Articles Posted in Business Dispute

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In May 2004, an employee (Dauzat) of the City of Marksville backed an emergency fire department vehicle into another car containing Daisy Marcile and multiple passengers. Ms. Marcile and her passengers were injured and filed suit against the City of Marksville for damages.

Per La. R.S. 13:5105, a political subdivision of Louisiana cannot be tried by a jury unless it waives this prohibition and either the plaintiff or political subdivision requests a jury trial in the time provided by law. According to Arshad v. City of Kenner, any waiver must be a blanket waiver covering all cases, not a specific suit.

This statute has come under fire before. In Beauclaire v. Greenhouse, the Supreme Court of Louisiana ruled that the waiver provision (section D) of La. R.S. 13:5105 met the standards of the equal protection clause of the constitution, “as the statute allowed either party to demand a jury trial in accordance with the law once the political subdivision waives the the prohibition” and denied either party from seeking a jury trial when the prohibition had not been waived.

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On July 12, 2006, Raymond Alex, Sr., a structure carpenter for the BNSF Railway was driving a company boom to a work site in Mermentau. Around 3 p.m., Mr. Alex stopped at an intersection, was rear-ended by a large tractor-trailer rig driven by Edward Zenon, Jr. As a result of the accident, Mr. Alex alleged he suffered injuries to his neck with radiating pain down his right arm and hand. He was given injections in his neck at first, but ultimately required cervical spine surgery.

In July 2007, Mr. Alex sued Mr. Zenon, the lessor of the tractor/trailer, PACCAR Leasing Company, and his employer, Creole Fermentation. After some initial discovery, Mr. Alex settled with the defendants.

Two years after his previous suit, Mr. Alex decided to sue his employer, BNSF, under the Federal Employer’s Liability Act (FELA). In his petition, Mr. Alex alleged that BNSF was negligent for failing to provide a reasonably safe place to work, failing to warn him of dangerous conditions and providing a poorly designed truck for him to work in.

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Every first year law student learns about negligence in their tort law class. Negligence claims are some of the most common claims brought in civil court. In order for a defendant to be found liable for negligence, it must be shown that the defendant owed the plaintiff a duty of care, which can also be refered to as a duty to protect. This means that the defendant has to have some level of responsibility for protecting the plaintiff from harm. If the defendant has no duty of care, then they cannot be held liable for negligence. The plaintiff has to prove that the defendant owed them that duty of care.

Sometimes it is easy to determine whether or not a defendant owed a plaintiff a duty of care. For instance, medical malpractice suits are often refered to as professional negligence since a doctor or nurse owes their patient a duty of care regarding their medical treatments. Likewise a lawyer owes his client a duty of care regarding their legal representation. But sometimes, a major point of contention in a lawsuit is whether such a duty of care exists at all. The case of Ponceti v. First Lake Properties shows what happens when a plaintiff cannot show that the defendant owed them a duty of care.

Ms. Ponceti and her daughter, Kaitlynn, lived in an apartment complex in Mandeville owned by First Lake Properties. One day Kaitlynn was riding her scooter in the courtyard of the complex. A teenager was riding his bike in the courtyard at the same time, and lost control of his bike while popping a wheelie. He hit Kaitlynn with his bike and injured her leg.

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The Jones Act deals with injuries suffered by employees working on American sea-going vessels and their rights to workers’ compensation for those injuries. The Act requires employers to “maintain a reasonably safe work environment.” Another important feature of the Jones Act is that not only is the employer liable for the negligence of their employees, but also any amount of negligence on the employer’s part will result in some level of liability. In other words, in a Jones Act case, if one employee negligently injures another, both the offendin employee and their employer are liable.

The case of Martinez v. Offshore Specialty Fabricators, Inc. deals with a Jones Act claim and really brings to light how important it is to obtain quality legal representation. Mr. Martinez was a seaman employed by Offshore Specialty Fabricators as a mechanic. On May 26, 2008, he and his supervisor, Mr. Smith, went aboard a ship owned by Offshore to repair a defective winch. Both Martinez and Smith testified that the work space was very cramped and required them to bend over while swinging a sledgehammer for almost an hour when suddenly Martinez felt a pop in his neck. Smith testified that he saw Martinez visibly twitch and asked what was wrong. Martinez informed him that something was wrong with his neck, and Smith immediately told him stop working.

Shortly after the injury he told an on-board medic about soreness in his arm due to using the sledgehammer. Two days later Martinez visited another medic and told him that he was unable to move his head or jaw without shooting pain in his neck and shoulder. He was also interviewed by a claims adjuster hired by Offshore and told the adjuster that his injury was due to the cramped working conditions and hammering.

