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take-your-time-1316969-1024x681No one wants to think about how to find a good lawyer or whether they should file a lawsuit after they’ve been injured. Most likely, they are preoccupied with trying to heal. But it is critical to keep in mind that many claims may be time-barred, and a lawsuit cannot be filed after a certain amount of time has passed. An injured party must get one’s affairs in order quickly and decide whether they should sue a potentially negligent party, because there may be a narrow time window in which to file a lawsuit.  

Mary Beauchamp claims that she was injured by a piece of merchandise which fell from the shelf of a local Salvation Army thrift store on April 26, 2010. Unfortunately, she did not file her lawsuit for damages until November of 2013, over two and a half years after the incident. Louisiana acknowledges that some actions are subject to liberative prescription, which means a claim is barred because of the amount of time that has passed since the incident occurred. La. C.C. art. 3447. Other states refer to this as a statute of limitations. In actions such as Ms. Beauchamp’s, the liberative prescription period is one year. She clearly exceeded that by over a year and a half. However, there is case law which provides the plaintiff with an opportunity to show why a lawsuit wasn’t filed in time, and the prescriptive period will be interrupted or suspended. See LaForte v. Gulf Island Fabrication, Inc., 65 So. 3d 182, 185 (La. Ct. App. 2011). This is a means of stopping the clock, sometimes called “tolling.” The Louisiana First Circuit Court of Appeal heard Ms. Beauchamp’s appeal after the trial court found her complaint to be prescribed, or foreclosed from continuing.

The Court of Appeal mentioned that Ms. Beauchamp had filed a complaint on April 25, 2011, just under a year from the incident and an event which could potentially aid her in suspending the prescriptive period. But neither Ms. Beauchamp nor the Salvation Army requested the court to take judicial notice of the prior lawsuit so it could not consider this factor in its decision. Also, Ms. Beauchamp refers to exhibits in her appeal, but no exhibits were offered into evidence at the trial level. The Court of Appeal is unable to review any evidence, not in the record at the trial level. If Ms. Beauchamp had a case for interrupting the prescriptive period, she did not make it visible to the appellate court. This mistake turned out to be costly.

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handcuffs-1484704-1024x768A police pursuit of a suspect can be a dangerous scenario for all individuals in the vicinity of the pursuit. But what happens when the officer collides with a party while in pursuit, and your car is then struck due to the first accident? The First Circuit Court of Appeal for Louisiana recently addressed the issue.

On February 22nd, 2014, Slidell Police Officer Justin Lee Stokes (“Stokes”) was traveling at a high rate of speed, northbound on Highway 11. Lee’s patrol vehicle was in pursuit with both the emergency lights and siren activated. Lee approached the intersection of Highway 11 and Gause Boulevard, when a car traveling south on Highway 11 driven by Ian Jurkiewicz (“Jurkiewicz”), made a left hand turn directly in the path of Stokes’ pursuit. Stokes’ patrol vehicle collided with Jurkiewicz’s vehicle, which then struck a second vehicle, driven by Jennifer Bullock (“Bullock”).

Bullock filed a lawsuit for damages against the City of Slidell, Stokes, Jurkiewicz, and United Services Automobile Association (“USAA”) for damages stemming from the accident. The lawsuit was filed in the Twenty-Second Judicial District Court for the Parish of St. Tammany, Louisiana. Bullock made a motion for the partial dismissal of Jurkiewicz and USAA, which was granted by the District Court. Stokes and the City of Slidell made a motion for summary judgment because police officers are immune from liability when the acts of the officer are within the scope of the power and duties vested in a police officer. La. R.S.9:2798.1 (2014). When an officer is in pursuit of an actual or suspected violator of the law, the officer may exceed maximum speeds limits so long as the officer does not put life or property in danger. La. R.S.32:24 (2014). The district court granted the motion for summary judgment. Bullock then filed an instant appeal in regard to the decision of the district to grant the summary judgement motion, arguing that it was incorrect to determine that there was not a genuine issue of material fact and that La. R.S.9:2798.1 and La. R.S.32:24 were not applicable to the facts in this case, because she Bullock believed that speed was not the cause of the accident.

