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storm-over-barcelonetta-1463885-1024x679Automobile accidents can be terrifying experiences.  Severe automobile accidents that involve injuries can be truly devastating and life altering.  In the event one is injured in an automobile accident, he/she has several options available to him/her in obtaining compensation for his/her losses.  More specifically, one may have a claim against the other driver(s) who caused the automobile accident or have the ability to bring a claim against the other driver’s insurance company.  Depending on the circumstances of the automobile accident, one may also have the ability to bring a claim against his/her own insurance company for compensation.

An insurance company is required to act in good faith with any individual making a claim, regardless of whether he/she is a policyholder with said insurance company.  Generally, an insurance company has acted in bad faith if it fails to fulfill the obligations stipulated in the insurance policy language or if it fails to abide by the laws of the state where the claim has been filed.  Some examples of bad faith include but are not limited to: refusing to pay a claim owed; failing to timely pay a claim owed; requiring unreasonable unnecessary paperwork to process the claim filed; failing to deny a claim within a reasonable amount of time; and failing to explain the reasons(s) for why a claim is denied.  Consequently, having a great attorney who is competent in identifying bad faith can assist you pursuing a legal claim against the insurance company for its actions, while also assisting you with the original claim presented to the insurance company for the property damage and bodily injury you suffered in the automobile accident.

The following case out of East Baton Rouge, Louisiana is an example of an insurance company acting in bad faith and being legally penalized for doing so.  On May 20, 2010, the plaintiffs, Dedra and Sheddrick Griffin filed a petition for damages against State Farm Mutual Automobile Insurance Company as a result of an automobile accident that occurred on January 13, 2010.  On January 13, 2010, Jacob P. Savoy driving a 2001 Mitsubishi Spyder struck Mr. and Mrs. Griffin driving a 2000 Infiniti I30 from behind while traveling eastbound on U.S. Highway 190 in West Baton Rouge, Louisiana.  The accident caused extensive property damage and personal injuries to Mr. and Mrs. Griffin.  More specifically, Mrs. Griffin, the driver of the Infiniti sustained injuries to her shoulder, neck, and chest wall, in addition to aggravating pre-existing injuries to her neck, back, and legs, while Mr. Griffin sustained injuries to his left knee, chest wall, and back.  Mr. and Mrs. Griffin were both treated by Dr. David Wyatt, an orthopedic surgeon.  At the time of the accident, Allstate Insurance Company insured Mr. Savoy with liability limits of $10,000.00/$20,000.00, while State Farm insured Mr. and Mrs. Griffin.

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crash-1181707-1024x685After someone has been through six, separate car accidents, it might be difficult to keep track of which injuries and treating physicians stemmed from which accident. Nevertheless, if you find yourself before a court you must present a detailed and accurate record of everything. The following case, in which one Baton Rouge woman claimed that the Trial Court considered the wrong evidence in deciding her case, illustrates this point.

Linda Williams has had the bad luck of being involved in six car accidents in the last 40 years. Her most recent accident, a collision on Perkins Road in East Baton Rouge Parish in 2008, was the subject of a recent Court of Appeal decision. The initial trial began in 2009 with Williams bringing a lawsuit against her insurance company, Liberty Mutual. Williams asserted that her injuries from the 2008 crash were severe enough to warrant additional money damages under her insurance policy. However, as Williams had an extraordinarily unfortunate personal history of being injured in car accidents, the Trial Court was faced with the difficult task of determining which injuries were the products of the 2008 crash and which injuries were the lingering effects of Williams’s five prior accidents. Since even a single car accident can give rise to multiple injuries with multiple courses of treatment overseen by multiple doctors, the lawyers for both sides had plenty of opportunities to argue about which doctors were connected to the 2008 accident and thus, relevant to the case at hand.

At trial, the jury awarded $14,800 in damages to Williams for past medical expenses, the past and future physical pain and suffering, the past and future mental suffering and distress, and the past and future enjoyment of life. However, Williams felt that the Trial Court made some errors that reduced the amount of damages she received and so she appealed. In her appeal, Williams alleged that the Trial Court incorrectly admitted evidence on two instances that were related to her prior accidents and also improperly allowed Liberty Mutual to remove a juror based on race. The Louisiana First Circuit Court of Appeal, referring to the Trial Court’s record and hefty body of medical evidence therein, considered these issues in turn.

