Louisiana Personal Injury Lawyer Blog

February 21, 2020

Trial Court Oversteps Authority when Determining the Accuracy of Plaintiff’s Account in Orleans Parish

2-man-on-construction-site-during-daytime-159306-1024x683 Construction 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.

February 20, 2020

Is a Hotel Responsible for Injuries of Ejected Guests?

by Berniard Law Firm

cards-casino-chance-chip-269630-1024x683 People generally expect to be safe from injury on the premises of a hotel or other such business. Thus, the owners and operators of these premises are required by law to do what is reasonably necessary to keep their guests safe. However, this obligation does not generally extend to incidents outside the property. For instance, a car accident that occurs on the road near the hotel is likely not the fault of the hotel itself. In 2017, the Second Circuit Court of Appeals considered such a situation.

In February 2015, Terry James was staying at the Eldorado hotel in Shreveport. There was an ice storm at the time that made traveling on the roads difficult. The State Police had, in fact, warned people not to drive on the interstate unless necessary. During his stay at the hotel, however, Mr. James apparently violated the casino rules. As a result, a security guard informed him he could leave the hotel voluntarily or otherwise be forcefully removed. Mr. James chose to leave the hotel. On the interstate, he lost control of his car and wrecked. Mr. James then sued the Eldorado hotel for his accident, claiming it was the fault of the hotel personnel for forcing him to leave in the bad weather. The hotel filed to have this case dismissed on the basis that they were not responsible for Mr. James’ safety once he had exited the premises. The trial court agreed with the hotel and dismissed the lawsuit. Mr. James appealed this dismissal.

The issue for the Second Circuit was whether the hotel would be responsible for injuries that occurred outside the hotel’s property on a state road. In order to make a decision on this issue, the Second Circuit considered the legal concept of negligence. Mr. James argued that the hotel had a duty to protect him from injuries that he received after he was intentionally made to leave the hotel. Indeed, hotels have a duty to act in a reasonable manner to protect their guests from injury. Spencer v. Red River Lodging, 865 So. 2d 337 (La. Ct. App. 2004).

February 19, 2020

Evidence of Health Insurance Write-Offs Should Not Be Excluded at Trial

by Berniard Law Firm

blue-and-silver-stetoscope-40568-1024x683 Health insurance is extremely important and often a vital key to keeping both financial and physical health. When insurance payments collide with lawsuit payouts, things can become confusing. There are certain parts of Louisiana law that serve to protect those that have been injured in such instances. The Second Circuit Court of Appeal considered such a protection in 2017.

In 2014, Dustin Patterson was injured in a car accident. He settled his claims against the other driver as well as the owner of the driver’s vehicle and the driver’s insurance company. Mr. Patterson’s insurance company, American National Property and Casualty Insurance (“ANPAC”), remained in the lawsuit and went to trial in Caddo Parish. At trial, Mr. Patterson was only permitted to present, as evidence of his medical expenses, the discounted amount paid by his health insurance. This was factored into his total recovery of $23,632.63. Believing himself entitled to a higher amount, Mr. Patterson appealed.

The issue for the Second Circuit was whether the plaintiff’s recovery could be reduced due to “write-offs” by his insurance company. Through negotiations with the health insurance company, the cost of Mr. Patterson’s healthcare was reduced by the providers. The difference between the original amount of his care and the negotiated amount was “written off”. Mr. Patterson argued he should be awarded the “written off” amount since he had paid health insurance premiums. The Second Circuit considered this argument under the collateral source rule. This is a principle of Louisiana law that prevents a plaintiff from being denied any portion of their monetary awards in a lawsuit just because they received money from an independent source. Bozeman v. State, 879 So. 2d 692 (La. 2004). One reason for the implementation of this rule is to prevent a defendant from benefiting from the plaintiff’s decision to obtain insurance. This is balanced, though, with the desire to prevent a plaintiff from receiving an undeserved “windfall” of excess payments.

