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woman-in-white-shirt-standing-near-glass-window-inside-room-127873-1024x768Maybe you’ve been there. Lying on a cold surgical table. The anesthesiologist places the mask over your face and says to count backwards from one hundred. “100…99…98…” Most people don’t remember much after that. But imagine waking up from a procedure and discovering that you have no feeling in your arm. Unfortunately, that’s what happened to Jason Dunn, who underwent a hemorrhoidectomy at Christus St. Francis Cabrini Surgery Center in Alexandria, Louisiana in 2012. 

The anesthesia for Dunn’s operation was administered by Dr. Francis Robichaux. Dunn filed a medical malpractice action against Dr. Robichaux claiming that he suffered an injury to his left forearm and hand as a result of Dr. Robichaux’s failing to properly position his arm during the procedure. As a result of the injury, Dunn required corrective surgery for nerve damage. Dr. Robichaux filed a motion for summary judgment on the grounds that Dunn could not meet his burden of proof that Dr. Robichaux failed to meet the standard of care.

Dunn then filed a motion to continue so that he could depose Dr. Robichaux before responding to the motion for summary judgment. The trial court denied Dunn’s motion for a continuance and granted Dr. Robichaux’s motion for summary judgment. 

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green-car-2265634-1-1024x683In some legal situations, there will be conflicting laws and a question of which law correctly applies to the situation at hand. For that reason, Louisiana has developed a mechanism to determine what to do when there are conflicting laws. First, when determining what law to use, the court must look at each state’s relationship to the lawsuit, the people involved in the case, and the person whose status is at issue. La. C.C. art. 3519. Second, the court must consider the policies and needs of the interstate and international system, to ensure that justified expectations are upheld and  the decision minimizes the consequences of subjecting parties to the laws of more than one state. La. C.C. 3515. Third, Louisiana law asks the courts to consider whether the application of a conflicting law would protect a child, minor, or others in need of protection. La. C.C. art. 3519.

In this case, Mississippi resident Kalyn Barber (“Kalyn”) was 18 years old when she was involved in an accident in Louisiana, resulting in Doy Cothern (“Cothern”) being injured. Cothern filed a lawsuit attempting to hold her parents vicariously liable for her actions, because, under Mississippi law, a “minor” includes any person under the age of  21. Mississippi Code Section 1-3-27. However, under Louisiana law, a father’s administration of his minor’s estate terminates at the time of majority, which is attained upon reaching the age of 18. 

When considering the first factor listed above, the court must look at the nonexclusive list of factors laid out in Louisiana Civil Code article 3519 to determine which of the multiple laws should apply (i.e., Mississippi vs. Louisiana). The court found that the plaintiff, Cothern, lived in Louisiana, the accident occurred in LA, and all the injuries sustained occurred in LA. Therefore, the only connection to Mississippi in the dispute was that the defendant, Kalyn, was a resident of MS at the time of the accident, so the first factor favors the implementation of Louisiana law.

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black-calculator-near-ballpoint-pen-on-white-printed-paper-53621-1024x603Every adult in America has dealt with insurance in some manner, whether it be life, car, house, rental, or health. Therefore, it is important to understand that the insurance policy you agree to constitutes the law between the you and the insurance company; it governs the whole relationship. As a result of the policy between the insured and insurer being drafted by the insurer, the insurer has the right to limit provisions, and impose restrictions or conditions, so long as these do not conflict with legal statutory provisions or public policy. Thus, strict compliance with the insurance policy terms and conditions is required for a change of beneficiary. Standard Ins. Co. v. Spottsville, 204 So.3d 253, 258 (La. Ct. App. 2016).

In this case, Tanya Offord (“Tanya”) had changed her primary beneficiary from her previous husband to her mother, Alfreda Smith. However, in February 2009, Tanya married Thurman Offord, Sr. Following her marriage to Mr. Offord, Tanya submitted a change of beneficiary to Allstate. She listed Mr. Offord and her three children as the primary beneficiaries, and she listed her mother as the sole contingent beneficiary. She also listed both Mr. Offord and Ms. Smith as the adult custodians for her children, so that they may receive and control any monies owed to any children who are minors at the time of her death.

