by

paris-1452311-1024x768Residents of Louisiana may sometimes feel like there is no other place quite like their home state, but as a recent case out of Vermillion Parish demonstrates, when it comes to the laws regarding land and property, Louisiana truly is one-of-a-kind. Thanks to Louisiana’s history with the Napoleonic Code, Louisiana residents deal with legal issues other State residents never face, such as servitudes, usufructs, and acquisitive prescription. The following case out of Vermillion Parish caused the Louisiana Supreme Court to settle a land dispute by analyzing if a proclaimed landowner qualified as owner of the disputed land through acquisitive prescription and along the way provides some insight into how those terms are defined under code.

The land dispute revolves around the Boudreaux family (BF) and the Cummings family (CF). BF was seeking acknowledgment of a predial servitude (right of way) by virtue of acquisitive prescription (acquisition of ownership or other real rights in movables or immovables by continuous, uninterrupted, peaceable, public, and unequivocal possession for a period of time) and an indefinite ruling stopping CF from obstructing their access to the property. BF claimed his family had been using a pathway and gate to access the land next door that belongs to CF since 1948. BF used the right of way to transport farming apparatus and to easily enter the road next to it. In 1969, CF asked BF to move the right of way, but BF ignored the request and continued using the right of way until the CF put a lock on the gate in 2012 and prevented BF’s use.

At the trial court level, CF contended BF was a precarious possessor, thus incapable of possessing the land or having acquisitive prescription run in his favor. A precarious possessor possesses with the permission of or on behalf of the true owner or possessor, a precarious possessor thus does not intend to own the thing he detains. Under Louisiana law, in order for one to truly claim ownership of property, they must not only have possession, but also have proper animus, or the intent to own the thing. The trial court disagreed with CFs argument, and ruled BF acquired the right of way over the CF estate by acquisitive prescription. The court of appeal affirmed the judgment. Cf was unhappy with those decisions so he appealed once again to the Louisiana Supreme Court.

Continue reading

by

Mail insurance policy cancelled
If you are injured in a car wreck you typically look to the person who caused the accident and their insurance company to cover your damages. But what happens if the reckless driver’s insurance company claims they cancelled the insurance policy before the accident occurred? How can you determine whether or not that insurance company followed the proper procedures under Louisiana to cancel coverage? The best car wreck attorneys know the law and whether or not the insurance company followed it.  The following case out of New Orleans Louisiana demonstrates the steps an insurance company must follow when they cancel coverage and how they can evade liability by proper notification.

Mario Diaz learned the hard way that if you are are struck by an uninsured driver, you may not be able to recover when that driver is at fault in an accident that caused your injuries. Mr. Diaz was a passenger in a car driven by Eudolio Lopez in New Orleans, Louisiana when Mr. Lopez crashed into a vehicle driven by Darrell Butler.  Mr. Diaz filed a lawsuit against Mr. Lopez, Mr. Butler and his insurer, Allstate.  Allstate, the insurer of Mr. Butler, responded to the lawsuit by  filing a motion for summary judgment, contending that Mr. Butler was no longer covered under his Allstate policy because he had failed to keep up with his payments and had received adequate notice of the cancellation of his policy.

Allstate provided proof that the policy was canceled on February 3, 2011 after a letter was mailed to Mr. Butler on January 24, 2011 demanding he pay his premiums or lose his coverage.  Allstate provided an affidavit from Ms. Collard, who controlled all of Allstate’s policy records in the state of Louisiana, stating that she had reviewed Mr. Butler’s file and confirmed that a notice was sent to Mr. Butler and that he failed to pay on time.  The First City Court of New Orleans agreed and granted the motion for summary judgment. Thus, the trial court found that there was adequate proof of a cancelled policy well before the accident occurred.  See Louisiana Revised Statute 22:1266.  

Continue reading

by

Offshore-PlatformContract interpretation can be tough, but having a competent attorney review documents before you sign them goes a long way in avoiding surprises further down the line. This is important because the words that are not there are often just as important as the words that are, a lesson learned the hard way by Chet Morrison Well Services, L.L.C.

In 2008 Chet Morrison was retained by Palm Energy Offshore, L.L.C. to service two mineral wells at sea. To that end Chet Morrison contracted with Offshore Marine Contractors, Inc. to charter the Nicole , a vessel with extendable legs that are used to stabilize the ship at sea while the ship performs maintenance work on the mineral wells.

