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tenis-1571373-1920x1440-1024x768When bringing a personal injury lawsuit a plaintiff must prove that the defendant in the lawsuit caused the injury. Often, when an injury involves two parties, the question of who caused the injury has a relatively straightforward answer. However, problems arise when the circumstances surrounding the injury involve multiple parties. A recent case out of the Louisiana First Circuit Court of Appeal illustrates the complexity of proving who caused an injury when multiple parties are involved.

Plaintiff William Bourg, an employee of Shamrock Management LLC (“Shamrock”), a Houma, Louisiana company, was injured while helping move an aluminum generator cover. The cover, which weighed 2800 pounds, was delivered to Shamrock’s shop by Cajun Cutters, Inc (“Cajun Cutters”). Mr. Bourg and a Cajun Cutter’s employee, Russell Felio, attempted to move the generator cover into Shamrock’s shop. To facilitate the delivery of the generator cover, Mr. Felio decided to use a large forklift that he was unauthorized to use. While using the forklift, Mr. Felio accidentally flipped the generator cover on its side, which fell on Mr. Bourg’s left foot, crushing it. The injury required Mr. Bourg to undergo two surgeries.

Mr. Bourg sued both Cajun Cutters and Mr. Felio for his foot injury. In a personal injury lawsuit, the jury is required to determine who is at fault for the plaintiff’s injury and allocate a percentage of fault onto each party member, including the plaintiff. In Mr. Bourg’s case, the jury decided that Mr. Bourg and Shamrock were 90% at fault for the accident and that Cajun Cutters and Mr. Felio were 10% at fault. Mr. Bourg filed a motion for a judgment notwithstanding the verdict (“JNOV”). A JNOV is a procedural device where the trial court may correct a jury verdict by modifying the jury’s findings of fault or damages, or both. La. C.C.P. art. 1811 (2016). The trial court granted the JNOV and reallocated fault 50% to Bourg and Shamrock and 50% to Cajun Cutters and Mr. Felio. Cajun Cutters and Mr. Felio appealed the trial court’s decision.

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scaffolding-1518087-1024x768What happens to Workers’ Compensation Benefits once a claimant is awarded benefits and employment is terminated after the fact? Is the employee still entitled to the awarded benefits? In general, an employee must be injured within the course of employment to qualify for benefits. Supplemental Earnings Benefits (“SEBs”) are paid when the injured worker has reached maximum medical improvement but is not capable of earning 90% of pre-accident wages. This case explains what happens when an employee is fired after being awarded SEBs.

Kenneth Andrews worked as a journeyman for Thrasher Construction, Inc. (“Thrasher”). On January 7, 2013, Mr. Andrews fell off a scaffold after some boards flipped up and injured his wrist, arm, shoulder, knees, and back. On October 15, 2013, Mr. Andrews filed a disputed claim for compensation against Thrasher and SeaBright Insurance Company (“SeaBright”). On the same day that Mr. Andrews completed his required medical exam, Thrasher filed a notice of suspension and terminated his workers’ compensation benefits. Pursuant to La. R.S. 23:1201.1(K)(8)(a)(vii), Mr. Andrews filed a motion for expedited summary proceedings to lift the suspension of his benefits, alleging that Thrasher arbitrarily and capriciously terminated his benefits.

On January 12, 2015, the case proceeded to trial. The Workers’ Compensation Judge (“WCJ”) rendered judgment in favor of Mr. Andrews and awarded him SEBs. The WCJ also ordered that a Functional Capacity Evaluation (“FCE”) be performed for Mr. Andrews. Thrasher and SeaBright appealed the WCJ’s judgment to the Louisiana First Circuit Court of Appeal, alleging that the WCJ improperly awarded Mr. Andrews SEBs without the claimant first making a prima facie showing of entitlement.

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bad-weather-1398005-1024x683What happens if an insurer fails to pay a claim on time to the insured? In Louisiana, an insurer could be subject to a penalty for failing to pay. This case out of Ascension Parish demonstrates how an insurer can be guilty of bad faith when their actions are arbitrary, capricious or without probable cause.

On October 6, 2010, Mr. Beau Schexnaildre was involved in a motor vehicle accident caused by the negligence of Mr. Nathan Spicer. On March 14, 2012, Mr. Schexnaildre sought recovery under a policy of uninsured/underinsured motorist coverage (“UM”) issued to him by State Farm Mutual Automobile Insurance Company (“State Farm”). Mr. Schexnaildre provided State Farm with copies of the accident report, medical reports, medical bills and Mr. Spicer’s insurance policy. Mr. Schexnaildre’s attorney received a $25,000 check in the mail from State Farm on April 16, 2012, 33 days after State Farm received the demand.