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To bring a negligence lawsuit, the plaintiff must provide evidence to show, among other things, that the defendant’s actions caused the injury in question. Causation has two components, cause-in-fact and proximate cause. Cause-in-fact is the actual event that caused the harm. Proximate cause refers to the legal cause. The proximate cause element requires that the injury must have been a reasonably foreseeable result of the defendant’s conduct. That is, a reasonably prudent person would expect the outcome that has resulted in harm or injuries. Here we focus on the discussion of proximate cause, which is more difficult to establish than cause-in-fact in most cases.

Courts often use the well-established foreseeability test to determine proximate cause. The test looks at whether the harm resulting from an action could be predicted by a reasonable prudent person. If a reasonable person could have predicted harm or injuries, then the injuries are foreseeable and defendant’s actions is the proximate cause of the injuries and therefore should be liable. For example, it is foreseeable that throwing a baseball at someone could cause him head injuries; it is also foreseeable that having an open flame near gasoline could cause an explosion.

In a recent case from the Court of Appeals of the Fifth Circuit, the court applied the foreseeability test to determine proximate cause. The plaintiffs brought a negligence claim under Louisiana law, alleging that the defendants’ negligence in attempting to extinguish fire ultimately caused the oil spill and plaintiff’s resulting damages. The court affirmed the decision of the lower court and concluded that the damages are too attenuated and distant from the defendants’ actions. Essentially, the court was saying that the plaintiff failed to state a plausible cause of foreseeability as required for proximate cause. The court agreed with the analyses of the district court, which stated that “in order for the defendants to foresee such result, they would have had to have anticipated that spraying water on the mobile offshore unit would cause the vessel to capsize and the connecting pipe to collapse, and the blowout preventer would not control the flow of hydrocarbons, and the discharge would flow abated for three months, and that the oil would flow fifty miles inland.” Each one of those specific event or coincidence must occur for the defendant’s injuries to result from them and the whole situation could not be predicted by a reasonable person.

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Under Louisiana law, there are very specific rules about how to properly serve someone, and one of the important aspects of service that an attorney has to get right is the timing of it. Furthermore, not only does the service have to be carried out in a timely manner, but it also has to be perfected properly.

This particular Supreme Court of Louisiana case dealt with service on a state entity, and it is important for your attorney to be aware of any differences that exist with regard to service requirements depending on who the other party is. According to the applicable state law, La. R.S. 13:850, “perfecting” a service request requires that the appropriate filing fees and transmission fees have been received by the clerk of the court and that the original signed document has been received by the clerk. All of this must be received within the proper timeframe. As stated in La. R.S. 13:850, the proper timeframe for perfection in this case is seven days.

In this case, the service request was received within the required ninety-day timeframe (ninety days since the filing of the petition), and the service request was perfected five days later once the requisite documents and fee payments were received by the clerk of the court. The question then is whether or not this counts as proper request for service: Was the request for service properly received within ninety days even though perfection of the request was outside of that ninety-day timeframe?

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In order to aid the court, a judge might occasionally appoint an expert to help with specific aspects of the case. Court-appointed experts are different from a specific party’s experts because the court-appointed experts do not favor one side or the other, but rather, help the judge with certain tasks or analyses.

A trial court-appointed expert can be especially useful in a class action lawsuit in which several people have a claim against the defendant and there is no way that the court can hear each individual person’s case. In that instance, a court-appointed expert can help properly group the members of the class action lawsuit and help bring order to an otherwise unwieldy case.

In a recent case from Orleans Parish, the appellate court had to determine when a court-appointed expert is proper and what the limits of such an expert’s duties should be. Before getting into the applicable Louisiana law and how the appellate court ultimately ruled, some knowledge of the background facts is useful: The case from Orleans Parish was a class action lawsuit in which several employees were suing over medical problems they experienced from working in a building that had serious mold damage. Over 600 individuals had claims in the suit, and in order to deal with the case in a more organized and manageable manner, the class was to be broken up into various groups. In order to help with this enormous task, the trial court stated that it wanted to appoint an expert to help group individuals according to damages. Each party was allowed to submit nominations and discuss any issues they felt might arise if such an expert was appointed. Ultimately, an expert was appointed to help with the necessary tasks, and after the case was decided at the trial court level, the State argued that the court-appointed expert had outstepped his appropriate boundaries.

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If you feel like your attorney has engaged in malpractice, what can you do? First, you should have a basic idea of what actually constitutes legal malpractice. In Louisiana, the plaintiff has to prove (with evidence that is strong enough to convince a reasonable trier of fact) three things. 1) That an attorney-client relationship exists. 2) That there was negligent representation by the attorney. 3) That there was actual loss caused by that negligence. What constitutes negligence? The plaintiff would have to prove that the attorney did not use the same degree of care, skill, and diligence which other prudent practicing attorneys exercise in the same locality.

