Business Dispute

March 24, 2023

Louisiana Court Holds that “Bobtailing” Limitations do Not impact Uninsured Motorist Coverage

coins_currency_investment_insurance_0-1024x683 Auto insurance can be beneficial when you are in a car accident. However, it isn’t uncommon to have specific provisions in your insurance policy that can limit your coverage. A recent case out of Kenner, Louisiana, interpreted whether certain caveats in an insurance policy can limit a client’s uninsured motorist coverage (UM/UIM).

Denise Breaux was driving on Interstate 10 behind a truck driven by Jonathan Blum. When a ladder fell off the back of Blum’s truck, Breaux tried to dodge the ladder that fell right into her path. Unfortunately, Breaux’s vehicle collided with Danny Castille’s tractor/trailer while attempting to avoid the ladder. Castille and his wife filed a lawsuit against Breaux, her insurer, and Blum, and then later added Lloyds at Lloyd’s, London (Lloyds) as a defendant. The Castilles were seeking UM/UIM coverage from Lloyds under a surplus lines insurance policy that was issued to Mr. Castille.

Lloyds asserted that the Castilles were not entitled to UM/UIM coverage because they specifically issued an insurance policy that applied when the tractor did not have the trailer attached, known as Bobtail Liability insurance. Further, they argued that liability insurance was only available when the tractor was bobtailing; therefore, UM/UIM coverage only applied in the same scenario. Since, at the time of the accident, the Castilles’ tractor had a trailer attached and was not bobtailing, Lloyds sought summary judgment.

March 23, 2023

Will an Appeals Court Consider Evidence that Attorneys forget to “Offer and Introduce?”

by Berniard Law Firm

law_justice_court_judge-1024x768 Most lawsuits begin with a petition that lays out the facts and basis for a claim. These facts are pertinent to the survival of each claim and defense. Many pretrial hearings and motions are based on what is pleaded in the petition. The face of each pleading can determine the case’s outcome from the beginning.

To attack the petition to have a lawsuit thrown out of court, attorneys will file motions alleging various exceptions. These exceptions can be based on different issues surrounding the case, such as a prescription or peremption exception. When arguing those exceptions, the attorney must be conscientious to “admit” all the evidence into the record that bolsters their position. The following lawsuit out of Ascension Parish, Louisiana, shows how important it is to properly admit evidence into the record when arguing in Court and what can happen when an attorney forgets to “offer and introduce” evidence filed with a motion.

William and Rosa Cambre owned a building they leased to Premier Performance Marine, L.L.C (Premier). Premier had the building insured by an Atain Specialty Insurance Company (Atain) policy. Therefore, when a storm severely damaged the building, Attain paid Premier under the insurance policy.

March 22, 2023

A Louisiana Court Signs Two Final Judgments, What Happens?

by Berniard Law Firm

courthouse_building_clock_tower-1024x685 When a case ends at the trial court level, the judge signs a physical order document laying out the court’s decisions. This physical order document is called a final judgment; every case will only have one final judgment. Final judgments cannot be amended easily by either the trial court or the parties. The only permissible amendments are those that fix basic errors, such as spelling or arithmetic; all other modifications or changes should be brought up on appeal or in a motion for a new trial. Starnes v. Asplundh Tree Expert Co.

A final judgment is not the end of a case. Almost every case has a right to appeal. The appellant will point to the section they believe is wrong and ask the appellate court to fix the issue. So what happens when a Louisiana Court signs two final judgments? The following case out of Baton Rouge demonstrates what occurs when this happens.

A graduate student at LSU fell and injured his ankle while leaving his university apartment when leaving for a work trip. He petitioned for worker’s compensation but later decided to bring a lawsuit against LSU for his injury in the 19th Judicial District Court in the Parish of East Baton Rouge. The 19th judicial district ruled that because he was in the course of his employment, the only remedy that this graduate student could receive was worker’s compensation.

March 21, 2023

All or Nothing—Piecemeal Peremptory Exception Reversed for Louisiana’s Drug Fraud Case

by Berniard Law Firm

owens_drug_company-1024x857 The legal system is complicated, with many “dos-and don’ts.” Whether or not you can have your case heard in court first requires following the rules guiding the sufficiency of your claim. If your complaint fails to show that you have a right to bring the case against your defendant, your case might be dismissed. But how strictly interpreted is this rule? What does it look like when a cause of action is sufficient to be heard or ripe for dismissal?

