Louisiana Personal Injury Lawyer Blog

July 2, 2017

Comprehensive proof of driver at fault’s underinsurance required to claim under underinsurance policy

highway-14-junction-1628439-768x1024 Underinsurance policies provide drivers an extra layer of protection. These policies compensate drivers for injuries suffered in accidents with uninsured or underinsured drivers, but the process of claiming under these policies can be problematic. Ted Luquette encountered this difficulty after he was injured in a car accident in Abbeville.

Luquette was driving home from church in Abbeville, Louisiana when he was hit by a car driven by Chad Mowbray, who through the owner of the vehicle, Billie Borga, was insured with Allstate. After the accident, Luquette settled for his injuries with Allstate for $100,000, which was the policy limit. Luquette then brought a lawsuit against his own insurance, Farmers Bureau. Luquette claimed he required surgeries resulting in damages in excess of $100,000 as a result of the accident, which entitled Luquette to a payout under his policy.

To demonstrate that Allstate was the only insurance that the Mowbray and Borga had, Luquette primarily relied on a discovery answer by Allstate, which stated that Allstate was not aware of Mowbray or Borga being covered by any other insurance policy. At trial, the jury was asked whether Luquette sufficiently proved that Mowbray and Borga were underinsured. Luquette did not object to this question, and the jury resolved that he had not shown that Mowbray and Borga were underinsured.

July 1, 2017

Louisiana Court Does not Hold Insurer Responsible for Negligence of an Uncovered Driver

by Berniard Law Firm

highway-perspective-1508300-1024x768 Lawsuits that are rooted in car accidents are typically cut and dry; it is easy to determine the party at fault and to determine the party that should pay for the costs of damage. However, a case arising out of Monroe proves that this is not always the case. This perplexing lawsuit involves a situation in which the at-fault party was not covered under the vehicle’s insurance.

After a car accident occurred on September 29, 2010, at the intersection of Louisville Avenue and North 18th Street, Shanedra Reed and Jasine Hubbard brought claims against one of the car’s insurers, Safeway, alleging that they were passengers in the car driven by Naiman Carroll when they became injured by the accident. Safeway was Carroll’s insurer, so under these claims, this company would be liable for their injuries. However, Safeway affirmatively argued that Carroll and Reed were passengers in the car, while Hubbard, who is not covered by Safeway under Carroll’s insurance, was driving. Hubbard’s claim was eventually dismissed because she failed to answer discovery before trial.

At trial on January 30, 2014, the Trial Court determined that Hubbard had been negligent in failing to properly look for traffic while making a left turn at a stoplight. As a result, the trial court found that Safeway was liable to Reed for general damages of $10,000, as well as for special damages caused as a result of the accident.

June 30, 2017

Proving Third Party Negligence Can be Tough Both Legally and Personally

by Berniard Law Firm

a4-highway-1368417-1024x768 It is often the case that although technically legal, certain lawsuits will not be popular amongst the general public because the court’s reasons for its decision just will not make sense at an emotional level. Despite this fact, people should take notice of the fact that courts rule based on what the law deems to be just and fair. This sort of a fact may only be small comfort to the Toups, who lost their son and want the party or parties responsible to be held accountable for the loss they suffered.

This was an appeal from a summary judgment granted in favor of Adele Dantin, wife of Mr. Dantin, the driver of the car that hit the pickup truck driven by Dr. Toups that resulted in the death of the Toups’ son. The Toups’ alleged Adele was negligent because it was her car that Mr. Dantin was driving at the time of the accident. The accident occurred on Louisiana Highway 1 in Lafourche Parish. Adele filed a motion for summary judgment which asserted she was not legally responsible for the accident because there was no evidence that she gave Mr. Dantin permission to drive the car at the time of the accident. The motion was granted and the Toups’ appealed. The First Circuit affirmed which meant that Adele did not share in the negligence of her husband for the accident that resulted in the death of the Toups’ son.

