Articles Posted in Car Accident

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accounting-black-budget-53621-1024x603If you and the opposing party in your lawsuit reach a settlement agreement, it might seem like your legal battle is over. However, trouble can arise if the other party does not do what they promised to do. This is the situation Cheri Gardner found herself in following a car wreck and the resulting settlement with State Farm.  

In July 2009, Gardner was involved in a car wreck. Just under a year later, she filed a lawsuit against State Farm, Lisa Haefner, and AllState Insurance for her injuries. Gardner had to have spinal cord surgery and amassed medical bills exceeding $70,000. 

In May 2011, Gardner and State Farm underwent mediation and entered a “10-Day Option to Settle” contract that State Farm’s attorney drafted and provided to Gardner. The settlement stated that any liens for medical expenses that State Farm would agree to pay as part of the settlement had to be presented before July 13, 2013. After the parties signed the settlement agreement, Gardner’s attorney provided State Farm with a letter for a medical lien from BlueCross BlueShield of Louisiana from May 28, 2010 for a lien of $7,143.10. 

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The Louisiana Department of Transportation and Development (“DOTD”) has a duty to maintain safe and accessible transportation infrastructure for the state. One might think that because the DOTD is such a large entity, no damages could be recovered from an accident due to unsafe conditions on transportation infrastructure. However, it is possible for a plaintiff to recover damages against the DOTD.

On April 24, 2014, Antonio White (“Plaintiff”) was working at night with a crew painting lane strips on the road. He was operating a crash attenuator truck when he was struck from behind by an 18-wheel tractor trailer driven by David Hornak (“Defendant”), who was operating the trailer as an employee of J.I.T. Distributing, LLC (“J.I.T.”). The Plaintiff suffered injuries from the accident and filed suit against multiple parties, including the defendant, J.I.T., and the DOTD. 

At the trial court level, DOTD filed a motion for summary judgment stating the reason for the accident was the Defendant had fallen asleep at the wheel. DOTD argued they could have done nothing else to prevent the accident from happening. The trial court found that the cause of the accident was solely due to the Defendant and J.I.T. and granted DOTD’s motion for summary judgment. DOTD was dismissed from the case with prejudice, and the Plaintiff appealed. 

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blur-car-cars-163945-1024x683Determining who is at fault in an accident is difficult, as everyone wants somebody to blame. Sometimes, the answer is not so crystal clear. Often, more than one person is to blame. When a court has to determine and assign fault to multiple parties in a car accident, it is using a theory known as comparative negligence to make the determination. 

In a recent Louisiana case, a father and son (“Plaintiffs”) were struck in the back by the defendant in Baker, Louisiana. Plaintiffs filed two lawsuits for the injuries sustained in the car accident; one against the defendant and one against the defendant’s insurance company. The plaintiffs claimed that the defendant was intoxicated at the time of the crash and requested punitive or exemplary damages pursuant to La. C.C. art. 2315.4, which allows recovery for additional damages if the defendant is intoxicated. The trial court order dismissed the Plaintiffs’ claims for punitive or exemplary damages against the insurance company because the insurance contract absolved the company of responsibility for the additional damages. The trial court held that Plaintiff (father) was 5% at fault and the defendant was 95% at fault, and it awarded the Plaintiffs with a total sum of $206,755.80. The defendant appealed the judgment. 

The defendant argued that the Plaintiffs should have been assigned a higher percentage of comparative fault. In deciding comparative fault, the judge or jury must consider each party’s wrongful actions and the scope of the causal relationship between the conduct and the damages claimed. Townes v. Liberty Mut. Ins. Co., 41 So.3d 520, 529 (La. Ct. App. 2010) (citing Watson v. State Farm Fire & Cas. Ins. Co., 469 So.2d 967, 974 (La. 1985)). According to Townes, the court must look at: “(1) whether the conduct resulted from inadvertence or involved an awareness of the danger; (2) how great a risk was created by the conduct; (3) the significance of what was sought by the conduct; (4) the capacities of the actor, whether superior or inferior; and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought.”

