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public-train-1439534-768x1024We all know that each U.S. citizen is entitled to certain rights contained within the Constitution.  For example, the right to bear arms, the right to free speech, and the right to practice any form of religion.  But what about rights that were not explicitly stated within the Constitution, like the right to privacy or the right to marry.  Courts have long grappled with these “non-explicit rights” and whether those rights are protected under the Constitution.  Recently, the Fifth Circuit Court of Appeals faced a question over a “non-explicit right.”  Does an individual have the right to enter a public, government owned, building, and, if so, then what procedure is required to deny that right?

This controversy began when Carol Vincent became hostile during a visit to the bank. After threatening to kill a city councilman and the mayor of the City of Sulphur, Louisiana, city officials issued a no-trespass order against Mr. Vincent. The order prohibited Mr. Vincent from entering certain public official buildings, to prevent Mr. Vincent from coming into contact with whom he threatened to kill. Eventually, city officials dropped the order. A disgruntled Mr. Vincent sued, claiming that the city officials violated his constitutional rights.

The city officials asserted that they had qualified immunity.  Qualified immunity protects government officials performing their duties from civil liability when their conduct does not violate a constitutional right, by prohibiting individuals from suing government officials over the performance of their duties.  To disprove qualified immunity, the plaintiff must show whether a constitutional right was violated and whether the allegedly violated right was “clearly established.” McClendon v. City of Columbia, 305 F.3d 314, 322-23 (5th Cir. 2002).  In determining whether a right is “clearly established,” courts look at whether a reasonable government official would be aware of the right.  The plaintiff has the burden of showing that the government official is not entitled to qualified immunity. Wyatt v. Fletcher, 718 F.3d 496, 502 (5th Cir. 2013).

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old-abandon-farm-house-1408741-1024x768A good lawyer must be on top of his or her case. Not only must a lawyer know the facts of the case and the applicable law, but the lawyer must also meet certain deadlines and procedure requirements by the court. While little activity on a case might mean it has gone stale, no activity at all can mean abandonment, which is exactly what happened to one plaintiff in Jefferson Parish.

George Segerstrom brought a personal injury claim against police officer Desmond Julian and the City of New Orleans. Mr. Segerstrom alleged that Officer Julian crashed into him with a police car. Three years after Mr. Segerstrom’s filing of the case, the City of New Orleans filed a motion asking the trial court to consider the case abandoned and dismiss the action. The trial court agreed with the City of New Orleans, finding the case abandoned and dismissing it.

Abandonment occurs when there is inactivity in a case for three or more years. La. C.C.P. art. 561. If a lawsuit is considered by abandoned, then the trial court must dismiss the case. Abandonment is automatic and a side cannot “breathe new life into the [case]” once the case is abandoned. Clark v. State Farm Mut. Auto. Ins. Co., 785 So.2d 779, 784, 789 (La. 2001). Acceptable ways to ensure that a case stays active is by filing motions, going through discovery (the information gathering part of a trial), and other formal trial procedures.

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no-fine-print-1419142-1024x768One of the least know parts of a personal injury suit occurs after trial or settlement. It’s called subrogation. Subrogation is the reimbursement of third parties for payments made relating to an accident. Many times, a subrogation claim is made by the injured’s own vehicle insurance provider or by the injured’s own medical insurance provider. Embedded in many insurance contracts is a “subrogation waiver.” As the name suggests, a subrogation waiver in an insurance contract provides that one party agrees to waive its subrogation rights against another party in the event of a loss. Typically, this waiver takes the form of insurers agreeing to forego its ability to seek payment from third parties who may be responsible for losses the insurer had to pay to its insured. In a workers’ compensation context, such waivers would prevent an insurer from seeking compensation from a party who may have been responsible for an employee becoming injured. Absent such waiver, an insurer would have the ability to seek compensation for what it paid in benefits from the party responsible for the work injury.