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workers-1542652-1024x768You may be entitled to compensation for any injury that occurs on the job. The extent of compensation depends on the extent of your injuries. See La. R.S. 23:1221. The employer and the employee often disagree on the amount of compensation. When this happens, a court of law often becomes the forum for resolution. Such was the case with an employee in Louisiana named Ta’Shanta Dupard.

In November 2013, a hammer fell on Ms. Dupard and struck her in the knee while she was working at MMR Construction. The blow resulted in a knee contusion and laceration, which left a permanent scar on her knee. Dupard filed a claim against her employer claiming that she was entitled to worker’s compensation benefits due to the serious and permanent disfigurement to her knee. The parties agreed that Dupard was entitled to compensation for her injuries, but disagreed as to exactly how much.

Ms. Dupard had a weekly salary of $1,058.62 at the time of her injury. According to Louisiana Worker’s Compensation laws, this yielded a maximum compensation rate of $619 per week. MMR believed that five weeks’ compensation was adequate for the scar, whereas Dupard’s attorneys claimed 25 weeks was the proper benchmark because the scar was a permanent disfigurement.

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In Louisiana, district courts (the lower level trial courts) have great discretion in awarding costs to a bell-county-texas-courthouse-1549054-1-1024x768party. These costs can include expert witness fees, deposition fees, exhibit costs, costs for the clerk of court, the cost of obtaining medical records and related expenses. See La. R.S. 13:3666, and La. C.C.P. art. 1920. Certain costs, such as clerk costs, sheriff’s costs, and the cost of taking a deposition are taxed by the court. La. R.S. 13:4533. Although La. R.S. 13:4533 defines the term “costs,” it does not discuss who is entitled to costs and under what circumstances. In a recent case, the Louisiana First Circuit Court of Appeal discusses the assignment of costs upon a party.

In a jury trial held February 2014 in Louisiana’s Twenty-Second Judicial District Court, plaintiff Yvonne Arnaud was found to be one-hundred percent at fault for a vehicle collision that occurred on U.S. Highway 11 in Millard, Mississippi. The defendant driver, Silas Sumner was found to be zero percent at fault. Following the trial, Mr. Sumner and his co-defendants C.O.B. Enterprises and its insurer, Scottsdale Insurance Company, filed a motion seeking $53,346 in costs from Ms. Arnaud. About twenty-one thousand dollars of this amount was for expert witness fees. The District Court charged Ms. Arnaud for $30,589.95 in litigation costs, a little over half the amount sought by the defendants.

Ms. Arnaud appealed to the Louisiana First Circuit Court of Appeal. She argued that most of the expert witness fees charged to her were for work done by unknown individuals outside the courtroom. She also argued that the $30,589.95 costs in total litigation were excessive and that the District Court abused its discretion in charging any costs to her because she was indigent.

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money-4-1238890-768x1024In workers compensation cases, the awarded money benefits can be offset in court to account for other benefits being received by the employee for the same injury like social security disability benefits. If the employer seeks to have the workers compensation benefits offset to account for social security disability they will need to file a “Motion for Recognition of Right to Social Security Offset” pursuant to La. R.S. 23:1225(A). The Louisiana First Circuit Court of Appeal was recently faced not only with a motion to offset due to social security disability but whether or not to include attorneys fees in the pre-offset amount or not. These particular issues arose out of a lawsuit brought by Stephanie Nitcher against Northshore Regional Medical Center (Northshore) for compensation for temporary or permanent total disability benefits, medical treatment and attorney fees.

On October 30, 2012, Ms. Nitcher was awarded workers compensation benefits including $86,871.84 in past due indemnity, $13,181.13 in interest and $550.47 in appeals costs all from Northshore. In addition, Northshore was ordered to pay Ms. Nitcher permanent total disability benefits in the amount of $329.96 per week from the date of the judgment forward. Ms. Nitcher in addition to the workers compensation benefits being paid by Northshore was receiving social security disability benefits pursuant to 42 U.S.C. § 423. On December 19, 2013, Northshore filed its motion for recognition of the offset of the social security disability benefits, which serves the purpose to allow an employer to offset the amount of money it’s paying out when the employee is essentially receiving payment for the same disabilities from both state and federal entities. The offset sought by Northshore would reduce their weekly payments to Ms. Nitcher by $115.52.  Prior to the hearing on Northshore’s motion, Ms. Nitcher filed to have her attorney’s fees taken out of her weekly workers compensation benefits, resulting in $65.81 coming out of the previously awarded $329.96. Northshore’s offset calculation did not deduct the $65.81 prior to calculating the $115.52 offset which resulted in their motion being denied and the judge ordering that Northshore’s offset amount be $49.71 a week lowering the original $329.96 to $279.35.

