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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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children-at-play-1328051-1024x685There really can be several hazards in a grocery store: rogue carts, other shoppers, scattered merchandise, to name a few.   Even more common is the infamous puddle of water.  Inevitably in a store full of liquids, patrons can slip and fall in a neglected puddle.  But when should the grocery store (or any merchant) be required to compensate a patron for injuries sustained in a slip and fall case?  This was the subject of a recent case out of Marrero, Louisiana.   

Carol Evans was shopping at the Marrero Winn-Dixie when she slipped in a puddle of standing liquid. Ms. Evans brought a lawsuit against Winn-Dixie for her injuries alleging that she slipped in the puddle of liquid in the meat section of the store. The store’s co-director, Mr. Scioneaux, helped Ms. Evans complete an incident report. Subsequently, Mr. Scioneaux successfully tracked down what he believed to be the source of the moisture, a leaking 24-pack of water. He then reviewed surveillance video of the aisle where the incident occurred and saw no evidence of any other injuries. He further testified that the person who had the leaking 24-pack of water in their grocery cart was in the aisle only one minute prior to the accident.  Ms. Evans testified that she did not notice any liquid on the floor until after she fell, and further described it as being clear. She also had no way to account for the length of time it had been present, and there were no prior complaints of water before Ms. Evans sustained her injuries. Winn-Dixie filed a motion for summary judgment, asserting that Ms. Evans could not show that Winn-Dixie had actual or constructive notice of the condition prior to her accident, which was required for a successful case.  The Judicial District Court for the Parish of Jefferson granted Winn-Dixie’s motion for summary judgment based on Ms. Evan’s failure to prove notice as required. Ms. Evans filed an appeal with the  Louisiana Fifth Circuit Court of Appeal.  

Merchants are tasked with the duty of keeping their premises in reasonably safe condition. This means that a merchant must exercise reasonable care in keeping aisles, passageways, and floors free from any hazardous conditions that could reasonably cause injury.  A plaintiff who sustains injuries while lawfully on the merchant’s premises must prove: [1] the condition created an unreasonable risk of harm that was reasonably foreseeable; [2] the merchant was aware of the condition that caused the damage, through either actual or constructive notice, prior to the injury; and [3] the merchant failed to exercise reasonable care to remedy the condition.  See La. R.S. 9:2800.6.  To succeed under a theory of constructive notice, a plaintiff must show that the hazardous condition existed for a period of time that it would have been discovered if the merchant exercised reasonable care. See Trench v. Winn-Dixie Montgomery LLC,  150 So.3d 472,475 (La. Ct. App. 2014). A plaintiff must present “positive evidence” of the existence of the condition prior to the accident.   For employee presence to constitute constructive notice, a plaintiff must show that an employee either knew or should have known of the condition.  The burden of presenting solid evidence in these cases is high; a plaintiff cannot successfully bring a slip and fall case based on speculation.  

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Good medical treatment, even in a first-world country, can, unfortunately, be difficult to find.  Doctors make mistakes and sometimes even entire hospitals can be at fault.  In a recent case out of Ouachita Parish, a woman was delayed admission to a hospital for an extended period which ultimately led to her diminished chance of survival.  While relief under several theories of recovery was debated, her survivors were eventually compensated despite opposition from the Louisiana Patients’ Compensation Fund.  

injection-1-1323670-544x1024In November 2002, Ms. Annette Toston died at St. Francis Medical Center from complications from an underlying kidney infection.  Prior to her death, Ms. Toston was a patient at E.A. Conway Hospital where physicians determined she requested a surgical procedure only available at St. Francis.  Ms. Toston arrived at St. Francis on November 25, 2002, however, was not admitted until approximately fifteen hours after arrival.  Ms. Toston subsequently died during the operation.  Following the death of Ms. Toston, her seven children filed suit in the Fourth Judicial District Court.  On July 14, 2014, the Judge entered a judgment in favor of Ms. Toston’s seven children.  The written judgment assessed St. Francis with $100,000, damages and the Louisiana Patient’s Compensation Fund (“PCF”) with $400,000.  The PCF automatically covers all state healthcare providers and caps the recovery of damages against a qualified healthcare provider at $100,000, plus interest per patient per incident.  Any award in excess of the cap is paid directly by the PCF.  St. Francis entered into a settlement agreement with Ms. Toston’s family for the $100,000, under the conditions that it would be released from all liability, and reserving all rights to proceed against the PCF.  

The PCF appealed to the Louisiana Second Circuit Court of Appeal.   The PCF argued that the Trial Court erred in finding St. Francis liable in Ms. Toston’s death.  The PCF also argued that the Trial Court erred in finding that St. Francis breached the standard of care during Ms. Toston’s transfer to St. Francis. Additionally, the PCF challenged the damages award, arguing that Ms. Toston could not have had a close relationship with her children because of the ages and locations of her children.  