February 18, 2020

Driver in Auto Accident Responsible for Aggravating Pre-Existing Injuries

by Berniard Law Firm

white-volvo-semi-truck-on-side-of-road-2199293-1024x684 An occurrence such as a bad motor accident will almost likely aggravate any pre-existing injuries of an injured party. This, of course, depends on the seriousness of the accident in question. In this particular case, Mr. Urquhart and Mr. Nye were involved in a motor accident with a truck belonging to Sysco Food Services of New Orleans (“Sysco”), and driven by its employee, Mr. Spencer. This accident resulted in bodily injuries to Urquhart and Nye and further aggravated their already existing health challenges.

On May 9, 2012, along East Judge Perez Drive, Mr. Spencer collided with another vehicle containing two passengers, Mr. Urquhart and Mr. Nye. A witness to the accident, Mr. Straub, testified that both his vehicle and the vehicle containing Urquhart and Nye were in the right-hand lane when Mr. Spencer moved from the left lane of travel and collided with Urquhart and Nye’s vehicle. The difficulty in this lawsuit arises because Urquhart and Nye had separately been involved in a series of accidents that left them with injuries still existing at the time of the May 2012 accident.

Mr. Urquhart and Mr. Nye filed an action in tort against Mr. Spencer, Sysco Food Services of New Orleans and Zurich American Insurance Company in January 2015 for this accident. Mr. Urquhart’s sons testified that he became a “couch potato” after the May 2012 accident and suffered on-going effects from the accident until his death. Mr. Nye’s sons also testified to his fitness and activities and stated that he had planned to go back to work prior to the accident. Mr. Nye’s neurosurgeon, a vocational rehabilitation expert, testified to the grievous effects the accident has on his health while his expert economist testified that his injuries and inability to return to work would result in his loss of wages and capacity to earn wages. Mr. Nye’s chiropractor also testified that the accident caused the most neurological damage to his lumbar spine.

February 17, 2020

Dismissal of Former Police Officer’s Lawsuit is Affirmed for No Cause of Action

by Berniard Law Firm

police-men-with-a-group-of-people-in-a-rally-2834169-684x1024 Courts are often overflowing with frivolous lawsuits. In order to remedy this, defendants can file an exception for no right of action. If granted, the lawsuit is dismissed because the plaintiff cannot prove any facts that would support the claim.

Emanuel Smith III worked as a police officer for a housing agency in New Orleans, before being terminated by his supervisor for sleeping while on duty. Prior to his termination, Mr. Smith alleges that Silas Phipps, Jr. received information about Mr. Smith illegally from a information center for crimes and that Mr. Phipps distributed the information to coworkers, causing Mr. Smith to suffer from various injuries, including shame and humiliation. Because of this, Mr. Smith filed a complaint before his termination.

Because Mr. Smith filed a formal complaint, he brought a lawsuit against HANO (the housing agency), his supervisors, Messrs. Anderson and Fortner, and Mr. Phipps, asserting that his action constituted whistleblowing and thus that he was terminated wrongfully. The defendants filed peremptory exceptions of no right of action. The trial court then granted the exception for not having a right to action, dismissing Mr. Smith’s claims. Mr. Smith appealed to the Fourth Circuit Court of Appeals, arguing that the trial court granted the Defendants’ exceptions in error.

February 16, 2020

Louisiana Supermarket Held Liable for Human Fingernail in Buffet

by Berniard Law Firm

assorted-cooked-foods-inside-food-warmers-2291367-1024x683 How often do you go through the buffet line at your local supermarket? Next time, you might want to think twice before digging in to your lunch.

On June 14, 2014, Cynthia Small entered Rouse’s Market hoping to enjoy a meal there. After purchasing items of prepared food from Rouse’s buffet, Ms. Small tried to enjoy her meal, but instead found a human fingernail hidden within. Ms. Small then brought a lawsuit against Rouse, claiming that she suffered from nausea, vomiting, and mental anguish on account of Rouse’s negligence. The lower court held a bench trial, which determined that Rouse’s was at fault. The court also awarded damages to Ms. Small in the amount of $2,500.00. Rouse’s appealed that decision to the Fourth Circuit Court of Appeals, arguing that the trial court erred.

