Louisiana Personal Injury Lawyer Blog

December 23, 2019

Recovering Damages Against Louisiana’s DOTD for Unsafe Infrastructure

The Louisiana Department of Transportation and Development (“DOTD”) has a duty to maintain safe and accessible transportation infrastructure for the state. One might think that because the DOTD is such a large entity, no damages could be recovered from an accident due to unsafe conditions on transportation infrastructure. However, it is possible for a plaintiff to recover damages against the DOTD.

On April 24, 2014, Antonio White (“Plaintiff”) was working at night with a crew painting lane strips on the road. He was operating a crash attenuator truck when he was struck from behind by an 18-wheel tractor trailer driven by David Hornak (“Defendant”), who was operating the trailer as an employee of J.I.T. Distributing, LLC (“J.I.T.”). The Plaintiff suffered injuries from the accident and filed suit against multiple parties, including the defendant, J.I.T., and the DOTD.

At the trial court level, DOTD filed a motion for summary judgment stating the reason for the accident was the Defendant had fallen asleep at the wheel. DOTD argued they could have done nothing else to prevent the accident from happening. The trial court found that the cause of the accident was solely due to the Defendant and J.I.T. and granted DOTD’s motion for summary judgment. DOTD was dismissed from the case with prejudice, and the Plaintiff appealed.

December 22, 2019

How Do You Determine Who Is At Fault in Louisiana Car Accident Cases?

by Berniard Law Firm

blur-car-cars-163945-1024x683 Determining who is at fault in an accident is difficult, as everyone wants somebody to blame. Sometimes, the answer is not so crystal clear. Often, more than one person is to blame. When a court has to determine and assign fault to multiple parties in a car accident, it is using a theory known as comparative negligence to make the determination.

In a recent Louisiana case, a father and son (“Plaintiffs”) were struck in the back by the defendant in Baker, Louisiana. Plaintiffs filed two lawsuits for the injuries sustained in the car accident; one against the defendant and one against the defendant’s insurance company. The plaintiffs claimed that the defendant was intoxicated at the time of the crash and requested punitive or exemplary damages pursuant to La. C.C. art. 2315.4, which allows recovery for additional damages if the defendant is intoxicated. The trial court order dismissed the Plaintiffs’ claims for punitive or exemplary damages against the insurance company because the insurance contract absolved the company of responsibility for the additional damages. The trial court held that Plaintiff (father) was 5% at fault and the defendant was 95% at fault, and it awarded the Plaintiffs with a total sum of $206,755.80. The defendant appealed the judgment.

The defendant argued that the Plaintiffs should have been assigned a higher percentage of comparative fault. In deciding comparative fault, the judge or jury must consider each party’s wrongful actions and the scope of the causal relationship between the conduct and the damages claimed. Townes v. Liberty Mut. Ins. Co., 41 So.3d 520, 529 (La. Ct. App. 2010) (citing Watson v. State Farm Fire & Cas. Ins. Co., 469 So.2d 967, 974 (La. 1985)). According to Townes, the court must look at: “(1) whether the conduct resulted from inadvertence or involved an awareness of the danger; (2) how great a risk was created by the conduct; (3) the significance of what was sought by the conduct; (4) the capacities of the actor, whether superior or inferior; and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought.”

December 21, 2019

What Happens When A Car Accident Aggravates a Pre-Existing Injury?

by Berniard Law Firm

pexels-photo-1028742 Sometimes, car accidents happen. Someone speeds, gets distracted, or makes a mistake that causes an accident. Crashes can be unexpected. No one gets to decide what time of day it happens, where it happens, or who gets injured. Instead, you have to take the whole situation as it is.