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machine-2-1426327-662x1024The majority of banking regulations are in place to protect you and your privacy. But some regulations are created to make it easier for law enforcement to obtain information about suspicious banking activity. For the most part, this is a good thing; it enables law enforcement to more effectively combat social ills such as terrorism and the drug trade. At times, however, a bank’s attempt to cooperate with law enforcement could put your personal information, or even your property, in jeopardy. Here, an inaccurate tip to the police lead to the confiscation of a Metairie couple’s belongings, namely the contents of their safety deposit box. And they soon discovered that they had no viable legal recourse.  

In December 2015, the Fifth Circuit Court of Appeals for the state of Louisiana upheld a ruling which absolved Gulf Coast Bank of liability after the bank surrendered a safe deposit box and its contents to police, even though the box was erroneously identified as the property of a different party. The laws at issue were two federal laws which regulate the bank’s action in reference to customers’ accounts: the Right to Financial Privacy Act (“RFPA”) 12 U.S.C. §3401, et seq. and the Annunzio-Wylie Anti-Money Laundering Act (“the Act”). 31 U.S.C. §5318.

Salvadore Marino, owner of Toker’s, a head shop in Metairie, was arrested for drug charges and tax fraud. During the investigation of Toker’s bank holdings, an employee of the bank mistakenly told police a certain safe deposit box belonged to the business. In fact, the box in question, which contained over $127,000 in cash, was the personal property of Marino and his parents, Julia and Martin Marino. Mr. and Mrs. Marino sued the bank for damages arising from the seizure of the box, asserting Gulf Coast disclosed the information in violation of state and federal law, as well as negligent misrepresentation. The bank claimed protection from the lawsuit, asserting that the anti-money laundering laws gave them safe harbor from liability in such matters.

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more-apartments-1451930-1024x672In contracts for the sale of land and property, parties typically execute a Purchase Agreement before the Contract of Sale. The purchase agreement may be incorporated with the contract of sale, or it may be a preliminary document that is not included in the final contract. It is important that a good attorney draft both of these documents, because issues may arise when the documents conflict or are not clear in intent.

In Woodlands Development v. Regions Bank & Johnson Property Group, Woodlands, a development company, bought land on Sandra Drive in New Orleans for the purpose of building an apartment complex. Woodlands fell on hard times and defaulted on the loan for the mortgage. After some extensions and agreements, Woodlands agreed to assign the property to a third party, Johnson Property Group (“JPG”). A Purchase Agreement, and then a Contract of Sale, between Woodlands and Johnson Property Group followed. When Hurricane Katrina caused extensive damage to the property in question, the insurance company paid the settlement to Regions Bank. Woodlands claimed it was entitled to receive these proceeds, while JPG claimed the proceeds should go toward its balance.  

After an epic battle which consisted of three appeals, and multiple motions, the Louisiana Fifth Circuit Court of Appeals affirmed the grant of a partial summary judgment motion for Woodlands Development. Summary judgment is appropriate when there is “no genuine issue of material fact,” meaning all the facts presented clearly show one party deserves to win. La. C.C.P. art. 966. Here, the party moving for summary judgment only had sufficient facts to convince a judge that some of the issues required dismissal, so a motion for partial summary judgment was put forth. JPG appealed the Trial Court’s finding in favor of Woodlands’ motion, which is the issue in the present case.

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wire-fence-1221022-1024x768When our loved one is under the care of others, we expect him or her to be free from pain and neglect. Unfortunately, the authorities in charge of our loved one can make mistakes, and sometimes, the mistakes can be fatal. In such cases, we would likely blame the authorities in charge and desire some sort of punishment upon them. However, just because the fault may lie with the authorities does not mean that punishment is inevitable. The case of Jamie Zaunbrecher is an example.

