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49-Email-06-24-19-pictureUPDATE:

The following case is no longer good law. For the current law on this matter see, https://www.insurancedisputelawyerblog.com/ choice-in-pharmacy-for-a-work-related-injury-belongs-to-the-employer

If you suffer an injury on the job, you will likely face a mess of medical bills. The last thing you want to think about is how you are going to pay for the expenses, including prescription medications. Although navigating the Louisiana workers’ compensation system can prove challenging and frustrating, it is essential that you understand its nuances in order to ensure you are reimbursed for your expenses. 

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40-Email-06-24-19-pictureDetermining liability in any car accident is frequently a challenging endeavor. This is especially true if one of the vehicles is owned by a city, but a state employee was driving the vehicle. In one such case involving the City of DeRidder, Louisiana, numerous questions arose about who was the liable party after a car accident resulted in multiple injuries. 

Joseph Tatney was an inmate at the Vernon Parish Detention Center. Tatney was being transported as part of an Interagency Agreement between the State of Louisiana and the City of DeRidder, which required the City of DeRidder to provide vehicles to transport inmates to sites for labor. During this trip, Tatney injured his back and neck when the transportation van got into an automobile accident. The van was owned by the City of DeRidder and driven by a Louisiana state employee. 

Tatney first filed a lawsuit against the City of DeRidder, the sheriff of the Vernon Parish Detention Center, and the state employee driving the van at the time of the accident. He subsequently added the State of Louisiana into his claim. The City of DeRidder filed a motion for summary judgment, arguing that under the terms of the agreement, the state was liable for its employees’ negligent acts. Neither the state or Tatney opposed the motion for summary judgment. Thus, the trial court granted the motion. 

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nrd-D6Tu_L3chLE-unsplash-1024x768Going to the grocery store is a frequent occurrence for most of us. However, most people are probably not aware of when a grocery store can be held liable for selling unsuitable products. 

On February 15, 2013, Elton Simmons purchased a package of fruit cups from Brookshire Grocery, a Shreveport grocery store. That night Simmons ate a fruit cup, and woke up the next morning with stomach pain. At this point he ate another one to “settle his stomach.” At around 7:00 a.m. Simmons opened the rest of the fruit cups and noticed they had mold growing inside of them.

In the initial trial, Simmons alleged negligence for “(a) selling products that were unfit to eat, (b) not ensuring that all products were fit for their purpose, (c) not preventing the sale of dangerous products, and (d) other acts of negligence.”

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martha-dominguez-de-gouveia-nMyM7fxpokE-unsplash-1024x697Navigating any lawsuit can be challenging, especially when the initial trial gives rise to complicated appeals. In this instance, the plaintiff was left wondering how jury instruction impacted her medical malpractice lawsuit. 

Mrs. Sherry Wedgeworth filed a medical malpractice lawsuit against Dr. Tynes Mixon, an ear, nose, and throat (ENT) physician. Mrs. Wedgeworth start seeing Dr. Mixon in 2006 for recurring sinus infections. Dr. Mixon performed sinus surgery in 2009 and then a revision sinus surgery three years later in 2012. After this surgery, a pathologist examined the tissue that was removed and found a fragment of brain tissue. Dr. Mixon immediately advised Mrs. Wedgeworth and advised her to go to the hospital for a C.T. scan because of the risk for infection. Mrs. Wedgeworth declined this advice, but went to see Dr. Mixon the next day, where she again turned down hospital admission and a C.T. scan. Three days later, she was hospitalized, and another three days later she began to show symptoms of a brain infection. Mrs. Wedgeworth and her husband, Mr. Wedgeworth, then filed a malpractice claim.

The initial medical review panel held for Dr. Mixon. The Wedgeworths then petitioned for damages, claiming loss of consortium, services, and society. A civil jury ruled in favor of Dr. Mixon, dismissing all claims. The Wedgeworths filed a Motion for Judgment Notwithstanding Verdict or Alternatively New Trial. The trial court denied these motions, and the Wedgeworths appealed. The issues for the appellate court were whether the trial court erred by not instructing the jury that negligence equals malpractice and by improperly denying a new trial. 

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retro-clock-1422611-1024x919If you are injured and think another party might be at fault, it is important to contact an attorney as soon as possible. If you wait too long, your claim, and any chance of recovering damages could expire, leaving you with little recourse against the responsible party. In the law, this is referred to as prescription, and different claims have different time periods before they prescribe, i.e., expire. In Louisiana, the doctrine of prescription protects defendants from having to defend against stale claims by requiring plaintiffs to file suit in a court of competent jurisdiction and venue within a specified time period and to pursue that suit in a timely manner. There are additional rules determining what actions serve to interrupt the running of prescription, but generally, prescription begins to run from the day damage is sustained, La. C.C. art. 3492, and prescription can be interrupted by commencing an action against the other party in a court that has jurisdiction and where venue is proper. La. C.C. art. 3462. However, as with most everything in the law, there are some nuisances and exceptions to these rules.