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pexels-photo-1028742Sometimes, car accidents happen. Someone speeds, gets distracted, or makes a mistake that causes an accident. Crashes can be unexpected. No one gets to decide what time of day it happens, where it happens, or who gets injured. Instead, you have to take the whole situation as it is. 

Jay Schwartzberg (“Plaintiff”) was a 23-year-old law student on April 25, 2013 when the driver of an armored van failed to yield to Schwartzberg’s vehicle and caused a collision in East Baton Rouge, Louisiana. Prior to the accident, Schwartzberg suffered from a bulging of the C3-C4 and C6-C7 intervertebral discs and chronic neck pain. In the lawsuit, he argued that the collision on April 25, 2013 exacerbated these previous injuries. Schwartzberg filed against the defendants seeking damages for his neck injury due to the collision. The trial court awarded Schwartzberg $49,999.99 worth of damages, plus legal fees. 

Miller Guillory and his employer, Garda CL Southeast, Inc. (collectively “Defendants”) appealed the trial court’s award for two reasons. First, the Defendants argued that the trial court erred in finding that the collision caused an aggravation to the Plaintiff’s pre-existing neck injury. Second, the defendants argue that the trial court erred in the amount of damages awarded because the court relied on Schwartzberg’s expert witness that was contradictory to the medical records and other evidence admitted at trial. 

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asphalt-automobile-automotive-125514-1024x576The “burden of proof” may be a familiar concept to everyone, even those inexperienced with the courts.  The idea is that the party in a lawsuit holding the “burden of proof” is tasked with providing evidence that reaches the level of proof required to meet the burden.  In car accidents, where amount of fault decides how damages may be determined, this burden is especially important. The evidence in some car accidents makes the division extremely obvious, both as to fault and to extent of damage.  Other cases, however, especially when the accident is relatively minor, may not be so clear cut. In an unpublished opinion, the Louisiana Third Circuit Court of Appeal considered such a case where the burden of proof was the main issue.  

In 2014, Meagan Lemoine was driving a truck owned by the father of her children near Marksville, LA.  With her were her young children and her sister. She had stopped at a traffic light when she was rear-ended by a white Jeep.  No one in the car was able to identify the driver of the Jeep. After stopping to assess the damage to her vehicle, Ms. Lemoine followed the Jeep to a nearby AutoZone where the driver, a woman, exited the vehicle and entered the store.  Ms. Lemoine took pictures of the Jeep. Later that afternoon, she reported the accident to the local police. A few months later, the owner of the Jeep, Lionel Augustine, and his wife received a letter from tMs. Lemoine’s attorney regarding the accident.  Both Mr. and Mrs. Augustine denied they had been involved in an accident on that date. Mrs. Augustine claimed she had driven that day and visited AutoZone, but denied being in an accident. They both pointed out that there had been no damage visible on the Jeep.  The insurance agent for the Augustines spoke about damage in the form of a “black smudge” on the front of the vehicle, but it did not match the position of the trailer hitch on the truck Ms. Lemoine was driving. The trial court eventually ruled in favor of Ms. Lemoine and her sister.  Both parties appealed.

In Louisiana, the burden of proof is upon the person seeking damages in a lawsuit. Big D Dirt Servs., Inc. v. Westwood, Inc, 653 So.2d 604, 609 (La. Ct. App. 1995)  This means the party must show enough evidence to convince the finder of fact in a case, whether it be jury or the judge, that the allegations of damage are factual.  While both sides seemed to be telling what they believed to be the truth, their stories were completely contradictory. The Third Circuit considered the facts and how the trial court had handled them.  The fact that there was white paint on the truck’s trailer hitch after the accident seemed to indicate that an accident had occurred. Also, the court considered that the heavy traffic in the area at the time made it very likely that such an accident could easily occur, and that a driver might not actually be aware they have hit another vehicle.  The Third Circuit considered that the plaintiffs had observed the accident and were able to track the same Jeep. There was also uncontroverted evidence that Mrs. Augustine was in the area that day. With this evidence, Ms. Lemoine and her sister met the burden of proof that both the accident occurred and Mrs. Augustine was the responsible party. Although Mrs. Augustine disputed the evidence, the Third Circuit held that the trial court’s ruling was reasonable.  The Third Circuit does not have to determine that the trial court was right or wrong, just whether or not the decision was a reasonable one given the evidence. Rosell v. Esco, 549 So. 2d 840 (La.  1989).