The Nicole Eymard departed Louisiana on July 18th and worked at a well located in the C37 block until July 27th. On the 27th the Nicole Eymard was sent to a well located in the WD55 block at the request of Palm Energy. After the repairs were completed on August 1st it was discovered that one of the legs of the Nicole Eymard was stuck. The ship remained there until August 18th when Offshore Marine Contractors ordered the leg severed. Once back in port the Nicole Eymard went through repairs, which were finished on October 10th.

Continue reading

by

i-haul-1450942-1024x642When a person is injured and left in a condition where they cannot handle their legal claims, their family may act on the incapacitated person’s behalf. If a family member is handling claims on behalf of the incapacitated, it is very important for them to find a good lawyer to help navigate the legal processes. The following appeal of a lawsuit arising out of New Orleans discusses what can occur when multiple lawsuits are filed as a result of disastrous injuries caused by an eighteen wheeler.

Connie Marable was injured in an accident when her husband’s freight truck allegedly shifted into gear and dragged her underneath the vehicle. Connie was rendered comatose and she was subsequently interdicted. Her husband, Wayne, was appointed as her curator. Wayne filed a lawsuit against Empire Truck Sales and its general manager Curtis Hudspeth in Orleans Parish Civil District Court on behalf of his wife. Wayne alleged that Empire’s faulty work or failure to work on the truck is what caused the accident which injured Connie.

Connie’s adult children from a previous marriage, Bill and Engelique Jones, later filed a lawsuit on their own behalf in Orleans Parish District Court against not only Empire and Hudspeth, but also Wayne; Great West Casualty Company, Wayne’s insurer; and DTNA and KLLM. The petition claimed that DTNA was negligent in the defective design of the truck and that KLLM, as Wayne’s employer and lessor of the truck, was responsible for the defective condition of the truck. The Jones’ lawsuit was consolidated with the Marable’s suit at some later time.

Continue reading

by

offshore-gas-platform-1223799-683x1024The Jones Act is a set of federal rules that protects American workers injured while working at sea. Also referred to as the Merchant Marine Act of 1920, this law allows qualifying sailors who have been involved in accidents or become sick while performing their duties to recover compensation from their employers. So does everyone that is injured or who becomes sick while working offshore automatically qualify for benefits under the Jones Act? Not always. In the following case that stems from an oil platform injury we see how the courts evaluate the seaman status (status necessary to receive benefits) under the Jones Act.

Michael Alexander was employed by Express Energy Services Operating, L.P.’s plug and abandonment department which plugs decommissioned oil wells in various locations off the coast of Louisiana. In 2011, Michael’s foot was injured while working a project on a platform. Michael and the crew were working on the platform at the time of his injury but the crane that injured him was located on a liftboat operated for the benefit of the crew. Michael filed his action under the Jones Act (46 U.S.C. § 30104) seeking maintenance and cure benefits. Express filed a motion for summary judgment contradicting Michael’s seaman status stating that Michael was a platform-based employee who failed to satisfy the test for seaman status. A motion for summary judgment is a legal filing that states the law does prevents the other party in the lawsuit from proceeding for various reasons. In this case Express filed their summary judgment motion stating that Michael was not a seaman under the provisions of the Jones Act.

For the court to have decided against summary judgment, Michael would have had to show that there was a possibility of his employment status qualifying as a seaman and falling under the Jones Act. To qualify as a seaman an employee has to prove two things laid out by the Supreme Court in the Chandris case (515 U.S. 347 (1995). The first thing to prove is that the employee’s duties contribute to the running of the ship or vessel. The second thing to prove is that the employee performs a substantial amount of his duties on board the ship or vessel. The second part of this test is the most important to the analysis of seaman cases and is in place to separate the employees who are entitled to the protection of the Jones Act from the land-based employees who are not exposed to the same risks as employees who spend a majority of their time at sea.

Continue reading

by

ivc filter lawyerInferior vena cava (IVC) filters were designed and sold as a supposedly secure fallback to help avert pulmonary embolism for patients who for various medical reasons could not take blood thinners. Unfortunately for over the last ten years these filters have continuously been alleged to have been at fault for adverse conditions due to breaking of the filter. The best IVC filter lawyers have been pursuing these claims on behalf of their clients for several years now. While you can get a full run down of this litigation from a Louisiana IVC filter claim lawyer here, IVC Filter Claims , the following are 4 things you need to know if you believe you or a family member have been injured by an one of these products.