Allstate responded to Tanya’s beneficiary change request, acknowledging receipt of Tanya’s beneficiary change request. They then informed her that they could not process the request because, per her policy, only one custodian could be named per child. They included a new beneficiary change request form for Tanya to complete and return. Tanya failed to resubmit the change of beneficiary request form and subsequently died without submitting the form.

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grey-steel-grill-1687067-819x1024In a civil case, you do not have the classic “speedy trial” right. Instead, courts will seek expediency by granting summary judgments when appropriate. The purpose of summary judgment is to avoid frivolous and unnecessary trials, or at a minimum, to simply reduce trial time by dispensing of some claims. A motion for summary judgment may be granted upon a finding that there is “no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(A)(3).

In this case, Danny Givens (“Mr. Givens”) was released from prison and subsequently sued James LeBlanc, Secretary of the Louisiana Department of Public Safety and Corrections (collectively, “DPSC”) for false imprisonment. Mr. Givens alleged that DPSC improperly calculated his release date from prison and that he should have been released earlier; thus, he was falsely imprisoned by DPSC.

DPSC proceeded to file a motion for summary judgment, and as a result, DPSC became the “mover” under La. C.C.P. art. 966(A)(3). When filing for summary judgment, the mover has the burden to show there is no genuine issue of material fact. However, the adverse party in this case, Mr. Givens, has the burden to produce factual support to establish the existence of a genuine issue of material fact. La. C.C.P. art. 966(A)(3).

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adult-blur-boss-business-288477-1024x768The equivalence of “dotting the i’s and crossing the t’s” in the law is making sure to comply with court procedural rules. One such basic civil court procedure rule is proper service. Proper service is critical in establishing that a court has legal jurisdiction over a defendant. The defendant has a right to know that they are being sued, and they have the right to be present at any hearing or to appear through an attorney. Without proper service, a court may dismiss a lawsuit. One can have a valid and strong claim for a lawsuit, but without proper compliance with court rules, the case may never even be heard. The importance of following procedure is highlighted in this Workers’ Compensation case heard in the Louisiana Fourth Circuit Court of Appeals.

The issue revolves around whether appellant A-1 St. Bernard Taxi & Delivery (“A-1”) was (1) properly served and (2) whether the Office of Workers’ Compensation erred in rendering judgment in Veronica Gordon’s claims for compensation. Ms. Gordon was involved in a car accident on May 2, 2015, while working for defendant A-1 as an independent contractor. She suffered injuries to her left arm, shoulder, neck, and back and filed a claim for compensation on August 7, 2015 (the “Original Claim”).

The Office of Workers’ Compensation (OWC) notified Ms. Gordon’s attorney that service on A-1 was unable to be performed at the address Ms. Gordon listed an incorrect address for A-1 in her Original Claim. Ms. Gordon listed a second incorrect address on an amended claim that also led to the failure of service. Ms. Gordon filed a motion to appoint a special process server and filed a second amended claim. In this claim, she stated that the special process server tried and failed several times to serve A-1. The OWC appointed the Secretary of State as A-1’s agent for service of process. The claim was sent to A-1’s last known address and the case moved for trial. Neither A-1 nor counsel for A-1 was present. The OWC ruled in favor of Ms. Gordon and denied A-1’s motion for a new trial, which A-1 appealed.

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green-car-2265634-1024x683Life can be upended in an instant. One person’s negligent act can change the trajectory of multiple people’s lives.  How much monetary compensation should this negligent, life-altering person be required to pay? Often after a trial court determines a damage award, the award stays the same. But what about when this award does not really compensate for the injuries?  Recently, the Louisiana Third Circuit Court of Appeal determined that an injured party was entitled to far more than the trial court awarded in a car accident lawsuit out of Iberia Parish.    