On appeal Northshore contends that the judge erred in denying the offset amount of $115.52, claiming that pursuant to La. R.S. 23:1225(A) the attorney’s fees did not need to be deducted prior to the offset calculation. The First Circuit Court of Appeal in determining the social security offset first looked to La. R.S. 23:1225(A) which states that the benefits provided for injuries resulting in permanent total disability will be reduced when the person is also receiving benefits under 42U.S.C. Chapter 7 (42 U.S.C. 423) which applies in this case since Ms. Nitcher is receiving benefits both from workers compensation as well as social security disability. From here the appeals court went on to determine how the offset should actually be calculated, the specific issue here being whether or not to calculate pre or post attorney fee deduction. The prior judgment approved the attorney fees deduction from the calculation referring to statutory attorneys fees which do allow for deduction prior to offset calculations, the fees at issue are however not statutory attorneys fees. The attorney’s fees, in this case, are limited by statute but not authorized by statute which would make them statutory attorney fees. The court went further to determine that since there is no Louisiana law that requires an employer to pay attorneys fees in connection with a workers compensation claim, that the only way to do so would be if it were a punitive order. That is however not the case here and since Ms. Nitcher does owe the attorneys fees it was properly deducted from her disability benefits, but Northshore was improperly made responsible for the fees by including the deduction in their offset assessment.

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residence-1226143-768x1024In joint real estate ventures, all partners are presumed to be equal unless agreed otherwise. All parties should have equal decision-making power, share equally in gains and losses, and possess equal interests in the subject property. Cooperation among the partners is essential to the success of the venture. Each person must enter into the transaction with an open mind towards other partner’s ideas and business tactics. However, when one person uses the other partners for his own personal gain, litigation usually follows. This was the unfortunate situation in the following case.

The defendant, Mr. Paul Barranco, wanted to purchase three apartment complexes in Baton Rouge, LA as investment properties. After failing to obtain financing on his own, he enlisted the help of Plaintiffs, Mr. Brignac and Mr. Godchaux. The three parties formed God-Brig-Bar, LLC. Plaintiffs sent their tax information to Mr. Barranco for the purposes of obtaining financing. Mr. Barranco advised Plaintiffs that he was selling another apartment complex located on Ned Drive in Baton Rouge and that the proceeds from that sale may be used as a down-payment on the three apartment complexes. Each Plaintiff gave a check to Mr. Barranco for their one-third deposit amount on the three complexes in the amount of $10,000.00 each.

Mr. Barranco deposited the funds and advised Plaintiffs that Palisades Properties expressed interest in acquiring the purchase agreements to the three properties. The sale of the three complexes to Palisades Properties would yield $1,132,000.00 in profits to be split three ways. Mr. Barranco drafted and signed a letter of intent in his name only to Palisades Properties, stating that he would sell it the three purchase agreements, one for each complex. Plaintiffs advised Mr. Barranco that they wanted the letter of intent changed to include all of their names. Mr. Barranco refused to do so and asserted that it might scare off the potential buyer since they were already nervous about such a large investment.

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parking-lot-d-1234500-1024x587Parents love their children very much. It is always a difficult experience to involve a child in a lawsuit. Such an emotionally difficult experience can be soothed by having the best attorney possible. Losing a lawsuit on behalf of one’s child is a traumatic experience, especially after an accident. This is exactly what happened in a recent case of the Louisiana First Circuit Court of Appeal.

In January 2011, the Gaspards were leaving a Winn-Dixie store in Covington, Louisiana walking with their son in a baby carrier through a marked pedestrian zone. Suddenly, they were struck by a vehicle. In May 2011, they filed a lawsuit on behalf of their son against the driver of the vehicle, Anna Lewis; Safeway Insurance Company, the liability company that insured Lewis’ vehicle; and Geico General Insurance Company, the Gaspards’ uninsured or underinsured motorist carrier. Later, the Gaspards added Winn-Dixie Louisiana, Inc., Winn-Dixie Montgomery Leasing, LLC, and Gordon Konrad, the owner of the parking lot, and his insurers as additional defendants. The Gaspards alleged that these additional defendants had been negligent in the parking lot’s maintenance and design. The Gaspards further alleged that the Winn-Dixie and Konrad knew or should have known of the danger to pedestrians in the parking lot and had failed to take the appropriate measures to protect pedestrians.