Zaunbrecher was an inmate at the Ascension Parish Jail. Two nurses, Robyn Richard and Michelle Gaudin, were in charge of his medical care. When Zaunbrecher arrived at the jail, he told the medical staff that he had pre-existing medical conditions, but did not tell them of his diverticulitis, which ultimately contributed to his death. On February 18th, six days before his death, Zaunbrecher submitted a “Medical Request Form” (“Form”) in which he sought “emergency” care. More specifically, he wrote that he had severe pain in the right side of his back and that his pain medication was not being replenished. The day after Zaunbrecher’s submission, Nurse Richard gave Zaunbrecher Ibuprofen. On February 20th, Zaunbrecher submitted another Form complaining of back pain and constipation. Nurse Richard provided Tylenol and a laxative. Zaunbrecher also asked for a blood test, but this request could not be granted as only the nurse practitioner, who was not available, could grant it. From February 21st, Nurse Gaudin took care of Zaunbrecher and provided laxatives in order to aid his constipation. Though Nurse Gaudin thought Zaunbrecher was getting better, on February 24th, Zaunbrecher grew extremely ill. He was brought to a hospital, but by the time he arrived, he had passed away. Zaunbrecher’s representative sued Richard and Gaudin for not providing proper medical treatment and violating Zaunbrecher’s Eighth Amendment Right.

Nurses Richard and Gaudin responded to the lawsuit by invoking qualified immunity. Qualified immunity is a legal doctrine that protects government workers from being sued for acts done under the scope of their employment. The Trial Court refused to grant qualified immunity, but the Appeals Court stated that qualified immunity was appropriate. When a defendant invokes qualified immunity, the plaintiff has to first show that the defendant violated a constitutional right. Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 253 (5th Cir. 2005). Here, the plaintiff’s argument was that Richard and Gaudin violated Zaunbrecher’s Eight Amendment Right by acting indifferently to his medical needs. To show this indifference, the plaintiff had to prove that Richard and Gaudin knew that Zaunbrecher “face[d] a substantial risk of serious bodily harm.” Farmer v. Brennan, 511 U.S. 825, 847 (1994). The plaintiff also had to prove that Richard and Gaudin knew this risk and failed to mitigate this risk.

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torn-ligament-and-fractured-bone-bandages-1631721-1-1024x727
Whether we like it or not, bureaucracy pervades our lives. A failure to follow a single step of an administrative task can have far-reaching consequences. This is especially so when dealing with an insurance company. The case of Dr. James Moss is an example.

Dr. Moss, a Shreveport urologist, suffered from osteoarthritis. Because his condition prevented him from performing his work, he filed a claim with his insurance company, Unum. Unum denied Dr. Moss’s claim and told him that if he wished to appeal the denial, he had to file a written appeal within 180 days. Rather than filing a written appeal, Dr. Moss directly sued Unum, arguing that filing a written appeal would have been useless. The District Court was not convinced of Dr. Moss’s argument and dismissed his lawsuit. Dr. Moss then decided to file a written appeal with Unum. Unfortunately, by this point, more than 180 days had passed, and Unum refused to accept Dr. Moss’s appeal. Dr. Moss went back to court to sue Unum a second time. Again, the District Court rejected his claim because he had failed to file a written appeal with Unum. However, this time, the District Court told Dr. Moss he could not bring the same lawsuit against Unum ever again because he could no longer file a written appeal with Unum. Dr. Moss appealed the District Court’s decision.

The Fifth Circuit Court of Appeals first noted that Dr. Moss’s insurance policies were governed by the Employment Retirement Income Security Act of 1974 (“ERISA”). ERISA allows an individual to sue his or her insurance company. 29 U.S.C. § 1132(a)(1)(B). However, before being able to sue, the individual must “exhaust available administrative remedies.” Denton v. First Int’l Bank of Waco, 765 F.2d 1295, 1300 (5th Cir. 1985). This simply means that the individual must follow procedures for relief given to him or her by the relevant agency before seeking other options. Only after the individual has gone through these procedures and only after these procedures fail to provide relief can he or she sue the agency. In this case, Dr. Moss had to file a written appeal with Unum, and only after his written appeal was rejected could he sue Unum.

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chemistry-lab-2-1494465-1024x768Americans value their privacy. Yet in certain contexts, privacy is not absolute. For instance, an employer may order an employee to get a blood test if pertinent to a work-related incident, even if that employer is the government itself.

The Shreveport Police Chief gave such an order when the department received a complaint that one of its officers was intoxicated. Pat Hensley, the officer in question, was found by fellow officers driving in a state of intoxication. His slurred speech and inability to perform basic cognitive and physical tasks prompted the officers to arrest him for Driving While Intoxicated. While in custody, Hensley underwent a blood test at the order of the Shreveport Police Chief. However, there was no warrant for the blood test. The blood test was positive for alcohol in Hensley’s bloodstream. Hensley sued the City of Shreveport and the Police Chief for the warrantless blood test. He argued in the United States District Court that the warrantless blood test was a violation of his Fourth Amendment rights and his rights under the Louisiana State Constitution. The specific rights Hensley claimed the Police Chief and the City violated were the rights that protect citizens from unreasonable searches and seizures.

