Louisiana Personal Injury Lawyer Blog

July 3, 2019

State or Federal Court? Car Accident Victim Makes the Wrong Choice in Lawsuit Against Her Former Attorney

65-Email-3_13_19-1024x683 A common litigation tactic for plaintiffs is to bring cases in federal court to obtain greater damage awards. However, a plaintiff must have a viable claim under federal law or their case will be dismissed by the federal district court for lack of jurisdiction.

Following a car accident in which Cheryl Price was hospitalized with injuries, she hired attorney ES to represent her. ES secured a settlement for approximately $4,000 from the at-fault driver’s insurance company, the check for which ES deposited into his firm’s trust account. A lien placed by the hospital prevented ES from immediate disbursement of the money to Price. ES stated that the check included “Medicaid Recovery” as a payee, and told Price that he could not release the money until the lien issue was resolved. Price filed a complaint against ES with the Louisiana Attorney Disciplinary Board who conducted an investigation and concluded that no disciplinary action was warranted. ES’s firm eventually endorsed the check and released the money to Price.

Price then filed a pro se motion against ES, the Louisiana Attorney Disciplinary Board, the Louisiana Department of Health and Hospitals, and the Louisiana Office of Risk Management claiming violations of due process under the 14th Amendment, violations under 42 U.S.C. §§ 1983 and 1985, and violations of state law. Price sought compensatory and punitive damages. All defendants moved to dismiss her claims.

July 2, 2019

Fraud, Discovered Too Late, Cannot Reopen Settled Injury Case

by Berniard Law Firm

64-photo-3_13_19-768x1024 Worker’s compensation (WC) is a system designed to compensate workers for injuries that occur on the job. The system also helps to spread the risk of loss among numerous employers, similar to an insurance arrangement that employers pay into. Still, employers have an interest in ensuring that WC claims are valid in order to keep overall costs down. As a result, WC cases can lead to bitter disputes between workers and their employers.

Andrew Schmidt was a diver for the Cal-Dive company in Lafayette, Louisiana in 2010 when he suffered a brain injury due to decompression sickness that occurred during a work-related dive. Two years later, Schmidt filed a lawsuit against Cal-Dive alleging that the injury left him permanently disabled. He claimed that the brain injury resulted in a condition that required him to remain in a supine position nearly all the time. Cal-Dive didn’t believe Schmidt’s claim and Cal-Dive hired private investigators to surveil Schmidt for evidence that his claim was fraudulent. The observation turned up nothing favorable for challenging Schmidt’s claim. Schmidt was examined by multiple medical professionals who offered conflicting expert opinions about whether Schmidt was permanently disabled. Shortly before trial, Schmidt and Cal-Dive settled and the trial court dismissed the case.

Even though the matter was settled, Cal-Dive continued to have Schmidt followed by private investigators. The PIs discovered that Schmidt purchased a new car and was observed cutting grass, shopping, driving, and jogging. As a result, Cal-Dive filed for relief from the trial court’s order to dismiss the case under Fed. R. Civ. P. 60(d)(1) so it could amend its original complaint against Schmidt and set aside the settlement. Schmidt filed a motion to dismiss the case for failure to state a claim. See Fed. R. Civ. P. 12(b)(6). The district court denied Cal-Dive’s request to set aside the settlement and refused to permit Cal-Dive to amend the complaint, finding that it would be futile. Cal-Dive appealed.

July 1, 2019

Injured Worker Fails to Recover in Slip-and-Fall Case Due to “Open and Obvious” Defect

by Berniard Law Firm

63-photo-3_13_19-1024x683 Under Louisiana law, an owner of a building is not necessarily responsible for all injuries resulting from any risk posed by the building. Owners are only responsible for those injuries caused by defective conditions, and courts have recognized that defendants have no general duty to protect against hazards that are “open and obvious.” The logic behind this approach is that when a risk is open and obvious to everyone, the probability of injury is low. As a result, the owner of the premises is not required to go to the trouble and expense of fixing the condition that could be easily avoided by prudent persons.