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dentist-1422973-1024x768Does your homeowner’s insurance policy include coverage for libel or slander?  We all make inappropriate comments and write negative reviews online from time to time.  But what if you are sued for something you say or write? In a recent case out of Caddo Parish, Louisiana a dentist learned that while your policy may extend coverage for negligent acts, the insurance company may not be so willing to come to your defense for intentional acts.  

In this case, the Louisiana State Board of Dentistry (“Board”) revoked Dr. Ryan Haygood’s dental license.  On November 8, 2010, after an investigation and disciplinary proceedings, the Board found that Dr. Haygood violated the Dental Practice Act by over-diagnosing patients.   Dr. Haygood appealed all the way to the Louisiana Fourth Circuit Court of Appeal which vacated and remanded the case.  Dr. Haygood then filed a lawsuit for damages against the Board, Dr. Herman O. Blackwood, III and others. Dr. Haygood specifically alleged that Dr. Blackwood intentionally presented false claims that Dr. Blackwood knew to be untrue. Moreover, Dr. Haygood alleged that Dr. Blackwood conspired with other members of the Board to bring the disciplinary proceedings against Dr. Haygood without good cause for the purpose of causing him to lose his license.  Dr. Haygood contended that Dr. Blackwood used his position in the community to essentially force the other Board members to go along with his plan to destroy Dr. Haygood’s career.     

Upon notification of the lawsuit, Dr. Blackwood contacted his insurance company, Encompass Insurance Company of America (“Encompass”), seeking defense and indemnity through his homeowner’s insurance policy.  However, Encompass declined coverage based upon a provision in the insurance policy which specifically provided that intentional acts of libel or slander are not covered.  Encompass filed a motion for summary judgment on the issue of coverage.  The Judicial District Court for the Parish of Caddo agreed that the policy did not cover the claims against Dr. Blackwood, therefore, Encompass had no duty to defend the lawsuit.   Dr. Blackwood appealed to the Louisiana Second Circuit Court of Appeal.  

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swat-1-1314751-1024x768Cases with multiple defendants and multiple claims are typically complex and slow to resolve.  Not all claims apply to all defendants, not all defenses apply to all claims or parties, etc.  Furthermore, some defendants possess certain immunities which may allow for the dismissal of certain claims against that defendant before the remaining claims are even addressed. What happens if one claim is dismissed, the plaintiff wants to appeal that dismissal, yet the entire matter is still pending? This is the subject of a recent wrongful death case out of Metairie, Louisiana.  

Maria Ibanez Sarasino, was shot and killed by a convicted felon, Miguel Rojas, while he was out on parole. Mr. Rojas was convicted of attempted second-degree murder, and his brother arranged for him to stay with Mrs. Sarasino and her husband. During the months after Mr. Rojas’ release, conflicts between him and Mrs. Sarasino’s family arose, resulting in Rojas punching Mrs. Sarasino’s daughter, Maria, in the face and giving her a black eye. Mr. Rojos’ brother Alphonso, reported to the Kenner Police Department that Mr. Rojas had stolen a handgun from his apartment.  Alphonso and Maria lodged a complaint with the Jefferson Parish Sheriff’s Office about Mr. Rojas’ threats against the Sarasino family. Maria claimed that Mr. Rojas stole her husband’s gun and was threatening to shoot her and her family. The investigating officer was unable to locate Mr. Rojas so he relayed the details of the investigation to the First District and took no further action.  Approximately two weeks later, Mr. Rojas’ parole officer was notified by the sheriff’s office of the complaints regarding Mr. Rojas, and attempted to locate Mr. Rojas with no luck.  A week following, the Kenner Police Department issued a warrant for Mr. Rojas for theft of a firearm. Four days after the warrant was issued, Mr. Rojas went to the Sarasino residence and shot and killed Mrs. Sarasino.

The surviving family members filed a wrongful death suit against the State of Louisiana, through the Department of Corrections, the Sheriff of Jefferson Parish, the Parish of Jefferson, the Chief of the Kenner Police Department, and the City of Kenner.  Against the Sheriff of Jefferson Parish, Newell Normand, the Sarasino family specifically claimed Sheriff Normand breached his duty to expeditiously execute the warrant on Mr. Rojas.  They further alleged that Sheriff Normand failed to protect the public from a known danger by failing to timely arrest Mr. Rojas and by failing to properly protect the victim. Sheriff Normand filed a motion for summary judgment arguing that the Plaintiffs could not prove that he was negligent for failing to adequately protect Mrs. Sarasino, and that he was entitled to summary judgment on this issue because he was immune from liability pursuant to the discretionary immunity rule. The Judicial District Court for the Parish of Jefferson granted the motion for summary judgment on the claim for failing to protect Mrs. Sarasino reasoning that Sheriff Normand and the Jefferson Parish Sheriff’s Department were shielded by immunity. The Plaintiffs appealed to the Louisiana Fifth Circuit Court of Appeal.  

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