The State of Louisiana brought a lawsuit against various pharmaceutical companies participating in manufacturing and selling Actos. The State alleged that the pharmaceutical companies misrepresented Actos’s efficacy and side effects. The State also claimed that research showed that Actos greatly increases the chance of bladder cancer. The State alleged the pharmaceutical companies failed to disclose this information.

In its case against the pharmaceutical companies, the State alleged that it would not have bought and distributed Actos if its risks had been clarified. Because of the drug companies’ alleged misrepresentation, Louisiana sought to recoup damages due to fraud, redhibition, unjust enrichment, and infringement of the Louisiana Unfair Trade Practices Act (LUTPA), La. R.S. 51:1405, and violations of the Louisiana Medical Assistance Programs Integrity Law (MAPIL), La. R.S. 46:437.1. In response, the drug companies brought various objections—peremptory exceptions including no cause of action, res judicata, no right of action, and dilatory exceptions including vagueness or ambiguity of the State’s petition, and the petition’s not following state law requirements. La. C.C.P. art. 891.

March 20, 2023

Does Parental Liability Extend Over Adult Children in Louisiana Lawsuits?

by Berniard Law Firm

children_s_children_asian-1024x683 In the United States, parents are often deemed responsible for the criminal conduct of their minor child. But the rules guiding this concept could be more precise and are subject to much controversy. How do we decide when that duty exists and when it ends? A Louisiana court answers the question, does parental liability extend over adult children in Louisiana?

A Louisiana man, Garry Lewis, was the victim of burglary and criminal committed by 22-year-old Royal Rhodus and 23-year-old Beaux Melancon. Royal and Beaux allegedly broke into Mr. Lewis’s property and took three of his vintage cars, racing and damaging the cars and then hiding the cars and attempting to sell the vehicles for parts. Subsequently, Lewis put flyers in his business window that stated the names of both Royal and Beaux as well as the names and addresses of their respective parents. The flyers included descriptions of the alleged crimes committed and suggested that Royal and Beaux would “be the girlfriends of other inmates” once they were arrested.

Royal’s parents, Jerry and Belinda Rhodus, filed for injunctive relief against Mr. Lewis, requiring him to remove the flyers and pay them damages. In response, Mr. Lewis filed a reconventional demand with Royal as an additional defendant, seeking damages from Royal’s parents. Mr. Lewis later added Beaux and his parents, Danny and Brenda Melancon, as defendants.

March 19, 2023

When an Employment Discrimination Claim Won’t Hold Water

by Berniard Law Firm

An employment discrimination claim should be more than a list of grievances. To avoid dismissal, it must be timely and justified by facts and law.

In Louisiana, an employment discrimination claim can generally be submitted within 12 months of an incident before it becomes late – or prescribed – by statute. R.S. 23:303(D). An employee who requests an administrative review by the Equal Employment Opportunity Commission (EEOC) or the Louisiana Commission on Human Rights (LCHR) will have 18 months.

A claim must also state a cause of action: identify which law was violated and how. The following case illustrates what happens when the plaintiff fails to communicate that clearly.

March 18, 2023

Judicial Notice of Facts, When Can and Can’t it Be Used in Louisiana Trials

by Berniard Law Firm

refinery_petroleum_oil_industry-2-1024x683 When another or a company’s actions harm a person, he is entitled to financial relief under Louisiana law. The law also requires proof of damages to prove entitlement to monetary compensation. Damages are proven by submitting facts to a trial court. Sometimes the parties agree upon the facts, and sometimes they are disputed.

Another way of providing facts to the Court is through Judicial Notice. This legal concept allows a court to take notice of facts generally known within a community or otherwise cannot be reasonably questioned. What may be known in the community can still be a disputed issue at trial. The following case, which involved the Berniard Law Firm’s clients, raised the question concerning judicial notice of facts when it can and cannot be used in Louisiana trials.

An industrial accident occurred at Chalmette Refining’s St. Bernard facility on September 6, 2012, due to an emergency shutdown. The sudden shutdown caused a release of nineteen tons of regenerated catalyst over a large portion of St. Bernard Parish and Orleans Parish homes and property.

March 16, 2023

Louisiana Federal District Court Abstains From Exercising Jurisdiction in Whistleblower Case

by Berniard Law Firm

bellingham_police-1024x683 Claims involving both state and federal law can be extremely complicated; however, what happens when there are questions surrounding the state law itself? In this situation, the district court may actually abstain from exercising its jurisdiction until the state law concerns have been resolved—the following case involving law enforcement officers in New Orleans discusses these issues.

