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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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drag-line-equipment-taking-a-swim-1219894-1024x659A primary concern that all business owners have is how to insulate themselves from any improper actions that their business engages in. Without some mechanism to separate the actions of the business from the business owner, a business owner would be personally liable for the business’s actions and could face legal claims against him or her for actions that the business engaged in. States, recognizing this problem, created many forms of corporate structures with varying levels of liability protection. Examples of such corporate structures are limited liability companies (L.L.C.), professional corporations (P.C.), and C corporations. While these, and other types of corporate structures, provide business owners with insulation from liability, business owners could still be personally liable for their company’s actions if those actions fall under a narrow set of circumstances. Recently, the Louisiana Supreme Court addressed whether one of these narrow circumstances occurred when determining whether an owner of a home construction company was personally liable for the actions of the company.

Jennifer Nunez contracted with Pinnacle Homes, L.L.C. (Pinnacle) to construct a home in Cameron Parish. Allen Lenard, a state licensed construction contractor and owner of Pinnacle, entered into a contract with Ms. Nunez on behalf of Pinnacle. The contract stated that the construction of the home would comply with all applicable national, state, and local building codes and laws. The Cameron Parish permitting board required that Ms. Nunez’s new home be ten feet above sea level. Not only would Ms. Nunez’s home need to be ten feet above sea level to comply with the permitting board, but the home would need to be ten feet above sea level for Ms. Nunez to obtain flood insurance.

After Pinnacle completed construction, Ms. Nunez ordered an elevation certificate so that she could obtain flood insurance. Through the certification process, Ms. Nunez was informed that her house did not meet the ten-foot base flood elevation as the permit required. Ms. Nunez’s home only stood at an elevation of approximately 8 and one-half feet. The house was fully constructed on a concrete slab and it was determined that it would cost approximately $201,600 to raise the base to the required ten-foot elevation.

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billiard-2-1434095-1024x683When an employee is injured in the course of his or her job, then the employee will receive wage replacement and medical benefits in the form of workers’ compensation. Workers’ compensation takes the place of a lawsuit an employee can bring when he or she is injured on the job by someone’s negligence. Because employers are responsible for providing a safe work environment, it stands to reason that employers are responsible when that environment is unsafe. While workers’ compensation provides a necessary service to injured workers, there are always those who would try to take advantage of the system. This struggle to try to provide for those who are legitimately injured while at work and deny claims for those who try to defraud the system gives rise to a complex body of law. One reoccurring issue that often surfaces in workers’ compensation cases is whether an employee is injured while on the job. Recently, the Fifth Circuit Court of Appeal examined this issue when determining whether an employee for a pool table installing company injured his back while on the job.

Nunzio Galiano worked for Lucky Coin Machine Company (Lucky Coin) as a pool table installer. Mr. Galiano was regularly required to lift and move large objects during the course of his duties, including 200-pound slates for pool tables. In August of 2013, Mr. Galiano began to experience pain in his lower back. He did not tell his employer about the pain until he could no longer stand it. Mr. Galiano hesitated to inform his employer of the extent of his back pain because he feared being fired if he told the whole truth. When Mr. Galiano finally went to a doctor, the doctor told him that the pain was not caused by kidney issues, which Mr. Galiano had assumed to be the cause prior to the doctor visit, but rather sacroiliac (SI) joint dysfunction. When told that Mr. Galiano’s work environment involved heavy lifting, the doctor indicated that there may be a connection between that and the bad back. Mr. Galiano then filed for and was awarded, workers’ compensation benefits. Mr. Galiano’s employer, Lucky Coin, appealed this decision arguing that Mr. Galiano’s injury was not caused while he was on the job.

Louisiana law requires that an employee prove 1) that there is an injury, 2) arising out of the employment, 3) caused by an accident, and 4) that the injury is more than simply a gradual deterioration or progressive degeneration. La. R.S. 23:1031 (2016). An employee bringing a workers’ compensation claim is only required to prove the injury more likely than not occurred while the employee was on the job. Marange v. Custom Metal Fabricators, Inc., 93 So.3d 1253, 1257 (La. 2012).

