Louisiana Personal Injury Lawyer Blog

September 25, 2017

Louisiana Court Determines Florida Man Can Proceed with Chinese Drywall Lawsuit

drywall-mess-1506462-1024x683 Do you know someone who owns a condo or a home? In some instances, the drywall used to construct the condo complex or home is built from Chinese-Manufactured Drywall. From 2005-2008 Chinese Drywall was imported into the U.S. and used in the construction of thousands of buildings. Strangely, residents who lived in those buildings began to notice corrosion of metal building components, failure of electrical wiring and in some cases, even physical ailments that ranged from skin irritation to respiratory problems. Ralph Mangiarelli was one the residents who suffered injuries but of a rather different kind.

Mr. Mangiarelli owned a condo unit at Lauderdale One Condominium complex in Fort Lauderdale, Florida. Sixty-Fifth and One, L.L.C. (“Sixty-Fifth”) developed the complex and Banner Supply Company Pompano, L.L.C. (“Banner”) supplied the drywall used to construct the complex. The Lauderdale One Complex had two buildings called “Building 1” and “Building 2.” Only Building 1 was built using Chinese Drywall. Mr. Mangiarelli owned a condo unit in Building 2.

Mr. Mangiarelli and other Building 2 residents filed a class action lawsuit in Florida asserting that Building 2 residents suffered a loss in market value for their condos because of the association with Building 1’s Chinese drywall. All federal actions alleging damages resulting from Chinese Drywall were transferred in 2009 to the United States District Court for the Eastern District of Louisiana.

September 24, 2017

Drive Not Liable for Third Following Car’s Veering onto the Shoulder of the Road

by Berniard Law Firm

sign-1230883-1024x768 Drivers always have a duty to drive with a standard of care that can ensure the cars immediately around them are safe from a collision. But how far does that duty reach? That was the question when a Parish of Calcasieu man entered the highway from the shoulder which resulted in only the first and second cars behind him to slow down, while a third following car was forced off of the road.

The Defendant, David Majoria, was an employee of Groendyke Transport when he entered Interstate 210 from the shoulder of the road. When Mr. Majoria entered the highway it caused the vehicle behind him with an unknown driver to brake. A second vehicle behind Mr. Majoria was driven by the plaintiff’s brother, who also braked. The third vehicle in the lineup was an eighteen to twenty-foot camper, driven by Plaintiff Shane Maylen.

Mr. Maylen was driving a truck towing an eighteen to a twenty-foot camper and a sixteen-foot boat when he attempted to brake after Mr. Majoria’s car entered the highway. Mr. Maylen’s truck veered off of the highway and onto the shoulder of the road where his vehicle jack-knifed and caused a right-shoulder injury. No other vehicle was involved in the collision.

September 23, 2017

Parish of Lafayette Man Loses Workers’ Compensation Supplemental Earnings Benefits After Performing Side Jobs

by Berniard Law Firm

anvil-and-hammer-1176425-1024x681 An employee injured during the course of employment is generally entitled to workers’ compensation benefits. But can the actions of the employee in their free time affect the continuation of benefits? That was the case for a Parish of Lafayette employee who decided to perform side jobs involving heavy manual labor while collecting workers’ compensation benefits.

Donovan Meche was employed by Supreme Service & Specialty Company. Mr. Meche injured his mid- and lower back in November 2012 while swinging a sledge hammer. Mr. Meche saw several doctors to treat his back pain. The first orthopedic surgeon Mr. Meche saw recommended that he not work and undergo physical therapy. The next orthopedic surgeon, Dr. Heard, prescribed medication and physical therapy. Dr. Heard placed exact physical limitations which limited Mr. Meche to lifting ten pounds and sitting and standing no more than twenty minutes.

Supreme later obtained an independent medical examination of Mr. Meche which found that Mr. Meche was not able to return to his former job, but he could perform “sedentary or light duty.” Supreme offered Mr. Meche light-duty work and terminated Mr. Meche’s benefits. Mr. Meche accepted the light-duty work, but only worked six hours over three painful days. Mr. Meche did not return to work for Supreme, but he did subsequently perform heavy manual labor working for his neighbor erecting an awning at his house and assisting a flooring contractor. Dr. Heard was not informed of these activities.