Fred Thompson was working for the Housing Authority of New Orleans (HANO) as a law enforcement officer when he went to assist another officer, Edgar Baron, after hearing that Baron had stopped a pedestrian. Once arriving at Baron’s location, Thompson recognized the handcuffed male in the back of Baron’s squad car as the same person he had seen a short time earlier. Two days later, Sergeant Harry Stanley approached Thompson and informed them that he was required to patrol with Baron. However, Thompson stated he did not want to ride with Baron, as he believed Baron had a history of violating the civil rights of HANO residents.

Thompson was ordered to HANO’s main office and asked to provide a statement regarding his interaction with Stanley, which Thompson complied with. He received a reprimand and notice of Termination stating Thompson was on administrative leave and could be terminated at any time. A week later, Thompson attended a grievance hearing claiming he was refused whistleblower status. Thompson was fired a few days later.

March 15, 2023

What is a “dilatory exception of prematurity,” and how does it change the course of a case or controversy?

by Berniard Law Firm

toronto_skyline_early_morning-1024x577 A dilatory exception for prematurity is defined in the Louisiana Code of Civil Procedure Article 926(A). There are many reasons why a lawsuit may be premature, or in other words, ripe for a dilatory exception of prematurity. A case may be premature when it is too early in a dispute for the court to have the authority to rule on it. A lawsuit may be premature if there is another administrative body that the case should go to beforehand. The legal issues of prematurity and dilatory exceptions are shown below in a lawsuit from St. Tammany parish.

A Nestle Holdings employee was injured during his employment, and Nestle received a large bill from Lakeview Regional Medical Center (LRMC) for surgery on the employee. Nestle responded by sending back about 10% of the original price, expecting LRMC to initiate an administrative action, which would give Nestle a chance to argue for a lesser price. However, when LRMC did nothing to protest the partial payment, Nestle filed a complaint with the Office of Worker’s Compensation (OWC), a judicial body. OWC rejected the complaint and granted LRMC’s claim of a dilatory exception of prematurity; Nestle appealed the OWC decision to the First Circuit Court of Appeals.

The First Circuit Court of Appeals upheld the OWC decision to dismiss the complaint due to prematurity. The court first examined Louisiana Code of Civil Procedure Article 926(A)(1), reasoning that it allows for a dilatory exception objection of prematurity to be brought before the litigation commences. The court held that this objection may be used in lawsuits where the law or contract allows for a procedure for the party to seek out administrative relief before resorting to filing a lawsuit. If this exception is raised, the person who raises it bears the initial burden of showing that another remedy or procedure applies, and therefore the lawsuit is premature. For example, this can be done by filing a copy of the contract between the parties into the record, assuming the contract discusses a prelawsuit procedure. After the existence of the alternative remedy is established, the burden then shifts to the other party to show that the specific remedy or procedure has been exhausted.

March 14, 2023

Employee vs. Independent Contractor. When is an Employer Responsible for Negligence?

by Berniard Law Firm

nyc_taxi_taxi_berlin-1024x768 Often people are injured by a person who appears to be an employee of a company. However, just because someone seems to be working for a business doesn’t necessarily mean they are an employee. If you’re hurt by an employee of a company and want to seek damages, whether the person is an employee or an independent contractor could make a big difference in your case. The following case explains the difference between an employee and an independent contract for determining who will be liable for the injured party’s claims.

In January 2013, a cab driver was involved in a crash in Shreveport, Louisiana, where the cab passenger, Ms. Franklin, was injured. The cab driver, Mr. Gary Dick, leased the taxicab from Crawford and Yellow Checker Cab Company each day for $85. However, Mr. Dick kept all proceeds from his driving, and the cab companies received the same $85 a day regardless of how much Mr. Dick made. As a result, Ms. Franklin filed a lawsuit against Dick, Crawford, and the Yellow Checker Cab. Filing a lawsuit against all the possible defendants who may be liable is customary after an auto accident, as before litigation Ms. Franklin would have no way of knowing whether or not Dick was an employee or an independent contractor.

The cab companies filed a partial summary judgment motion arguing that there was no employee/employer relationship between themselves and Mr. Dick. Therefore, if successful, the cab companies would not be liable to Franklin for any of her injuries caused by the car accident, only Dick would. The trial court granted the motion in favor of the cab companies, and Franklin appealed the ruling.