Recently, a Louisiana Court of Appeal ruled on a case involving a dispute regarding the scope of a subrogation waiver in an insurance policy between Offshore Energy Services, Inc. (“OES”) and Liberty Mutual. In this case, a man named Anthony Beslin was injured while working as an employee for OES. OES had a contract with Liberty Mutual where Liberty Mutual agreed to pay workers’ compensation benefits to any injured OES employee. The contract also contained a subrogation waiver where Liberty Mutual agreed to waive its right of subrogation against “[a]ll persons or organizations that are parties to a contract that requires you to obtain this agreement . . . . ” Based on the insurance contract with OES, Liberty Mutual paid workers’ compensation benefits to Mr. Beslin.

At the time of the accident, OES provided services to Anadarko Petroleum Co. (“Anadarko”) on an oil rig. Based on the contract between OES and Anadarko, OES had to provide workers compensation insurance to its employees and also agree that its insurer (Liberty Mutual) waive its right of subrogation against Anadarko and its Indemnitees (someone who is secure from the legal responsibilities of his or her action). One such indemnitee, Grey Wolf Drilling Co, L.P. (“Grey Wolf”), owned the rig on which Mr. Beslin was injured. It was alleged that a Grey Wolf’s employee’s negligence caused Mr. Beslin’s injuries. In addition to seeking workers’ compensation, Mr. Beslin filed suit against Anadarko, Grey Wolf, and the allegedly negligent employee seeking compensation. Liberty Mutual then intervened, asserting a subrogation claim against Grey Wolf for the workers’ compensation benefits it paid Mr. Beslin.

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porquet-guardiola-1239750-683x1024Inherent in most insurance contracts is an insurer’s duty to defend its insured against certain lawsuits. Part of this duty requires the insurer to pay for all legal costs and other fees related to a particular lawsuit. In a commercial general liability (“CGL”) context, business owners often rely on an insurer’s duty to defend in order to avoid paying significant legal fees for defending actions which would ultimately be covered by a CGL policy. As one might expect, whether this duty to defend exists depends on whether the loss alleged in a lawsuit is within the scope of the policy’s coverage. As a recent Louisiana Appellate Court illustrates, it is very important that insureds understand the language of their CGL policies so as to know when a duty to defend exists.

This case involved a dispute between engineering consultants Chalmers, Collins & Alwell, Inc. (“Chalmers”) and their insurer, Certain Underwriters at Lloyd’s (“Underwriters”), over whether Underwriters owed Chalmers a duty to defend against an underlying lawsuit. The underlying lawsuit involved a contract Chalmers had entered into with Haland Operating Services, LLC (“Haland”) to work on the drilling of a well. As outlined in the contract, the well at issue was being dug in tricky conditions which required the use of specialized equipment. While the well was being dug, problems arose. The drill rig that Chalmers recommended Haland use was not able to handle the difficult drilling conditions and resulted in damage to the equipment as well as Haland’s interests in the well. Haland then terminated the contract with Chalmers and hired another engineering firm to complete the well. In response, Chalmers pursued an action in arbitration against Haland. Haland then brought their own claims against Chalmers in arbitration. Chalmers then demanded that Underwriters defend it against Haland’s claims. However, Underwriters declined to defend, resulting in the instant dispute. The Lafayette Parish District Court found in favor of Underwriters, finding that Haland’s claims were not covered by Chalmers’ CGL policy, and so Underwriters had no duty to defend. Chalmers’ appealed.

Under Louisiana law, the obligation of an insurer to defend its insured is broader than its obligation to indemnify (obligation of the insurance company to pay for any injuries caused by its insured) its insured, which means that an insurer may have to defend its insured against lawsuits even though the policy would ultimately end up not covering the loss. Am. Home Assurance Co. v. Czarniecki, 230 So.2d 253, 259 (La. 1969). Determining whether an insured is owed a duty to defend requires looking at the allegations made by the third party. An insurer is obligated to defend a lawsuit against its insured unless the allegations are “unambiguously” excluded from coverage. However, even though some allegations by a third party may be clearly excluded from coverage under a policy, a duty to defend may still exist if “at least a single allegation” would not clearly be excluded. Duhon v. Nitrogen Pumping & Coiled Tubing Specialists, Inc., 611 So.2d 158, 161 (La. Ct. App. 1992). The factual allegations of a third party, rather than conclusory allegations, are what courts look at in making a determination whether an insurer must defend the insured.

