Louisiana Personal Injury Lawyer Blog

February 6, 2023

Can a Passenger in a Car Accident Not be a Passenger?

car accident lawyer louisiana Usually, in a dispute concerning a car accident, the issue surrounds fault or the extent of injuries. Occasionally though, the argument is whether a passenger in one of the vehicles was even a passenger. Evidence that one was a passenger and present during the accident would seem helpful but does not guarantee recovery, as one plaintiff learned after a 2011 car accident in Jefferson Parish.

In 2012, Cindy Perez filed a lawsuit in the Jefferson Parish Twenty-Fourth Judicial District Court against Mary B. Gaudin and LM General Insurance Company. Perez alleged that in 2011, she and her mother, Edis Molina were passengers in a car driven by Reinaldo Martinez-Perez. Perez claimed that she was sitting in the backseat when Gaudin rear-ended the car with her own vehicle, causing a propane tank to hit Perez’s arm. The case went to trial on July 20, 2016, with the sole issue being whether Perez was actually a passenger in the vehicle when the accident occurred.

Deputy Zlatko Brujic of the Jefferson Parish Sheriff’s Office was the officer who investigated the 2011 accident. Though he could not testify at trial in person, he gave a deposition that was admitted as evidence. In his testimony, Deputy Brujic stated that according to the accident report, Reinaldo Martinez-Perez’s car only had one passenger: Edis Molina. He noted that another woman was at the scene after he arrived, but this woman’s description did not match that of Perez’s.

February 5, 2023

Only Four Out of Five Expert Witness Fees Awarded to Prevailing Plaintiff

by Berniard Law Firm

litigation expert fees louisiana Litigation can be lengthy and costly, especially when expert witnesses get involved. The good news is that a prevailing party can be awarded many of these costs at the trial court’s discretion. The bad news? Not every fee may be granted, as Carlo Conforto learned in a case he brought to the Twenty-Fourth Judicial District Court in Jefferson Parish.

On March 18, 2011, appellant Conforto was injured in a car accident. After that, he filed for damages against appellees Dylan Toscano, United Services Automobile Association and Allstate Insurance Company. The District Court held in favor of Conforto with a judgment of $145,708.36.

Five expert witnesses were used at the trial, and Conforto wanted to know how their fees would be handled. The District Court decided expert witness fees would be determined after the trial with a rule to tax costs—a motion to determine the number of expert witness fees to be paid by the party cast in judgment. On August 9, 2016, Conforto filed a rule to tax costs, and on September 22, 2016, the motion was granted. However, only four expert witness fees were awarded, so Conforto appealed to the Fifth Circuit Court of Appeals of Louisiana.

February 4, 2023

Late Filing Bars Medical Malpractice Claim Against Tulane-Lakeside Hospital

by Berniard Law Firm

late filed medical malpractice claim louisiana Deadlines matter in all areas of life, but in the legal world, they can determine whether a lawsuit will move forward or even get started. In Louisiana, a prescriptive period is a window of time for legal action to be brought and enforced. Depending on the kind of claim, the prescriptive period may be longer or shorter than you think.

On April 29, 2011, Hector Alonso was scheduled for cataract surgery at Tulane-Lakeside Hospital. During the surgery, Alonso claimed to have awoken from anesthesia. In extreme pain, he wanted to have the surgery stopped but claimed that instead, the medical staff fought him—causing him to dislodge and swallow a tooth—held him down, put tape over his mouth, and continued to operate.

On July 14, 2016, Alonso filed a request for medical review with the Louisiana Patient’s Compensation Fund (LPCF). He named his surgeon, two nurses, the certified registered nurse anesthetist (CRNA), and University Healthcare System L.C. defendants. He alleged that they committed medical malpractice by failing to properly treat him, using improper procedures and inadequate safety measures, restricting his freedom, and committing assault and battery. He had previously filed a complaint for malpractice with LPCF in 2012 and a petition for damages in District Court but only named University Healthcare System L.C. and Dr. Ebrahim as defendants. LPCF dismissed found no breach of the standard of care in 2014, and on January 21, 2016, the District Court dismissed Alonso’s case.

February 3, 2023

First Circuit Court of Appeal Affirms Decision That Employee Was Entitled to Compensation From Work Related Back Injury (Part 1)

by Berniard Law Firm

An employee suffering an injury at work can be concerning for both the employee and employer. This concern can be increased when the injury sustained at work is an aggravation of a previous injury. However, as one Louisiana individual discovered, providing solid evidence backing your workers’ compensation claim can be critical to the lawsuit.

