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house-1188265-1024x683In 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.

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old-bulldozer-1441562-1024x768Wrongful 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.

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chest-xray-1526779-1-1024x1004Medical 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.

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craftsmen-1438652-1024x683A 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.

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arabic-pharmacy-1549734-768x1024When 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.

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injection-1323678-1024x873Ignoring 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.   

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baseball-in-the-grass-1557579-1024x683Peanuts and cracker jacks are two cornerstones of the game of baseball.  However, surgery is not. Yet, when one little leaguer got struck by a baseball during practice, the league’s insurer tried to get out of picking up some of his medical bills. The Louisiana Third Circuit Court of Appeal, however, was not going to let the insurance company off so easily.  

On June 1, 2010, nine-year-old Michael Folley was hit in the mouth by an errant baseball during his baseball team’s practice. On May 20, 2011, Tonya Csaszar, on behalf of her son Michael, brought suit against Nationwide Insurance, alleging that Michael would require future medical treatments and surgeries as he got older. Nationwide, having paid some medical expenses, denied further coverage based on a provision of the policy limiting coverage to medical expenses incurred within three years of the accident.  Nationwide moved for summary judgment arguing coverage for Michael under the policy had terminated.  The Judicial District Court for the Parish of LaFayette denied the motion and Nationwide appealed.  

The parties disputed when the injuries were “incurred” and thus subject to coverage. Nationwide argued that there was no ambiguity in the meaning of “incurred” in the language of the policy and any medical treatment beyond the three-year cap was not subject to coverage. The Plaintiffs contested however that due to Michael’s young age, he would need additional medical treatment to accommodate physical changes as he grew.  Nationwide’s policy did not define the word “incur.”  

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old-school-bus-1431364-1024x683Sometimes when a plaintiff is awarded damages at trial he or she may believe that the damage amount does not match the injury he or she incurred. When this situation happens, what can a plaintiff do to challenge the damage award? And how easy is it get an increase in the damages amount? A recent First Circuit Court of Appeal case involving a Terrebonne Parish man provides guidance towards answering these questions.

Arthur Mitchell was riding a public bus when the bus was cut off by, requiring the bus driver to suddenly brake to avoid the collision. As a result of the sudden braking, Mr. Mitchell was thrown forward into the metal change box located behind the driver’s seat. Mr. Mitchell brought a lawsuit against the driver who cut off the bus, Jacob Simmons, claiming that Mr. Simmons caused severe injuries to his neck, back, body, and mind. At trial, Mr. Mitchell was awarded a total damage amount of $15,718 of which $1,000 was for future medical expenses, $1,000 was for past pain and suffering, and $13,718 was for past medical expenses.

Mr. Mitchell, believing that his damages were undervalued at trial, appealed the trial court’s decision. He argued that when a jury awards future medical expenses for injuries that the jury must also award future pain and suffering damages.  Mr. Mitchell argued that because the trial court did not award future pain and suffering, that the court erred in its assessment of the final damages total.

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compensation-1444901-1-1024x798It’s always bad when you get injured. But it is even worse when you have no insurance coverage for that injury. Recently, a St. Tammany Parish man experienced both incidents when he was injured on the job and realized that his employers were not covered by workers’ compensation insurance.

After Edward Jones suffered an injury while on the job, he sued his employer Clesi Foundations, L.L.C. for workers’ compensation benefits. Workers’ compensation pays for an employee’s medical expenses and lost wages when an employee is injured on the job. At trial, the court awarded Mr. Jones benefits, penalties, and attorney fees because Clesi Foundations L.L.C. failed to defend against Mr. Jones’s claim. After receiving a judgment against Clesi Foundations L.L.C., Mr. Jones discovered that his employer’s workers’ compensation coverage was underwritten by American Interstate Insurance Company (“American Interstate”). When a workers’ compensation policy is underwritten, that means another company, in this case, American Interstate, guarantees the payment of the damages assessed in a workers’ compensation case. Mr. Jones then filed a case against American Interstate for the amount of damages the trial court assessed against Clesi Foundations L.L.C.

At trial, Mr. Jones filed a motion for summary judgment. Summary judgment is a legal proceeding where both parties in a lawsuit ask the court to decide the case prior to it going to trial. In his motion, Mr. Jones alleged that American Interstate provided workers’ compensation insurance coverage to Clesi Foundations during the time he was injured. American Interstate claimed that it canceled its coverage of Clesi Foundation L.L.C. and provided notice of cancellation fifteen days prior to Mr. Jones’s injury. The Workers’ Compensation Judge (“WCJ”) found in favor of American Interstate.

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oil-refinery-1240489-1024x599Often, the facts of a lawsuit are unclear. One strategy that lawyers often use to prove their version of events is to use an expert witness to corroborate their side’s story. Expert witnesses are individuals who possess knowledge in a field or area that the average person knows little to nothing about. Frequently, both sides in a lawsuit end up utilizing experts who often times have differing opinions about the facts surrounding the lawsuit. But how does a judge or jury determine which expert is correct? Recently, the Fifth Circuit Court of Appeal for the State of Louisiana addressed these questions in a workers’ compensation case.

David Allensworth worked for two different companies, Gulf South Systems (“GSS”) and Grand Isle Shipyard (“GIS”) as a cleaner, cleaning storage tanks containing gasoline, crude oil, diesel fuel, and condensate. One day, Mr. Allensworth visited an urgent care center with complaints of abdominal pain and weight loss. A CT scan revealed a large abdominal mass which was later diagnosed as non-Hodgkin’s lymphoma. A cause of non-Hodgkin’s lymphoma is toxic exposure to benzene with is contained in crude oil and gasoline. Mr. Allensworth filed a lawsuit against GSS and GIS for workers’ compensation benefits claiming that his exposure to benzene while working for the companies caused his non-Hodgkin’s lymphoma. Workers’ compensation pays for an employee’s medical expenses and lost wages when an employee is injured on the job.

At trial, Mr. Allensworth submitted the sworn statement of Dr. Jack Saux as an expert oncologist. Dr. Saux concluded that Mr. Allensworth’s non-Hodgkin’s lymphoma was caused by toxic exposure to benzene, which most likely happened when Mr. Allensworth cleaned his employers’ storage tanks. GIS and GSS countered with its own medical expert, who testified that though there is some association between benzene and lymphoma, there is no evidence that benzene exposure caused Mr. Allensworth’s non-Hodgkin’s lymphoma. The Workers’ Compensation Judge (“WCJ”) concluded that Mr. Allensworth did not prove that his disease was a result of his employment. In doing so, the WCJ noted that Dr. Saux based his opinion on Mr. Allensworth’s statement in which Mr. Allensworth claimed he only wore a regular shirt and overalls while cleaning the tank. It was based only on this statement, and not on an examination, that Dr. Saux concluded that exposure to benzene from Mr. Allensworth’s job likely caused Mr. Allensworth’s disease. The WCJ also noted that the testimony of GIS and GSS’s expert stated that Mr. Allensworth did wear protective equipment when cleaning the tanks.

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