfalls which may decide the outcome of a case. In the vast majority of legal matters, it is a good idea to carefully select an experienced attorney to guide the plaintiff through the legal process. Unfortunately for a Pro Se Plaintiff in a case arising out of Calcasieu Parish the complexities of appellate procedures caused him to lose his rights to appeal.

In the original matter before the trial Court Pro Se Plaintiff Sidney Stagg alleged that he was injured while walking in a parking lot by a vehicle being driven by a Suddenlink employee. The defendants filed various motions stating that the Plaintiff could not prove any of the alleged acts, specifically they produced evidence that the vehicle did not hit Mr. Stagg. After an initial hearing following the defendants’ motion for summary judgment, the Fourteenth Judicial District Court of the Parish of Calcasieu granted the motion and dismissed the plaintiff’s case with prejudice. This means that the plaintiff would be unable to file another action regarding the same transaction. The judgment was signed on June 26, 2014, and the court signed an order granting the plaintiff an “out of time” appeal on December 5, 2014. The defendants filed a motion to dismiss the unlodged appeal on February 6, 2015, essentially contesting the district court’s grant of the out of time appeal since the plaintiff’s appeal was untimely. Notably, the plaintiff never filed an opposition to defendants’ motion.

In applying the Louisiana Code of Civil Procedure Article 2087(A)(1) and Article 1974, the Circuit Court observed that the delay period for seeking a new trial expired on July 8, 2014, and the period for filing a motion for devolutive appeal expired on September 8, 2014. Since the plaintiff’s appeal was dated by the clerk’s office on January 5, 2015, and that appeal was labelled as an “out of time” appeal, the Circuit Court held that the original appeal request was untimely under the Louisiana statutes. This means that the plaintiff’s appeal was successfully defeated by the defendants’ motion to dismiss the plaintiff’s unlodged appeal.

August 16, 2016

Non-Compete Agreements Still Strongly Disfavored by Louisiana Courts As Shown By Livingston Parish Non-Compete Contract Lawsuit

by Berniard Law Firm

gravel-1200460-683x1024 For quite some time, courts across the country have expressly disfavored the use of non-compete agreements (“NCA”s). On June 5, 2015, the Louisiana First Circuit Court of Appeal ruled consistently with this sentiment. The court ruled against a company attempting to attain injunctive relief and damages against one of its employees for an alleged violation of an employment agreement.

On August 4, 2008, an employment agreement was signed between a sand and gravel company, Southern Aggregates, LLC (“Southern”), and an employee, Marcus D. Dyess. The contract contained, among other provisions, a non-compete agreement. The NCA, of course, functioned to prevent Dyess from leasing land to other companies/entities for mining purposes (in competition against Southern). Further, the NCA was subject to two limitations: (1) it would run for two years and (2) it would be specific to a geographical area of eighteen listed parishes in Louisiana. In addition to the NCA, the contract included a right of first refusal (“RFR”) to prevent Dyess from entering into business with another party without first making an offer to Southern. The RFR had the same geographical limitations as the NCA, in addition to a five-yeaar term.

Following the execution of the agreement, on February 8, 2010, Dyess left his employment with Southern. At around this point, Southern filed a petition in the court alleging violation of the employment agreement between it and Dyess. Southern alleged that Dyess wrongfully leased property for mining purposes in one of the areas limited by the agreement. In reaction to this lawsuit Dyess filed a perepmtory exception of no cause action. In this filing Dyess claimed that the right of first refusal was null and void pursuant to Louisiana Revised Statute 23:921. 23:921 statute says all contracts that restrain a person from competing are null and void unless one of the exceptions applies. Dyess further argued that none of the exceptions within that statute applied to the contract in dispute. The trial court agreed with Dyess and an appeal followed.

August 15, 2016

What is the Deadline for Filing a Lawsuit for Jones Act and General Maritime Cases?

by Berniard Law Firm

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If you are injured during the course of your employment, you may have a cause of action against your employer for your injury. But beware of time limitations. Even if you have a solid cause of action, you must be careful to ensure that you file your claim before the time allotted for filing has elapsed. Otherwise, your claim might become “prescribed.” This means that a court will not hear your claim because too much time has passed. See Lima v. Schmidt, 595 So.2d 624, 629 (La. 1992). It is important to seek legal counsel immediately upon discovering any possible work-related injuries. A good lawyer will help you keep track of these deadlines to ensure any legal claims you may have do not become barred. The following case demonstrates the problems that can arise when you wait too long to bring your claim before the court.