Mr. Schexnaildre filed a lawsuit against State Farm claiming it failed to tender benefits under the UM policy within 30 days of receipt of satisfactory proof of loss and that such failure was arbitrary, capricious and without probable cause. State Farm filed a motion for summary judgment arguing that Mr. Schexnaildre did not provide sufficient proof of loss under La. R.S. 22:1892 because the UM demand did not show that Mr. Spicer was uninsured and only included some medical bills. A motion for summary judgment will be granted if the pleadings, depositions, answers, and admissions, show that there is no genuine issue as to material fact. State Farm also asserted that the claim was timely paid under the statute because the payment was mailed within 30 days of receiving the UM demand. In opposition to the motion, Mr. Schexnaildre argued the statute requires that payment must be received by the insured within 30 days.

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loadin-the-lumber-1250972-1024x736Direct employment is the traditional and most common employer-employee relationship. But what happens when a statutory employee is injured on a work site? A statutory employee is an employee as defined by a state’s statute. While the employer is not the direct employer, the employer becomes the employer of record by force of law. Any worker injured while in the course and scope of employment for a statutory employer must be extended the same protection and benefits as those owed to the employees of the direct employer. This slip-and-fall accident case out of Tangipahoa Parish further describes the rights of Louisiana’s statutory employees in workers’ compensation cases.

Devon Energy Production Company, L.P. (“Devon”) was involved in the drilling of a well in Kentwood, Louisiana. Devon entered into an agreement with Asset Security for it to provide security services for Devon at the drilling site. The agreement provided that Devon was to be considered the statutory employer of Asset Security’s employees for purposes of La. R.S. 23:1061(A)(3) and Devon was entitled to the Louisiana protections that are afforded a statutory employer. On July 16, 2012, Ms. Shannon Robinson Kazerooni slipped and fell from the stairs when exiting the mobile trailer at the drilling site. Ms. Kazerooni was a reserve deputy with the Tangipahoa Parish Sheriff’s Office, which had an agreement with Asset Security to provide police officers for security assignments.

Ms. Kazerooni filed a lawsuit against Devon, alleging that the accident and her resulting injuries were caused by Devon’s negligence, and Monster Rentals, LLC, (“Monster”), alleging that Monster provided a defective trailer. Devon asserted the affirmative defense that Devon was the statutory employer of Ms. Kazerooni and that Ms. Kazerooni’s exclusive remedy was workers’ compensation benefits pursuant to LSA-R.S. 23:1061. Devon filed a motion for summary judgment, arguing that Ms. Kazerooni was a statutory employee pursuant to the agreement between Devon and Asset Security and that Devon was immune from suit for tort damages because Ms. Kazerooni’s exclusive remedy was workers’ compensation benefits from Devon. On October 14, 2015, the trial court granted Devon’s motion for summary judgment. Ms. Kazerooni appealed the trial court’s decision to the Louisiana First Circuit Court of Appeal, arguing that there was an unresolved genuine issue of material fact as to whether she was a statutory employee because she was merely a volunteer.

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nose-1552298-1024x893What happens when a person injures another person? A tort is a civil wrong that causes another person to suffer loss or harm that results in legal liability for the person who commits the tortious act. The person who commits the act is called a tortfeasor. An intentional tort is a category of torts that describes a civil wrong resulting from an intentional act on the part of the tortfeasor. This case out of Ascension Parish illustrates the plaintiff’s burden of proof in a tort action.

On August 13, 2012, Mr. Clifford Barr was on his way to Rossi’s Auto Service (“Rossi’s”), driving southbound on La. Hwy 431. When Mr. Barr was about to turn into Rossi’s parking lot, he noticed another vehicle blocking the entrance. Mr. Barr waited to see if the driver was going to exit. When the vehicle did not move, Mr. Barr proceeded to drive into the parking lot. At the same time, the driver of the other vehicle, Mr. Joseph Schexnayder, pulled out of the parking lot. The two vehicles almost collided. Mr. Schexnayder opened his door and attempted to exit his vehicle, but the vehicles were too close to one another. Mr. Schexnayder reversed his vehicle into Rossi’s parking lot and Mr. Barr proceeded forward into the parking lot. Mr. Schexnayder got out of his vehicle, walked toward Mr. Barr’s vehicle, and stuck his head through Mr. Barr’s rolled-down window. While there is disagreement over which party through the first punch, it was uncontested that Mr. Barr grabbed Mr. Schexnayder and that Mr. Schexnadyer bit Mr. Barr’s nose, requiring medical treatment.