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sprinkler-1316192-1024x681Accidents can happen at any time, even at work.  Sometimes these accidents can aggravate a pre-existing injury.  In a claim for workers’ compensation benefits, employers may use the existence of an old injury to deny payment of benefits despite a clear work accident with medical repercussions.  This was the case for a government employee in Winnsboro, Louisiana.   

Mr. Jay Marshall was an employee of the Town of Winnsboro’s water department for 33 years where he worked as a supervisor. For years he had back pain from injuries but always sought treatment and returned to work.  Mr. Marshall had been taking pain medication since 2002.  On November 2012, while working with his crew, Mr. Marshall pulled a rod out of the ground,  hurt his back,  and was unable to work the rest of the day.  After the accident, Mr. Marshall went to his physician, Dr. Roland Ponarski, complaining of back pain.  Dr. Ponarski did not recall Mr. Marshall mentioning a recent work accident during the visit.  Mr. Marshall was referred to neurosurgeon Dr. Bernie G. McHugh. Mr. Marshall provided a patient history to Dr. McHugh which included back pain from a work injury originating in the 1990s.  Dr. McHugh opined that someone with a disease like Mr. Marshall’s should only be performing sedentary work and that the most recent workplace injury in conjunction with his degenerative disease certainly worsened the pain.  Risk Management, Inc., the worker’s compensation adjuster for Winnsboro, sent Mr. Marshall to Dr. Jorge Rodriguez for a second opinion in 2013.  Dr. Rodriguez concluded that no surgery was needed and that over the counter pain medication was enough if Mr. Marshall was restricted to light duty work.  

In January 2013, Mr. Marshall filed an injury report on the November 2012 accident with Winnsboro.  Risk Management denied Mr. Marshall’s claim, did not pay an indemnity and did not provide for any medical treatment. Subsequently, Mr. Marshall filed a dispute with the Office of Workers’ Compensation. The Workers’ Compensation Judge (“WCJ”) found Mr. Marshall was entitled to temporary disability benefits beginning September 2013, covering supplemental earning benefits, as well as $500 as a penalty and $2000 in attorneys fees.

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pollution-1-1235575-1024x851A common tactic of defendants is to attempt to remove a case from state court to Federal Court if there is the slightest indication that such removal might be proper.  Depending on the case, however, it may be more advantageous to a plaintiff to keep the case in state court.  Without even concerning the merits of the case, a battle ensues costing time and money.  In any case, where the Federal Government is even remotely involved, removal will likely be an issue.   How can a plaintiff successfully keep their lawsuit in state court when the Federal Government is involved?  Recent Louisiana asbestos litigation provides at least one way.   

Silas B. Bishop, Joseph L. Dennis, and Lawrence R. Craig worked for many years on different ships as merchant mariners. At least one of the ships that the Plaintiffs worked on was owned by the United States Navy.  United States Naval Ships are operated by civilian contractors who hire merchant mariners such as the Plaintiffs.  The Plaintiffs alleged that they were each exposed to asbestos while on board the various ships and suffered serious injuries and/or death as a result.   At the time of the lawsuit, Mr. Bishop and Mr. Dennis were deceased and their estates were represented by William E. Bartel, who is named as the Plaintiff-Appellee in the case before the United States Court of Appeals for the Fifth Circuit. Plaintiffs filed a lawsuit in Louisiana State Court under the Jones Act and general maritime law.  Plaintiffs sued multiple parties, including “Federal Officer Defendants” who were companies operating the Navy Vessels where Plaintiffs worked.  The Plaintiffs claimed that the injuries they suffered were due to their employers’ failure to warn them about the dangers of asbestos; failure to provide training about using products that contained asbestos; and the failure of their employers to adopt procedures to safely install and remove asbestos.  The Defendants moved to remove the case to Federal Court based on the Federal Officer Removal Statute.   

Pursuant to Federal Officer Removal Statute at  28 U.S.C. § 1442(a)(1), “a lawsuit against or directed to … any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity, for or relating to any act under color of such office” may be removed to federal court.  Defendants must show that they are “persons” as defined in the statute; that they acted under the direction of a person working for the federal government; and that there is a relationship between the defendant’s actions and what the plaintiff claims. See Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387, 398-400 (5th Cir. 1998). The issue, in this case, was whether there was a causal nexus, or connection, between the Plaintiff’s claims and the Defendant’s actions.   

