Louisiana Personal Injury Lawyer Blog

May 17, 2017

Louisiana Appellate Court Defers to Trial Judge in Supermarket Chain Workers’ Compensation Case

coloured-peppers-1319797-1024x768 Appellate courts are reluctant to reverse a trial court’s judgment based on the argument the trial court failed to properly evaluate the evidence. Deference to a lower court is the norm. A recent decision by the Louisiana First Circuit Court of Appeal in DeBlanc v. Albertson’s highlights the principle of judicial deference.

The case’s origins lie in a workers’ compensation claim. Sidney DeBlanc III worked at Albertson’s as a produce clerk. On December 28, 2009, DeBlanc allegedly injured his back while he lifted a box of apples to place them on a cart. He then took a break, finished his shift, and went home but failed to mention the accident to a supervisor. None of his fellow employees witnessed the incident. His mother notified the store later. Two days after the accident, DeBlanc visited his personal physician, received a referral to a specialist, and he later filed a claim for workers’ compensation.

In March 2012, Albertson’s disputed the claim with the Office of Workers’ Compensation. The supermarket challenged whether DeBlanc injured his back on the job and if the specialist’s surgery recommendation was related to his employment with them. The case went to trial, and the Workers’ Compensation Judge (WCJ) found DeBlanc proved his injury and was entitled to disability benefits and the recommended surgery. Albertsons then appealed, based on the argument the WCJ’s judgment was not supported by the evidence.

May 16, 2017

Elderly St. Tammany Parish Woman Denies the Need for Interdiction

by Berniard Law Firm

old-woman-1437938-681x1024 According to the Alzheimer’s Association, 5 million people are currently living with Alzheimer’s disease. Statistics also show that people age 70 are 61% more likely to die from the disease before they turn the age of 80, compared to 30% of the people living without it. So what is Alzheimer’s disease? It is a type of dementia that causes problems with memory, thinking, and behavior. Symptoms worsen over time, rarely get better and are so severe that they can interfere with the daily lives of these individuals. A recent case out of the Louisiana First Circuit Court of Appeal is illustrative of just some of the hardships those who suffer from Alzheimer’s disease face.

In 2014, A St. Tammany Parish Trial Court decided that Shirley Fichtel, an elderly woman, needed an interdiction. Interdiction requires another person or persons to help the interdicted person to care for themselves and/or their personal affairs. This decision came after three different doctors determined that Shirley was no longer capable of caring for herself, her property or her finances. She could not keep her house clean and on several different occasions she had gotten lost while driving, experienced hallucinations, and had her utilities cut off. She was diagnosed as having “Alzheimer’s dementia” and tremors by all three doctors. Her son Matthew testified that Shirley repeated the same things over and over again while speaking and could not remember one conversation to the next. Shirley’s daughter Gretchen testified that she had been handling her mom’s finances for over twenty years.

Shirley believed that her property could have been handled by less restrictive means other than an interdiction and therefore she is appealing her interdiction. She believed that her current caregiver could take care of her as she had been the five weeks before trial. The Court of Appeal found that the caregiver had not been around Shirley enough to handle this task and believed the testimony of her lifetime doctors and her children, who had more time to spend with her, were more valuable than the caregiver.

May 15, 2017

Louisiana Insurance Dispute Highlights Complexities of Concursus Proceedings

by Berniard Law Firm

money-1537580-781x1024 Concursus proceedings can be complicated. In a concursus proceeding, multiple parties assert competing claims to money or property. La. C.C.P. art. 4651. These types of proceedings are designed to free the court from the burden of dealing with multiple lawsuits. As a party to a concursus proceeding, you assert your claims to a particular piece of property against all other claimants. This necessitates a good lawyer, as demonstrated by a recent case of the Louisiana First Circuit Court of Appeal.

In 2010, Joseph Shows was injured in an automobile accident that left him with extensive bodily injuries and significant medical expenses. Fortunately for Mr. Shows, he had prepared for such events by obtaining uninsured/underinsured motorist (“UM”) insurance through Farmers Insurance Exchange in the policy amount of $100,000. He was also covered under a health benefits plan provided by his employer Trimac Transportation, Inc., administered by Blue Cross and Blue Shield of Texas, Inc. (“BCBSTX”).

After the accident, Shows was able to recover $25,000 from the at-fault driver’s insurance company, Allstate, in addition to $63,933.34 of Shows’ $100,000 Farmers UM policy limit. However, one question remained: Who would receive the remaining balance of Mr. Shows’ UM policy limit, totaling $36,066.66? Farmers filed a concursus petition against Mr. Shows and BCBSTX to recover the remaining balance.