The Fourth Amendment states that the Government shall not violate “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. The Louisiana State Constitution also has a provision similar to the above. Though we may generally think of these laws to apply to the searches and seizures of external, physical objects, the United States Supreme Court has ruled that a blood test counts as a search. See Maryland v. King, 569 U.S. 435, 446 (2013).

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image-3-1024x683After deciding to follow through with filing a lawsuit, one of the first questions asked is where to file. Venue is the county or parish that is applicable for your case to proceed. Filing in the proper venue is a determinative factor in moving forward with your case. There may be more than one appropriate venue for your case, but failure to choose correctly can cause ripple effects to the rest of your lawsuit.

Damion Comeaux and Austin Romero collided at an intersection in Vermilion Parish on June 9, 2012. Comeaux filed a lawsuit on May 16, 2013, in the East Baton Rouge Parish, naming defendants Romero (who was driving a police department car), Abbeville Police Department, the City of Abbeville, the Louisiana Municipal Association, and Zurich American Insurance Company. Comeaux alleged that he was injured when Romero failed to stop at a stop sign, causing the collision with Comeaux’s vehicle, and sought money for his bodily injuries, as well as associated general and special damages.

At trial, the City of Abbeville cited improper venue and the case was ultimately transferred to Vermilion Parish on the condition that the defendants waive any defense of prescription (statute of limitations). Prior to the trial court transferring the case, Comeaux filed an identical lawsuit in Vermilion Parish on July 1, 2013. Both the East Baton Rouge and Vermillion Parish cases proceeded at the same time, which identical filings in each district. The defendants objected to the condition to waive prescription and challenge the cause of action. The trial court ruled in their favor, and Comeaux appealed on prescription of his second filed lawsuit (in Vermillion Parish) and cause of action.

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tigers-2-1528804-1024x683The taking of property by the government under the power of eminent domain is an issue that can be contentious for many landowners. When this does happen landowners are entitled to just compensation. For one Louisiana man with property near the Superdome and across the street from St. Joseph’s Church, the power of eminent domain became very personal.

The Board of Supervisors of Louisiana State University (“LSU”) took land from Michael Villavaso for the purpose of building a new academic medical center. While the medical center has since been built, Mr. Villavaso was not satisfied with the compensation that he received for the property. Mr. Villavaso claims that the appraised value of his property was $247,000 ($33.00 per square foot), but he only received $172,000 from LSU. The appraisal for Mr. Villavaso was done by certified public account Charles Theriot, who had also done multiple appraisals for LSU related to the building of its academic medical school. Due to this difference in price, Mr. Villavaso sued LSU in civil district court in New Orleans demanding just compensation.

While his lawsuit was pending, LSU proceeded onto Mr. Villavaso’s property, demolishing multiple structures, and depriving Mr. Villavaso of income received from the parking at the location. This led Mr. Villavaso to adjust his claim and demand additional compensation, including lost income of $144,818.

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writing-kiddo-1432496-1024x683The worst thing that could happen if you are in a bad situation is for that situation to get worse. A New Orleans, Louisiana, resident found himself in that exact scenario when he was in legal trouble and subsequently found himself in even deeper legal trouble.

MT, the defendant, owned with his partners, a construction contracting company, Garner Services. When MT was the Chief Operating Officer, he and his brother-in-law, DF, created fictitious invoices for work never performed, amounting to $925,000 to a company that MT himself controlled.

After his fraud was discovered, MT was criminally charged with conspiracy to commit mail fraud, which he pled guilty to in exchange for no additional charges filed. The Government also informed MT that he would be indicted for concealing financial information to block the forfeiture of certain assets. Before the plea deal was signed, MT hired a private investigator, Tim Wilson, who spoke with two of the Assistant United States Attorney’s (“AUSAs”) for the Eastern District of Louisiana on MT’s behalf. Wilson stated the AUSAs promised not to execute on the forfeiture indictment. This “secret deal” was later contested by the AUSAs, who denied having made such a promise.

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