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more-large-yard-ornaments-1560393-1024x683The government owes a duty to its citizens to serve their best interests. But what happens when the government breaches that duty? Can we, as citizens, sue our government for perceived wrongs it has committed? Can we recover damages? This is an especially critical issue when it comes to a government’s responsibility to its citizens in times of natural disasters, as illustrated by the following case.

On August 26, 2012, in anticipation of Hurricane Isaac’s arrival, both Governor Bobby Jindal and St. John the Baptist Parish (“Parish”) President, Natalie Robottom, declared a state of emergency. Hurricane Isaac hit three days later. On October 26, 2012, sixty Parish residents (“Residents”), who suffered flood damages as a result of Hurricane Isaac, filed a class action against the Parish. The Residents alleged that the Parish was negligent and at fault for its failure to warn of the probability of flooding, its failure to declare a mandatory evacuation, and its failure to take steps to lessen the damage to the Residents.

The Parish filed an exception of no cause of action on June 24, 2014. An exception of no cause of action raises the question of whether the law provides a remedy to anyone under the facts alleged in the petition. Specifically, the Parish claimed it was entitled to immunity from the Residents’ claims under the Louisiana Homeland Security and Emergency Assistance and Disaster Act (“Act”). The Fortieth Judicial District Court Parish of St. John the Baptist held that the Parish was immune to the Residents’ claims under the Act. Accordingly, the Trial Court granted the Parish’s exception of no cause of action and dismissed the Residents’ claims. The Residents attempted to amend their petition for damages to try and overcome the immunity defense but the Trial Court denied this request.  The Residents filed an appeal, arguing that the Trial Court erred in dismissing their claims based on the Parish’s immunity.

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money-money-money-1241634-1024x768There are many questions involved in filing and pursuing a lawsuit. How do I file? When must I file? Against whom do I file it? What amount of damages do I seek? Most people are unaware that there are different types of damages. An attorney’s trial strategy not only plays a critical role in if the plaintiff is awarded compensation but also in how much the plaintiff is awarded, as highlighted by the following case.

Lana Averette was driving on Highway 1 in Port Allen when she was struck by an Entergy bucket truck driven by an employee of Entergy Gulf States Louisiana, L.L.C. (“Entergy”). On June 11, 2013, Ms. Averette filed a lawsuit against Entergy and the employee (“Defendants”), asserting that she had suffered spinal injuries from the accident. During his closing statement to the jury at the end of the trial, Ms. Averette’s attorney asked the jury not to award her future general damages, but to award her the cost of the future medical treatments she would be required to undergo because of her injuries. The jury returned a verdict in favor of Ms. Averette in the amount of $42,373.00 for past lost wages, $58,378.00 for past medical expenses, $75,000.00 for past mental anguish and emotional distress, $75,000.00 for past lost enjoyment of life, $75,000.00 for past pain and suffering, and $500,000.00 for future medical expenses. Defendants filed a motion for judgment notwithstanding the verdict or alternatively a motion for new trial, arguing that it was error as a matter of law to award Ms. Averette future special damages without awarding future general damages. The Judicial District Court for the Parish of West Baton Rouge denied the motions and Defendants appealed to the Louisiana First Circuit Court of Appeal. On appeal, Defendants argued that because Ms. Averette waived her claim for future pain and suffering, she waived her claim for future medical expenses.

General damages seek to compensate the plaintiff for losses of life or lifestyle which cannot be measured definitively in terms of money, such as pain and suffering. See McGee v. A C and S, Inc., 933 So.2d 770, 774 (La. 2006).  In contrast, special damages are those which may be calculated with relative certainty, including medical expenses.  In reviewing a jury’s award of special but not general damages, a reviewing court must ask if the award is so inconsistent that it is an abuse of discretion.  See Wainwright v. Fontenot, 774 So. 2d 70 (La. 2000).  Under certain circumstances, the Court of Appeal noted that evidence presented at trial could support an award of medical expenses without an award of general damages. Thus, the question before the Court of Appeal was whether the jury made inconsistent awards based on the record of evidence.

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