June Anupat was in a car accident along with her husband and four children.  Her vehicle was rear-ended by Gabriel Castillo after Castillo was rear-ended by Zachary Louviere.  At the scene, Ms. Anupat professed that she and her children seemed unharmed. While filling out paperwork for the police officer working the incident, however, Ms. Anupat started to experience dizziness and pain in her back, neck, and head, accompanied by vomiting.  She was taken to the hospital where she started to recover but remained in pain. For the six months following the accident, Ms. Anupat frequented the doctor’s office for medical treatment on her back, shoulders and arm.  

What Ms. Anupat could not receive treatment for was the complete disruption to her daily life as a result of the accident.  Prior to the accident, she was the primary caretaker for her four young children with her youngest child being just a year old.  Her husband was unable to work as a result of the accident, requiring Ms. Anupat to seek employment outside of the home. In turn, this required her grandmother to come to Louisiana all the way from Thailand.  Her grandmother could not indefinitely remain in the United States, so Ms. Anupat’s mother then also came from Thailand to care for the children. Once her family’s time in the United States was up, Ms. Anupat was still not able to quit her outside employment to return to caring for her children.  Sadly, Ms. Anupat was forced to send her youngest child to Thailand with Ms. Anupat’s family. Moreover, Ms. Anupat’s job as a restaurant cook aggravated the injury to her arm. One person’s negligence drastically altered several lives in this case.  

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2-man-on-construction-site-during-daytime-159306-1-1024x683What happens if you are exposed to something dangerous at work?  In the not too distant past, there would be no hope of restoration and only devastation. Today, with gratitude to some excellent lawyers and lawmakers, there are legal protections for people who are exposed to hazardous working conditions.  Negligent companies can still be required to pay damages even for a 10-year-old oil spill. In several cases from a 2006 Lake Charles oil spill, the Louisiana Third Circuit Court of Appeal affirmed a damage award despite the award being significantly higher than other damage awards in similar cases.  

In 2006, seven men were working several different jobs at the Calcasieu Refining Company (“Refinery”).  On June 16, 2006, CITGO Petroleum Corporation (“CITGO”) experienced a slop oil release at its refinery on Lake Charles.  As a result, 17 million gallons of wastewater was released with large portions of heavy oil reaching the Calcasieu Refinery (“Refinery”) and remaining there for weeks.  It took two months for the oil to be cleaned up. In the interim, the seven men working at the Refinery were exposed to the slop oil almost daily.  

The men worked for three different companies doing various jobs.  Some worked directly on the clean-up effort and came into contact with the oil.  Others were working on building projects at the Refinery or as supervisors. Despite different experiences with the slop oil at the Refinery, the men all experienced similar symptoms to the exposure.  All of the men complained of severe headaches and sinus problems. Most of the men also complained of intestinal problems. The men were all exposed to a toxic substance containing a well-known carcinogen called benzene.  There is no medical treatment for benzene exposure and all the men reported feeling afraid of developing cancer from the exposure. Moreover, there was no medical treatment for their ailments at all. Time could only ease the symptoms.  

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blur-car-cellphone-contemporary-230554-1024x684How often do you drive distracted? Text messaging, studying the GPS, or even checking Facebook; every person reading this has probably engaged in at least one of these distractions while driving. How often are you the one doing the distracting as a passenger? The car can become an excellent opportunity to air one’s grievances to a captive audience.  But when would a fight in a car, text messaging, or something else rise to passenger liability in the event of a car accident? The Louisiana Third Circuit Court of Appeal recently grappled with this question choosing to limit impositions of passenger liability to almost everyone’s relief.  

In October 2013, Joseph Zeno picked up Christy Robinette from Blue Cliff College in Lafayette for a lunch date.  Shortly after she got in the car, the pair started to argue. The argument became so intense that Mr. Zeno intended to drop Ms. Robinette back at her school rather than continue on their journey.  Mr. Zeno put his car in reverse and then collided with the car behind him. Ms. Robinette filed a lawsuit for her injuries, but Mr. Zeno asserted that she was at least partially at fault for distracting Mr. Zeno with her screaming and cursing just prior to the accident. 

