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businessmen-shaking-hands-1240995-1024x643A non-compete agreement often takes the form of a clause in an employment contract whereby an employer seeks to restrict a former employee’s ability to compete with the employer after the employment relationship is terminated. These types of clauses are usually valid if they are reasonable in scope, time, and area and line of business. But, what happens happens when someone ignores a non-compete agreement in Louisiana?

In the present case, four investors formed a company in Shreveport, Louisiana, called Endurall, Inc. to manufacture and sell rod guides to local businesses in the oil and gas industry. The four investors signed a non-compete agreement, which stated that, if any of them were to be terminated as shareholders, they would not establish another business to compete against Endurall for at least two years after termination.

Billy Joe Edwards was terminated as a shareholder of Endurall on July 31, 2013. Less than a year after his termination from Endurall, in March 2014, Edwards and his son formed a new company, DHE, LLC in Benton, Louisiana, which posed competition for Endurall in the manufacture and sale of rod guides. As a result, several Endurall sales representatives left Endurall to work at DHE, and some of Endurall’s customers switched from Endurall products to DHE products, causing Endurall’s sales to decline.

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city-dark-dawn-248159-1024x683The state is not a guarantor of the safety of motorists using their roads, meaning you must be vigilant and careful while driving. See Thompson v. State of Louisiana, 701 So.2d 952 (La. 1997). But what happens when something falls on your car while you are driving on a public street, are you out of luck? Or is the state or owner of the fallen property potentially liable? Typically, the owner of an item (i.e., a tree) is liable for the damages caused by its “ruin, vice, or defect,” if it’s shown that they knew or should have known of the “ruin, vice, or defect” that caused the damage, and that the damage could have been prevented if the owner exercised reasonable care. La. C.C. art. 2317.1. However, if the damage is caused by “an act of God,” also known as force majeure, defined as an unusual, sudden, and unexpected force of nature, then this results in no individual being held liable for the damage caused. Brown v. Williams, 850 So.2d 1116 (La. Ct. App. 2003).

In 2007, Larry Mitchell (“Mr. Mitchell”) and a passenger were driving on Highway 80 in Ruston, Louisiana, when a large tree, estimated to be 70 feet tall, fell across the highway onto the front of Mr. Mitchell’s vehicle. The tree was near the highway but on the property of Beverly Hill-Hercules (“Ms. Hercules”). As a result of the tree falling on Mr. Mitchell’s car, he suffered severe fractures in his spine and nose and was bruised and lacerated. In fact, at the time of the trial in 2014, Mr. Mitchell was still required to wear a cervical collar for stabilization. Mr. Mitchell sought damages from Ms. Hercules, the Department of Transportation and Development (DOTD), and their insurers, alleging that the tree was sick (i.e., defective), and should have been removed prior to the accident.

At trial, DOTD and Ms. Hercules argued that the accident was “an act of God,” meaning they were not liable for the damages caused. Through testimony presented it was clear that the DOTD did not require its employees to examine all trees along the highway looking for diseased trees, rather, Tommy Lane Boddie (“Mr. Boddie”), a DOTD employee, testified that he only looked for and reported trees that were leaning and were in danger of imminently falling. Further, Ms. Herculeses’ deposition, which was read into the record, provided that it was very windy on the night of the accident and the tree was completely uprooted.

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bandage-close-up-hands-1571172-1-1024x683What happens when a verdict that the employee is entitled to Workers’ Compensation Benefits has been handed down by the Office of Workers’ Compensation, but the awarded medical benefits have not and are not being paid? Generally, an employee will move for penalties and attorney fees to be imposed on the employer or its insurer for failure to pay the benefits. Under Louisiana law, awarded medical benefits must be paid within sixty days of the employer or insurer receiving notice that the employee has been awarded medical benefits. La. R.S. 23:1201. Failure to pay the medical benefits within sixty days requires the imposition of penalties and attorney fees on the employer or insurer unless the employer or insurer reasonably controverts the employee’s claim. Id.

Vanessa Weaver (“Ms. Weaver”) was awarded supplemental earning benefits (“SEB”) after proving that she was injured at work by falling and hitting her wrist on a pipe, and that she was not able to make 90 percent of her pre-injury wage regardless of whether she was in the same or similar occupation that she had prior to her on-the-job injury. See La. R.S. 23:1221. Her employer Louisiana Wholesale Drug Company, Inc. (“LWD”) contended that the Office of Workers’ Compensation erred in awarded Ms. Weaver SEB’s. As a result, LWD failed to pay Ms. Weaver her awarded medical benefits within sixty days of LWD and its insurers being put on notice of the award.

As mentioned above, LWD may get around the requirement to pay penalties and attorneys’ fees for their failure to pay Ms. Weaver her medical benefits within sixty days, if they reasonable controvert her claim. La. R.S. 23:1201. Meaning, LWD must present sufficient factual and medical information to reasonably counter the evidence provided by Ms. Weaver. Mouton v. Walgreen Co., (La. App. Cir. 2008). LWD was able to controvert Ms. Weaver’s claim with the theory that Ms. Weaver was able to continue working at her pre-injury job, making her pre-injury salary.