The Supreme Court of Louisiana has held in cases similar to this that an analysis looking to risk and duty should be applied. The Court stated that a food provider owes a duty of care to behave like a reasonable person who is knowledgeable about cooking and preparing food. Porteous v. St. Ann’s Cafe & Deli, 713 So.2d 454, 457 (La. 1998). On appeal, the Court must determine if the lower court erred by finding that Rouse’s breached this duty of care.

February 15, 2020

Florida Boulevard Car Accident Injury Claims Reinstated After Appeal of Summary Judgment

by Berniard Law Firm

Summary judgments are a common tool in litigation to not only expedite the drawn out trial process, but they can also be used to cut down on the cost of a lawsuit. Yet, there are different standards about what kinds of documents can and cannot be considered when a party makes a motion for summary judgment. For two Baton Rouge individuals, their claims against an insurance company survived because of this technicality.

In June 2015, Brenda Jones was driving with her step-son, Mario Jones, Jr., when she stopped at an intersection on Florida Boulevard. Her car was rear-ended by Mr. Jason Anderson, a driver in another vehicle. After the accident, Mr. and Ms. Jones both sued Mr. Anderson for damages arising from the accident. GoAuto Insurance Company (GoAuto), Mr. Anderson’s car insurance provider, was also included in the lawsuit. In response to the lawsuit, GoAuto filed a motion for summary judgment and sought to have the claims against them dismissed. GoAuto claimed that Mr. Anderson’s car insurance had been cancelled in May 2015, a month prior to the accident, because Mr. Anderson had failed to pay for his insurance. Because of this, GoAuto said that it should not be liable since it was not Mr. Anderson’s car insurer when the car accident occurred.

Further, GoAuto claimed that Mr. Anderson’s insurance was financed through an insurance premium finance agreement between Mr. Anderson and Auto Premium Assistance Company (APAC). To support their claim, GoAuto provided the court with several documents, including affidavits by the company’s operations manager, Mr. Anderson’s insurance finance agreement, and email notices that were sent to Mr. Anderson informing him his insurance would be cancelled. In August 2016, the Nineteenth Judicial District Court granted GoAuto’s summary judgment, finding that GoAuto correctly cancelled Mr. Anderson’s insurance after he failed to pay and affirming that he did not have insurance when the accident occurred. Additionally, the trial court found that GoAuto did not have a legal duty to give Mr. Anderson a defense in the still-pending case against him. Mr. and Ms. Jones appealed.

February 14, 2020

St. Mary Parish Crossing Guard Conspiracy Allegations Thrown Out Because of Issue Preclusion

by Berniard Law Firm

multi-drug-screen-test-and-kit-boxes-3474084-1024x696 On TV, lawyers are often shown dramatically acting out speeches in courtrooms and confronting witnesses. Those litigators do often have to speak and cross examine individuals, but in reality, much of an attorney’s role is to make sure the procedural and pleading aspects of a lawsuit are done correctly. Some of this procedure is based on a strategy of knowing what court to file a claim in in order to gain the best opportunity for recovery for your client. A St. Mary Parish School crossing guard’s lawsuit was dismissed when the court found that he had already filed an identical claim which had been dismissed.

Belva Webb, a school crossing guard, was instructed by St. Mary Parish School District to complete a drug screening test. This request came after parents complained to the school district that Webb seemed “unstable” when completing his crossing guard duties. The notice of this request came on February 17, 2012, and on February 23, Webb was told that the results of the test showed his prescription medication was “safety sensitive,” so he should not be working while on these medications. Due to the results of the test, the school district informed Webb that he should not come back to work unless he was contacted to do so.

Webb and his wife brought a lawsuit in federal court against several parties and alleging a violation of his constitutional rights, and that the various defendants had conspired to have Webb fired. All defendants filed a motion to dismiss Webb’s claims, which the federal court granted on the grounds that Webb failed to state a plausible claim for relief under 42 USC §§1983, 1985, and 1986.