Mrs. Alexander worked as an administrative assistant at Stupp Bros in Baton Rouge. On February 12th, 2015, Mrs. Alexander was asked to order toner for the printer. Mrs. Alexander had to obtain the serial number from the back of the printer to collect toner and kneel down to acquire the serial number. While kneeling down and pulling the printer off the wall, Mrs. Alexander felt a tear on her back. Mrs. Alexander fell over and was transported Mrs. Alexander to Prime Medical with some assistance.

While at Prime Medical, Mrs. Alexander was diagnosed with a lower back strain, given over-the-counter medications, and was given a release to return to work. Mrs. Alexander complained about pain and said she had undergone two previous back surgeries while visiting Prime Medical. Four days after the accident, Mrs. Alexander went to the emergency room at Lane Regional Medical Center. An M.R.I. performed on Mrs. Alexander revealed several issues involving a disc in her back.

February 2, 2023

New Orleans Court of Appeal Determines Obligation of Insurance Company Does Not Increase From Providing Coverage to Both Parties

by Berniard Law Firm

reserved_sign_wedding_decorations-1024x683 Car accidents can be a problematic scenario for the parties involved emotionally and financially. This situation can become even more complicated when the insurance company provides coverage to both parties involved in the accident, and the injured party files a lawsuit against the insurance company, arguing that the injured party is a first-party claimant. The Fourth Circuit Court of Appeals for Louisiana recently addressed the issue.

In August 2009, Mr. Sapp drove a vehicle down Prytania Street in New Orleans, Louisiana. Unfortunately, Mr. Sapp collided with the car driven by Mr. Lee. After the accident, Mr. Lee filed a lawsuit in the Orleans Parish of Louisiana against Mr. Sapp and State Farm Insurance Company. In the case, Mr. Lee alleged that the accident resulted in personal injuries. All the parties reached a settlement agreement seven years after the accident occurred.

The settlement agreement covered all claims from the accident in 2009, except for the exception of “Reserved Claims.” The agreement between the parties provided that “Reserved Claims” meant all claims of bad faith by Mr. Lee against State Farm Mutual Automobile Insurance Company. One month after the settlement agreement was entered, State Farm filed an exception. In this exception, State Farm sought to dismiss all reserved claims except one. This one was for Mr. Lee’s misrepresentation claim, pursuant to La. R.S. 22:1973(B)(1). The Trial Court ruled in favor of State Farm, sustaining the exception and dismissing all of Mr. Lee’s bad faith claims except for misrepresentation. Mr. Lee then appealed the decision of the Trial Court.

February 1, 2023

Who is Liable for a Slip and Fall Accident in Louisiana, the Landlord or Tenant?

by Berniard Law Firm

hair salon slip fall A customer sustaining severe and permanent injuries from a slip and fall accident at a business can cause one to wonder about the potential liability of the business owner. This can become even more complex in a situation where the business owner has leased the unit from the party that owns the building. A building owner may be liable for the injury, even when the unit has been leased out.

On October 24th, 2014, Ms. Greer visited Sportsman’s Hairadise in Ponchatoula, Louisiana. Ms. Greer claimed that a salon employee instructed Ms. Greer to park behind the building and then access the unit through the rear entrance of the building. Ms. Greer used this entrance and had to take a single step down to enter the salon. Unfortunately, as Ms. Greer navigated down the step, she fell down and hit the concrete floor. Ms. Greer alleged that the fall caused severe, permanent, and debilitating injuries. Sportsman’s Hairadise leased the premises from Railroad Square, LLC (“Railroad Square”), which owned the building.

Ms. Greer filed a lawsuit against Railroad Square in the Twenty-First Judicial District Court for the Parish of Tangipahoa, Louisiana. Ms. Greer alleged that the premises contained several defects presenting harm. These harms included a step-down of greater height than allowed by building code, a surface made up of different gradients, an absence of handrails, a lack of adequately marked surface edges, and insufficient warnings of the step-down.

January 31, 2023

Louisiana Court Finds Medical Malpractice Allegations Broad Enough to Proceed

by Berniard Law Firm

Louisiana medical malpratice Medical procedures are never an enjoyable process. However, the process becomes even more miserable when recuperation is delayed because of infections. Darrin Coulon found himself in this situation after receiving shoulder surgery in 2011 from Dr. Mark Juneau at the West Bank Surgery Center. His recovery became even more difficult as he navigated the complex procedural requirements of filing a medical malpractice claim.