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arm-bandage-hands-1409706-1024x709What happens with Workers’ Compensation Benefits when you are still able to work, but cannot make your pre-injury wage? Are you entitled to the difference in pre-injury and post-injury wages? Or are you out of luck? Supplemental earning benefits (“SEB”) are paid at two-thirds of the difference between what a person earned before their on-the-job injury and after their on the job injury, whether working or not. SEB’s are available to an individual who was injured at work and is unable to earn at least 90 percent of their pre-injury salary due to the injury. La. R.S. 23:1221.

It is uncommon for the employer, Louisiana Wholesale Drug Company, Inc. (“LWD”), in this case, to argue that the employee is not entitled to SEB’s for a multitude of reasons. Here, for example, LWD is arguing that Vanessa Weaver (“Ms. Weaver”), is not entitled to SEB’s because she voluntarily terminated her employment while LWD was accommodating Ms. Weaver’s work restrictions. Ms. Weaver, on the other hand, alleges that she terminated her employment because LWD was no longer accommodating her by requiring her to lift a box, which was against her work restrictions.

While working at LWD, a box of glass bottles began to fall, so Ms. Weaver dove to stop them from shattering, as she dove, she hit her wrist on a pipe. She went to the hospital, which noted swelling, bruising, and soreness. The doctor allowed her to return to work, but ordered restrictions, including that she was not able to use the injured part of her hand (i.e., her wrist). The injury occurred in March of 2013, and in July 2013 when she terminated her employment her wrist was still sore, and there was a palpable “click.” Further, in July 2013 her work restrictions had not been lifted. As a result, when Ms. Weaver terminated her employment, she alleged that she was entitled to SEB’s because she could not make her pre-injury salary, as LWD was no longer accommodating her injury.

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farm-track-1375641-1024x683The transfer of property can create many legal pitfalls for clients. In this case, the plaintiff, Willow Chute Farms L.L.C, (“Willow”) based in Bossier Parish, alleged that the transfer of a right of way to the defendant, George McLemore (“McLemore”), was defective. The issue arose due to a 1984 agreement from prior owners of the properties that stipulated a set boundary between the two portions of land. In this agreement was a right of way, or servitude, which permitted the defendant, Mr. McLemore, to use the plaintiff’s gravel road to access his own land. So, how can you make sure your property line and your drive way are protected?

In November 2012, the McLemore’s acquired property adjacent to Willow Chute Farms by a cash sale deed. The deed stated that the property was conveyed “together with all and singular the rights of way, servitudes, easements, appurtenants, pertaining thereunto … unto Buyer and Buyer’s heirs, successors and assigns forever.” The servitudes and rights of way to the property were described in the original 1984 deed of transfer with the specific provision that the deed “reserves unto himself, his heirs and assigns, a right of way, and or servitude, for purposes of ingress or egress across the [.31 acre triangular tract of land].”

Later in 2012 and into 2013 Willow filed two lawsuits: (1) alleging that the servitude, or right of way, had not been in use by McLemore for more than 10 years; and (2) that the property line should be adjusted to reflect the old fence line. To justify the second suit, Willow alleged that the old fence had separated the two tracks of land for more than 30 years, and its “ancestors in title maintained continuous, uninterrupted, peaceful, and public possession up to the fence line for more than 30 years.” The trial court consolidated these two cases into one.

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red-faced-ghoul-1309146-1024x681On the job injuries often present complicated healthcare-related decisions., especially when it comes to pain management. What happens when an insurer denies a successful treatment option? In the case of one Caddo Parish employee, securing effective pain management became an equally difficult encounter.  

After suffering a work-related injury, Ms. Veronica Black began experiencing chronic pain in her hands. Ms. Black sought treatment from both an orthopedic surgeon, and a pain management specialist. She was diagnosed with two disorders, chronic regional pain syndrome (CRPS) and carpal tunnel syndrome (CTS), and prescribed a powerful topical cream. Thankfully, the prescribed cream alleviated some of Ms. Black’s pain.

In spite of this solution, CenturyLink’s insurer denied the approval request that Ms. Black’s doctor filed, stating the topical cream could not be considered a medical necessity. Ms. Black filed a claim in response to the Medical Director for the Office of Workers’ Compensation Administration, disputing the insurer’s determination. On February 11, 2015, the Medical Director denied her request, citing a lack of research supporting the topical cream’s use in effective pain management. Ms. Black also filed compensation claims against CenturyLink, and its insurer, Sedgwick, soon after. These claims were similarly unsuccessful.

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no-entry-1311573-1024x768Filing dates and deadlines often add an extra layer of stress to an ongoing case. When poor health contributes to the challenges in meeting these deadlines, persistent advocacy can sometimes make up the difference. So how can being persistent help you in a workers compensation case?   

 After an unfortunate work-related accident involving an exposed electrical wire, Christopher Gilley (Mr. Gilley) initiated a disputed claim for compensation against his employer, Gilley Enterprises, Inc. (Enterprises) on September 10, 2014. Mr. Gilley suffered from numbness and regular pain in his back and neck following the incident. He continued to work for Enterprises, a company Mr. Gilley’s uncle owned, after the incident, albeit on a less regular basis, due to his condition.  

