Louisiana Personal Injury Lawyer Blog

September 9, 2017

Motion To Dismiss Action As Abandoned Thwarted For Lack of Statutorily Required Affidavit

cross-1442009-987x1024 Sometimes procedural rules are overlooked as merely a peripheral aspect of a lawsuit. However, nothing could be further from the truth. Oftentimes you need to overcome numerous procedural hurdles just to reach the merits of a case. The following case illustrates the importance of procedure in the practice of law.

The subject of this case centers on certain events that took place after the death of Alma Payton in New Orleans, LA; the plaintiffs are Payton’s heirs. Plaintiffs argued that Lake Lawn Park, Inc. (Lake Lawn) and Lawyer’s Title of Louisiana, Inc. (Lawyer’s Title) was negligent in connection with the distribution of Payton’s property after her death. Plaintiffs alleged that Lawyer’s Title failed to disburse payments to Lake Lawn that were intended to cover Payton’s burial. As a result, Lake Lawn moved Payton’s remains to a burial ground designated for indigents.

Eventually, Lake Lawn returned Payton’s remains to the original burial place at its own cost and the lawsuit against it was dismissed. However, the lawsuit against Lawyer’s Title was still pending, although not making any progress. As a result, Lawyer’s Title filed a motion to dismiss the action as abandoned nearly eight years after Plaintiffs filed their complaint. The District Court granted Lawyer’s Title’s motion. Subsequently, Plaintiffs filed a motion for devolutive appeal of the order of dismissal.

September 8, 2017

Injured Gym Member’s Claim Denied On Grounds That Member Was A “Sophisticated User”

by Berniard Law Firm

to-gym-1445095-1024x766 Many people own a gym membership but upwards of 80% of those people fail to regularly go to the gym. If you find yourself infrequently inside of a gym, it can seem like a strange place. There are many different machines and sometimes it isn’t so clear how to properly use those machines. Indeed, misuse of gym equipment can result in serious injury. So what sort of duty does a gym owe to its members? The following case may help shed some light on this issue.

Thomas Nearhood was injured while working out on a Precor Smith Squat Machine at Anytime Fitness in Pineville, Louisiana. Nearhood filed a lawsuit to recover damages for his injuries and one of the defendants was Fitness Partners, the owner of Anytime Fitness. At issue before the Trial Court was whether Nearhood was a “sophisticated user” of the squat machine. If Nearhood was a sophisticated user, the gym operators had no duty to inform or warn Nearhood about using the machine. But what exactly constitutes a sophisticated user?

Nearhood argued that Fitness Partners was negligent because it failed to properly instruct him on how to use the squat machine. Fitness Partners responded with a summary judgment motion arguing that it had breached no duty, there was no genuine issue of material fact, and judgment for Fitness Partners was proper as a matter of law. The Trial Court granted Fitness Partners’ motion and Nearhood appealed to the Louisiana Third Circuit Court of Appeal. The Court of Appeal affirmed the Trial Court’s decision.

September 7, 2017

Driver Excluded From Full Liability Coverage May Still Be Covered Under Uninsured Motorist Provision

by Berniard Law Firm

mercedes-1450415-1024x683 Louisiana has laws in place requiring drivers to carry car insurance. However, insurance policies are not uniform and some policies may contain ambiguities or be silent altogether on specific issues. The following case illustrates such a scenario.

Jeremy Elliot was a service technician working for a Mercedes-Benz dealership in Baton Rouge, LA and was involved in an accident while driving a customer’s car during a routine servicing. Elliot sued the other driver and the driver’s insurance company, State Farm; State Farm settled. Evidently, the other driver’s insurance policy was insufficient to cover the damages.

Thus, Elliot sought reimbursement elsewhere and sued the insurance company that covered the car he had been driving, Encompass Indemnity Company (“Encompass”), as well as his employer’s insurance company, Travelers Indemnity Company (“Travelers”). Travelers filed a motion for partial summary judgment, asking the District Court to find that Encompass was liable for up to $500,000 in coverage for an underinsured motorist.

September 6, 2017

Insurance Company Attempts To Deny Coverage But Attorney Fails To Follow Proper Procedure

by Berniard Law Firm

car-fire-1346381-1024x662 When you let a friend borrow your car you probably don’t give much thought to who’s insurance policy would cover any potential accidents. Insurance policies contain many loopholes that can exclude coverage when an accident occurs. The following case out of Lafayette, discusses the problems that can arise when a friendly gesture turns into a legal nightmare for the parties involved.

Judith Landry of Lafayette, Louisiana and Therese Lesinski were involved in an automobile collision. Landry filed a personal injury lawsuit against Lesinski claiming that Lesinski’s carelessness caused the accident. Importantly, at the time of the accident, Lesinski was driving a car belonging to Mr. Braus, whom she had been staying with in his home. Lesinski’s own personal vehicle was insured by State Farm, but Mr. Braus (the car involved in the accident) was insured by Allstate.