In this case out of the Louisiana Fourth Circuit Court of Appeal, Mr. Larry Dufrene filed a lawsuit against his employer, Harvey Gulf, for damages arising from hearing losses he allegedly suffered while employed with Harvey Gulf. Mr. Dufrene submitted that his injuries were suffered in the course of his duties with his employer. Mr. Dufrene argued that in his time as a seaman for Harvey Gulf, from 1977 to 2010, he sustained significant hearing loss as a consequence of his duties and employment.

Because Mr. Dufrene was employed as a seaman with Harvey Gulf, the Jones Act and general maritime law applied. Maritime law is comprised of the laws and regulations governing activities at sea or in navigable waters. Under the Jones Act and maritime law, Mr. Dufrene had three years from the date of his injury to file his claim. See Crisman v. Odeco, Inc., 932 F.2d 413, 415 (5th Cir. 1991).

August 14, 2016

Jury Instructions held Proper in New Orleans Car Accident Involving Fatality

by Berniard Law Firm

new-orleans-streetcar-1230694-1024x768 Car accidents can be an alarming ordeal. Especially, where there has been a fatality involved. Generally, when a vehicle has been physically involved in an accident, the driver can expect to have some liability. However, liability can also be involved where a driver requires a passenger to exit a vehicle, and the passenger is subsequently struck and killed by an unknown driver, hours later.

This horrific circumstance was an all too real reality for John Cefalu, when the trial court found Mr, Cefalu and his insurer USAA Casualty Insurance Company, (USAA), partially liable for the death of Piero Larrea. Mr. Cefalu was driving Mr. Larrera and some other friends back from a night of celebrating Mr. Cefalu’s birthday in New Orleans. Mr. Larrera allegedly became belligerent and Mr. Cefalu eventually pulled the car over on the side of the interstate and asked Mr. Larrera to exit the vehicle. Mr. Larrera was eventually hit and killed by an unknown phantom driver.

A lawsuit and subsequent trial followed that series of events. After three days of testimony a jury verdict was returned. The trial court accepted the jury’s verdict awarding damages to the plaintiff, the father of decedent, and the jury’s assignment of fault. The assignment of fault was as follows: Mr. Larrea, 54% at fault for his own death, Mr. Cefalu 28% at fault, and the hit and run driver 18% at fault. Mr. Cefalu and USAA appealed the trial court’s judgment to the Fourth Circuit Court of Appeal, arguing that improper jury instructions resulted in the adverse verdict. Mr. Larrea’s father answered the appeal seeking a modification or reversal of the judgment with respect to the allocation of fault to the unknown driver.

August 13, 2016

Metairie Back Injury Case Shows Workers Compensation Reimbursement Requirements

by Berniard Law Firm

labourer-1436010-1024x762 Louisiana worker’s compensation laws allow for injuries to only be charged at the usual cost for treatment. When a worker suffers an injury on the job the amount a hospital receives to pay for treatment may not always cover the cost of the treatment, but the hospital may not be able to recover for these losses.

While working at Beverly Industries, L.L.C. Byron Mitchell Suffered an injury to his back. The treatment for Mitchell’s back required the surgical fusion of three of the disks in his back. The surgery took place at Crescent City Surgical Centre in Metairie, Louisiana. Beverly Industries had worker’s compensation insurance through The Gray Insurance Company.

While Gray made all per diem payments to Crescent City for the surgery, the insurer denied coverage for special reimbursement for the surgery. Mr. Mitchell’s Surgical Procedure cost almost $180,000, and Crescent City sought reimbursement for the full cost of the procedure. The Surgical Center filed a claim for compensation, and a trial was held on December 19th 2012.

August 12, 2016

Willis-Knighton Health System Employee Sees Reduction in Workers’ Compensation Benefits by 50% for Failure to Cooperate with Rehabilitation Order

by Berniard Law Firm

the-workers-1500355-1024x683 If your hurt on the job your recourse will typically be through the workers compensation system. Once you are in that system you must play by the rules and follow all orders of the court. If you don’t your employer does have recourse to seek to limit your benefits. Such a situation is demonstrated below wherein Mr. Sims refusal to attend adult education lead to a lesson learned in reduction of workers compensation benefits 101.