Mr. Gilley claimed entitlement to indemnity benefits, including penalties and attorneys’ fees. Enterprises asserted doubts regarding whether Mr. Gilley actually experienced an injury in the course of his employment. In response to Mr. Gilley’s amended answer, Enterprises submitted a fraud defense pursuant to La. R.S.23:1208. Enterprises not only alleged Mr. Gilley did not suffer any injuries, but that he gave false testimony as well. Overall, Enterprises’ defense cast doubt over the sincerity of Mr. Gilley’s attempt to collect benefits.

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two-ships-1449344-1024x768In almost every lawsuit, both sides present expert witnesses that have completely different views of the same situation. It is important to have an excellent attorney at trial because by the time the lawsuit is appealed, these witnesses are gone and the opinions they reached are part of the record. To overturn a trial court’s decision, an appellate court must find some glaring factual or legal error. If there are no such errors, it is very hard for the appellate court to second-guess the trial court’s decision. So, how can you prove negligence on appeal? This was the case for a Baton Rouge shipping company in their case against an insurance company.

 The Commander was a ship owned by Nature’s Way Marine. The Commander ran aground in a narrow channel owned by Crown Point Holdings. Crown Point owned two other vessels that were moored in the channel at the time, the Port Gibson and the Buccaneer. The Commander tried to get itself free from the channel and eventually succeeded. This effort was aided by Joe Dardar, Crown Point’s owner. During the process, the Commander created rough water that broke the mooring lines of the Port Gibson and the Buccaneer. It was alleged that Mr. Dardar knew that the Port Gibson had been impaled by a piece of timber during this process. The Port Gibson and the Buccaneer were both grounded on a mud bank as a result of the unmooring.

A few days after the grounding, the Port Gibson began to sink and brought the Buccaneer with it. It was eventually alleged that the Port Gibson’s hull was punctured by a large piece of timber and the timber was alleged to be from the rough water caused by the Commander when it broke free of the channel. The Port Gibson and the Buccaneer were both covered by an insurance policy issued by Osprey Underwriting Agency. Osprey paid out on the policy and the costs of salvage and damages to the vessels were covered. Osprey then brought suit against Nature’s Way for their negligence.

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the-graduate-1543243-802x1024There are many reasons why someone can be fired from a job. In order to succeed in a claim for wrongful discharge because of discrimination, a plaintiff must satisfy various elements and provide sufficient evidence.

Plaintiff-Appellant Arthur Moghalu sued his former employer, the Board of Supervisors for the University of Louisiana System for Northwestern State University (the Defendant), alleging violations of Title VII of the Civil Rights Act of 1964. Moghalu claimed that he was improperly fired from his job because of his race and national origin. At trial, the district court granted the Defendant’s Rule 50 motion for judgment as a matter of law after Moghalu presented his case. The issue on appeal was whether the district court properly granted the Defendant’s Rule 50 motion.

Moghalu applied to be an Assistant Professor of criminal justice at with Northwestern State University (NSU) in 2006. Moghalu, a dual-citizen of Nigeria and the United States, interviewed with the head of the department, Joe Morris. Under Mr. Morris’s recommendation, Moghalu was offered employment beginning in August 2006. The offer for employment provided Moghalu a contract based on a 9-month term, which was subject to annual review and potential renewal. At the time, Moghalu had achieved ABD (all but dissertation) doctoral status, which meant that he only had to complete his dissertation to reach Ph.D. status. Moghalu, based on his projections, anticipated completing that dissertation by December 2006 and represented as much to the head of the department. However, as time would tell, the projection was inaccurate, and though Moghalu continued to work on it, he did not finish the dissertation as an employee of NSU.

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ship-cranes-1238624-1024x683Insurance policy language is carefully crafted to limit the areas of coverage. A Ponchatoula area boating business tried and failed to extend their insurance policy coverage for accidents on the water to a land-based crane accident. So what happens when you try to cover a land based accident with maritime insurance? 

Larry Naquin was operating a land-based crane for Elevating Boats (EBI) when the pedestal of the crane snapped, and the crane toppled over. Mr. Naquin jumped from the crane and broke both of his feet and a suffered a lower abdominal hernia. The crane landed on another EBI employee and that employee was killed. As a result of his injuries, Mr. Naquin had several surgeries and attended physical therapy but was never able to return to physical work.

Mr. Naquin brought a lawsuit under the Jones Act. The Jones Act is a federal law that gives employees that work at sea the ability to sue their employers. At trial, the court held that Mr. Naquin was properly viewed as a Jones Act seaman and that EBI was negligent. Mr. Naquin was awarded $1,000,000 for past and future physical pain and suffering, $1,000,000 for past and future mental pain and suffering, and $400,000 for future lost wages. EBI appealed and challenged the grant of Jones Act seaman status as well as the negligence ruling. EBI lost the appeal and a portion of the verdict was vacated and sent back to the Trial Court.

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