The importance of proper and timely filing of a lawsuit is illustrated in Lee v. RTA, where a streetcar passenger was injured when the streetcar had to aggressively brake to avoid a car turning in front of it on Canal St. Although the plaintiff filed his claim before the prescriptive period ended, he filed the claim in First City Court, which lacks jurisdiction over the RTA as a political subdivision. Instead, the claim should have instead been filed in the Orleans Parish Civil District Court. The law states that when a claim is filed in an improper court, prescription is interrupted only by actual service of process within the prescriptive period. La. C.C. art. 3462. Service of process is procedure by which a party is informed of the lawsuit against them. In this case, the plaintiff’s claims had a prescriptive period of one year. By failing to properly serve the defendant within one year, and since his claim was not brought in a proper court, the plaintiff’s claims were dismissed with prejudice after being transferred to the proper court. This means that the plaintiff will have no opportunity to fix his mistakes and attempt to bring the claim again. The trial court’s dismissal was upheld on appeal. If he had originally filled his claim in the correct court, or made timely service on the defendant, his claims would have been able to proceed. This highlights the importance of not only prompt action in choosing an attorney when you have been injured, but also choosing an experienced and reputable firm. 

Additional Sources: Lee v. Regional Transit Authority of New Orleans

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41-Email-05-22-19-1024x772In deciding whether to dismiss a specific case, the Appellate Court should consider many factors. Among them are subject matter jurisdiction and statutory of limitation. The claims might be dismissed if they are filed to a wrong court which does not have the legal power to adjudicate on this case, or if they are filed too late (peremption) because laws encourage people to file a lawsuit timely. 

In 1996, Leonard Bracken (“Bracken”) exposed himself to sulfur mustard, widely known as mustard gas, at a facility which was owned by Georgia Gulf Corporation in Plaquemine, Louisiana. Bracken agreed to a global settlement. On October 27, 1999, a workers’ compensation judge (“WCJ”) approved the settlement. Bracken alleged that when he signed on the settlement, he had no idea that the settlement would deprive his right to file any workers’ compensation claims in the future and this is because his former attorney deliberately misled him. On February 2, 2015, Bracken filed a petition in the Nineteenth Judicial District Court (“19th JDC”),  seeking to vacate the WCJ’s approval of the settlement and grant his right to file any workers’ compensation claims arising from the bad accident in 1996, because this is a judgment obtained by fraud or ill practice. Bracken listed various parties as defendants, e.g. Georgia Gulf Corporation and Worker Compensation Tribunal. In response, defendants timely filed exceptions raising the objections of, among other things, lack of subject matter jurisdiction, prescription/peremption and sanctions. On June 1, 2015, after a hearing was held, the 19th JDC held that all the exceptions were sustained and Bracken’s petition was dismissed. Then the 19th JDC dismissed Bracken’s motion for a new trial but granted Bracken a devolutive appeal (in which the appellate courts can determine on some issues while the trial court continue on other issues, rather than suspend).

The jurisdiction of the subject matter is a court’s legal authority and power to hear, analyze and make judgment regarding a particular class of cases. La. C.C.P. art. 2. Even if both parties reach an agreement to give a court the legal power to hear their case, this agreement is not valid at all. A judgment by a court which has no power to hear a case is not valid. La. C.C.P. art. 3. To invalidate a judgment which is reached by ill practice or fraud, the case should be filed to the court which made that judgment. Bracken’s settlement was approved by the Office of Workers’ Compensation Administration (“OWCA”), not 19th JDC, so Bracken should file this lawsuit to OWCA. In addition, all claims which arises from the Louisiana Workers’ Compensation Law may be filed to OWCA, since WCJ have the exclusive and original jurisdiction. La. R.S. 23:1310.3(F). 

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69-Email-05-22-19-picture-1024x683Insurance policies are often complex and difficult to understand. However, especially when an insurance policy is at issue in a lawsuit, it is essential that you fully read and understand what the insurance policy covers in order to maximize your chance of recovery success, as well as understand the principles that courts use in interpreting policy provisions.

In September 2014, Peyton Wilt was tragically killed when he was riding in a gyrocopter, an experimental amateur-built aircraft, piloted by Darren Mahler. Lindsey King, the mother of Peyton, brought a claim individually and behalf of Wilt, against Mahler’s insurance company, Old Republic Insurance Company. King alleged that the Mahler’s pilot insurance policy covered the bodily injury and property damage resulting from the crash.