In 2013, Roger Butler was working at an International Paper mill in Dequincy, Louisiana. His supervisor instructed him to clear a board jam from a chipping machine. While clearing the board jam, Butler fell down a set of stairs and suffered serious injuries. Butler brought suit against the mill claiming that the mill’s negligence caused his injuries because the stairs he fell down was covered in wood chips and other debris. The mill filed a motion for summary judgment, asserting that the wood chips and debris on the stairs were an “open and obvious” hazard against which it had no duty to protect Butler. The district court granted the mill’s motion, finding that Butler did not show there was a genuine issue of material fact concerning the mill’s duty because the hazard that caused his injuries was open and obvious. Butler appealed to the U.S. Court of Appeals for the Fifth Circuit.

For a hazard to be considered “open and obvious,” it must be apparent to all who encounter the dangerous condition, and not just the plaintiff who is injured because of it. See Broussard v. State ex. Rel. Office of State Bldgs., 113 So. 3d 175, 183 (La. 2013). Butler argued that there was no evidence the chips on the stairs were an open and obvious hazard to anyone other than himself. However, based on the video evidence provided by International Paper, the wood chips and debris were so numerous and prominent that it would be considered open and obvious to a jury. The Fifth Circuit Court concluded that the video evidence was sufficient to establish an open and obvious hazard, and nothing further was required by International Paper to establish that fact.

June 30, 2019

Validity of a Contract: To Be Decided by an Arbitrator or the Court?

by Berniard Law Firm

agreement-blur-business-261621-1024x768 Louisiana citizens interact with contract law every day, in many cases without even realizing it. Whether buying groceries at a supermarket with a credit card or installing a new iPhone app, countless purchases are governed by consumer agreements. What may be even less known to purchasers is that many of these agreements include an arbitration clause, which provides that any disputes arising out of that agreement must be handled by an arbitrator rather than a court. Arbitration is a form of “alternative dispute resolution” in which an arbitrator — typically a certified attorney — evaluates the parties’ claims and renders a binding decision as to who should prevail. In general, companies prefer arbitration because it costs less than litigation. But because the rules of arbitration can vary significantly from the rules of court, the consumer does not always benefit from being kept away from the courthouse. The validity of arbitration clauses is a common point of contention. Although Louisiana generally favors arbitration, the legislature has enacted the Louisiana Arbitration Act (“LLA”) (see La. R.S. 9:4201) to ensure that arbitration proceeds fairly.

Arbitration is also common in commercial agreements. In 2013, a sales representative of UniFirst Corporation (“UniFirst”) approached the shop foreman at the Homer, Louisiana location of Fluid Disposal Specialties, Inc. (“FDS”). The shop foreman’s job title was Manager of Transportation Logistics. The purpose of the meeting was to discuss FDS’s entering into a contract with UniFirst to provide uniforms to FDS employees. After nearly six months of negotiation, a price was agreed upon and the FDS shop foreman executed a contract with UniFirst. The contract contained an arbitration clause. Later, FDS attempted to void the contract, citing that the shop foreman did not have the authority to bind the company. Unifirst argued that, based on the arbitration clause in the agreement, the matter should be settled by an arbitrator. FDS, preferring to avail itself of the court, argued that because the contract itself was invalid, any clauses within it — including the arbitration clause — could not be valid either.

The case eventually made its way to Louisiana’s Second Circuit Court of Appeal, which applied a two-step analysis commonly relied upon by the courts. The first step is to determine whether there is a valid agreement to arbitrate between the parties; the second is to determine whether the dispute in question falls within the scope of that arbitration agreement. In applying the first step, the Court determined that the agreement was invalid because the FDS shop foreman lacked the authority to enter into a contract with UniFirst. In response to UniFirst’s argument that the foreman had apparent authority, a doctrine in which an innocent third party (Unifirst) could rely on the representations of an agent (the FDS shop foreman) when entering an agreement (see American Zurich Insurance Co. v. Johnson, 850 So. 1112 (La. Ct. App. 2003)), the Court found that both the shop foreman’s job title and the six-month negotiation period should have indicated to UniFirst that the foreman was not in a position to enter into a contract for uniform services. For these reasons, the Court found that no agreement existed between the parties and therefore there was no need to apply the second step of the analysis. Arbitration cannot be compelled under an agreement that never came into being. The Court went on to note, however, that UniFirst could still proceed against FDS for any obligation or damages arising from FDS’s use of the uniforms that UniFirst provided the shop.

