Louisiana Personal Injury Lawyer Blog

May 13, 2017

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

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.

May 7, 2017

Louisiana Court Upholds Verdict in Favor of Wal-Mart in Gonzales Slip-And-Fall: Plaintiff Not Credible

by Berniard Law Firm

shopping-1241024-1024x637 A jury’s verdicts can an often depend upon which party it believes the most. In a jury trial, the jury is indeed the trier of fact. It hears the evidence and makes findings of fact based on the credibility of witnesses and other evidence presented at trial. In a case out of Gonzales, Louisiana the verdict hinged on whether the Plaintiff, Mindy Weiley, appeared credible to the jury or whether she seemed to be a liar.

Ms. Weiley filed a lawsuit against Wal-Mart after slipping and falling in a puddle of water at one of their stores. Ms. Weiley contended that she suffered multiple injuries to her back, neck, and left knee. At trial, the jury found that Wal-Mart was negligent by failing to keep its premises clear of debris, to clean up that debris, and to monitor the area covered by debris. However, the jury found that Wal-Mart’s negligence did not cause Ms. Weily’s injury. It did not believe her testimony that she suffered injury at the hands of Wal-Mart and dismissed the case in Wal-Mart’s favor. Weily appealed, arguing that the jury’s verdict was manifestly erroneous and that its finding of liability was totally inconsistent with its denial of damages.

When a Court of Appeal in Louisiana reviews a decision of the Trial Court, it is not permitted to determine whether the jury was, in fact, right or wrong in reaching its determination. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880 (La. 1993). Rather, the Court only determines whether the jury’s decision was reasonably based upon everything the jury heard at trial. The jury’s determinations regarding the credibility, or trustworthiness, of witnesses and their testimony is given much deference. Rarely will these findings be disturbed on appeal.

May 6, 2017

Louisiana Whistleblower Law Protects Against Employer Retaliation

by Berniard Law Firm

whistle-1423801-1024x768 The State of Louisiana has laws in place to protect whistleblowers with legitimate claims. These laws are critical to protecting workers and promoting healthy corporate self-governance. In Louisiana, La. R.S. 23:967 protects an employee whistleblower from retaliatory actions when in good faith, the employee advised the employer of some unlawful practice. It allows the employee to commence a civil action against the employer for the employer’s retaliatory actions. In a recent case, the U.S. Fifth Circuit Court of Appeal spells out the legal elements required to succeed on a whistleblower claim.

Justin Richardson worked for Axion Logistics, LLC, in Baton Rouge. Axion promoted Richardson to general manager within two months of hiring him. Shortly thereafter, Richardson became aware that two Axion employees were fraudulently billing an Axion client. Richardson reported these acts up the chain of command, including Axion’s president, its CEO and its CFO.

At one point, Axion’s CEO requested that Richardson not to tell anyone about the matter. Axion’s CEO and president allowed the illegal practice when they refused to inform the client. Subsequently, Richardson expressed to the CFO that Richardson would notify the client if Axion was unwilling to do so. A few weeks thereafter, Axion management criticized Richardson’s job performance. The president then terminated Richardson’s employment within a month, on the grounds that Richardson “was not a good fit” for the company.

May 5, 2017

Louisiana Lawsuit Shows How Hard It Can Be to Collect on a Judgment

by Berniard Law Firm

money-money-money-1240837-1024x768 Getting a judgment in your favor can often feel like a big win in court. After a judgment has been declared by the court many people believe the losing side simply gets out their checkbook and pays what they owe. While this may happen in some cases, many times after getting a judgment a person must fight an uphill battle to collect on that judgment. This is exactly what happened when a Louisiana company, Monster Rentals, obtained a default judgment against Coonass Construction of Arcadia (CCA).

In March of 2013 Monster Rentals brought a lawsuit against CCA to collect $4122.28 in unpaid invoices. CCA failed to answer the complaint. In accordance with Louisiana law, a default judgment was entered against the company. Essentially, if after a party being sued fails to answer a lawsuit for a certain period of time it is assumed they agree that they owe the amount in controversy. This is one reason it is so important to seek a good lawyer when you find out there is litigation pending against you. If you simply ignore the problem in hopes it will disappear it often can be a sure way to lose the case and end up owing money. In the default judgment against CCA the Trial Court awarded Monster Rentals both the $4122.28 and reasonable attorney fees.

Monster Rentals then began the difficult task of attempting to collect on the judgment. In order to collect on a judgment when someone is unwilling to pay, the party that is entitled to collect needs to get the court to place a lien or garnishment on some asset owned by the party that owes the money. In order to collect, Monster Rentals tried to place a garnishment on unpaid receivables owned by CCA. In order to do this Monster Rentals approached the court and asked it to set a fixed dollar amount for attorney fees in order to facilitate the collection of the judgment.

May 4, 2017

What Happens When Your Judgment Lacks The Magic Words

by Berniard Law Firm

lamp-post-1230572-689x1024 Language is key when it comes to the law. A court cannot give a plaintiff what he or she asks for if the request is vague. In a similar vein, a judgment’s lack of certain magic words can render it defective. Words have precise meanings in order to be given legal effect. This is illustrated by a recent of the Louisiana Fourth Circuit Court of Appeal. In this case, the Court of Appeal found that a trial court’s judgment lacked the required decretal language required to give the document legal effect.

Baraki Tsegaye was a taxi driver in New Orleans. While waiting for a fare outside of a hotel a pole fell on him and he was injured. Tsegaye sued Royal Engineers & Consultants, LLC, who were responsible for the light pole that struck him. Royal Engineers argued that they had no notice that the light pole was defective and filed a motion for summary judgment for the lawsuit to be dismissed with prejudice. To dismiss a case with prejudice means the case would be permanently ended. The Trial Court granted Royal Engineers’ motion for summary judgment but the judgment did not contain any decretal language, or words giving a legal effect. Tsegaye appeal the judgment.

The Louisiana Constitution grants the Courts of Appeal with appellate jurisdiction as well as supervisory jurisdiction. See La. Const. Art. V, § 10(A). Under La. C.C.P. art. 2082, appellate jurisdiction can be invoked as a matter of right by a litigant. And according to La. C.C.P. art. 2201, the decision to invoke supervisory jurisdiction lies within the discretion of the court. In order for a Court of Appeal to consider a case, there must be a final judgment.