September 22, 2017

Failure to Inspect Valve Exposes Parish of Jackson Company to Liability for Injuries from Sprayed Acid

by Berniard Law Firm

chemical-stuff-1-1489274-1024x768 When multiple companies work together on a project that causes an injury how is liability decided between the companies? That was the case when two Parish of Jackson truck drivers and their trucks were sprayed with acid from a broken hose. The two companies in charge of the project pointed the finger at each other and tried to avoid liability. This case deals with issues of negligence in inspection and the importance of causation in a negligence claim.

Two independent contractor truck drivers, Gregory Robert and Earl Pania, were hired by Turner Specialty Services (Turner) to supply truckloads of hydrochloric acid to clean pulp mill tanks for RockTenn CP, L.L.C. (RockTenn). Mr. Robert’s truck was the first to pump acid into the tank while Mr. Pania waited to go next. Turner employee William Thomas pumped nine gallons of acid when the measuring gauge stopped. Mr. Thomas stopped pumping, checked his equipment supplied by Turner, and found no problem. RockTenn was asked to check its equipment and RockTenn found no problem and instructed Mr. Thomas to resume pumping acid. The acid still did not pump.

Mr. Thomas increased the pressure on Turner’s pump on his next attempt. The Turner hose ruptured, sprayed Mr. Thomas with acid, as well as Mr. Robert and Mr. Pania’s trucks. Mr. Robert and Mr. Pania also claimed to have come into contact with the acid fumes and that their trucks were damaged from the acid.

September 21, 2017

Physician Determination of Improvement of Physical Condition Leads to Change in Workers’ Compensation Benefits for Parish of Lafayette Man

by Berniard Law Firm

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Employers and workers’ compensation insurance companies are continually looking for ways to cut their workers’ compensation claim amounts. For the injured employee, a workers’ compensation claim is a new process. But for the employer and insurance company reducing costs is a continual process. This litigation can even continue to happen years after winning an initial award. This was the case for a Parish of Lafayette employee in a recent case in the Louisiana Third Circuit Court of Appeal. Doctor examinations and testimony about an injury can always be required and, as in this case, improvement of an employee’s condition for the better can call for a reduction in workers’ compensation benefits.

Viel Olivier was a self-employed carpenter who was injured in 2003 while unloading a miters saw from his truck. He had contracted with LUBA Workers’ Compensation for his workers’ compensation insurance. Initially, Mr. Olivier was determined to be temporarily and totally disabled and was awarded workers’ compensation benefits.

LUBA later filed a motion to modify Mr. Olivier’s benefits because LUBA believed that Mr. Olivier was capable of light duty work and was no longer temporary and totally disabled from the injury. Mr. Olivier objected to this change and argued that LUBA was unable to meet its burden of proof with regard to a change in circumstances because the evidence was essentially the same as it had been at the previous hearing.

September 20, 2017

Lack of Authenticated Evidence Leads to Abandoned Case in Jefferson Parish

by Berniard Law Firm

decadencia-1179583-1024x777 Generally, plaintiffs bring an action against an adverse party to be made whole again in some way. Bringing a claim is a remedy seeking process. But, can a claimant’s inaction cause the proceeding to be dismissed? The Louisiana Fifth Circuit Court of Appeal recently answered this question in the affirmative in a case out of Jefferson Parish.

Kevin Lewis filed a petition against Digital Cable alleging tortious conduct and seeking damages for injuries he sustained while their employee. A year later on November 17, 2009, the Twenty-Fourth Judicial District Court for the Parish of Jefferson entered a preliminary default against Digital Cable. On September 16, 2014, nearly five years later, Mr. Lewis filed a motion for confirmation of the default judgment. Digital Cable filed a motion for dismissal for abandonment asserting that since more than three years had passed since Mr. Lewis’ last step in the case, an order of dismissal was required. Mr. Lewis opposed this motion and argued that abandonment was interrupted on November 28, 2011, because he served a notice of deposition for his physician, Dr. Ogbuokiri. Digital Cable argued that the notice of deposition entered into evidence did not contain a certificate of service thus there was no proof that the notice had actually been served on all parties; a requirement to interrupt abandonment. On January 13, 2015, the Trial Court signed an order dismissing the case for abandonment.