June 29, 2019

Bienville Parish Auto Accident Raises Question of Vicarious Liability

by Berniard Law Firm

revolt-368925-unsplash-1024x683 Imagine you are driving home from work and you collide with another vehicle. Would your employer be liable for the damages? For most commuters, the employer is not accountable for any accidents that occur on the way to or from the place of work and the employee’s residence. But in certain cases, such as where an employee is traveling with a specific business purpose under the direction of the employer, the employer may be on the hook under a theory known as vicarious liability. Effectively, vicarious liability holds an employer liable for an employee’s negligence when the employee is acting within the scope of the employer’s business. La. C.C. art. 2320.

On December 20, 2009, James Richards was traveling from Texas to his home in Florida along Interstate 10. In Bienville Parish, Louisiana, Richards collided with a van, causing the death of the driver and severe, paralyzing injuries to the passenger, Ricky Winzer. In 2010, Winzer filed a lawsuit against Richards and Richards’s employer, Certified Constructors’ Service, Inc. (“CCSI”). Winzer alleged that Richards was acting in the course and scope of his employment at the time of the accident, making CCSI liable through the doctrine of vicarious liability. CCSI filed a motion for summary judgment, arguing that Richards was not employed at the time of the accident and therefore CCSI could not be liable for his negligence. The trial court, after an evidentiary hearing in which depositions, interrogatories, and payroll documents were submitted, granted CCSI’s motion. Winzer appealed to Louisiana’s Second Circuit Court of Appeal.

Upon review, the Court reiterated the general rule under Louisiana jurisprudence that an employer is not liable for an employee’s negligence when they are driving to and from work unless the employer provides the transportation, pays expenses or wages for the time spent traveling, or has assigned the employee a specific task to perform for the employer. See Woolard v. Atkinson, 988 So. 2d 836 (La. Ct. App. 2008). To determine if the employee’s actions fall within one of the above exceptions, courts must examine the following factors: the employer’s power of control; the employee’s duty to perform the act in question; the time, place, and purpose of the act in relation to the employment; the relationship between the employee’s act and the employer’s business; the benefits received by the employer from the act; the employee’s motivation for performing the act; and the employer’s reasonable expectation that the employee would perform the act. See Orgeron v. McDonald, 639 So. 2d 224 (La. 1994).

June 28, 2019

Plaintiff-Mother Faces Dismissal of Multiple Defendants in Ruston Child Injury Case

by Berniard Law Firm

akira-hojo-502567-unsplash-1024x683 Most Louisiana residents understand the liability they may incur if they do not properly fence a backyard pool. But what about other, less obvious drowning hazards, such as a church’s baptismal pool? Who is held accountable for the failure to protect children from falling in? Typically, a church is part of a diocese and must meet the general guidelines established by the diocese in order to maintain its affiliation. For instance, the First Assembly Church of God (“First Assembly”) in Ruston, Louisiana is affiliated with the Louisiana District Council of the Assemblies of God (the “DC”) and the General Council of the Assemblies of God (the “GC”). After a tragic accident involving the toddler of a First Assembly family, Louisiana’s Second Circuit Court of Appeal was called upon to determine whether the DC and the GC had sufficient control over First Assembly to be liable for the church’s negligence.

In 2013, Irene Che and her 22-month-old daughter attended services at First Assembly. At some point during the service, the child was found submerged in the church’s baptismal pool. Although she survived, Che’s daughter suffered brain damage that left her unable to walk, talk, or feed herself. In her lawsuit, Che alleged that First Assembly was negligent in leaving the baptismal pool unguarded, and named the church, the DC, and the GC as defendants. Che argued that the DC and the GC were liable under the theory of respondeat superior, which establishes that a person or business is responsible for the damages caused by the acts or omissions of persons over whom it exercises control. La. C.C. art. 2317. The rule has been extended by the Louisiana Civil Code to include employers, who are responsible for the damage caused by their employees in the exercise of the functions within the scope of their employment. La. C.C. art. 2320, The DC and the GC filed a motion for summary judgment contesting the application of respondeat superior to the relationship between themselves and First Assembly. The trial court granted the motion and dismissed the DC and the GC as defendants; Che appealed.