The Toups alleged that Mr. Dantin had a history of drug and alcohol related charges for more than 30 years, that since his release from jail in August 2009, Mr. Dantin was prohibited from operating a vehicle that did not have an ignition interlock device, and that the Maxima that Mr. Dantin had been driving at the time of the accident did not have an ignition interlock device.

June 29, 2017

Jefferson Parish, Louisiana- Why Did the Fifth Circuit Find This Plaintiff’s Claim Outside the Scope of the Consumer Leasing Act?

by Berniard Law Firm

offroad-1499557-1024x768 A person may seek help from the federal court system when that person feels that they have been cheated or wronged. However, one needs to make sure that the federal court can actually help the situation. Personal jurisdiction is the ability of a court to exercise power over a person or a specific case. Subject matter jurisdiction is the court’s authority to hear cases that revolve around the certain subject matter. Generally, lawsuits end up in the federal courts in one of two ways. The first occurs when the parties are from different states and the amount of the claim is over $75,000, regardless of the type of claim. The second occurs when the nature of the claim is specific to a federal statute or law. This is usually an attempt to get a federal court to enforce a right granted by federal law. A claim that would get in court under one of these two theories must be stated in the plaintiff’s complaint. 28 U.S.C. § 1332.

The United States Fifth Circuit Court of Appeal recently demonstrated the need to properly establish a federal claim. In 2012, Landry Dixon sued Lakeside Toyota and the Toyota Motor Credit Corporation (TMCC). Mr. Dixon believed that the Sales Manager of the dealership had lied to him by allowing him to assume that since he was leasing an automobile on behalf of the nonprofit organization of which he was the CEO, the lease would be tax-exempt, leading to a lower monthly payment. Mr. Dixon paid the lower amount stated on the lease agreement, which ultimately turned out to be almost thirty dollars below what he should have been paying as a nontax-exempt customer. His lower payments added up, causing the Toyota Motor Credit Corporation to make collections and damage his credit rating. Mr. Dixon brought this lawsuit in federal district court on a claim of common law fraud, which is a state law claim.

Since he did not claim anything about what states the parties were from nor did he bring a claim under federal law, the District Court dismissed it for lack of subject matter jurisdiction. Mr. Dixon attempted to file various motions to fight this dismissal. He also made a separate lawsuit against the TMCC only, stating a claim under the Consumer Leasing Act (CLA), which is a federal law that governs certain leases. 15 U.S.C. §§ 1667–1667f. However, even this was not enough to establish a claim in federal court and the District Court dismissed the case once again.

June 28, 2017

Louisiana Court Forced to Sort Our Complicated Maritime Contract Dispute

by Berniard Law Firm

supply-vessel-1449728-698x1024 Contract disputes can often be complicated when multiple parties and corporations are involved. Courts are forced to sort out multiple claims and counterclaims and figure out who is accountable for what. Even after a decision is made, there can be multiple appeals and judgments that a higher court is asked to review. In complicated cases, it’s common for mistakes to happen, as a case that landed in the Fifth Circuit will demonstrate, and the appeal process is available for parties to have their case double checked.

In this case, a contract dispute arose between Comar Marine, LLC (Comar) and four LLCs that owned vessels (Owners) that Comar managed on their behalf after the Owners decided to stop this management arrangement before the specified end date in the contracts. In response, Comar sued the Owners for breach of contract and secured the vessels under arrest, which means they took possession of the vessels, on the grounds that Comar was allowed termination fees under the agreement which provided them with a lien on the vessels. The Owners countersued, alleging that Comar wrongfully arrested the vessels.

JPMorgan Chase Bank (JPMorgan) and Allegiance Bank Texas (Allegiance) held the mortgages for the vessels and entered this dispute to defend their ownership interests. The District Court granted summary judgment in favor of the banks. According to the Federal Rules of Civil Procedure 56(a) the court should grant summary judgment if the person asking for the judgment shows that there is no genuine question over the material facts and they are entitled to a judgment under the law. The District Court held that the four LLCs materially breached the agreements by terminating early, that the termination fee in the agreement was unenforceable, that Comar did not have a valid lien on the vessels, and that Comar wrongfully arrested the vessels. Both Comar and the Owners appealed the judgment from the court and Comar appealed the grant of the summary judgment.

