Business Dispute

July 12, 2013

Demonstrating Permissive Use of Vehicles Key to Insurers’ Liability

Motorist Jennifer Lopez was injured in a hit-and-run accident with a truck near Vinton. At the time of the accident, the truck was being driven by someone other than its owner, Teri Ardoin. The driver fled the scene but the truck was tracked down and Ardoin identified as the owner. Lopez filed suit against both Ardoin and her insurer, Safeway Insurance Company. At trial, the issue was Safeway’s liability as insurer of the truck. The trial judge awarded damages to Lopez, but because of Safeway’s policy limits, Lopez’s own insurer, State Farm, had to cover the balance.

On appeal, Safeway contended that its coverage of the vehicle could not be proven without first establishing that the insured gave permission to drive the truck to the unknown driver. The appeal raises questions of the omnibus insurance clause provided by Louisiana statute, La.R.S. 32:900(B)(2). Under this law, an automobile insurance policy shall cover any person who uses the insured’s vehicle with express or implied permission of the insured. It’s up to the plaintiff to establish use of the vehicle with express or implied permission of the insured.

Demonstrating this permissive use requires fact-finding at the trial level. Without some proof of “manifest error,” such fact-finding will not be overturned on appeal. The trial judge in this case found that Ardoin’s truck was the truck involved in the accident. Further, he found Safeway liable for the accident. Several pieces of evidence were put forth to show this, including eyewitness reports identifying the truck and careful observation and recording of the license plate number.

July 10, 2013

Second Circuit Confirms that Employee Was At Fault in Personal Injury Lawsuit

by Berniard Law Firm

Last August, the Second Circuit Court of Appeal upheld a ruling against plaintiff Dennis Quillian in a tort claim ensuing from a work-related injury in Pineville. At the time of the accident, Mr. Quillian was working as a truck driver for Swift Transportation Company, Inc., carrying paper manufactured by Georgia Pacific. Mr. Quillian’s job was to move the shipment of paper from Dixie in West Monroe to Plastipak, located in Pineville. Mr. Quillian was hurt when he went to unload the paper at Plastipak and was struck in the side by a bundle of paper. Mr. Quillian subsequently filed a lawsuit against Dixie.

In a personal injury lawsuit against an employer the main question is, who is responsible? If the employer failed to take a precaution or committed an act that was in breach of his “duty of care”, then the employer should be held accountable for damages caused to the employee. If the injury was the result of the employee’s own wrongdoing, and not the result of an unsafe work environment, then the employer will not have to compensate the employee for his injury. If the fault of the accident can be attributed in part to the employer and in part to the employee, then the employer can be held responsible for the employee’s injuries, but only up to the amount corresponding to his percentage of fault. So if an employer is found 60% responsible for a work accident, then he will have to pay for 60% of the employee’s damages.

In Mr. Quillian’s case, the issues that were in contention were whether any pertinent safety measures had been contravened and whether Mr. Quillian had assumed any risks associated with transporting the shipment. A contract regulation to ensure secure transportation stated that Dixie was to use Georgia Pacific air bags to secure the cargo being moved. Another safety measure was the use of load locks to secure the bundles of cargo, to ensure that the cargo would not fall out when the truck doors were opened; Georgia Pacific requires the use of two load locks. According to expert testimony, the air bags were meant to ensure the safety of the cargo, whereas the load locks are used to protect the driver from falling cargo. when opening the truck. Mr. Quillian agreed in his testimony that load locks are the main safety mechanism used to prevent cargo from falling out when the truck doors are opened.

July 2, 2013

Summary Judgment and its Significant Impact in the Judicial System

by Berniard Law Firm

Is it possible for your case to be over even before it begins? Yes … well, sort of. Through what is known as summary judgment, it is possible for a court to render a decision in favor of one party and against another before there is a trial on the issue. You may be wondering, “What is the point of this?” and “Isn’t it only fair that I get my day in court?” Essentially, the purpose of summary judgment is to avoid unnecessary trials and litigation. It is important to note that although orders for summary judgment are common in civil cases, they do not apply in criminal cases because a criminal defendant has a constitutional right to jury trial.