On October 17th, 2006, Preston Sims, an employee at Willis-Knighton Health System (WK) in Shreveport, Louisiana, sustained a back injury while at work resulting in a herniated disk at L5-S1. His doctor recommended lumbar surgery but his employer refused to pay the cost of the surgery. In September 2011, the Workers’ Compensation Judge (WCJ) ordered WK to approve and pay for the surgery, as well as continue to pay benefits to Mr. Sims. The Judge also signed an order of rehabilitation naming Lenora Maatouk as Mr. Sims’ vocational rehabilitation specialist. Sims was further ordered to participate in an adult education program to obtain his GED, with approval from his treating physician. In March 2012, Mr. Sims underwent a L4-5 and L5-S1 360-degree lumbar fusion, with placement of pedicle screws, followed by a right L5-S1 micro lumbar decompression.

As required by rehabilitation order, Mr. Sims took the adult educational program placement test on October 10, 2011 and on February 4th, 2013 and took the GED exam on January 27th, 2012 and November 8th, 2013 – to no avail. Mr. Sims’ rehabilitation specialist, Ms. Maatouk, informed him that he would need to take the placement exam again before being able to take the GED exam for a third time and additionally recommended that he take remedial classes for approximately six to nine months prior to the GED exam to better prepare himself. Mr. Sims did not enroll in any remedial courses.

August 11, 2016

St. Tammany Parish Property Owner Gets His Day in Court on His Trespass Claim Against Renaissance Media

by Berniard Law Firm

electric-tower-on-corn-field-1373345-1024x768 In 1997, Brandon Hirstius purchased a tract of land in St Tammany Parish. Nearly 14 years later, in 2011, Mr. Hirstius complained of an unauthorized utility pole on his property belonging to BellSouth Telecommunications, Inc. and filed a trespass lawsuit against the telecommunications company. In the midst of the June 2012 trial, Mr. Hirstius discovered the Renaissance Media, LLC, owned aerial wires attached to the utility pole in question.

In May 2013, Mr. Hirstius filed a trespass lawsuit against Renaissance seeking damages and a mandatory injunction requiring Renaissance to remove all its equipment from his property. In response, Renaissance filed a single pleading arguing that there was a peremptory exception of no right of action, meaning that Renaissance believed that Mr. Hirstius did not have a legal right of action, and, alternatively, Renaissance also argued that Mr. Hirstius’ claims were prescribed, meaning that he did not file the trespass claim within a year of discovering Renaissance’s equipment on his property and therefore could not do so now. See La. C.C.P. arts. 3492 & 3493.

The trial court concluded that Mr. Hirstius’ claims were prescribed and granted Renaissance’s motion for summary judgment dismissing the lawsuit against Renaissance. The court determined that Mr. Hirstius knew or should have known about the existence of the equipment on his property when he filed the lawsuit against BellSouth in 2011, and therefore, his filing of the lawsuit against Renaissance in 2013 was more than a year after such knowledge and he was therefore barred from seeking damages. Mr. Hirstius argued that his claims were not prescribed because the trespass by Renaissance was continuous, and therefore the one year clock had not started. The court rejected this argument. The court also denied Renaissance’s exception of no right of action on the basis of mootness.

August 10, 2016

Louisiana Appeals Court Finds Tangipahoa Parish School Board Partially Liable for Eye Injury Sustained on School Band Trip

by Berniard Law Firm

independence-day-1436454 If you are fortunate enough not to sustain serious injury as a result of someone else’s negligent actions, you may not realize that the compensation for your injuries can be apportioned and spread to other liable parties. Further still, if you were partially responsible for causing your own injury, you will likely see a reduction in the amount of damages you can recover. This was the case for a Ponchatoula High School band student who was injured while on a school-sponsored band trip in Tennessee.

In May 2006, Kent Kinchen, while on a band trip to the Smokey Mountain Music Festival in Gatlinburg, Tennessee, sustained an eye injury after a game involving Airsoft novelty guns, purchased at a tourist shop earlier that day with his fellow classmates. A year later, Kent and his father Barry Kinchen, filed a lawsuit seeking damages against the Tangipahoa Parish School Board for the incident.

The trial court found the School Board partially liable for the injury because “allowing the students the opportunity to purchase various weapons while on the school sponsored trip created an atmosphere that did not provide all students with reasonable supervision…” The trial court awarded the Kinchens $20,000 in “general damages”, which cover mental or physical pain or suffering, inconvenience, loss of gratification or intellectual or physical enjoyment, or other losses of lifestyle that cannot be definitively measured, $14,329.34 in “special damages”, which are damages that can be more readily measured, like medical costs or loss of wages, and awarded Mr. Kinchen $1,000 for related claim of loss of consortium, which refers to the loss of love and affection, companionship, loss of material services, support, etc. The school board, appealed the finding of liability, and the Kinchens appealed the amount of damages, arguing that the amount was “abusively low.”