June 27, 2017

New Orleans Traffic Camera Ticket Recipients Class Action Unsuccessful

by Berniard Law Firm

do-not-park-1445020-1024x766 The difficulties of certifying a class for a class action lawsuit were highlighted in a case in which an Orleans Parish resident, Michelle Albe, disputed a speeding ticket imposed by the City of New Orleans Automated Traffic Enforcement System (“ATES”). Ms. Albe’s challenge was based on the wording of a delinquency notice she received, which contained the threat of ‘possible jail time’. Ms. Albe sought to include all recipients of the delinquency notice in a class action.

Ms. Albe received a citation after she was recorded speeding on October 12, 2008, in the Parish of Orleans. She challenged the ticket, but despite her timely appeal, she received a delinquent notice for non-payment of the citation. The notice contained the threat of “possible jail time” if it wasn’t paid, even though the citation was civil and not criminal.

Ms. Albe amended her challenge to the citation, arguing that the emotional distress she suffered due to the inclusion of the threat of possible jail time in the delinquency notice amounted to the negligent and/or intentional infliction of emotional distress. Ms. Albe then sought to include all other recipients of the delinquency notice, estimated at 40,000 people, in a class action.

June 26, 2017

You’re Both at Fault: Automobile Collision in Monroe, Louisiana, Results in Equal Liability to Both Drivers

by Berniard Law Firm

autumn-highway-1186821-1024x683 Do you remember how it felt to get your driver’s license? Perhaps there was a sense of freedom, invincibility, or just sheer excitement. Imagine, or think back to your own memories of, that feeling’s abrupt end — your first car accident. Such was the experience of one teenager in Monroe, Louisiana.

On May 10, 2012, a little over three months after getting her driver’s license, Courtney Smart and her passenger, Michele, were on their way to school and heading east on Garden Lane toward its intersection with Highway 165. Rita Calhoun, age 69, was headed west toward the same intersection from the opposite side of the highway. In the process of turning right onto Highway 165 South, Courtney’s vehicle collided with Rita’s vehicle, which had made a left turn at the intersection. The collision occurred near the intersection in the left lane of the highway, damaging the rear left panel of Courtney’s Hyundai Elantra and the front right corner of Rita’s Toyota Avalon.

Courtney’s and Michele’s parents (“Plaintiffs”) filed a lawsuit against Rita, claiming that Courtney lawfully made a right turn onto the highway when Rita turned left without yielding the right of way at the intersection and subsequently hit Courtney’s car. Rita denied these allegations in her answer and alleged instead that Courtney was at fault by turning into Rita’s path. Both parties then filed motions for summary judgment, but the trial court denied each motion after finding genuine issues for trial pursuant to La. C.C.P. art. 967(B). In other words, the Plaintiff’s and Rita each filed a motion asking the judge to rule in their favor because their version of the facts is the only plausible version. The court denied the motions, however, because both Courtney’s and Michele’s versions of the accident were plausible. The matter then proceeded to a bench trial, which is a trial before a judge instead of a jury.

June 25, 2017

Disability ERISA Insurance Claims Require Timely Production of Evidence

by Berniard Law Firm

accessibility-1538227-1-1024x768 Navigating an ERISA disability insurance claim through the courts can be a difficult task. The best ERISA disability isurance claim lawyers can help be your guide to ensure your rights are protected. The following case that arises out of the Federal Court system in New Orleans demonstrates the issues that can arise when you fail to timely provide the required documents to prove your case and your insurer denies your disability claim.

The case began when Angel Dix a two-year employee of Blue Cross Blue Shield Louisiana began experiencing back pain. Her doctors deemed her disabled for insurance purposes and she began receiving disability benefits under the company’s long-term disability program. Less than a month later, Dix was notified that she would no longer receive disability payments by her insurance company. The letter stated that the administrator found that the medical evidence “no longer supported a finding of disability.” The administrator considered medical opinions from treating and reviewing physicians, findings of an independent medical evaluation, and a vocational expert’s report. Dix appealed the decision.