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asphalt-automobile-automotive-125514-1024x576Most of us have been either in an accident or know someone who has, and it’s never fun. Damage to your car, bodily injuries, and legal repercussions can drag out for years after the accident. Kodie Courville was sitting in his car in the CVS parking lot on the corner of Youngsville Highway and West Pinhook Road, when Efrem Ross’ truck and trailer struck Courville’s vehicle, after being struck by Patricia Francis’ vehicle. Shortly before the turn into CVS, one lane becomes four. Francis was in the first lane, intending to turn right into CVS. Ross was in the lane to her right. Francis turned right, not realizing there were more lanes to her right side, and slammed into the side of Ross’ truck causing Ross to swerve into the CVS parking lot and hit Courville. 

Courville’s wife, Brooke, was also in the vehicle when it was struck. Kodie sustained major injuries as a result of the accident and petitioned the court for damages, naming as defendants: Patricia Francis, Francis’ insurer, Allstate Insurance Company; Efrem Ross; Ross’ employer, Whitco; and Whitco’s insurer, Lexington Insurance Company. Brooke Courville also brought a loss of consortium claim. A loss of consortium claim is one seeking compensation for damages for loss of enjoyment/livelihood with an injured spouse. The jury ultimately returned a judgment in favor of the Courvilles awarding $3,000,000 to Kodie and $21,000 to Brooke.

The defendants appealed, and Lexington claimed the trial court had erred in not allowing the jury to see plaintiff’s original Petition for Damages even though it was admitted as evidence with no objection. The appellate court decided allowing the jury to view the Petition for Damages without allowing it to also view the amended Petition for Damages would be more burdensome than probative for the court. La. C.C.P. art. 1795(B). 

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53-819x1024When driving at night, it is always important to make sure your vehicle lights are working, not just so you can see, but also so others can see you. Not only can this simple task avoid an accident, but failure to do so can get you in trouble with the law.

One night in March 2014, Mr. Roland Lege was driving on Highway 91 near Garden City, Louisiana, when he got into an accident with a tractor-trailer driven by Mr. Milton Livas. Mr. Lege claimed that the trailer was swaying back and forth from the right lane to the left and that the brake lights were not working, preventing Mr. Lege from seeing it properly. The Sixteenth Judicial District Court in the Parish of St. Mary, Louisiana heard the case that followed from the accident.

According to Louisiana law, trailers like the one Mr. Livas was driving must have lighted tail lamps displayed when the natural light is insufficient for others to see the trailer from five hundred feet. La. R.S. 32:301(A)(1) & (2). Mr. Lege, on the other hand, had a duty to not follow another motor vehicle more closely than is reasonable. La. R.S. 32:81(A). In rear-ending the trailer, there is a presumption that Mr. Lege was negligently driving too closely to it; however, he may rebut this presumption by proving he was driving at a safe distance or by showing that Mr. Livas was driving negligently and created a hazard that could not be reasonably avoided.

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48-Email-06-24-19-Part-II-PHOTO-768x1024When writing leases, it is important to pre-determine who is at fault if an accident or injury occurs on the rented land.  Yet, this determination can become complicated when the border of the leased land comes into play. Other issues can involve the exact lease language which states whether one party is indemnified, or is free from having to pay damages. A case out of western New Orleans shows how damages and fee allocations for a horrific accident involving a loose metal gate depends on which lease governs, what clauses are met, and where fault should be allocated.