The Second Circuit analyzed the relationship created by First Assembly’s contracting with the DC and the GC to gain the right to affiliate with the Church of God. The Court, noting that the single most important factor when determining whether an employer-employee relationship exists — a step necessary to invoke respondeat superior — is whether the “employer” has the right to control the work or actions of the “employee,” found that there was no evidence that the DC and GC maintained such right over First Assembly and its employees. The Court further analyzed the DC’s and the GC’s Constitutions and By-laws, concluding that those operating documents failed to establish a relationship between the two bodies and First Assembly that could support the invocation of respondeat superior. As a result, the Court affirmed the trial court’s dismissal of the DC and the GC as defendants in the case, leaving Che to pursue her negligence claim against First Assembly alone.

June 27, 2019

Louisiana Appellate Court Tackles Intra-Familial Dispute in Simsville Dog Bite Case

by Berniard Law Firm

dog-1534524-1024x768 Litigation between family members can be uncomfortable for everyone involved. But what happens when a plaintiff sues a relative, then passes away, and the relative then becomes the plaintiff? Louisiana’s Second Circuit Court of Appeal recently addressed this unusual situation in a case involving a vicious dog attack.

In May of 2011, Evelyn Goers, 89, was visiting her daughter Laureen Mayfield in Simsville, Louisiana. Goers was attacked and injured by four of Mayfield’s large Tibetan Mastiffs. In May 2012, Goers filed a lawsuit for damages against Mayfield and her homeowner’s insurance company, State Farm. Goers passed away in February 2015, after which Goers’s other daughter, Cheryl Goers, filed a petition to substitute herself as a plaintiff in the lawsuit against Mayfield. The next month, Mayfield made a motion to substitute herself as a plaintiff. The trial court granted both motions. State Farm then filed an exception based on the theory that there was no right of action because Mayfield was both plaintiff and a defendant, thus extinguishing the obligation by confusion. La. C.C. art. 1903. Cheryl Goers filed a response requesting that State Farm’s exception be sustained without a hearing but did not include a proposed judgment to that effect. State Farm then submitted a proposed order granting the exception. Cheryl Goers raised no objection to this action by State Farm. The trial court signed State Farm’s order, dismissing Goers from the lawsuit entirely as both defendant and plaintiff. Cheryl Goers then filed an appeal arguing that the trial court’s order was improper because it extinguished her right of action against Mayfield; an exception for no right of action, she argued, can dismiss a plaintiff, but not a defendant from an action.

Under Louisiana law, an appeal cannot be made by a party who voluntarily and unconditionally accepted without protest a judgment rendered against that party. La. C.C.P. art. 2085. State Farm conceded that under the Direct Action Statute, Cheryl Goers could still maintain a claim against State Farm. La. Rev. Stat. 22:1269 (2012), The Direct Action Statute requires that insurance policies issued in the state provide that the heirs or survivors of any claimant under the policy can maintain the claim. However, as for Cheryl Goers’s action against her sister, the Court of Appeal noted that she voluntarily and unconditionally accepted the trial court’s order without protest because she agreed with the exception and did not oppose the order when the trial court approved it. Therefore, reasoning that Cheryl Goers lacked a basis for the appeal, the Court of Appeal affirmed the trial court’s judgment.

June 26, 2019

Louisiana Department of Transportation Avoids Liability in Multi-Car Pile-Up Case

by Berniard Law Firm

metal-1314941-1-1024x680 It is all too easy to forget just how dangerous driving can be. In addition to human factors such as sleepiness, being distracted, and stress, there is also the unpredictability of the road. Uncontrollable circumstances such as the weather or wild animals that dart into traffic can turn a regular commute into a devastating experience. But who is to blame when something unforeseeable, such as a force of nature, causes a highway catastrophe? This issue was addressed after a multi-vehicle accident on Interstate 10 near the Michael Boulevard exit in New Orleans on December 29, 2011.

Randall White’s car was the 25th of the 40 vehicles involved in the accident. White and his wife filed a lawsuit against the Louisiana Department of Transportation and Development (“DOTD”), the City of New Orleans, and the Little Pine Limited Partnership “Little Pine.” The Whites claimed that the pile-up was caused by thick fog combined with smoke from a marsh fire that had been burning since August 2011 on land owned by Little Pine. According to the Whites, the fog and smoke, in combination with faulty street lights, compromised visibility on the highway and caused the accident.