May 14, 2017

Injury or Act of Vengeance: Louisiana Court Partially Reverses Workers’ Compensation Case

by Berniard Law Firm

frog-eye-1-1398595-1-1024x768 “An eye for an eye will only make the world blind,” said Mahatma Gandhi. In a recent case, the Ritz-Carlton Hotel Company, LLC claimed that one of its employees filed a lawsuit against it as retaliation for her dismissal from the company. The Louisiana Fifth Circuit Court of Appeal was faced with the question of whether that employee actually suffered a compensable work-related injury or whether her claims were suspect.

Phyllis Summers was a hairdresser, nail technician, and makeup artist at the Ritz. On March 2, 2013, she arrived early to perform a pedicure for a guest. But her day took a turn for the worse as she slipped and fell from water leaking from one of the pedicure tubs. The Ritz suspended her employment on May 3, 2013, and later terminated her on May 16, 2013, for repeated violations of Hotel policy. Ms. Summers then filed a Workers Compensation Claim (“WCC”) on June 7, 2013, seeking compensation for a work-related injury. The Workers’ Compensation Judge (“WCJ”) granted her wage and medical benefits, along with penalties and attorney fees. The Ritz and Marriot Claims Service (“MCS”) appealed, arguing that Ms. Summers filed the lawsuit as an act of vengeance.

In reviewing a WCJ’s decision, the Court of Appeal may only overturn conclusions if a close examination of the facts in the entire court record shows that the WCJ was “clearly wrong.” See Dean v. Southmark Constr., 879 So.2d 112 (La. 2004). In reviewing this case, the Fifth Circuit assessed whether (1) Ms. Summers’ accident was job-related; (2) her accident resulted in injury, or resulted in making an injury she already had worse; (3) she was entitled to temporary total disability (“TTD”); (4) she was entitled to supplemental earnings benefits (“SEBs”); (5) the injury warranted medical, medication and travel expenses; and (6) she had a right to penalties and attorney fees.

May 13, 2017

Dispute Over Attorney Fees In New Orleans Turns into Volleyball Game Between Courts and Arbitrators

by Berniard Law Firm

the-law-society-1241368-683x1024 Louisiana law strongly encourages arbitration as a method of resolving disputes. Arbitration is a form of alternative dispute resolution whereby parties agree to be bound by the decision of neutral third parties. Arbitration promotes efficiency in dispute resolution because it attempts to resolve disputes before court involvement becomes necessary. It prevents courts from becoming backlogged with excessive caseloads. While arbitration promotes court efficiency, it can be a burdensome roadblock to certain litigants seeking recovery. A recent Louisiana case is illustrative.

Tiffany Christian and David were associate attorneys at The Law Office of Paul C. Miniclier in New Orleans, Louisiana. In 2008, both resigned, taking along with them one of the firm’s clients, Carolyn Hall-Williams. At the time of Ms. Christian and Mr. Binegar’s resignation, Ms. Hall-Williams had a lawsuit pending in the federal District Court for the Eastern District of Louisiana. While that lawsuit was eventually settled, the Miniclier Law Firm wanted to collect fees associated with Ms. Hall-William’s representation during her time as a client of the firm. The Miniclier Law Firm filed an intervention with the federal District Court. A magistrate judge awarded the law firm the costs associated with Ms. Hall-Williams representation, but no attorney fees. That award was later modified by a federal District Court judge to include a sum for attorney fees.

Unsatisfied with the award, the Miniclier Law Firm appealed to the U.S. Fifth Circuit Court of Appeal. The Fifth Circuit kicked the case back down to the federal District Court and ordered that the case is stayed (or postponed) until the parties commenced with arbitration. The federal District Court ordered Ms. Hall-Williams to proceed to arbitration, and a petition to arbitrate was filed with the Louisiana State Bar Association (“LSBA”). The LSBA has a Fee Dispute Program which helps resolve disputes between lawyers and their clients as well as disputes between lawyers. Ms. Hall-William’s fee agreement with the Miniclier Law Firm required that fee disputes be arbitrated with the LSBA. The LSBA dismissed the arbitration, in part because the parties could not reach an agreement concerning the scope of the proceedings and the potential impact on the law regarding attorney fee contracts.

