Articles Posted in Car Accident

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mercedes-1450415-1024x683Louisiana has laws in place requiring drivers to carry car insurance. However, insurance policies are not uniform and some policies may contain ambiguities or be silent altogether on specific issues. The following case illustrates such a scenario.

Jeremy Elliot was a service technician working for a Mercedes-Benz dealership in Baton Rouge, LA and was involved in an accident while driving a customer’s car during a routine servicing. Elliot sued the other driver and the driver’s insurance company, State Farm; State Farm settled. Evidently, the other driver’s insurance policy was insufficient to cover the damages.   

Thus, Elliot sought reimbursement elsewhere and sued the insurance company that covered the car he had been driving, Encompass Indemnity Company (“Encompass”), as well as his employer’s insurance company, Travelers Indemnity Company (“Travelers”). Travelers filed a motion for partial summary judgment, asking the District Court to find that Encompass was liable for up to $500,000 in coverage for an underinsured motorist.

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car-fire-1346381-1024x662When you let a friend borrow your car you probably don’t give much thought to who’s insurance policy would cover any potential accidents. Insurance policies contain many loopholes that can exclude coverage when an accident occurs. The following case out of Lafayette, discusses the problems that can arise when a friendly gesture turns into a legal nightmare for the parties involved.

Judith Landry of Lafayette, Louisiana and Therese Lesinski were involved in an automobile collision. Landry filed a personal injury lawsuit against Lesinski claiming that Lesinski’s carelessness caused the accident. Importantly, at the time of the accident, Lesinski was driving a car belonging to Mr. Braus, whom she had been staying with in his home. Lesinski’s own personal vehicle was insured by State Farm, but Mr. Braus (the car involved in the accident) was insured by Allstate.

State Farm denied liability by claiming that it was not responsible for any of the damage done to Landry because the car belonged to Mr. Braus who was not a member of Lesinski’s household. State Farm asserted as much in a motion for summary judgment. A motion for summary judgment effectively asks a court to dismiss the entire lawsuit. See La. C.C.P. art. 966.

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old-school-bus-1431364-1024x683Sometimes when a plaintiff is awarded damages at trial he or she may believe that the damage amount does not match the injury he or she incurred. When this situation happens, what can a plaintiff do to challenge the damage award? And how easy is it get an increase in the damages amount? A recent First Circuit Court of Appeal case involving a Terrebonne Parish man provides guidance towards answering these questions.

Arthur Mitchell was riding a public bus when the bus was cut off by, requiring the bus driver to suddenly brake to avoid the collision. As a result of the sudden braking, Mr. Mitchell was thrown forward into the metal change box located behind the driver’s seat. Mr. Mitchell brought a lawsuit against the driver who cut off the bus, Jacob Simmons, claiming that Mr. Simmons caused severe injuries to his neck, back, body, and mind. At trial, Mr. Mitchell was awarded a total damage amount of $15,718 of which $1,000 was for future medical expenses, $1,000 was for past pain and suffering, and $13,718 was for past medical expenses.

Mr. Mitchell, believing that his damages were undervalued at trial, appealed the trial court’s decision. He argued that when a jury awards future medical expenses for injuries that the jury must also award future pain and suffering damages.  Mr. Mitchell argued that because the trial court did not award future pain and suffering, that the court erred in its assessment of the final damages total.

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money-money-money-1241634-1024x768There are many questions involved in filing and pursuing a lawsuit. How do I file? When must I file? Against whom do I file it? What amount of damages do I seek? Most people are unaware that there are different types of damages. An attorney’s trial strategy not only plays a critical role in if the plaintiff is awarded compensation but also in how much the plaintiff is awarded, as highlighted by the following case.

Lana Averette was driving on Highway 1 in Port Allen when she was struck by an Entergy bucket truck driven by an employee of Entergy Gulf States Louisiana, L.L.C. (“Entergy”). On June 11, 2013, Ms. Averette filed a lawsuit against Entergy and the employee (“Defendants”), asserting that she had suffered spinal injuries from the accident. During his closing statement to the jury at the end of the trial, Ms. Averette’s attorney asked the jury not to award her future general damages, but to award her the cost of the future medical treatments she would be required to undergo because of her injuries. The jury returned a verdict in favor of Ms. Averette in the amount of $42,373.00 for past lost wages, $58,378.00 for past medical expenses, $75,000.00 for past mental anguish and emotional distress, $75,000.00 for past lost enjoyment of life, $75,000.00 for past pain and suffering, and $500,000.00 for future medical expenses. Defendants filed a motion for judgment notwithstanding the verdict or alternatively a motion for new trial, arguing that it was error as a matter of law to award Ms. Averette future special damages without awarding future general damages. The Judicial District Court for the Parish of West Baton Rouge denied the motions and Defendants appealed to the Louisiana First Circuit Court of Appeal. On appeal, Defendants argued that because Ms. Averette waived her claim for future pain and suffering, she waived her claim for future medical expenses.