During the initial review process, the administrator asked Dix whether she would like to submit additional documentation, and even gave Dix an extension on the deadline for submitting documentation. Dix failed to submit any additional information. The record was reviewed and the decision of the administrator was upheld. Then, approximately one year and three months after the administrator issued its final decision in her appeal, Dix submitted medical records, X-rays, MRIs, affidavits, and a favorable Social Security Administration decision. The affidavits were from two of her doctors stating that they do not recall speaking with the reviewing physician. The administrator declined to add the documents to the administrative record because Dix has exhausted her administrative remedies.

June 24, 2017

Alexandria Sam’s Club Employee’s Fall at Work Leads to Long Battle in the Courts

by Berniard Law Firm

spinal-tap-1197804-1-768x1024 Justice is often not a sprint through the courts, but a long carefully navigated journey. This is because the law is not always black and white and standards of proof may make it difficult for a Plaintiff to prove his or her case. In a lawsuit arising out of Parish of Rapides, for example, Cecilia Rachal had to navigate four separate issues through the courts to find compensation for a simple fall at work.

Alexandria’s Sam’s Club was undergoing renovations when one of its employees, Ms. Rachal, fell between a filing cabinet and a co-worker while on the job. After the accident, Ms. Rachal experienced pain in her head, neck, back, right hand and ankles. After seeing various doctors and filing a claim for workers compensation benefits, Ms. Rachal was successful in obtaining temporary disability benefits.

Under the advisement of her attorney, Ms. Rachal visited another doctor, Dr. Clark, almost a month after her accident due to the possibility of symptoms arising after the initial trauma of her injury. Ms. Rachal received a lumbar MRI scan, which helped Dr. Clark diagnose Ms. Rachal’s spinal stenosis. At the recommendation of Dr. Clark, she received injections in her lumbar and physical therapy. Ms. Rachal additionally had lumbar laminectomy surgery a few years later after the lumbar issues continued, despite conservative treatment.

June 23, 2017

Law Firm Does Not Receive Share of Settlement Per Court Ruling

by Berniard Law Firm

When representing a client, an attorney and law firm must do their due diligence and advocate for their client in the best way possible. An excellent attorney will put in countless hours for their client and will not stop working until the job is completed. Not all attorneys do this however, and when an attorney underperforms, the client has every right to seek a different lawyer for their services.

In April 1996, Stephen Phares (“Mr. Phares”) went to the emergency room of Christus Schumpert Medical Center in Shreveport, Louisiana. Mr. Phares complained that he had back pain, and the next day had back surgery. Shortly thereafter, Mr. Phares consulted with Carl Reynolds (“Mr. Reynolds”) of the Reynolds law firm in Georgia, because he believed he had a medical malpractice claim. Seven months later on November 14, 1996, Mr. Phares and his wife signed a medical negligence employment contract and hired the Reynolds firm to represent them in their case. Because the Reynolds firm was based in Georgia, the firm needed to bring on a second firm that practiced in Louisiana. In January 1997, the Reynolds firm hired the McKeithen law firm to act as local counsel on the malpractice claim. The two firms had an oral agreement that ultimately led to a fifty-fifty arrangement regarding attorney fees.

The Phareses filed a lawsuit and a jury trial was scheduled for September 18, 2006. Before the trial, the two firms agreed to submit the malpractice claim to mediation, and as a result, a settlement was entered in which one health care provider would pay $100,000 to the Phareses and a second provider would pay $60,000. The attorney fee ended up being $72,000, however, the Reynolds firm received 60 percent and the McKeithen firm received 40 percent. Shortly after the mediation, the Phareses filed a claim against the Louisiana Patient’s Compensation Fund (PCF). The Phareses then terminated the Reynolds firm from the case and hired Martin Bohman of the McKeithen firm. A contingency fee contract between the Phareses and Mr. Bohman established that the attorney fee would be 40 percent. In August 2006, the Phareses settled their claim against the PCF for $600,000 and the McKeithen firm received $240,000 as a contingency fee.