  1. Removal of the device is only the first step

Most importantly, if you or a loved one has a IVC filter, you need to seek medical advice. The FDA released a bulletin in 2010 advising that IVC filters should be removed as soon as the danger of embolism has passed. Despite this removal itself can be difficult or impossible. A study conducted at the Boston Medical Centre in March 2013 found that, of the IVC filters studied, only 8.5% were successfully removed.

Continue reading

by

industry-1577317-1024x768
Mesothelioma has been called “the working man’s disease” as it tends to effect a high percentage of blue collar workers who were exposed to asbestos in various construction trades decades ago. A diagnosis of mesothelioma can be devastating and often leads to many legal questions that the best mesothelioma lawyers in Louisiana can quickly answer. Those questions largely revolve around finding out who the responsible parties are who might owe compensation to the claimant and ultimately what financial award could be paid in mesothelioma cases.  The following asbestos case out of Jefferson Parish Louisiana provides some insight into the what a mesothelioma claimant and his family might receive if the case goes to trial.

William Oddo jr. was a handyman of sorts for over 30 years working with automobiles ships, and appliances. He raised a family on the Westbank of Jefferson Parish and lived to be 81, until he passed away from mesothelioma as a result of exposure to asbestos. Asbestos is a fibrous mineral which used to be common in building materials and automobile brake pads due to its properties of heat resistance. Over the course of his lifetime Mr. Oddo worked and lived with and around asbestos which is said to have given rise to his death.

On June 3, 2011, just one month before his death, Mr. Oddo filed a lawsuit against multiple defendants who allegedly contributed to his contraction of mesothelioma due to his exposure to asbestos. After his passing Mr. Oddo’s wife and two sons, hereafter referred to as the “Oddo family,” converted his case to a survival/ wrongful death action focused on two defendants from the defendant pool; Ford and Sud- Chemie Inc., formally known as and hereafter referred to as “Southern Talc.” The Otto family argued that Ford significantly contributed to Mr. Otto’s contact with asbestos by producing asbestos brake pads that Mr. Otto regularly serviced when he worked for the Jefferson Parish Sheriff’s Office. Additionally, the Otto family contended that Southern Talc was also responsible for Mr. Oddo’s death due to mesothelioma because Southern Talc manufactured fill that was used for Mr. Oddo’s driveway that allegedly contained asbestos.

Continue reading

by

car-accident-1446905Being involved in an automobile accident or sustaining a serious injury can be very overwhelming.  This is especially true if the accident was someone else’s fault.  Although one may be disoriented after an automobile accident, it is pertinent that he/she follows all the necessary steps to ensure that the accident or injury is well documented.  One’s first instinct may be to try to minimize the gravity of the situation; however, it is important to understand that a personal injury may have been sustained even if the symptoms are not immediately visible.  One never knows if they will have a problem down the road from an injury sustained from the automobile accident, and therefore, a great attorney knows that their client will need proof and documentation to prove that the problem stems directly from the said automobile accident.  

Part of that documentation includes what will be considered “relevant evidence” and how to avoid using expert witnesses who may become impeached at trial.  The following case out of Monroe Louisiana discusses the standards courts use as the gatekeepers of allowable information that can be used at trial. On July 20, 2010, Michael W. Pratt (“Mr. Pratt”) was hit from behind by Brett O. Culpepper (“Mr. Culpepper”) while stopped at a red light on Desiard Street in Monroe.  Immediately following the accident, it is alleged that Mr. Pratt stated to the investigating officer that he was uninjured and did not require medical attention.  However, sometime after the accident Mr. Pratt begin to see a chiropractor for the various injuries he alleged were caused by the accident.

In July 2011, Mr. Pratt filed a lawsuit against Mr. Culpepper and his insurer for a variety of damages (i.e., past and future pain and suffering, medical expenses, loss of earnings, disability, etc.) associated with the alleged substantial injuries he sustained to his back, head, and neck in the aforementioned accident.  It was disputed amongst the parties as to (1) whether the force of the collision was significant enough to cause the alleged injuries and (2) whether or not the alleged injuries were from this particular automobile accident.  In 2014 the lawsuit was tried before a jury.  At the conclusion of the trial the jury found that Mr. Pratt failed to prove by a preponderance of the evidence that the accident caused him to suffer physical injuries.  The plaintiff then appealed the juries verdict.  Mr. Pratt argued before the appeals court that that the trial court’s allowance of the  records into evidence of his chiropractor’s suspension by the Louisiana State Board of Chiropratic Examiners was an error that should cause the jury’s verdict to be overturned.