Before the Judicial District Court for the Parish of Lafayette, Ms. Robinette won a motion for summary judgment on the issue of liability.  The District Court agreed that there was no issue of material fact regarding Mr. Zeno being at fault for the accident. Because Mr. Zeno and the insurance company believed Ms. Robinette to be partially, if not completely, at fault because of her behavior in the car, they appealed to the Third Circuit seeking to expand passenger liability in Louisiana.  

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orange-and-gray-painted-roof-under-cloudy-347152-1024x684There’s a general understanding between a buyer and a seller that the seller will provide the good in an acceptable condition for a buyer. If the product is faulty, then the general understanding is that the seller will take responsibility for making things right as soon as they can. This is even solidified by warranties. What happens, then, when a construction company sells a New Orleans resident a roof that leaks so much it leads to a man slipping and falling? Is the danger created by the leak so obvious that the construction company shouldn’t be held liable for the injury?

This problem arose when Magnolia Roofing and Exteriors (“Magnolia”) installed a new roof at the home of Tammy Stewart. Ms. Stewart was never completely happy with the quality of the roof when it was installed in September 2011, but significant leaks didn’t appear until January 2013, a few months after Hurricane Isaac wrecked New Orleans. The leaks were so bad that water came through her second-floor attic, through the ceiling, and trickled down the chandelier in her foyer. Magnolia’s parent company, Sears Home Improvement Products, sent repairmen to look at the damage a few days later. Ms. Stewart was at work so her friend, Glenn Jones, let them in to the attic to see where the leak was. The attic was consistently described as “unfinished, unlit, [and] wet.” Since the attic was unfinished and without light, Mr. Jones was standing on a crossbeam between the sheetrock and using his cell phone for light. When he turned around to show the worker where the leak was, he slipped and fell 16 feet through the sheetrock into the first-floor foyer. Mr. Jones sustained multiple serious injuries as a result and brought a case of negligence against Ms. Stewart and Magnolia.

The core issue of this case before the Louisiana Fourth Circuit Court of Appeals was the open and obvious doctrine. If it is plainly clear to everyone that a danger exists, then a defendant is not liable for an injury that occurs. The defendant must show that the danger is open and obvious to benefit from this legal doctrine. See Scarberry v. Entergy Corporation, et al., N.V., 136 So.3d 204 (La. Ct. App. 2014). Magnolia claimed the wet crossbeams were a clear and obvious danger; the trial court agreed with them on summary judgment and found them not liable. The trial court explicitly limited the entire review of Magnolia’s petition to this one issue, so the Fourth Circuit did the same. See La. C.C.P. art. 2164. Mr. Jones refuted this claim by saying that the darkness of the attic was the obvious danger, not the wetness of the beams, and the darkness did not cause the injury, so Magnolia could be liable.

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2-man-on-construction-site-during-daytime-159306-1024x683Construction is a necessary inconvenience. No one enjoys having their travel rerouted due to road construction, but nonetheless, drivers must follow construction signs to safely avoid the temporary hazards road work creates. What happens when a driver doesn’t see the construction signs and drives her car into a large hole in the street? Even if the path down the street isn’t clear, what’s clear to the Louisiana Fourth Circuit Court of Appeals is that a trial judge isn’t allowed to determine which party is telling the truth.

A single car accident happened the night of December 6, 2012 around 10:30 p.m. when Eileen Maldonado, her daughter, Dana Williams, and their friend, Derrick Sykes, were heading to Harrah’s Casino in downtown New Orleans. With Ms. Maldonado behind the wheel, their vehicle went through the under-construction intersection of Elks Place and Cleveland Avenue. Since it was dark, Ms. Maldonado did not see the large hole in the road which had been dug by Archer Western Construction, and the passenger side of her car fell into the hole.

Ms. Williams and Mr. Sykes initially brought a lawsuit against Ms. Maldonado and her insurer along with Archer Western Construction and their insurer. They blamed the accident on the negligence of both Ms. Maldonado and Archer Western, claiming that there were no barriers around the hole or general signs saying to not go through that intersection. An amendment to their lawsuit added Ms. Maldonado’s negligent driving to the case.

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