May 12, 2017

Louisiana Court of Appeal Upholds Plaintiffs’ Pauper Status

by Berniard Law Firm

faculty-of-law-1492587-1024x768 Are you being or have you been sued and simply can’t afford court costs and litigation due to financial instability? If this is your case, you can file an affidavit of poverty also known as obtaining pauper status pursuant to La. C.C.P. art. 5183. By applying and obtaining this status, the court will permit you to continue litigation without requiring any payments before or throughout the litigation process. If in the course of litigation, the opposing side suspects that you are not actually eligible to obtain pauper status, they may request a hearing and provide evidence to show that you lack the required eligibility criteria (1/125 of the poverty level). At issue in an appeal from the Thirtieth Judicial District Court, the Third Circuit Court of Appeal entertained the discussion of whether or not an unconditional tender of a judgment can be used to revoke a pauper status.

The issue itself arose out of a claim made by plaintiffs Tammy and Tommy Dubois regarding medical expenses for an injury that was caused due to the defendants’ (Scottsdale Insurance Company and SMI Group) negligence. The plaintiffs prior to the court proceedings had gone through the correct procedure as outlined by La. C.C.P. art. 5183 and were granted pauper status.

The District Court ruled in favor of the plaintiffs on their negligence claims and the plaintiffs were awarded $211K. Unhappy with the amount awarded to them, the plaintiffs filed an appeal of the judgment. In response to the appeal, the defendants filed a motion to have the plaintiffs’ pauper status revoked claiming they had been “unconditionally tendered” payment of both the judgment and of the interest on the judgment in two separate checks. The plaintiff’s counsel refused to cash the checks, but the defendant argued that the money was readily available to them, therefore, their pauper status should be revoked because they did, in fact, have access to a sufficient amount of money.

May 11, 2017

Rapides Parish, Louisiana Department of Corrections Not Responsible for Inmates Injured During Work Release

by Berniard Law Firm

prison-1201269-1024x768 When a person is injured, timeliness and diligence are required to hold the responsible party liable under the law. If either element is missing, the injured person will lose the ability to seek relief. An early procedural hurdle plaintiffs face in litigation is the defendant’s motion for summary judgment. Here, the plaintiff must exercise diligence in gathering the necessary evidence to articulate genuine issues of material fact or face dismissal. Another procedural hurdle is the exception of prescription. Similar to what other states would refer to as a “statute of limitation”, prescription is a legal mechanism which prevents a person from pursuing a lawsuit after a certain period of time. In a recent case of the Louisiana Third Circuit Court of Appeal, several procedural hurdles prevented the plaintiff from obtaining recovery.

Paris Madison was an inmate of the Dabadie prison, working at the nearby National Guard base (Camp Beauregard). Mr. Madison was injured when he fell from the truck carrying laundry that he was riding in as part of his duties after the truck hit a hole in the road. Later that year, Mr. Madison sued the Louisiana Department of Corrections, the National Guard, and the driver of the truck for his injuries. The Louisiana Department of Corrections responded by filing a motion seeking summary judgment, arguing that since Mr. Madison was on work release when he was hurt, the Department of Corrections owed no duty to him. In response, Mr. Madison argued that he was supervised by prison guards and that the Military Department had not agreed to take custody over inmates working on the base. Mr. Madison also amended the lawsuit to add the Louisiana Military Department since the truck driver was one of the base’s employees.

In 2012, the National Guard, the Military Department, and the truck driver filed a motion to dismiss, arguing that Mr. Madison’s claim had been prescribed and so he could no longer bring his case against them. La. C.C. Art. 3492, the statute governing delictual actions (i.e. torts) has a prescriptive period of one year. Despite Mr. Madison’s argument and appeal, the motion was granted by the Trial Court. In 2014, the Trial Court considered and granted the summary judgment motion by the Department of Corrections.

May 10, 2017

Louisiana Court Finds Medicaid to Be “Other Insurance” Under Revised Statutes

by Berniard Law Firm

A car accident can create a significant change in one’s life. If nothing else, it can generate a large monetary cost that will be difficult to repay. Automobile insurance, which each person must have to a certain extent, can help with this cost. Other sources like governmental benefits may be of help to some, but it is essential to understand how public benefits and private insurance policies may interact. Louisiana law requires that a person who is suing an insurance company, such as the insurer of another driver at fault for a car accident, must exhaust any other insurance policies that the plaintiff may be entitled to benefits. La. R.S. 22:2062(A). This statute further states that benefits paid by a plaintiff’s insurance policy will be credited against any amount that the defendant insurance company may be said to owe, up to the policy limits of the plaintiff’s insurance. If there is no policy limit, then the full amount will be considered a credit.