According to a report researched by the Federal Judicial Center, 26% of all plaintiffs file motions for summary judgment, whereas defendants file 71% of all summary judgment motions. A judge may also on his or her own determine that summary judgment is appropriate. Nonetheless, orders granting summary judgment for defendants can have detrimental effects on plaintiffs who have sustained injuries, financial hardships, and who may have even lost a loved one. The adversity associated with orders of summary judgment can be shown in a recent case out of Jefferson Parish. Favre v. Boh Bros. Construction Co., L.L.C.

In Louisiana, summary judgment is appropriate if the declarations under oath, depositions, admissions of fact, and legal authorities show that there is no genuine issue as to a material fact and the party requesting the order is entitled to a judgment as a matter of law. A fact is considered to be a material fact if it is needed to prove one party’s case, or establishes a point that is crucial to a party’s position and success. Also, a genuine issue is an issue where two reasonable parties disagree. So, for example, if two parties could reach only one conclusion as to the dispute, then there is no need for a trial and summary judgment is appropriate.

June 29, 2013

Louisiana Court of Appeals Affirms Judgment in Favor of Defendant Companies in Property Damage Lawsuit

by Berniard Law Firm

On February 27, 2012, a district court for the Parish of Lafayette ruled in favor of two defendants being sued by plaintiffs C.F. Kimball II and Linda R. Kimball for property damage. The first defendant, Luhr Bros. Inc. d/b/a Construction Aggregate, owns a shell yard across from the Kimballs’ property on the Vermilion River. The second defendant, Omni Marine Transportation, Inc., owns a vessel that made deliveries to the Luhr Bros. The Kimballs had asserted that both defendants had engaged in business activities that resulted in the destruction of a bulkhead belonging to and located on the Kimballs’ property. The defendants responded by saying that an exception to res judicata prevented the Kimballs from filing a lawsuit against both parties for such damages.

An exception to res judicata signifies that proceedings related to the same occurrence had already taken place and been concluded. Specifically, the defendants claimed that the parties had previously executed a Receipt, Release and Indemnity Agreement in 2002. The Kimballs acknowledged that such an agreement had been executed but claimed that the Release did not pertain to the bulkhead, which the Kimballs had only acquired in 2008. The Kimballs asserted that a Release could not be agreed to for property that was not even in existence at the time of the agreement.

The trial court ruled in favor of the defendants and dismissed the Kimballs’ lawsuit with prejudice, meaning that the Kimballs could not bring a new case on the same basis as the dismissed case. When a trial court rules in favor of the defendants on an exception of res judicata, any issue whose determination was essential to the judgment and already litigated is extinguished. Thus, the trial court found that the issue of destruction of property such as the bulkhead was essential to the proceedings that had already been litigated between the parties, that is, the proceedings that led to the production of the Receipt, Release and Indemnity Agreement.

June 28, 2013

Distinguishing Wrongful Death Claims from Exclusive Worker’s Compensation Issues

by Berniard Law Firm

Many experience the unfortunate circumstance of work related accidents, the most extreme of which may result in death. People often wrongly assume that sustaining an on-the-job injury guarantees a right to sue the employer, in addition to asserting workers’ compensation claims. However, the Louisiana Workers’ Compensation Act provides strict guidelines for remedying a work relating injury, even those that result in death.

A recent East Carroll Parish decision aims to clarify some of those common misconceptions. McNeil Harvey, an employee of MAPP, Inc. died when a piece of heavy farm equipment he was working under fell and crushed him. His daughter, Valerie Harvey, filed suit against both MAPP, Inc. and Joseph Brown, an officer of MAPP, Inc. Harvey alleged that MAPP, Inc.’s negligence in exposing McNeil to “ultra-hazardous” perils and assigning McNeil to work outside the course and scope of his employment was the cause of the accident and McNeil’s subsequent death. Ms. Harvey sought survivor’s damages and wrongful death damages.