Jay Schwartzberg (“Plaintiff”) was a 23-year-old law student on April 25, 2013 when the driver of an armored van failed to yield to Schwartzberg’s vehicle and caused a collision in East Baton Rouge, Louisiana. Prior to the accident, Schwartzberg suffered from a bulging of the C3-C4 and C6-C7 intervertebral discs and chronic neck pain. In the lawsuit, he argued that the collision on April 25, 2013 exacerbated these previous injuries. Schwartzberg filed against the defendants seeking damages for his neck injury due to the collision. The trial court awarded Schwartzberg $49,999.99 worth of damages, plus legal fees.

Miller Guillory and his employer, Garda CL Southeast, Inc. (collectively “Defendants”) appealed the trial court’s award for two reasons. First, the Defendants argued that the trial court erred in finding that the collision caused an aggravation to the Plaintiff’s pre-existing neck injury. Second, the defendants argue that the trial court erred in the amount of damages awarded because the court relied on Schwartzberg’s expert witness that was contradictory to the medical records and other evidence admitted at trial.

December 20, 2019

Insurance Company Not Responsible for Pedestrian Hit by Motor Vehicle in Lafayette Area

by Berniard Law Firm

car-buying-car-dealership-car-key-97079-1024x683 Every adult has had to deal with some type of insurance in their life, whether it be home, auto, or life insurance. When it comes to car insurances, there are numerous different types of policies, and, in some situations, automobiles are covered by personal umbrella policies. Similar to any other contract, an insurance policy is a contract between the insurance company and the insured and must be interpreted using the general rules set forth in the Louisiana Civil Code. Reynolds v. Select Properties, Ltd., 634 So.2d 1180, 1183 (La. 1994). When the language of a policy is clear and unambiguous, the policy must be enforced as written, but the determination of whether a contract is unambiguous is a question of law. La. C.C. art. 2046.

In this case, Michael Rodriguez (“Rodriguez”) was driving a 2006 Toyota Tundra (“Tundra”) owned by Rodriguez Crop Consulting, LLC (“RCC”) and insured by Louisiana Farm Bureau Mutual Insurance Company (“Mutual Insurance”) when he struck Marcella Hurst (“Hurst”). Hurst was walking across a parking lot at L.A. Express when she was struck by Rodriguez’s vehicle. In February 2013, Hurst filed a lawsuit against Rodriguez, RCC, and the car insurers. Additionally, Rodriguez asserted that his claim for excess coverage under the umbrella policy was wrongfully denied, and that if the umbrella policy does not cover, then Blane Brignac (“Brignac”) and Kerney Trahan (“Trahan”), employees of Mutual Insurance, were liable because they held that the umbrella policy would provide full protection regardless of whether the vehicle was being used for personal or business reasons.

The Louisiana First Circuit Court of Appeal affirmed the trial court’s holding that the insurance companies were in the right when they denied Rodriguez’s claim for excess coverage under the umbrella policy. The Court of Appeal agreed the policy was not ambiguous and should be enforced as written. Under the policy, the Tundra falls squarely within the scope of a “regular use exclusion” included in the contract. Thus, the trial court correctly held that the car was not covered by the umbrella policy.

December 19, 2019

Appellate Court Upholds Finding that Accident Did Not Cause Employee’s Injuries

by Berniard Law Firm

clouds-crane-drill-414936-1024x384 Everyone gets injured, but what happens when you are injured on the job and had been in an accident in the past? Does the court take that into consideration if you file a lawsuit, or does the court presume an accident was work-related? In one local case, the workers’ compensation judge found that the injury at issue was not caused by the work accident. The injured party, Todd Porche (“Porche”), appealed this determination.

Generally, when reviewing workers’ compensation cases, the appellate court must determine whether the commission’s conclusions are reasonable using the clearly wrong standard. Richardson v. North Oaks, 91 So.3d 361, 365 (La. App. 2012). If there are two acceptable views of the evidence, the fact finder’s decision may not be found manifestly erroneous, or clearly wrong. Here, Porche alleged that the workers’ compensation judge erred in denying the reopening of the case, which is within the discretion of the court. Reopening the case would have allowed Porche to prove causation.