August 9, 2016

Arbitration Agreements and Louisiana’s Direct Action Statute Collide in East Baton Rouge Medical Malpractice Lawsuit

by Berniard Law Firm

california-7-1557119-1-768x1024 Louisiana is a “Direct Action State” which means that an injured party has the option to sue an insurer for coverage under someone else’s policy. See La. Rev. Stat. 22:1269. Therefore it’s permissible in Louisiana to name the insurance company of the tortfeasor when filing a lawsuit. An example: John Doe believes he was injured by the fault of Jane Smith, he then files a lawsuit naming Jane Smith and her insurance company State Farm. (John Doe vs. Jane Smith and State Farm.) However, what if that insurer (State Farm) has an arbitration agreement with it’s insured (Jane Smith) that says all disputes must be arbitrated? Will that cause the injured person (John Doe) to be forced into arbitration for his claims as well? The following case arising out of East Baton Rouge parish shows how Louisiana Courts have dealt with just such a situation.

In November of 2011, Ronald and Angela Courville filed a medical malpractice claim against an East Baton Rouge Doctor and his clinic. Additionally, the Courvilles’ sued that doctor’s insurance company, Allied Professionals Insurance Company (APIC). APIC is an Arizona risk retention group created according to the Liability Risk Retention Act of 1986 (LRRA). Under a provision in the insurance contract between the doctor and APIC, it states any issues will be resolved through arbitration in California. APIC filed a motion to compel arbitration and stay the lawsuit. A “stay” in the lawsuit essentially means that the Courville’s lawsuit would not be able to proceed in anyway. The trial court granted the motion to stay the matter and ordered all parties to submit to binding arbitration in California. The Courville’s appealed that ruling to the Court of Appeal for the First Circuit of Louisiana.

The First Circuit reasoned, when a court decides the issue of arbitration the court must first decide whether the parties agreed to any kind of arbitration. Additionally, if the court finds the parties did consent to arbitration, the court looks to see if there are any federal standards which make an issue unable to be resolved using arbitration. Furthermore, in Louisiana, the court looks to two basic facts before ordering people to attend arbitration. First, whether there is a dispute as to the making of the agreement for arbitration, and second, whether a party has failed to comply with the arbitration agreement.

August 8, 2016

Arbitration Complexities Lead to Surprising Award in Louisiana Oil Dispute Arising Out of St. Charles and Jefferson Parishes

by Berniard Law Firm

stone-judge-1219357-768x1024 Arbitration agreements are becoming more and more prevalent in modern business dealings. In theory, arbitration provides a means to quickly, quietly, and fairly remedy disputes between parties, especially when the dispute pertains to a niche field or complex issue. However, as a developing legal remedy, arbitration can still create unexpected outcomes for the parties involved. One such arbitration proceeding, regarding an owner/operator relationship at the Lake Salvador field in Jefferson and St. Charles Parishes, resulted in an award in excess of the original submission of audited damages.

Mack Energy had entered into a contract with ExPert Oil and Gas in order to exercise their mineral rights and drill for oil. Under their agreement, ExPert Oil was to act as an operator, which would oversee the drilling and production of oil while deducting the costs against Mack Energy’s revenue. After a dispute arose over the operations of the field, Mack Energy ordered an audit of ExPert Oil’s operations in which the auditor discovered approximately $1,400,000 dollars in unsubstantiated charges. Pursuant to their original contract, the two parties attempted to settle their dispute through mediation but could not agree on the proper resolution. See La. R.S. 9:4201. At the end of mediation, Mack Energy submitted an arbitration claim to ExPert which stated that fifty-two unsubstantiated charges remained open to dispute and these charges amounted to $977,598.44. In turn, ExPert acquiesced to the arbitration claim and the parties created a procedural agreement as to how the arbitration would be completed.The arbitrator, an accountant for the Council of Petroleum Accountants Societies, awarded Mack with $1,596,269 instead of the original amount in the arbitration claim. This amount was based on not only the original audit, but employment documents which had been requested fairly late in the arbitration process.

Because of the discrepancy between the amount in the claim and the amount for the award, ExPert sought to have the award vacated. ExPert claimed that the arbitrator had acted beyond his scope of power in considering the employment documents and, in doing so, awarded more than was allowed by his authority. In considering ExPert’s claims, the Supreme Court of Louisiana considered the procedural nature of the arbitration agreement and the amount of deference that should be given to arbitrators. See National Tea Co. v. Richmond, 548 So.2d 930, 932 (La. 1989).