Mr. Lewis filed a motion to vacate the order and his motion was heard on March 2, 2015. Mr. Lewis once again argued that the abandonment period was interrupted by the deposition notice. His lawyer, Pius Obioha, testified that a signed notice of deposition and certificate of service was mailed to Dr. Ogbuokiri and to Digital Cable’s agent. It seems that at the 2015 hearing, a certificate of service obtained from Dr. Ogbuikiri’s office was introduced into evidence, however, its authenticity was questionable. When questioned as to why Mr. Obioha, as the lawyer, did not have a copy of the certificate he testified that someone in his office must have forgotten to make a copy and that he did not really look very hard for it. He did allegedly have the presence of mind to remember physically placing the notice and certificate in the mail; a fact not corroborated and supported solely by his own testimony. The Trial Court concluded that the notice of deposition should be admitted into evidence yet as an unauthenticated piece of evidence. Unable to authenticate the notice, the Trial Court upheld the dismissal order. Mr. Lewis appealed to the Fifth Circuit.

September 19, 2017

Parish of Lafayette Found Not Liable for Inmate’s Injury

by Berniard Law Firm

prison-door-1515179-683x1024 Law abiding citizen or not, people expect local governments to keep them safe, especially from dangerous conditions on public property. But, just how much responsibility do local governments have in keeping public grounds safe? This question was recently answered in a case coming out of Lafayette Parish.

On November 15, 2012, Summer Hunter, an inmate at Lafayette Parish Correctional Facility, was injured while being transported to the courthouse. Prior to the transfer, Ms. Hunter was handcuffed and shackled at the legs. Ms. Hunter was being escorted across the street by a deputy when her leg shackles became entangled on an expansion joint between slabs of the sidewalk. This caused Ms. Hunter to fall, resulting in a fractured ankle.

On November 13, 2013, Ms. Hunter filed a lawsuit in the Fifteenth Judicial District Court against the Lafayette Consolidated Government (“The Parish”) for injuries sustained as a result of the fall. In response, the Parish filed a motion to dismiss Ms. Hunter’s claim. The Parish asserted that it could not liable for Ms. Hunter’s injuries because it was not aware of any problem with the sidewalk prior to the date of her accident. The District Court granted the Parish’s motion to dismiss the lawsuit, finding that Ms. Hunter lacked the ability to present any evidence that the Parish had notice of the dangerous sidewalk. The District Court acknowledged that cities have a responsibility to keep its sidewalk reasonably safe, however, reasonably safe and perfect condition are not synonymous.

September 18, 2017

Lafayette Medical Malpractice Claim Dismissed for Untimely Filing

by Berniard Law Firm

lab-work-1575843-683x1024 Generally, claimants interested in bringing any cause of action are required to stick to certain procedures including filing the claim within a specified time period. Medical malpractice claims are no different. Failure to file a claim within the statutorily imposed time frame will likely result in the dismissal of that claim. Without even considering liability, a court will be forced to terminate a lawsuit merely because it was filed too late. This, unfortunately, was the case for Linda Snavely in a recent case out of Lafayette.

Linda Snavely brought a medical malpractice action on behalf of her deceased son, Brian Snavely, on June 24, 2014. Brian was a patient of Dr. Margaret Rice from November 2005 until his death on August 18, 2012. Brian had been receiving treatment for injuries sustained in a series of serious accidents. Dr. Rice was familiar with Brian’s medical issues, which included chronic back pain, polycystic kidney disease, and a history of pulmonary emboli. Brian sustained several injuries from a motorcycle accident and was expected to undergo surgery on August 1, 2012. At the surgeon’s suggestion, Brian discontinued use of his chronic pain medication in anticipation of surgery. Ms. Snavely noticed Brian was acting differently and potentially hallucinating and on July 30, 2012, took him to the emergency room. Brian was diagnosed with drug withdrawal and admitted to Acadia Vermillion Hospital for controlled detoxification. On August 13, 2012, Brian met with Dr. Rice to discuss rescheduling his surgery. During that visit, Dr. Rice prescribed Brian daily doses of Oxycodone, Soma, and Xanax. Five days later Brian was dead. Brian’s cause of death was polydrug toxicity (an overdose).

Dr. Rice filed an exception of prescription asking that the claim be dismissed because the claim was filed in an untimely matter. The Fifteenth Judicial Court for the Parish of Lafayette agreed with Dr. Rice that the claim was untimely filed. Ms. Snavely appealed to the Louisiana Third Circuit Court of Appeal asserting that the claim was timely filed because it was filed within a year of her having discovered the alleged malpractice.