On July 1, 2010, Lisa Plaia dropped off her daughter at a daycare run by the First Baptist Church of New Orleans (“FBCNO”). As she drove away, a metal gate suddenly swung into the road, crashed through the windshield, and hit her in the face, causing permanent facial and brain damage. Ms. Plaia then sued the following three parties: Fireman’s Charitable & Benevolent Association (“FCBA”) which owned the land the gate was located on; Stewart Enterprises and its subdivision SEFH, a funeral home company which mowed the grass around the gate and leased property from FCBA; and FBCNO which subleased land from SEFH and leased land from FCBA. Each of these parties subsequently filed indemnity claims against one another in order to avoid paying Ms. Plaia for any damages related to her injury.

In the Civil District Court of Orleans Parish, the jury allocated fault between these parties as follows: 15% for SEFH and 42.5% for both FCBA and FBCNO. Due to indemnity claims, the District Court ruled that FBCNO owed indemnity (reimbursement) of defense fees to FCBA as well as reimbursement of defense fees to SEFH. FBCNO subsequently appealed to The Louisiana Fourth Circuit Court of Appeal, arguing in part that the District Court used the wrong lease and incorrectly ruled that it was required to defend FCBA.

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48-Email-06-24-19-Part-I-PHOTO-1024x676Freak accidents can happen in the most unexpected ways. When these life-altering events occur, it often affects more than the injured person. Depending on the circumstances, family members can receive compensation for non-physical injuries, such as loss of consortium (companionship).

On July 1, 2010, Lisa Plaia dropped off her young daughter, Carolina, at a Baptist Church daycare and drove away with her other daughter, Petra, who was sitting in the backseat. As she left the facility, a hinged metal gate swung into the road, crashed through the windshield, and hit Ms. Plaia in the face. While Petra received no physical injuries, Ms. Plaia alleged that she suffered, among other injuries, partial facial paralysis, permanent facial disfigurement, traumatic brain injury, memory damage, and hearing loss. To recover for these injuries, Ms. Plaia sued three defendants potentially responsible for the loose gate.

The case required a trial by jury which the Civil District Court, Orleans Parish, scheduled for April 15, 2013, but then rescheduled for April 22th. The District Court also reserved a trial period of two weeks with the possibility of a third if necessary. Due to a lack of jurors available, the District Court rescheduled again, this time for the trial to begin August 5, 2013. Additionally, the District Court only set aside ten days for this trial, as opposed to the originally granted two to three weeks.

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73-Email-06-24-19-PHOTO-1024x685Cyclists must follow the rules of the road, not only for their own safety, but also because if an accident occurs the cyclist’s rule breaking could affect recovery. When a car hits a cyclist, the injured party can sue for negligence and recover damages as long as the other party was at fault. Outside of New Orleans, at the intersection of Jefferson Highway and North Causeway Boulevard, one cyclist failed to recover damages because he did not follow cycling rules.

 On September 24, 2012, Felix Palmisano was biking west on Jefferson Highway at 9:45 PM. At that time, Walter J. Ohler was driving a truck south on Causeway Boulevard. At the intersection of these two roads, Jefferson Highway is six lanes wide while Causeway Boulevard merges into one lane. As Mr. Ohler approached the southbound redlight, the signal turned green so Mr. Ohler coasted through the intersection. Mr. Palmisano saw the oncoming truck, but thought he could cross one lane before the truck could cross six. His intuition was wrong, and he was hit, suffering injuries. 

 On September 20, 2013, Mr. Palmisano sued Mr. Ohler in the Twenty-Fourth Judicial District Court Parish of Jefferson, arguing that Mr. Ohler was at fault for causing the accident. The District Court ruled that Mr. Palmisano failed to prove this fault by the required “preponderance of the evidence,” which means there is a greater than 50% chance of it being true. Mr. Palmisano then appealed this decision to The Louisiana Fifth Circuit Court of Appeal, which focused on the fault and obligations of both the driver and the cyclist.

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