On July 15, 2013, Mr. Barr filed a lawsuit against Mr. Schexnadyer for damages. The case proceeded to trial. On October 30, 2014, the trial court issued a judgment finding that Mr. Schexnayder was the aggressor and that Mr. Barr was not at fault. More specifically the court found that Mr. Barr was very credible and that Mr. Schexnayder was the sole cause of the incident. Mr. Barr was awarded $25,005 in damages: $12,750 for physical and mental pain and suffering; $255 for past medical expenses; and $12,000 for future medical expenses.

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rifle-scope-1-1576601-1-1024x683What do injured parties do when products are defective and unreasonably damaged? In Louisiana, injured parties may file lawsuits against a manufacturer for damages caused by his products. The following case out of the Western District of Louisiana describes the Louisiana Products Liability Act (“LPLA”).

In mid-2011, Toby Arant purchased two 1” ratchet straps at a Wal-Mart store, manufactured by Tahsin Industrial, Corp., USA (“Tahsin”). On September 9, 2012, Mr. Arant used the straps to secure a tree for hunting. Mr. Arant was seriously injured after falling 20 feet to the ground because the tree straps failed when he climbed onto the tree stand.

Mr. Arant filed a lawsuit in Louisiana state court against Wal-Mart Stores, Inc. (“Wal-Mart”) and Tahsin under the LPLA, alleging that the straps were defective and unreasonably dangerous. More specifically, he claimed that the straps were defective in construction and had an inadequate warning. Wal-Mart and Tahsin removed the case to federal court and filed a motion for a summary judgment. A motion for summary judgment is properly granted if there is no genuine issue of material fact. The motion was granted and Mr. Arant appealed the district court’s dismissal of his products liability suit to the U.S. Fifth Circuit Court of Appeal.

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piggy-bank-1-1241054-1024x764Life insurance benefits can provide beneficiaries with the monetary needs they require. What is a life insurance policy? An insurance company agrees by contract to provide a lump-sum payment, called a death benefit, to the beneficiaries upon the insured’s death in exchange for premium payments. But what happens when the insured dies and the beneficiary encounter problems in getting paid? This case out of Concordia Parish explains entitlement to life insurance proceeds in Louisiana.

On October 16, 2012, Michael Burley and his brother William each purchased life insurance policies from New York Life Insurance Company (“New York Life”) and named the other as beneficiary. Mitch Ashmore, the insurance agent, filled out the application for the policy insuring William’s life and answered “No” to question 3(1) that asked if the applicant had been diagnosed, treated, tested positive for or been given medical advice for drug or alcohol use. In December 2012, the policy insuring William’s life became effective. On April 24, 2013, William died from a heart attack. Mr. Ashmore filed Mr. Burley’s claim for the policy proceeds. On October 14, 2013, New York Life sent a letter to Mr. Burley stating that the answer to question 3(1) should have been “Yes” because of William’s medical records and death certificate listed marijuana use. The letter also stated that New York Life’s normal procedure was to refund all premiums and void the policy. On January 30, 2014, New York Life sent Mr. Burley a check for the premiums.

Mr. Burley filed suit against New York Life seeking the $200,000 policy proceeds, as well as penalties and attorney fees. Mr. Burley filed a Motion for Default Judgment because of New York Life’s failure to Answer. The trial court awarded a default judgment to Mr. Burley for the $200,000 proceeds, $20,000 in penalties under La.R.S. 22:1973, as ewell as $100,000 in penalties under La.R.S. 23:1892. New York Life filed a Motion for a New Trial, which the trial court denied. New York Life appealed the default judgment and the denial of its Motion for New Trial to the Louisiana Third Circuit Court of Appeal.

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fencing-1434215-1024x855People have bargained with one another since the dawn of time. Many agreements occur through mere conversation, but memory may be faulty or even denied. Thus, written contracts exist to keep a record of agreements made by two people or business entities. When a disagreement over the meaning of a contract is brought to court, the court will refrain from unnecessarily changing the meaning of words in a contract, opting instead to take the written words literally and simply. RJAM, Inc. v. Miletello, 44 So. 3d 283 (La. Ct. App. 2010). This means that even a single word can completely change how a contract is enforced. A lawsuit concerning that exact issue arose in Parish of Bossier.

In 2004, Endurall, Inc. was created out of an older company that made supplies for oil and gas lines. This new company provided a specific tool for oil rigs. As part of the process of forming the corporation, the four founders signed a non-compete proprietary agreement. This agreement would prevent any of them from going into the same line of business in the same geographical area for two years after leaving the company. In 2012, two of the founding shareholders formed a similar company. They were immediately fired for possibly having used Endurall information to form their new venture, but they did keep their stock. Soon afterward, the two petitioned the court to dissolve Endurall due to the disagreement amongst the stockholders. As a result of the filing, Billy Joe Edwards was no longer a shareholder. His stock and that of the other fired shareholder was sold at private auction to the other two shareholders that had not been involved in the scheme. The two remaining shareholders filed to dismiss the dissolution which was granted.