September 17, 2017

Look Out Below! Ouachita Parish Employee Receives Benefits in Head Injury Case

by Berniard Law Firm

sickle-1383523-691x1024 The workers’ compensation system exists to compensate employees when a work-related accident occurs. Frequently, however, employers will attempt to deny or at least curtail benefits. One common tactic is to blame an employee’s injuries on a pre existing medical condition rather than the work accident. But does this excuse really work when a tree falls on an employee’s head? As far fetched as it sounds, this was the scenario when an Ouachita Parish employer attempted to stop paying benefits after a tree accident.

Bruce McCoy worked as a driver and groundsman for W.A. Kendall & Co., Inc. (“Kendall”). Mr. McCoy’s duties included cutting and dumping trees and tree limbs. While at work cutting trees, a tree fell on Mr. McCoy causing a head injury. He needed treatment for headaches, neck pain, and a skull fracture. Doctors differed as to whether he could return to work and at what capacity. Once it was determined that Mr. McCoy could return to work with certain restrictions, Kendall offered him a job as a groundman. Mr. McCoy did not respond however and Kendall terminated benefits. A few months later, Mr. McCoy did request to return to his old position, however, he was denied. Kendall’s vice-president opined that the denial was based upon Mr. McCoy’s possible inability to do the necessary work of a groundsman. Mr. McCoy then filed a claim for supplemental earning benefits (SEBs). The Workers’ Compensation Judge (WCJ) awarded $18,821.89 to Mr. McCoy in SEBs. Kendall appealed to the Louisiana Second Circuit Court of Appeal arguing that Mr. McCoy’s ongoing disabilities were actually the result of preexisting conditions because Mr. McCoy had diagnosed scoliosis.

Workers’ compensation benefits are available to an employee for injuries sustained from an accident arising out of and in the course of employment pursuant to La. R.S. 23:1031(A). A causal connection between accident and injury is established when an employee can demonstrate that before the accident they were in good health and post accident they have a disabling condition demonstrated by medical evidence supporting a reasonable possibility of a causal connection. See Quinones v. USF & G, 630 So. 2d 1303 (La. 1994). A pre-existing condition does not automatically bar benefits; the employee must show the accident aggravated the condition. See Peveto v. WHC Contractors, 630 So. 2d 1303 (La. 1994). Aggravation can be shown by a new disabling condition occurring at the time of the accident and supported by medical evidence.

September 16, 2017

Kaplan, Louisiana Man Earns His Day in Court Despite Res Judicata Challenge

by Berniard Law Firm

field-1-1381631-1024x641 Imagine you are in a car accident, one that is so severe it results in you being airlifted to a hospital. Recovery time is extensive and your mental capacities are foggy at a minimum. While hospital bound, someone other than yourself files a claim for your workers’ compensation benefits. Due to the hospital stay, you receive no notice of the claim or court hearings yet a decision is made denying benefits. The real kicker? All this occurs in a state where you do not live. Sound a tad unjust? Yet this recently happened to a Kaplan, Louisiana man.

Steve Richard, a Louisiana resident, was injured in an automobile accident while driving to a work location in Mountrail, North Dakota. His injuries required him to be airlifted to a hospital in Minnesota where he spent about a month recovering. While in the hospital, Mr. Richard’s employer brought a claim workers’ compensation benefits on behalf of Mr. Richard before the North Dakota Workforce Safety & Insurance (“N.D. Workforce”): the administrative body that regulates workers’ compensation claims in North Dakota. Mr. Richard contended he did not bring the action, never had notice of the decision, and never submitted documents requested by the N.D. Workforce. Moreover, Mr. Richard never received any correspondence on the matter because it was all mailed to his Kaplan, Louisiana address while he was recovering in the Minnesota hospital. The N.D. Workforce denied benefits finding that the accident was caused by Mr. Richard’s drug and alcohol use and therefore not within the scope of his employment. Mr. Richard did not appeal this decision presumably because he never brought it in the first place.

A few months later, Mr. Richard did file a claim for workers’ compensation benefits in Louisiana. His employer Quality Construction & Production, L.L.C, (“Quality Construction”) and their insurance company filed an exception to the claim arguing that the claim was barred by the doctrine of res judicata because the claim had already been decided by another court. The Louisiana Office of Workers’ Compensation Judge (WCJ) denied Quality Construction’s exception and the case was appealed to the Louisiana Third Circuit Court of Appeal.