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coke-1483373-1024x768When are you on the job? While seemingly a simple question, many personal injury cases revolve around the issue of whether an individual was acting within the scope of his or her employment. The ramifications of the answer to this question determine whether a business is on the hook for its employee’s negligence. Recently, a Louisiana Court of Appeal (“the Court”) addressed this question when determining whether a Coca-Cola Bottling Company United, Inc. (“Coca-Cola”) employee was working for the company at the time of an accident.

It all began when Ralph McFarland, a salaried employee for Coca-Cola, rear-ended a vehicle belonging to Darius Jack. Prior to the accident, Mr. McFarland had just finished meeting with his final Coca-Cola client for the day and was on his way home from work. At the time of the accident, Mr. McFarland wore a Coca-Cola polo shirt and was in possession of his Coca-Cola cell phone and laptop. Mr. Jack sued both Mr. McFarland and Coca-Cola. At trial, Mr. Jack insisted that Coca-Cola was vicariously liable for Mr. McFarland’s actions. Vicarious liability attributes the actions of a company’s employee onto the company itself. It is normally found when an employee’s action is closely connected to his or her employment duties. See LeBrane v. Lewis, 292 So.2d 216, 218 (La.1974). Courts usually consider many factors when determining vicarious liability like the payment of wages by the employer, the employer’s power of control over the employee, and the time, place, and purpose of the act in relation to service of the employer. See Orgeron on Behalf of Orgeron v. McDonald, 639 So.2d 224, 227 (La. 1994); see also Reed v. House of Décor, Inc., 468 So.2d 1159, 1161 (La. 1985).

Mr. Jack, in arguing that Coca-Cola was vicariously liable, emphasized that Coca-Cola paid for Mr. McFarland’s mileage, that Mr. McFarland met with a Coca-Cola client prior to the accident, and that Mr. McFarland wore a Coca-Cola polo shirt at the time of the accident. Coca-Cola argued against vicarious liability. It pointed out that Mr. McFarland was on his way home from work and that Mr. McFarland did not do any further work after leaving his final Coca-Cola client’s place of business. Coca-Cola also pointed to a statement made by Mr. McFarland where he said that he made a personal stop at a gas station after finishing his last appointment and that while it is possible that he could be called back to office before its closing at five o’clock he could count on one hand the number of times where that happened. Coca-Cola also emphasizes that Mr. McFarland’s typical work day was over by half past three. The trial court held that Mr. McFarland was not working within the scope of his employment with Coca-Cola at the time of the accident and that Coca-Cola was not vicariously liable for Mr. McFarland’s actions.

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willow-1385791-1024x766The National Flood Insurance Program, or NFIP, was Congress’ approach to providing flood coverage at affordable rates. Generally, through the program homeowners can buy a Standard Flood Insurance Policy, or SFIP, from the Federal Emergency Management Agency, or from private insurers. According to the Court of Appeals for the Fifth Circuit, the SFIP outlines the conditions and requirements under which federal funds may be distributed to eligible policyholders. See Marseilles Homeowners Condo. Ass’n, Icn. v. Fidelity Nat’l Ins. Co., 542 F.3d 1053, 1054 (5th Cir. 2008). It is these requirements, or rather not following them to the letter, that sometimes stop homeowners from receiving their coverage.

Ron and Patricia Ferraro own a house at 133 Somerset Road, in Laplace, Louisiana. They had an SFIP from Liberty Mutual. Unfortunately, Hurricane Isaac in 2012 caused extensive damage to their home; nonetheless, their insurance policy with Liberty Mutual was in effect.