Soon after, Mr. Edwards and his son created another company that would sell the exact same product line as Endurall only twenty miles away. He also worked for another company selling paraffin products to customers he had worked with while at Endurall. In 2014, the two remaining shareholders sued to have the court enforce the non-compete provision against Mr. Edwards. Any court order which requires a party to do or cease from doing something is an injunction. The trial court granted an injunction ordering Mr. Edwards to stop the competitive business until the agreement expired. Mr. Edwards appealed.

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car-crash-1316724-1-1024x768When insurance coverage doesn’t pay enough money to compensate a victim for injuries suffered in a car accident, underinsured motorist coverage exists to fill in the gaps. Louisiana law requires that insurance companies provide this coverage. La. R.S. 22:1295. Although this seems like a simple solution for undercovered individuals, many people are unaware that this type of insurance does not benefit every possible person who may be affected by a car accident; an insurance policy’s contract ultimately determines who and what the policy might cover. This common misperception was at issue in a case that arose in Caddo Parish.

In Texas in 2013, Helen Stopak was killed in an automobile accident while riding in a car owned by one of her daughters. The driver’s insurance company (Safeco) paid $30,000 in benefits to her daughters, one of whom was Lori Marshall. Soon afterward, Mrs. Marshall attempted to claim underinsured motorist benefits from her own husband’s insurance policy provided by the Louisiana Farm Bureau Casualty Insurance Company (the Farm Bureau). She believed she was entitled to damages under her underinsured motorist insurance policy for wrongful death and for her own mental distress since her mother had been in an underinsured car. The Farm Bureau refused to pay and she sued. The trial court ruled in favor of the Farm Bureau. Mrs. Marshall appealed.

At issue in the Court of Appeal was whether Mrs. Marshall’s mother was insured under the policy. If so, the Farm Bureau would be obligated to pay out its benefits. Even if not specifically mentioned in the policy, the law requiring underinsured motorist coverage acts as if it is part of the insurance contract. Some insurance policies simply include the wording of the statute in order to provide underinsured motorist coverage. A contract can, however, provide for exceptions to these payments, such as not extending it to people or cars not actually under the policy. Lafleur v. Fidelity & Casualty Co. of New York, 385 So.2d 1241 (La. Ct. App. 1980).

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areopagus-1214742-1-1024x657Uninsured motorist (UM) liability coverage is additional coverage that can pay for injuries to individuals protected under your policy, including family members in other cars and passengers in your insured cars, resulting from a car accident caused by an uninsured driver. However, this additional coverage can be modified or inapplicable if the insured decides to reject coverage, select lower limits, or select economic-only coverage, which would only cover costs, not non-monetary damages, such as pain and suffering or quality of life damages. UM coverage is also part of most businesses insurance policies. All of these options allow for insurance policies to be flexible, and whatever a policy stipulates is what it will cover, but as a case that arose in the Parish of St. Landry shows, writing and reading an insurance policy isn’t always straight-forward.

In October of 2011, Crystal Bell was driving a company car, owned by Compass Behavioral Center for Crowley, when she was rear-ended by Merlyn Rodgers. Crystal Bell and the occupants of her vehicle filed a lawsuit against Merlyn Rodgers and her insurance company. After filing the lawsuit, the plaintiffs amended their complaint by naming Compass’ insurance company, Progressive Insurance Company, as a defendant in order to claim UM coverage.

Prior to the accident, in 2007, a Compass representative, Mark Cullen, had signed a CSL automobile insurance policy with Progressive for $1 million in liability coverage. A CSL policy sets a predetermined limit for the combined total of the Bodily Injury Liability coverage and Property Damage Liability coverage per occurrence or accident. Under Louisiana law, UM coverage must be applied through an Uninsured/Underinsured Motorist Bodily Injury Coverage form, which is issued by the Commissioner of Insurance. La. R.S. 22:1295. This form, however, lacked a space for addressing CSL policies. So, Cullen initialed the box that stated he selected UM coverage but wrote in “$100,000” for coverage and marked out “each person” and wrote in “CSL.” Cullen did this even though the form indicated that it may not be altered or modified. Progressive filed a motion for summary judgment and asked that the district court rule that the policy in place at the time of the accident was only for $100,000. The plaintiffs’ filed a counter-motion for summary judgment. The plaintiffs argued that Compass’ UM form was invalid and therefore UM coverage provided for $1 million in coverage. Alternatively, plaintiffs argued that if the UM coverage form was valid, then it was for $100,000 per person as opposed to only $100,000 for each CSL accident.

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