After receiving shoulder surgery, an infection required Coulon to undergo numerous additional surgeries and treatments. As a result, Coulon and his wife filed a Request for Medical Review Panel, alleging medical malpractice. Specifically, Coulon alleged that (1) the Surgery Center failed to develop, maintain, and enforce appropriate policies to prevent infections and (2) the Surgery Center was liable under a theory of respondeat superior for its employees’ actions. The Medical Review Panel found no evidence that the Surgery Center or doctor failed to meet the required standard of care or did not maintain appropriate policies and procedures to prevent infections.

Coulon and his wife subsequently filed a lawsuit for damages against the Surgery Center. In addition to the claims previously raised for the Medical Review Panel, they added that the Surgery Center failed to supervise and train the nurses who treated Coulon. The Surgery Center responded by filing a partial exception of prematurity, claiming that the claims that they failed to train and supervise the nurses were premature because Coulon and his wife did not previously raise those claims in the Medical Review Panel complaint. Coulon and his wife argued that the language in the prior complaint was sufficiently broad to include the additional claims in their subsequent lawsuit for damages.

January 30, 2023

If You Give a Horse a Carrot – When are Visitors Covered by the Equine Immunity Statute?

by Berniard Law Firm

Horse bite lawsuit Feeding a horse a treat can seem all fun and games until the horse bites you. This is a lesson Danielle Larson, a visitor to Equest Farm in City Park in New Orleans, learned the hard way in 2013 when a horse bit her while she was feeding it a carrot.

Larson was from Illinois but came to New Orleans often to visit her boyfriend. She had ridden horses since childhood and had been previously shown the correct way to feed a horse. Larson had been visiting Equest Farm for a few years before the horse bit her in September 2013. Larson went to see the school horses on the day of the incident. On her way there, two riders told her to be careful because, at the school, ponies had purportedly bitten a child. While Larson was feeding a horse a carrot, the horse knocked the carrot from her hand, and then the horse bit off her thumb as she reached for the dropped carrot. As a result, Larson required extensive medical care and will likely have to use a prosthetic thumb or transfer a toe to her hand.

There was some dispute about whether there was a sign posted warning people not to feed the horses. The horse at issue overall had a good reputation but had previously bitten a child who had held the horse’s ears while riding him.

January 29, 2023

What Court has Jurisdiction over Louisiana Police Disciplinary Action Tort Claims?

by Berniard Law Firm

who has Jurisdiction over Louisiana Police Disciplinary Action Tort Claims Even if your lawsuit has good facts, to prevail, the court must have subject matter jurisdiction to hear your case. Subject matter jurisdiction is the “legal power and authority of a court” to listen to a given proceeding. See La. C.C.P. art. 2. Understanding these complex jurisdictional requirements is imperative to ensure you get your day in court.

In 2007, Plaintiffs T.H. and C.B. were terminated from the Louisiana State Troopers after an investigation suggested that they had provided a third party with confidential information violating employment policies and the law. The plaintiffs appealed this termination to the State Police Commission. The Commission overturned their terminations and instead ordered that they only be suspended.

The plaintiffs then filed a lawsuit in district court to recover damages for a litany of reasons. The Defendants subsequently filed an exception for lack of subject matter jurisdiction. They claimed that La. Const. art. X, § 50 gives the State Police Commission exclusive jurisdiction over cases where the State Police terminates employees. Therefore, the district court would lack subject matter jurisdiction over the claim.

January 28, 2023

Louisiana Man Denied Texas Workers’ Compensation Because He Was Not a Texas Employee

by Berniard Law Firm

texas_flag_texas_flag-1024x683 The importance of legal contracts cannot be understated. Though we generally sign contracts on social media or online shopping websites without ever looking at their provisions, it is essential to carefully look at contractual provisions in insurance policies and the like. For example, you never want to discover that your injury is not covered by insurance after you have been injured.

Adam O’Bannon, a Louisiana resident, was an employee of Moriah Technologies, Inc. (“Moriah”), a Texas corporation. In June of 2012, O’Bannon injured himself while working as a Moriah employee. Texas Mutual Insurance Company (“TMIC”) was Moriah’s workers’ compensation insurer. However, TMIC did not provide any workers’ compensation to O’Bannon.

Bannon argued that TMIC owed him workers’ compensation and filed a claim with the Louisiana Offer of Workers’ Compensation (“OWC”) against TMIC. At court, TMIC asked the workers’ compensation judge (“WCJ”) to dismiss O’Bannon’s claim through a motion for summary judgment because its policy did not provide coverage to Moriah for O’Bannon’s workplace injury. The WCJ agreed and dismissed O’Bannon’s case. O’Bannon appealed, arguing that the WCJ erred in holding that TMIC did not have a policy that provided O’Bannon workers’ compensation.