The Ferraros filed a claim for benefits, and Liberty Mutual sent an independent adjuster. The adjuster recommended a payment of $103,826 and prepared a proof-of-loss form in this amount. The Ferraros signed and submitted this form along with a signed proof-of-loss form. Important to their case, they also included a handwritten note stating that they would send supplements later. Liberty Mutual paid the full amount of $103,826.

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whistle-1423801-1-1024x768Whistleblowers play a controversial role in the United States. Without Mark Felt, also known as Deep Throat, the world would have never known about the corruptions in the Nixon Administration and without Edward Snowden, the world would have never known the extent of the NSA’s surveillance on both U.S. citizens and foreign individuals. Congress recognized the importance of whistleblowers when it passed the False Claims Act. The False Claims Act allows individuals to bring lawsuits (called a qui tam action) on behalf of the United States when an individual or entity defrauds the United States Government. See 31 U.S.C. § 3729 (2015). The purpose of the False Claims Act is to incentivize individuals to monitor and prevent fraud against the United States by enabling the individuals to get a portion of any damage award that the court gives.

Gregory D. Guth brought a qui tam action against a law firm (RP) arising from the firm’s representation of Louisiana State University (“LSU”) in an expropriation proceeding against him. An expropriation proceeding is an action by a governmental authority where the governmental authority takes property from its owner for public use or benefit.

This case arose after Hurricane Katrina. The U.S. Department of Housing and Urban Development made federal funds available to the City of New Orleans (“the City”) in the form of Community Development Block Grants. The City set aside a portion of the block grants to build a medical center for the U.S. Department of Veteran’s Affairs and a teaching hospital for LSU. The City and the State of Louisiana entered an agreement assigning LSU the power and funds to acquire or expropriate property for the medical facilities. LSU then hired RP to acquire the necessary property.

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toes-1438916-1024x683As if having car troubles was not bad enough, imagine also losing your toe in the process. Well, that exact scenario happened to Valerie Babin. After her vehicle broke down in Gonzales, Louisiana, Ms. Babin called American Towing Enterprises to tow her vehicle. An American Towing Enterprises’s employee, Floyd Russo, arrived to help Ms. Babin. At this point, Ms. Babin’s day went from bad to worse. As Mr. Russo partially loaded the vehicle onto the truck’s flatbed, Ms. Babin went to turn off her vehicle’s emergency flashers. At the same time, Mr. Russo lowered the truck bed, which landed on Ms. Babin’s foot, crushing her big toe. Despite attempts to save her big toe, Ms. Babin eventually required surgery to remove it.

Ms. Babin filed a lawsuit against Mr. Russo and American Towing Enterprises. At trial, the court awarded $673,380.35 in damages, finding Mr. Russo and American Towing Enterprises 60% at fault and Ms. Babin 40% at fault. When the injured individual is found partially at fault for his or her injury, his or her damages are reduced by the amount he or she was at fault. In Ms. Babin’s case, her fault reduced the total amount of damages to $404,028.21. Ms. Babin appealed the trial court’s determination of damages, claiming that the awarded amount was insufficient. Conversely, Mr. Russo and American Towing Enterprises appealed the trial court’s determination claiming that the amount awarded was excessive.

The Louisiana Court of Appeals (“the Court”) was tasked with determining whether the damages were insufficient or excessive. The Court examined two types of damages, general damages, and special damages. General damages often include mental or physical pain, suffering, inconvenience, loss of gratification or intellectual or physical enjoyment, or other losses of lifestyle. McGee v. A C And S, Inc., 933 So. 2d 770, 774 (La. 2006). The goal of general damages is to make the injured party whole. In other words, put the injured party in the same position he or she was at prior to the injury. Special damages are damages that the injured person will experience in the future. Ms. Babin argued that at minimum she should have received $400,000 for general damages and $557,028 in special damages for future medical care. The Court found that the trial court’s determination of general and special damages was reasonable. When addressing the amount of special damages for future medical care, the Court noted that the trial court awarded Ms. Babin $223,77.00 based on the testimony of two doctors at trial. When seeking future medical expenses, “the appellate record must establish that future medical expenses will be necessary and inevitable.” Bass v. State, 167 So. 3d 711, 716 (La. 2014). In addition, future medical expenses will not be supported when there is not medical testimony. The Court found the trial court’s determination of special damages was reasonable and disregarded the defendants’ argument that the awarded amount was unsupported by evidence. Lastly, the Court examined the loss of future wages. The loss of future wages requires the trial court to determine how much work the injured party will miss in the future because of his or her injury. For Ms. Babin, the trial court determined that Ms. Babin will lose $81,735.00 in future wages. The Court also found this amount reasonable.