Continue reading

by

wire-fence-1217164-1024x768

A trial is supposed to finalize your case, it should be the beginning of the end of the litigation process. However, after a judgment is rendered the Louisiana Code of Civil Procedure allows for a Motion for a New Trial which can allow for a second bite at the apple. For the most part those motions are denied and thus begins the appellate process. So what happens if after the conclusion of the first trial newly found witnesses show up? Will the Court allow a second trial and can those witnesses testify at that second proceeding? A recent case arising out of Abbeville Louisiana considers those questions and gives some guidance as to what is allowed under Louisiana trial procedures.

The original lawsuit arose from a boundary dispute between Bernard M. Boudreaux and family against Paul Cummings, all landowners of adjacent tracts of land in Vermilion Parish. In a possessory action and petition for injunctive relief and damages, the Boudreauxs alleged that they had peacefully possessed their property uninterrupted for over 60 years. However, the Boudreauxs claimed that possession was disturbed when Mr. Cummings drove large pipes into their property. There was some dispute also over whether the Boudreauxs had acquired property beyond the established section line boundary, per their alleged thirty-year acquisitive prescription.

At an original hearing, the trial court granted the Boudreauxs a preliminary injunction and established one particular survey as setting the boundaries of the Boudreaux’s property. Mr. Cummings then converted the matter into a petitory action, and after a trial on the merits, the trial court held instead that the Boudreauxs had not properly established the boundary line they sought possession of, and the trial court then set the boundary along the original title boundary. The Boudreauxs then filed a motion for a new trial. The Boudreauxs sought the new trial to permit them to enter two new witnesses, who the Boudreauxs alleged could not have been obtained by due diligence during the original trial. The new trial motion was granted, and after the second trial the trial court arrived at the ultimate decision to find in favor of the Boudreaux’s interpretation of the boundary line.

Continue reading

by

old-house-1224719-1024x811Under Louisiana civil procedure, it is well settled that “proper citation is the cornerstone of all actions.” If a party to an action is not served with process in the manner required by law, the result of that action is considered null and void. This requirement is intended to ensure that the defendant in a lawsuit is fully informed of the existence and subject of the plaintiff’s complaint. The concept of proper service is so essential, in fact, that even a defendant’s actual knowledge of a legal action cannot correct a defective citation and service of process. Therefore, a key skill of the attorney that you hire to represent you is a thorough understanding of the various and sometimes complex rules that control how process must be served on the defendant(s) in your lawsuit.

An attorney’s command of the requirements of process service is especially crucial in disputes over a deceased person’s property. The following case of Martin v. Martin  in the Second Circuit Court of Appeal is instructive. In that case, two of the adult children of John Martin, Sr. objected to his donation of his home in West Monroe to his third child, John Martin, Jr. By the time the lawsuit was filed, however, both John Sr. and John Jr. had passed away, leaving the title to the home in the name of John Jr.’s widow, Sharon Martin. The Martin siblings filed their action against Sharon personally and against the “unopened succession of John Alexander Martin, Jr.” for which no succession representative (also known as an executor) had yet been identified. Nevertheless, Sharon Martin answered “individually and as testimony [sic] legatee,” despite never being identified as the succession representative of her late husband’s estate. From there, the trial court considered the Martin siblings’ objections to John Sr.’s gift, including that John Sr. was not of sound mind and lacked the capacity to make the gift, and that the gift should be declared invalid because it left John Sr. without means of support. Ultimately, the trial court found in favor of the siblings.

On appeal, however, the Second Circuit focused its attention on a more fundamental question: whether Sharon Martin had standing to represent the unopened succession of her late husband. Under state law, one cannot bring an action against an unopened succession for which no representative has been appointed. See Minden Bank & Trust Co. v. Childs, 658 So. 2d 216 – La: Court of Appeals, 2nd Circuit 1995. Accordingly, the court reviewed the formal requirements in Louisiana for appointing a succession representative — including furnishing a security and taking the oath of office — after which the clerk issues the representative letters of administration. And, although the law provides a specific procedure for filing a suit against a deceased person for whom no succession representative has been appointed, ( see La. C.C.P. art. 5091) the Martin siblings did not make use of it. Therefore, the court concluded, there was “no showing that Sharon was ever appointed as the succession representative,” as there was “no proof in this record that she had been recognized by any court of this state as the succession representative.”

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