The Louisiana Workers’ Compensation Act is the exclusive remedy for all work-related injuries and illnesses. If an employee suffers a personal injury as a result of fulfilling a job’s duties, the act provides the employee with compensation. The act also prevents an employee from filing a lawsuit for damages against his employer or any principal or any officer, director, stockholder, partner, etc. When such issues arise, the defendant employer bears the burden of proving that it is entitled to immunity under the statute. The employer must prove that (1) the victim was an employee within its company at the time of the accident and (2) the other named defendants are officers, directors, stockholders, etc. of the company. The only exception to the exclusive remedy rule is if a death or injury is the result of an intentional tort. Additionally, an employer must prove that the injury or death occurring during the course and scope of the victim’s employment.

June 27, 2013

Fall at Hospital Brings to Light Debate Over Liability for Public Entity

by Berniard Law Firm

Generally, if you are injured due to the fault of someone else, you are likely to have a legal claim. However, this is not always the case. You must prove additional elements if you are injured on the property of a public entity. A case involving the West Jefferson Medical Center helps explain these concepts.

A woman was on the way to visit a family member in the hospital when she tripped and injured herself on the sidewalk. One portion of the sidewalk near the parking garage was raised about two inches from the rest, and the woman caught her foot on the raised portion. She fell and suffered injuries to her foot, neck, and shoulder. Then, she filed a complaint against the hospital for damages related to her injuries. Her complaint included her medical records and photos of the raised portion of the sidewalk.

The West Jefferson Medical Center, in Marrero, Louisiana, is a public entity because it is state sponsored. As such, the woman needed to prove not only that she was injured, but also the additional elements that are required for a suit against a public entity. Requirements for suit against a public entity include: establishment that the thing that caused the damage was in the custody of the public entity, the thing was defective because it had a condition that caused an unreasonable risk of harm, that the public entity had actual or constructive notice of the defect and failed to take corrective measures within a reasonable time, and that the defect was in fact the cause of the plaintiff’s injuries.

June 26, 2013

Informed Consent Target of Lawsuit Involving Medical Malpractice Claim

by Berniard Law Firm

Medical malpractice occurs when a doctor or medical professional fails to competently perform a medical treatment and the patient is harmed as a result. One type of medical malpractice is lack of informed consent by the patient – doctors are required by law to inform their patients about the known risks involved for a proposed medical procedure or a course of treatment. When fulfilling this requirement is in question, litigation can become essential to analyze what happened.

While informed consent is not required in some situations, such as in an emergency, under most circumstances, doctors must give their patients detailed information about the particular procedure to be performed and explain the risks. Typically doctors ask the patients to sign an informed consent form to satisfy this requirement. After a patient gives his or her informed consent, the doctor cannot do what the patient has not consented to by doing a different surgery or performing additional medical treatment.

To better illustrate these points, a recent medical malpractice case examines the doctrine of informed consent: Ms. Boudreaux underwent a shoulder replacement surgery performed by Dr. Parnell to cure rheumatoid arthritis that severely affected her right shoulder joint. Following the surgery, however, Ms. Boudreaux developed radical nerve palsy that ultimately became permanent and disabling.

June 19, 2013

Jones Act Negligence and Unseaworthiness Explored in Louisiana Maritime Case

by Berniard Law Firm

The Jones Act is officially titled the Merchant Marine Act of 1920 and was passed by Congress in response to concerns about the health of the Merchant Marine and to establish protections for sailors. Before the Jones Act, seamen who were injured had few options for recovering damages for their injuries, but now the Jones Act allows you, as an injured seaman, to obtain damages from your employer for the negligence of the ship owner, the captain, or fellow members of the crew.