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pillow-and-sheet-1499969-1024x769Is it cruel and unusual punishment for a prison to not provide an extra pillow and mattress to an injured prisoner?  According to Fifth Circuit Court of Appeals, it is not.  It is unsurprising that inmates often complain about mistreatment from prison officials. But what is required for a prison official’s conduct to be considered cruel and unusual punishment?

Amongst other things, the Eighth Amendment prohibits cruel and unusual punishment. U.S. Const. amend. VIII. Prisoners have a very high standard of proof when claiming that prison officials are guilty of such conduct.  The prisoner must show that the prison official acted with “deliberate indifference to a prisoner’s serious medical needs, constituting an unnecessary and wanton infliction of pain.” Easter v. Powell, 467 F.3d 459, 463 (5th Cir. 2006).

In this case, Mr. Davis, an inmate at Avoyelles Bunkie Detention Center, was involved in an accident while traveling in an Avoyelles Parish Sheriff’s Office transport vehicle. The driver of the transport vehicle hit another vehicle while in reverse. Mr. Davis and the other inmates involved in the accident were taken to the hospital two hours after the accident occurred.

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big-oli-rig-1239227-1024x769Decisiveness can be an excellent quality, especially in a judge.  Court dockets are usually quite full and it can take a very long time for cases to be resolved. Whenever there is a confusion over which law to apply, however, patience is the greater virtue.  In a lawsuit, lawyers will often request relief under various laws in hopes that one will bring success.   In a recent case out of Venice, Louisiana, the  Louisiana Fourth Circuit Court of Appeal reminded an Office of Workers’ Compensation Judge (“WCJ”)  just how important patience is when issuing an order in a case with competing theories of recovery.   

Shawn Johnson was a mechanic for The Wood Group working on its oil production platforms when he was injured in a boat collision on Grand Pass on March 12, 2014.  Grand Pass is a fishing channel, known as “the jump”, which is located close to Venice, Louisiana, in St. Bernard Parish.  After the accident, Mr. Johnson filed claims for compensation under both the Louisiana Workers’ Compensation Act (“LWCA”) and the federal Longshore and Harbor Workers’ Compensation Act (“LHWCA”).  At a December 19, 2014, hearing, the WCJ dismissed Mr. Johnson’s LWCA claim with prejudice asserting the WCJ lacked jurisdiction because the claim did not fall under the LWCA. The dismissal with prejudice would prohibit Mr. Johnson from refiling his LWCA claim.  Mr. Johnson’s LHWCA claim before a federal court was still pending at the time of the dismissal.

In the judgment, the WCJ did not explicitly find that Mr. Johnson’s claim was covered by the LHWCA.  Instead, she found that his claim did not fall under the LWCA. In her reasoning, the WCJ said that there is no longer concurrent jurisdiction so if a claim falls under any federal statute, that would preclude a state claim. The WCJ did not wait however for a definitive determination by the federal court on whether Mr. Johnson’s claim fell under the LHWCA.  If both claims were dismissed with prejudice Mr. Johnson would be completely deprived of relief.  Mr. Johnson appealed the case to the Fourth Circuit only requesting that the case is dismissed without prejudice (meaning it could be refiled) just in case the LHWCA claim did not survive.

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