February 13, 2020

East Baton Rouge Worker’s Claim Upheld after LA Workforce Commission Fails to Pay His Wages

by Berniard Law Firm

abundance-bank-banking-banknotes-259027-1024x683 Perhaps one of the biggest myths about the law is that you can bring a lawsuit anywhere about anything. In reality, a court must have jurisdiction in order to hear a case. Jurisdiction is the power of a legal body to make binding decisions over the people involved. In addition to having jurisdiction over the parties to the case, the court must also have subject matter jurisdiction. Subject matter jurisdiction is the ability for a court to hear the type of lawsuit brought to it. As one East Baton Rouge man found out, contesting a court’s subject matter jurisdiction can cause quite a headache.

Carey Holliday brought a lawsuit against the Louisiana Workforce Commission (“LWC”) in December 2015 for wages allegedly unpaid. Specifically, Holliday claimed that he deserved $5,868.34 of “premium pay” for performing administrative work which he was not paid for.

LWC claimed in response that the Civil Service Commission never authorized the premium pay and, therefore, they are not required to pay Holliday. LWC stated that premium pay approvals are under the Louisiana State Civil Service Commission’s exclusive jurisdiction and that there was no subject matter jurisdiction of the district court to hear the case. Further, LWC claimed that Louisiana Wage Payment Act, which Holliday had filed his claims under, did not apply.

February 12, 2020

Introduction of Hand-Drawn Diagram as Evidence Okay in Car Accident Case

by Berniard Law Firm

photo-of-broken-red-car-on-grass-3368844-1024x768 Car accidents are often difficult to sort out. Blame is not always easy to establish, and conflicting evidence is often prevalent. Good lawyers and judges are then called in to try to accurately present the evidence to a jury so that the jury can apportion blame to the proper parties. Such a seemingly confusing situation occurred in Baton Rouge, Louisiana when a Swiss tourist, Patrick Gisler, was driving a rental car and collided with a car driven by Lance Boudreaux.

Brian Ross Richard, a passenger in Mr. Boudreaux’s car, was severely injured and subsequently brought a lawsuit for his injuries against both Mr. Gisler and Mr. Boudreaux and their insurers. The jury found that Mr. Boudreaux was 100% at fault and awarded damages based on that finding. Mr. Boudreaux’s insurer, USAA, appealed, arguing principally that the court erred in allowing a certain piece of evidence, and testimony about that evidence, into the trial. That piece of evidence challenged was a hand-drawn diagram by Mr. Boudreaux purporting to demonstrate his view of the accident. The Louisiana First Circuit Court of Appeal, however, did not find any error with regard to the admittance of that evidence and affirmed the trial court’s verdict.

This case centered around the two parties’ conflicting accounts of the accident. Mr. Boudreaux was exiting a parking lot and making a left turn onto Highland Road in Baton Rouge when he collided with Mr. Gisler who was already on that road and traveling in the opposite direction. Mr. Gisler had been merging into the left hand turning lane at the time of the accident. The vehicles collided head-on. Mr. Richard supported Mr. Boudreaux in arguing that Mr. Gisler was at fault for the accident. Both parties argued their case to the jury, who weighed the evidence and concluded that Mr. Boudreaux was 100% at fault for the collision. Part of the evidentiary display was a hand-drawn diagram created by Mr. Boudreaux during his deposition. The diagram was accompanied by a photograph of the location where the accident took place and was purported to show Mr. Boudreaux’s account of the collision. The diagram was admittedly not to scale, and Mr. Boudreaux testified as much at the trial. Nevertheless, following the verdict against Mr. Boudreaux and USAA, USAA appealed, with its principle argument centering around this diagram. USAA argued that the diagram was misleading and had no value. It argued that it should not have been admitted into evidence and only served to confuse the jury. USAA argued that this confusing diagram was the only reason for the verdict, which it felt was inconsistent with the bulk of the evidence. Thus, USAA demanded a new trial or a judgment notwithstanding the verdict (JNOV).