A federal statute (46 U.S.C. § 688) extends the Federal Employer’s Liability Act (FELA), which originally only applied to railway workers to seamen and it reads, in part, “[a]ny sailor who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right to trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply…”

According to the Fifth Circuit Court of Appeals for the State of Louisiana, “an employer is held to the standard of care of ‘ordinary prudence under the circumstances.’” Admiralty and maritime law can become increasingly complicated and it is important that you sufficiently prove to the court that your employer has breached the standard of care that is owed to you. In Lett v. Omega Protein, Inc., a recent case decided by the Fifth Circuit, the importance of having quality representation with experience in admiralty and maritime law is evident.

June 18, 2013

When is a Hotel Responsible for the Injury of a Guest?

by Berniard Law Firm

We hear about injuries to customers resulting in large settlements in the news frequently. In any industry, there is some risk that clients or customers will be injured during the time they are patronizing the establishment. When these injuries occur it often results in a lawsuit. Who is at fault (and as a result, liable for the damage) generally comes down to a determination of the “duty” that is owed by the establishment owner to his patrons.

So when can someone be injured and lose? One scenario presented itself in Darlene Johnson v. Super 8 Lodge-Shreveport in 2008. Mrs. Johnson and her father were guests staying in a Shreveport, Louisiana, Super 8 Lodge hotel “Jacuzzi Suite” after evacuating their home as a result of a hurricane. Like most hotel rooms, this one had a television for guest use. Unlike many, this suite’s TV was positioned at a 90 degree angle to the bed, making it awkward to view while laying in bed but designed to be comfortably viewed from the provided couch. The hotel was aware that not all guests preferred to have the television facing the bed and offered a service moving the entire entertainment center around for them. While the majority of guests didn’t request it, it wasn’t an unusual request. In fact, Mrs. Johnson was aware of this service and had requested it multiple times during her stay. However, during this incident, Mrs. Johnson did not request the entertainment center be moved. Instead, she attempted to do it herself and was injured as a result of the television falling on her. She subsequently sued suggesting the television should have been secured to the entertainment center with a pivoting platform, as they should have anticipated a guest trying to move the TV themselves.

The crux of the debate is a matter of what level of duty was owed to their guests by the hotel operators. Duty is a technical term in negligence law that sets the lowest obligation that someone owes to someone else in a situation. A hotel is required to exercise “reasonable and ordinary care including maintaining the premises in a reasonably safe and suitable condition.” While they are not required to absolutely guarantee the safety of guests, hotels must be careful to keep them from anticipated injury. To succeed in a suit such as this, a guest needs to demonstrate that the television was in the hotel’s custody, that it created an unreasonable risk of harm to others, and that something about the defective condition caused the damage. The court ruled in favor of the hotel.

June 15, 2013

Personal Jurisdiction Key Component to Dismissed Property Case in Louisiana

by Berniard Law Firm

Susan Michelle Canon brought suit in Calcasieu Parish, Louisiana, when her boat caught fire while en route from North Carolina back to Louisiana. The trial court ruled in favor of the sellers, who were from North Carolina, and dismissed them from the suit because of lack of personal jurisdiction. The appellate court upheld this decision. This case is an excellent example of why every lawsuit must be examined for proper jurisdiction to make sure that it is filed properly and that the expected outcome isn’t cut short from the very beginning.

To determine whether personal jurisdiction existed, the court considered a number of factors indicating whether it would be proper to draw the sellers into court in the state of Louisiana. These factors included where the sellers reside, where they do business, where they have registered offices, and whether their business targets a particular region. Their contact with Louisiana must also have been continuous and systematic, to support an assertion of general jurisdiction.

Sellers Raeford and Jennifer Millis here did not have sufficient contacts with Louisiana. They did not live there, do business there, or have a registered office in that state. The boat they sold Ms. Canon was simply listed on the internet, accessible and available to people all over the world. Ms. Canon made the initial contact, and mailed the sale proceeds to a bank in North Carolina, where the Millises live. Ms. Canon also went to North Carolina to execute the bill of sale, using a North Carolina notary, and took possession of the boat in that state. Based on these facts, she could not establish meaningful contacts, ties, or relations between the Millises and Louisiana.