In a recent case, the Louisiana Fourth Circuit Court of Appeal attempted to determine just what the law means by “other insurance”. This case involves Charles Brown, who was injured in a car accident in 2012 when another driver failed to stop at a stop sign. Mr. Brown sued the other driver and that driver’s insurance company now called the Louisiana Insurance Guaranty Association (LIGA). In response, LIGA argued that it should not be made to pay Mr. Brown’s expenses since he had received Medicaid benefits that exceeded the policy limit of the insurance policy at issue. Mr. Brown moved for partial summary judgment, arguing that either LIGA was not entitled to a credit for the Medicaid payments, that it would still be liable despite its credit, or that the statute does not block liability behind the first $15,000 in per-person benefits. In response, LIGA argued both that the Medicaid benefits exceeded its liability coverage and that Mr. Brown’s lack of automobile insurance coverage prevented his recovery. The District Court heard the arguments and denied Mr. brown’s motion while granting that of LIGA. The District Court dismissed the claim, ruling that Mr. Brown’s Medicaid payments entitled the insured defendant to a credit. Mr. Brown appealed to the Fourth Circuit Court of Appeal.

Mr. Brown argued that the District Court should not have considered Medicaid benefits to be “other insurance” for the purposes of the statute and that the benefits should not have been credited as they did not cover the extent of his injuries. He also argued that the Federal Social Security Act controlled such a case, or that the District Court misapplied the statute as a credit rather than a partial recovery prevention.

May 9, 2017

Passenger Injured on St. Bernard Urban Rapid Transit Bus in His Wheelchair Seeks Increased Award from Louisiana Appeals Court

by Berniard Law Firm

wheelchair-1575593-1-1024x768 The devil is in the details is a well-known idiom that holds true in this case. It was only upon a close examination of the factual details set out in the trial record that the Louisiana Fourth Circuit Court of Appeal ruled in the plaintiff’s favor. In the case, the Fourth Circuit discusses the two-step process used to determine if the lower court correctly calculated its award of special damages.

Mr. Rosonette was injured while sitting in his wheelchair on a bus driven by Ms. Edith Cantrell, who failed to “use restraints” to secure the chair. The Rosonettes filed a lawsuit against her and St. Bernard to recover damages. The District Court granted $10,155.76 for special and general damages to Mr. Rosonette and denied Mrs. Ronsonette’s loss of consortium claim. They filed an appeal. Regarding damages, the Ronsonettes’ main argument was that in not granting the $26,077.03 cost of medical expenses the court abused its discretion (i.e. failed to properly apply the law or based its decision on an incorrect substantial fact). They argued there was no evidence in the court record to support the ruling. They also claimed St. Bernard failed to provide evidence proving the injuries suffered were not a result of the accident.

The District Court reasoned that Mr. Rosonette was not credible in communicating the extent of his injuries. In reviewing the case, the Court of Appeal did not determine the argument on credibility to be important because the District Court had already conceded that Mr. Rosonette sustained minimal injury as a result of the accident and did not challenge his trial testimony.

May 8, 2017

Is An Unmarked Pole in the Middle of a Sidewalk “Open and Obvious?” LSU Student’s Lawsuit Answers that Question

by Berniard Law Firm

louisiana-state-capitol-1228662-1-1024x768 Louisiana law holds responsible those who cause injury to others by failing to repair unreasonably dangerous conditions in their custody or control. This type of liability is called “custodial liability.” For example, a university that fails to maintain its walkways so as to cause injury to pedestrians can be held liable for damages by injured persons. However, the university in this example would not be liable for conditions which are considered “open and obvious.” In a recent case, the Louisiana First Circuit Court of Appeal helped illustrate what is meant by “open and obvious.”

In 2011, Reina Abolofia was riding her bike at night on the campus of Louisiana State University in Baton Rouge when she hit an unmarked and unpainted concrete-filled metal pole that had been installed in the middle of the sidewalk. She suffered injuries as a result and filed a lawsuit against LSU alleging seeking to hold LSU responsible for her damages under La. C.C. art. 2317 and La. C.C. art. 2317.1 with respect to defects of things that cause damage.

During discovery, Ms. Abolofia learned that the portion of sidewalk where her accident occurred was partly owned by LSU and partly owned by Southgate Towers, LLC. She added Southgate Towers as a defendant because it was unclear if Southgate had erected the metal pole or LSU had done so and on whose property the pole was situated.