State Farm denied liability by claiming that it was not responsible for any of the damage done to Landry because the car belonged to Mr. Braus who was not a member of Lesinski’s household. State Farm asserted as much in a motion for summary judgment. A motion for summary judgment effectively asks a court to dismiss the entire lawsuit. See La. C.C.P. art. 966.

September 5, 2017

When Does The One-Year Peremptory Period For Fraud In Connection With Real Estate Transaction Begin To Run?

by Berniard Law Firm

house-1188265-1024x683 In Louisiana, a victim of fraud can recover actual damages resulting from the fraud, treble damages up to three times the amount of actual damages, and reasonable attorneys fees and costs. However, this potentially large recovery is barred by a peremptory period if the defrauded party doesn’t bring the lawsuit within one year. In certain cases, the issue of when exactly this one-year timer starts can be dispositive. The following case dealing with two real estate transactions illustrates the point.

Here, Amanda Adcock owned a home in West Monroe, Louisiana. Ms. Adcock lost her job and was unable to make her monthly mortgage payments to JP Morgan Chase (“Chase”). As a result, Chase initiated foreclosure proceedings against Ms. Adcock’s home in August 2011. Shortly afterward, Ms. Adcock filed for Chapter 13 bankruptcy, which halts any foreclosure already in process. Ms. Adcock then listed the home for sale as part of the bankruptcy estate. At the time of the bankruptcy, Ms. Adcock owed Chase $195,842.29.

In January 2012, Shane Wooten, a real estate agent, contacted Ms. Adcock and informed her that her home could be taken out of the bankruptcy estate and listed as a short sale. Three months later, Ms. Adcock wrote a letter to Chase to begin the short sale process and Chase cooperated (bank approval is required before a short sale can be completed). In June 2012, Tracy Ginn, the spouse of one of the real estate agents who worked for the same realty company as Mr. Wooten, offered to buy Ms. Adcock’s home for $190,000.

September 4, 2017

Wrongful Demolition in Town of Rayville Garners Less In Damages Than One Might Think

by Berniard Law Firm

old-bulldozer-1441562-1024x768 Wrongful demolition is a cause of action rarely invoked because the events giving rise to such an action rarely occur. Essentially, a claim for wrongful demolition arises when a plaintiff’s property was mistakenly or wrongfully demolished. In the following case, Morgan Moss found himself in the unique position of asserting such a claim against the town of Rayville, Louisiana. See La. C.C. art. 2315; see also Hornsby v. Bayou Jack Logging, 902 So.2d 361 (La. 2005).

One morning, while in his home Mr. Moss heard some strange noises coming from across the street. When he walked out of his house to inspect the source of the noise he discovered that his storage property across the street was being demolished by town workers. The town had somehow mistaken Mr. Moss’s property for another property that was scheduled to be demolished. Significantly, Mr. Moss filmed the town workmen but did not try to stop the demolition.

Mr. Moss presented his case to the Trial Court where he won a judgment for only $5000 for the loss of his property. Unsatisfied, Mr. Moss appealed to the Louisiana Second Circuit Court of Appeal hoping to recover more. Any good attorney knows to speak to judges with deference and respect. Along those lines, it’s unwise to make frivolous arguments or to embellish facts.

September 3, 2017

Failure of Hospital Staff To Properly Notify Patient of Device Manufacturer Notice Leads to Medical Malpractice Liability

by Berniard Law Firm

chest-xray-1526779-1-1024x1004 Medical malpractice can be a nuanced area of the law and good lawyers rely on the facts of a case coupled with their knowledge of the law and expert opinions to adequately perform their jobs. The following case illustrates that a competent legal team can make the most out of a tragic situation by obtaining some measure of justice and relief for a victim via compensation from the responsible parties.

This case centers on Pete Bush, an elderly man with heart problems who had a pacemaker placed in his chest. The hospital staff in Richmond, Virginia explained to Pete’s wife, Dina, how to properly use and interpret the alerts from the device. One month after the device was installed inside Pete, the manufacturer of the device issued an “Urgent Correction Notice” (the “Notice”).

The Notice stated that a particular pump in the device could wear out and if not replaced could result in death. The Notice further stated that damage to the device would not be visible, but could be detected by “transient alarms.” Although a nurse initially instructed the Bushes about the various alarms and warnings and the proper response to each, the hospital never informed the Bushes about the Notice.

September 2, 2017

When Might Your Workers’ Compensation Benefits Be Modified By Court Order?

by Berniard Law Firm

craftsmen-1438652-1024x683 A lawsuit out of Lafayette Parish demonstrates how Louisiana law allocates workers’ compensation benefits. To qualify for benefits, an employee must be injured during the course of employment. Temporary Total Disability (TTD) Benefits are paid while the employee is unable to work due to an injury. Supplemental Earnings Benefits (“SEB”) are a bit more technical. SEBs are paid when the injured worker has reached “maximum medical improvement” and is no longer eligible for TTD, but is incapable of earning 90% of pre-accident wages.