The DOTD filed a motion for summary judgment, a motion for judgment as a matter of law rather than on the merits of the case. La. C.C.P. art. 966. The DOTD argued that it had no notice of the fog in the area, had no responsibility for the street lighting issue, had no duty to protect the Whites from the fog or smoke, and it was shielded by governmental immunity. To support the motion, the DOTD relied on affidavits from DOTD engineers, the New Orleans Public Works Director, and the New Orleans City Council, as well documents such as the New Orleans Police Accident Report and the National Weather Service Report from the date of the accident. The trial court granted the motion and dismissed the Whites’ claims. In response, the Whites appealed to Louisiana’s Court of Appeal for the Fourth Circuit.

June 25, 2019

Busy Fax Line Raises Question of Timeliness in Negligence Action After Monroe Bus Accident

by Berniard Law Firm

StockSnap_Q6ZI86R637-1024x678 After an injury, it is natural to feel entitled to physical, mental, and financial recovery. Unfortunately, the road to recovery can be full of detours and roadblocks. Without the help of a good lawyer, it can be difficult, and perhaps impossible, to understand and adhere to the many rules of the legal system. What seems like an unfair technicality could be the result of an easily avoidable mistake.

On May 1, 2013, Detrand Lloyd, who is disabled and uses a wheelchair, boarded the Monroe City Bus. Some ways into the trip the bus braked suddenly, sending Lloyd out of his wheelchair and onto the floor, fracturing his tibia. One year later, Lloyd attempted to file a lawsuit against the Monroe Transit Authority and its insurer. Lloyd’s attorney attempted to file the petition via facsimile (“fax”) at 4:24 p.m. on May 1, 2014, just before the end of the court’s business day at 5:00 p.m. Despite more attempts that day, the clerk of court did not receive the petition until the morning of May 2, 2014, which is the day it was officially filed. The defendants filed an exception of prescription, requesting that the petition be dismissed because it was not filed in a timely manner. In their motion, the defendants argued that the lawsuit was filed more than one year after the accident. According to the defendants, the filing of the suit occurred on May 2, 2014, or one year plus one day from the date of Lloyd’s injury. Lloyd argued that his attorney tried to file the petition by fax on May 1, 2014, but “due to circumstances beyond the control of counsel,” receipt of the petition by the clerk of court could not be made until the next morning. A busy signal on the fax line was reflected on the attempted fax transmissions.

At the hearing, the trial court found that the operation of the clerk’s office fax machine was beyond Lloyd’s control and dismissed the exception of prescription. The defendants appealed to the Louisiana Court of Appeal for the Second Circuit, arguing that the trial court erred when it held as a matter of law that the clerk was required to keep the fax machine operating after hours. In addition, the defendants argued the trial court erred in denying the exception because prescription is interrupted only when the fax is received by the clerk, not simply by any attempt to fax the document.

June 24, 2019

Dispute Over Mineral Rights in Iberville Parish Land Leads to Lawsuit for Trespass

by Berniard Law Firm

tyler-butler-691603-unsplash-1024x683 It is one thing to own land, but it is another thing to know what rights come with that ownership. Without the help of a good lawyer, a misunderstanding of property rights could put you in court for trespassing–or worse. For instance, it might be important to understand if installing a pipeline on land protected by conservation restrictions is allowed. This issue was addressed in 2016 when some land in Iberville Parish because of the subject of a dispute between two companies.

The land at issue referred to as “Section 12,” which was located in a Mitigation Bank. Before 1999, Lago Espanol, LLC (“Espanol”) owned the rights to excavate the land for minerals and rights to the property’s surface. In 1999, Espanol entered into an agreement with several state regulatory bodies to form the Mitigation Bank. As part of the agreement, Espanol placed certain restrictions on the use of the land through a conservation servitude. In Louisiana, a conservation servitude requires the owner to “retain or protect the property’s natural, agricultural, scenic, or open-space values through the protection of its natural resources, air, and water quality, and historical, archaeological, or cultural aspects.” La. R.S.9:1272.

In 2006, Rio Bravo Energy Partners, LLC (“Rio Bravo”) obtained a lease for the mineral rights of Section 12 from Espanol. In 2009, Spanish Lake Restoration, LLC (“Spanish Lake”) obtained Section 12’s surface rights. Two years later, Petrodome St. Gabriel II, LLC (“PD”) acquired Section 12’s mineral rights and a wetland permit from Rio Bravo, which allowed Petrodome to board the pre-existing, unimproved roads in Section 12. PD boarded the roads, and made other improvements to the plot of land.