In 2014, Winn-Dixie and Konrad filed a motion for summary judgment, arguing that the case should be thrown out because the Gaspards were unable to show a connection between the parking lot and their injury. Later, the Trial Court dismissed Gaspards’ claims were dismissed. The Gaspards appealed.

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find-money-1182912-1024x768Louisiana law awards damages awarded for injuries caused by the intentional, negligent or reckless act of another. These damages are determined by the finder of fact – a jury or judge – after hearing the evidence presented at trial. Even if the factfinder finds that the defendant is at fault, sometimes it is not clear cut what type of damages should be awarded and what amount is proper. A recent case out of Livingston Parish demonstrates how courts in Louisiana allocate damages in personal injury cases.

Vandi McMurry was involved in a motor vehicle accident with James Commander, who was insured by Louisiana Farm Bureau Casualty Insurance Company. The Trial Court awarded McMurry a $25,000 lump sum award in general and special damages. General and special damages are the most common types of damages awarded in personal injury cases. General damages are the natural result of the defendant’s wrongful actions. Special damages compensate an injured party for actual financial losses. McMurry appealed the judgment to the Louisiana First Circuit Court of Appeal, arguing the Trial Court erred in granting a lump sum and the award should have been higher.

In Louisiana, the factfinder has discretion when it awards damages because it can best evaluate witness credibility and examine the evidence. See La. C.C. art. 2324.1. A court of appeal will normally not a modify a trial court’s damage awards. See O’Connor v. Litchfield, 864 So.2d 234, 237 (La. Ct. App. 2003). A lump sum judgment generally awards all claimed damages. In Louisiana, a trial court is not required to itemize the damages and does not err by granting a lump sum award.

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train-sign-1445304-683x1024When a driver fails to satisfy the standard of care, the driver’s negligence during an automobile accident may be considered in a lawsuit. The standard of care is the amount of caution that must be exercised by a person who is under a duty of care. A case out of Ouachita Parish demonstrates the special rules that a left-turning driver must follow and the presumption of negligence that attaches to a left-turning driver.

On the evening of November 11, 2011, while attempting to turn left, Cheryl Baker collided into Eloise Square’s vehicle at the intersection of Winnsboro Road and Highway 165 in Monroe, Louisiana. The traffic light was green in both directions. Baker’s vehicle was damaged across the front. Square’s vehicle was damaged along the front driver’s side.

On March 13, 2012, Baker filed a lawsuit against Square and her insurer, State Farm Mutual Automobile Insurance. On March 26, 2012, Square filed a lawsuit against Baker and her insurer, USAgencies. On May 12, 2012, these lawsuits were consolidated. On December 14, 2012, Square’s lawsuit was settled and dismissed.

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welder-1241607-1024x683The Louisiana Workers’ Compensation Act aims to protect employees who suffer on-the-job injuries. But in order to benefit from the act, plaintiffs have the burden of proving their claims. This means providing clear and convincing documentation of your injuries and work limitations. In a recent case, the Louisiana Second Circuit Court of Appeal found that the plaintiff failed in meeting this burden of proof.

Celia Sanchez was a card dealer at the Horseshoe Casino in Bossier City Louisiana which is owned by Caesar’s. She injured her back and hip in 2011 when she slipped and fell on a metal ramp at the Horseshoe Casino. In September 2013, Ms. Sanchez filed a disputed claim for compensation against her employer seeking indemnity benefits, medical treatment, penalties and attorney fees.

Caesar’s filed a request with the medical director of the Workers’ Compensation Administration that Ms. Sanchez undergo an independent medical examination (“IME”) with Dr. Robert Holladay. Ms. Sanchez opposed the request for IME and requested that the Workers’ Compensation Judge (“WCJ”) find that no IME was warranted. In the alternative, she requested that the WCJ appoint a physician trained who had fellowship training in spine surgery and actively treats spine patients. Dr. Holladay lacked both of these qualifications.

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