Our case begins on August 16, 2006, when Ronald Leleux, a carpenter for Numa C. Hero & Son (“Numa Hero”), was injured on the job while trying to escape from a swarm of wasps. About eight months following the accident Leleux was awarded TTD (the “consent judgment”). On November 18, 2010, Leleux consulted Dr. Daniel Hodges for pain management. Nearly two years later Leleux met with Dr. Douglas Bernard, who was recommended by Numa Hero. Dr. Bernard’s report indicated that Leleux had benign degenerative disk disease and that Leleux could perform unrestricted work activities. On August 7, 2013, Leleux saw a third doctor who was appointed by the Workers’ Compensation Judge (WCJ), Dr. Christopher Belleau. Dr. Belleau testified in a deposition that Leleux had reached maximum medical improvement and was capable of sedentary work. Less than one year after Dr. Belleau’s deposition, Numa Hero filed a motion asking to modify the earlier consent judgment. During the trial on the motion, the WCJ considered Leleux’s testimony, Dr. Belleau’s deposition, and the records of Dr. Bernard and Dr. Hodges. The WCJ issued a judgment modifying Leleux’s benefits from TTD to SEB. Displeased with the outcome, Leleux appealed the WCJ’s modification to the Louisiana Third Circuit Court of Appeal.

Pursuant to La.R.S. 23:1221(1)(d), when a claimant’s condition has stabilized and treatment is no longer required, TTD is not appropriate and a determination regarding the extent of the claimant’s disability must be made. See Navarre v. K-Mart, 803 So.2d 206 (La. Ct. App. 2001). La.R.S. 23:1310.8 sets forth the WCJ’s authority to modify compensation awards. Two provisions of La. R.S. 23:1310.8 were at issue in this case: subsection (A)(1), which applies to a reclassification of benefits, and subsection (B), which applies to a change in the amount of compensation or a request to end the payment of benefits.

September 1, 2017

Walgreens Wins over Former Employee in Workers’ Compensation Case Out of Moss Bluff, Louisiana

by Berniard Law Firm

arabic-pharmacy-1549734-768x1024 When you get hurt on the job, it is common to seek workers’ compensation benefits to help with the costs of your injury. However, the employer will likely at some point seek to diminish or cease payment altogether. In a recent case out of the Parish of Calcasieu, we learn just how far an employer must go in helping a former employee find a replacement job before reducing benefits.

Kenneth Clark was working as an assistant manager at Walgreens in Moss Bluff when he hurt his back. A visit to Dr. Erich Wolf and an MRI revealed three herniated disks. After undergoing a discectomy and epidural steroid injections, Dr. Wolf released Mr. Clark to work eight hours per day at light to minimal-medium duty. Later, Mr. Clark was determined to have reached maximum medical improvement.

Walgreens voluntarily paid Mr. Clark Temporary Total Disability (TTD) benefits equaling his average weekly wage of $727.37. Once Mr. Clark reached maximum medical improvement, Walgreens changed Mr. Clark’s TTD benefits to Supplemental Earnings Benefits (SEB) to a weekly rate of $244.89 based on Mr. Clark’s wage earning capacity of $360.00. Mr. Clark then challenged the reduction of his benefits and sought penalties and attorney fees.

August 31, 2017

Procedure Reigns Supreme in Dismissal of Plaintiff’s Medical Malpractice Case Out of Acadia Parish

by Berniard Law Firm

injection-1323678-1024x873 Ignoring instructions when assembling a coffee table, toys, or other household items may not, in the end, prove highly detrimental. In fact, such practices are commonplace. However, failing to follow the correct procedural steps is ruinous in the world of lawsuits. Recently, the Louisiana Third Circuit Court of Appeal was forced to dismiss an appeal because of a plaintiff’s failure to follow the required procedural steps.

On June 20, 2011, Gloria Welch brought a medical malpractice action against Southwind Nursing and Rehabilitation Center. However, Southwind was never served with the lawsuit and did not make any appearances in the lawsuit. On January 7, 2013, Ms. Welch filed a second lawsuit in the same venue against the same parties. Southwind appeared specifically in the case to file two exceptions. First, Southwind filed an exception of lis pendens because the first lawsuit about the same matter as the second was still pending. “Lis pendens” means “suit pending. ” Second, Southwind filed an exception based on Ms. Welch’s failure to serve Southwind in the second lawsuit. Ms. Welch then voluntarily dismissed her first lawsuit.

The Judicial District Court for the Parish of Acadia sustained Southwind’s exception of insufficient service of process and denied the lis pendens exception based on the voluntary dismissal. At the hearing, the District Court issued a judgment specifically denying the lis pendens exception and finding the first lawsuit was abandoned rather than voluntarily dismissed.