On September 11, 2013, Todd Porche (“Porche”) was working for Guichard Operating Co., LLC (“Guichard”) when he fell between eight to fourteen feet onto a steel rig floor, where he allegedly injured his back and head. As a result, Porche received workers’ compensation benefits from the date of the accident through March 13, 2014. When Guichard terminated Porche’s benefits, the company alleged that Porche violated La. R.S. 23:1208 and 23:1208.1. If true, it would mean Porche forfeited all benefits and would owe the company restitution, interest, and costs. After a four-day trial, the workers’ compensation judge denied Porche’s claims.

December 18, 2019

Blue Cliff College Overcomes Claim of Racial Discrimination

by Berniard Law Firm

auditorium-benches-chairs-207691-1024x731 Generally, terminating an employee on the basis of race is a violation of the Louisiana Employment Discrimination Law, which is similar to Title VII of the Civil Rights Act of 1964. La. R.S.23:301; 42 U.S.C.A. § 2000. Generally, to establish a case of racial discrimination under the Louisiana Employment Discrimination Law, the plaintiff must show that: (1) she belongs to a protected group; (2) she had appropriate qualification for the position; (3) she suffered an adverse employment action; and (4) she was replaced by someone not in her protected group. Mbarika v. Board of Sup’rs of Louisiana State University, 992 So.2d 551, 562 (La. Ct. App. 2008).

In this case, three employees of Education Management, Inc. d/b/a Blue Cliff College (“Blue Cliff”) filed a lawsuit alleging that they were fired due to being Caucasian. On November 7, 2008, a customer at Blue Cliff’s cosmetology school’s beauty salon made a comment regarding recently elected President Barack Obama, which caused a disruption in the salon. Two Blue Cliff employees, Nedina Chaisson (“Chaisson”) and Melissa Shapcotte (“Shapcotte”), were working with the students in the salon when the incident occurred. Joe Rogalski (“Rogalski”) subsequently expelled four African American students who were involved in the November 7th incident. Shortly after the four students were expelled, they were reinstated by Blue Cliff, and Chaisson, Shapcotte and Rogalski were discharged for “inappropriate professional behavior” and mishandling the November 7th incident.

In the lawsuit, the trial court granted summary judgment in favor of Blue Cliff, dismissing all of the plaintiffs’ claims with prejudice. The plaintiffs appealed, arguing that the trial court erred in admitting the affidavit of Reginald L. Moore, the president and CEO of Blue Cliff. The plaintiffs claimed that this affidavit was improper, as it contained 12 unverified, unsworn witness statements. Generally, an affidavit may be challenged via a motion to strike.

December 17, 2019

Medical Malpractice Alleged after East Baton Rouge Hospital Patient Dropped on Floor During CT Scan

by Berniard Law Firm

Medical malpractice lawsuits concern a wide range of different types of injuries and even death. This Louisiana case involved a claim brought by a woman who believed that the hospital and its staff acted negligently, causing her to suffer a compression fracture of the lumbar spine. Both the district court and the appellate court ruled in favor of the hospital, finding that no medical malpractice had occurred because the women failed to provide enough evidence to prove that the hospital or the hospital staff acted negligently and breached the standard of care.

On December 2011, Jane H. Clattenberg was admitted into Our Lady of the Lake Regional Medical Center in Baton Rouge, Louisiana, because of her heart condition. During Clattenberg’s time at the hospital, she did not suffer a compression fracture of the lumbar spine. During an ordered CT scan, a hospital assistant dropped Clattenberg when they attempted to transport her from the stretcher to the CT scan table. Clattenberg alleged that the hospital assistant breached its standard of care when they were transporting her because the drop fractured her spine. The drop caused Clattenberg to extend her hospital stay along with pervasive mental and physical pain and suffering. After Clattenberg was discharged, she continued to suffer mental and physical pain and suffering. Clattenberg’s husband also claimed loss of consortium because of the hospital’s negligence.