In order to prove that the attorney did not exercise an adequate level of care and diligence, normally the plaintiff will hire an expert witness in order to establish what the standard of care in that locality is. The plaintiff also has to establish that the attorney’s actions did not live up to this standard of care. If the attorney was particularly negligent or the malpractice was obvious, then it might not be necessary to call in an expert witness to establish malpractice. If the malpractice or negligence was not gross, however, then bringing in an expert witness is almost essential.

A recent case in Louisiana is a great example of a legal malpractice claim. In early 2000, a woman filed suit for injuries she sustained in an automobile accident with another man. The attorney she retained never filed an opposition to the Motion to Limit the Ad Damnum (a motion that would limit her amount of recovery), which was filed by the other party. Because the attorney did not oppose the motion, the motion was granted and the woman’s claim was limited to recovery in the amount of $30,000.00. According to the woman, her attorney also went ahead and settled the case without her authority while she was still being treated for her injuries. He settled the case for only $22,000.00. The woman then went ahead and settled her case and dismissed her attorney, filing a petition claiming legal malpractice.

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Every detail matters at trial and can make the difference between winning and losing. In a recent Louisiana case, BCM L.L.C (“BCM”) and Nawlins Kajun Foods, L.L.C. (“Nawlins”) sued Copeland’s of New Orleans under the theory of detrimental reliance. At the end of the trial, the jury sent a request to the judge to clarify certain words and phrases in the jury instructions. After discussion with both parties’ lawyers, the judge issued supplemental instructions regarding the theory of detrimental reliance. Neither party objected to the instructions and the jury returned a verdict denying BCM and Nawlins’ claim for detrimental reliance, but it did reward them damages for conversion. In a post-trial motion, the lawyers for BCM and Nawlins claimed the jury instructions were confusing and misleading, entitling them to a new trial. The trial court denied the motion. BCM and Nawlins then filed a legal malpractice suit against their former attorneys, claiming they should have objected to the jury instructions because they were confusing and misstated the law on detrimental reliance.

The burden of proof for legal malpractice is tough to meet. BCM and Nawlins had to produce evidence sufficient to convince a reasonable trier of fact of (1) the existence of an attorney-client relationship; (2) negligent representation by the attorney; and (3) loss caused by that negligence” and also had to prove their attorneys, now the defendants, failed to exercise the degree of care, skill, and diligence which is exercised by prudent practicing attorneys in their locality. Clearly BCM and Nawlins can establish prong number one, but prongs number two and three requires more analysis.

In order for the attorneys to have been negligent in not objecting to the jury instructions, the jury instructions must have been inadequate or misstated the law. The relevant governing law of Louisiana sets forth certain requirements for jury instructions. To be satisfactory the instructions given to the jury must contain a correct legal principle to apply and be presented in a reasonable and fair manner. The judge presiding over the case at trial is not required to tailor the instructions to the wishes of either party, but the judge is required to correctly state the law that the jury will apply. Reversible error occurs when a legal principle that must be applied to the case at trial is left out of the jury instructions. The judges at the trial level can generally formulate the instructions to the jury in whatever way they prefer.  And their judgement in that formulation will not be overturned as long as the law is correctly conveyed. When an appellate court is deciding whether the jury instructions given were sufficient the court will consider whether the jury was misled to the point that it could not fairly decide the case.  The court must weigh the degree of any error or confusing term with the instructions in their entirety as well as the state of affairs of the case. Therefore, small errors that do not affect the statement of law as a whole will not necessarily be fatal.

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Recently, the Louisiana Third Circuit Court of Appeal considered the assertion that the Medical Malpractice Act’s limitation of recovery or the “cap” contained within La.R.S. 40:1299.42(B) is unconstitutional.

At trial, the court determined that the Louisiana statute La.R.S. 40:1299.47(B) was unconstitutional “as violative of the equal protection and adequate remedy guarantees of the Louisiana constitution.” Moreover, the trial court relied upon the opinion of the Louisiana Third Circuit Court of Appeal in a recent case that held that the cap of La.R.S. 40:1299.42(B) was unconstitutional “to the extent it includes nurse practitioners within its ambit, [and] violates the equal protection and adequate remedy guarantees of the Louisiana Constitution …” Subsequently, however, the Louisiana Supreme Court reversed that very aspect of the Court of Appeal’s ruling, finding the medical malpractice cap unconstitutional. Rather, the Louisiana Supreme Court declared “the MMA’s cap described in La.R.S. 40:1299.42(B) is constitutional as it applies to all qualified health care providers, including nurse practitioners.

As such, the subsequent ruling of the Louisiana Supreme Court vacated the prior judgment of the trial court and the trial court was then directed to reconsider its ruling in light of the changes in the recent case law precedent. Ultimately, the trial court found La.R.S. 40:1299.42(B) constitutional and plaintiffs appealed the trial court’s decision.

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