Old Republic filed a motion for summary judgment, arguing that its policy did not cover the gyrocopter’s flight or crash, or Peyton’s death. Old Republic pointed to the declarations section of the insurance policy, which listed a 1973 Piper PA-28-140 fixed wing aircraft, not the gyrocopter involved in the crash. King countered that the policy covered “any aircraft” “used by the named insured” which was not described in Item 5 of the Declarations. In response, Old Republic argued that King’s argument would lead to absurd results because it would provide coverage for any aircraft that Mahler used, without consideration of its ownership airworthiness, certification, weight, or seating capacity. The New Orleans Parish Civil District Court found in favor of Old Republic, dismissing all claims against Old Republic with prejudice (meaning the claims could not be filed again). King appealed this finding.

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68-Email-05-22-19-picture-1024x683Often workers’ compensation claims focus on the nature of the injury that one argues makes them eligible to receive workers’ compensation benefits. However, in situations where there is more ambiguity surrounding one’s employment status, there can be an additional difficulty in determining if one’s employment classification makes one eligible to receive workers’ compensation benefits.

Filiberto Serna, Jr. (“Decedent”) died in a construction accident in September 2013 while attempting to move multiple trailers located at a United States Navy facility in Belle Chasse, Louisiana. When the accident occurred, the Decedent was being paid by Filser Construction, a subcontractor of Aries Building Services, Inc. The Decedent’s wife and minor child brought a workers’ compensation case against Aries, but the Office of Workers’ Compensation (“OWC”) found in favor of Aries. Specifically, the OWC found that there was insufficient proof of an employee-employer relationship with Filser such that Aries was the Decedent’s employer. OWC also found that the Decedent was a partner of Filser. The wife and child appealed.

On appeal to the Fourth Circuit Court of Appeal, the first issue was whether the Decedent was a business partner of Filser or an employee under the Louisiana Workers’ Compensation Act. In the context of workers’ compensation, an injured worker is considered a business partner when he or she shares in the profit or loss of the partnership. However, a partner can still be considered an employee of a partnership to which he belongs.

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7-Email-05-22-19-picture-1024x668Timing is everything, especially when it comes to lawsuits. If you delay too long in filing a medical malpractice lawsuit, then you – like Mr. Verbois – may be unable to recover for the alleged negligent acts.

In May 2011, Dr. Jonathan Taylor operated on Mr. David Verbois to repair a hernia resulting from an earlier coronary bypass surgery. After the surgery, Verbois experienced adverse symptoms including fever, vomiting, and abdominal pain. Verbois was readmitted to the hospital. In October 2011, Dr. Taylor removed Verbois’ gallbladder, and in December 2011, Dr. Taylor performed a third surgery on Verbois after a CT scan showed that there was a perforation in his stomach by the gastric sleeve he received during a gastric bypass surgery performed by a different doctor in 2009. Verbois was hospitalized again in January 2012. In March 2012, Verbois visited Dr. Taylor for the last time and terminated his services. Thereafter, Verbois returned to the doctor who had previously performed the gastric bypass. The old doctor removed Verbois’ entire stomach in September 2012.

On July 26, 2013, Verbois filed a complaint with the Division of Administration alleging malpractice against Dr. Taylor from May 2011 until March 2012. Verbois requested a medical review panel (“MRP” to review his claims against Dr. Taylor.

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3-Email-05-14-1024x683In the legal world, establishing fault and determining liability is not always easy. In some situations, it may seem clear who is responsible for recovery, but in other cases the situation can become much more difficult than it initially seemed. This issue was explored after an automobile accident in Acadia Parish.

In the morning of December 16, 2011, Ronnie Myers was driving through heavy fog and headed north on Charlene Road. He came to a “T” intersection where Charlene Road met Prudhomme Road (Louisiana Highway 95) but the intersection’s stop sign was twisted and down so that Myers could not see it. Myers was also unfamiliar with the road, and resultantly drove his car across Prudhomme Road and into a ditch, causing injuries to himself and damage to his vehicle. On December 11, 2012, Myers filed a lawsuit in Fifteenth Judicial District Court for the Parish of Acadia against the Acadia Parish Police Jury (APPJ) and the State of Louisiana through the Department of Transportation and Development (DOTD), wanting personal injury and property damages. He claimed that APPJ and DOTD were responsible for the improper state of the stop sign at the intersection.

Nearly three years after Myers’s accident, APPJ and DOTD filed motions for summary judgment, asking for judgment as a matter of law rather than on the merits. A hearing was held on January 12, 2015, and the District Court granted the motions, finding that APPJ did not have custody and control of the stop sign and was not notified of the sign’s defective state. While DOTD was responsible for the stop sign, the District Court held that it also did not have notice of the sign’s problem. Both DOTD and APPJ were dismissed from the lawsuit. Myers appealed.

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