Clattenberg brought a lawsuit against the hospital, alleging malpractice. The Medical Review Panel (“MRP”) did not find anything in the record that indicated that the hospital staff breached their standard of care when they transported Clattenberg to the CT scan table. Though MRP was doubtful of Clattenberg’s allegations, they concluded that even if Clattenberg’s statements were true, it is unlikely that the drop caused her spinal compression fracture.

December 16, 2019

Tulane University Student Lawsuit About Dorm Room Incident Remanded Back to Trial Court

by Berniard Law Firm

A 2016 case demonstrated the importance of making sure our universities remain safe and secure. While one would like to think our schools would be free from the dangers of larger society, Tulane learned the necessity of vigilance.

While a student at Tulane University, the Plaintiff, Stephanie Boyd, shared a dorm suite with shared bathroom. One of her suitemates guests, Defendant Andrew Cebalo, took advantage of the shared bathroom to sneak into Stephanie’s bedroom at night and molest her.

In the initial trial, Ms. Boyd alleged Tulane University was negligent for failing to properly secure the premises, provide safe housing, and comply with industry standards regarding door locks and security. In response, Tulane filed an exception of no cause of action. Boyd filed an opposition to the exception of no cause of action, and an amended and supplemental petition alleging a failure to implement measures protecting students from foreseeable criminal harm. The trial court sided with Tulane, and dismissed the case with prejudice (meaning the lawsuit could not be filed again in the future).

December 15, 2019

$13.4 Million Jefferson Davis Parish Oil Wells Lawsuit Reviewed by Louisiana Supreme Court

by Berniard Law Firm

14-1024x682 Often times during a lawsuit, cases involve a classic “battle of experts,” where each side presents an expert with an opinion which differs from their respective opponent’s side. The recent Jefferson Davis Parish case involved this exact situation.

Hayes Fund for the First United Methodist Church of Welsh, L.L.C. and other groups brought a lawsuit against a group of defendants including Kerr-McGee Rocky Mountain, LLC, alleging monetary losses which resulted from defendants’ mismanagement of two oil and gas wells in which the plaintiffs’ had royalty interests. Nevertheless, when it reached the Louisiana Supreme Court, it was mainly about the standards of appellate review.

The wells in question were both located in Jefferson Davis Parish. Plaintiffs alleged that defendants, when drilling the wells, did not follow the customary and industry-wide accepted protocols. For example, one of the well’s drill pipe was stuck, and later abandoned. Because of the remaining drill pipe, the hole could not properly be cemented, resulting in extraneous water to enter the reservoir and damage it, and causing loss of production and royalties for the plaintiffs. In another of the wells, the use of triple permanent packer caused the well to be “sanded up,” and resulted in the loss of lower zones. Overall, the alleged royalty loss of plaintiffs from both wells was $13.4 million.

December 14, 2019

Court Reinstates Public Works Director for the City of Opelousas

by Berniard Law Firm

28-Email-06_24_19-picture Can a court reinstate a former city employee’s job after being wrongly terminated? Well, fortunately for Mr. Turner, the answer is yes.

In 2003, Ron Turner began work as the Director of Public Works for the City of Opelousas. Eight years later, the Board of Alderman had a meeting, and Item 7 on the agenda was a “discussion regarding Turner’s employment.” During the meeting, Mr. Turner specified that they failed to notify him that his employment was up for discussion, and they removed the item from the agenda. Once they removed the item from the agenda, Mr. Turner left the meeting and did not stay for the rest of it.

As the meeting progressed, the board got to Item 16 of the agenda, which discussed the mayor’s appointments for 2011. The mayor presented an organizational chart that included all the departments and their appointments, and the box for Public Works had a replacement for Mr. Turner. The board approved the new appointments, and the mayor presented a termination letter to Mr. Turner.