General damages seek to compensate the plaintiff for losses of life or lifestyle which cannot be measured definitively in terms of money, such as pain and suffering. See McGee v. A C and S, Inc., 933 So.2d 770, 774 (La. 2006).  In contrast, special damages are those which may be calculated with relative certainty, including medical expenses.  In reviewing a jury’s award of special but not general damages, a reviewing court must ask if the award is so inconsistent that it is an abuse of discretion.  See Wainwright v. Fontenot, 774 So. 2d 70 (La. 2000).  Under certain circumstances, the Court of Appeal noted that evidence presented at trial could support an award of medical expenses without an award of general damages. Thus, the question before the Court of Appeal was whether the jury made inconsistent awards based on the record of evidence.

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semi-truck-4-1518489-1024x651During litigation, a party may attempt to claim some form of privilege as an avenue not to produce certain evidence.  There are various types of privileges that may be asserted.  One that is familiar to many is attorney-client privilege.  One that is not as familiar is work-product privilege.  Work-product privilege is claimed in civil cases and is used to keep materials that are created in anticipation of litigation from being discovered by opposing counsel.  However, to assert work-product privilege the party claiming it must be an adverse party in the lawsuit.  A non-party is not entitled to work-product privilege, as Louisiana State recently learned when the Louisiana Second Circuit Court of Appeal affirmed that work-product privilege can only be claimed by an adverse party.

In 2011, Ramanand Naik was in a car accident on highway 84 in De Soto Parish, Louisiana.  Mr. Naik was driving a Ryder box truck when a semi-truck, driven by Nathaniel Anthony, hauling a flatbed trailer carrying a boom lift veered across the center line, jackknifed, and crashed into Mr. Naik’s truck.  The impact of the crash caused the boom lift to fall off the trailer and onto the cab of the Ryder truck essentially crushing Mr. Naik and his passenger, Norman Latcha.  Following the accident, Naik filed a lawsuit against various parties and their insurance company.  Mr. Naik did not name Louisiana State as a defendant and the named defendants did not bring Louisiana State in as a third-party defendant.

Despite being a non-party to the lawsuit, ORM was brought into the case during discovery when Mr. Naik filed a notice to have ORM produce all the documents that they had pertaining to the accident. The named defendants in the case did not oppose Mr.Naik’s request.  ORM did not produce the documents leading Mr. Naik to file a motion to compel: a request to have the court force ORM to produce the documents.  ORM filed a motion to quash: a request to invalidate the motion to compel and avoid producing the documents asserting the documents were protected by the work-product privilege. The First Judicial District Court for the Parish of Caddo, Louisiana denied ORM’s motion, requiring the production of the documents based on ORM’s non-party status thus the lack of available work-product privilege.  

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coke-1483373-1024x768When are you on the job? While seemingly a simple question, many personal injury cases revolve around the issue of whether an individual was acting within the scope of his or her employment. The ramifications of the answer to this question determine whether a business is on the hook for its employee’s negligence. Recently, a Louisiana Court of Appeal (“the Court”) addressed this question when determining whether a Coca-Cola Bottling Company United, Inc. (“Coca-Cola”) employee was working for the company at the time of an accident.

It all began when Ralph McFarland, a salaried employee for Coca-Cola, rear-ended a vehicle belonging to Darius Jack. Prior to the accident, Mr. McFarland had just finished meeting with his final Coca-Cola client for the day and was on his way home from work. At the time of the accident, Mr. McFarland wore a Coca-Cola polo shirt and was in possession of his Coca-Cola cell phone and laptop. Mr. Jack sued both Mr. McFarland and Coca-Cola. At trial, Mr. Jack insisted that Coca-Cola was vicariously liable for Mr. McFarland’s actions. Vicarious liability attributes the actions of a company’s employee onto the company itself. It is normally found when an employee’s action is closely connected to his or her employment duties. See LeBrane v. Lewis, 292 So.2d 216, 218 (La.1974). Courts usually consider many factors when determining vicarious liability like the payment of wages by the employer, the employer’s power of control over the employee, and the time, place, and purpose of the act in relation to service of the employer. See Orgeron on Behalf of Orgeron v. McDonald, 639 So.2d 224, 227 (La. 1994); see also Reed v. House of Décor, Inc., 468 So.2d 1159, 1161 (La. 1985).

Mr. Jack, in arguing that Coca-Cola was vicariously liable, emphasized that Coca-Cola paid for Mr. McFarland’s mileage, that Mr. McFarland met with a Coca-Cola client prior to the accident, and that Mr. McFarland wore a Coca-Cola polo shirt at the time of the accident. Coca-Cola argued against vicarious liability. It pointed out that Mr. McFarland was on his way home from work and that Mr. McFarland did not do any further work after leaving his final Coca-Cola client’s place of business. Coca-Cola also pointed to a statement made by Mr. McFarland where he said that he made a personal stop at a gas station after finishing his last appointment and that while it is possible that he could be called back to office before its closing at five o’clock he could count on one hand the number of times where that happened. Coca-Cola also emphasizes that Mr. McFarland’s typical work day was over by half past three. The trial court held that Mr. McFarland was not working within the scope of his employment with Coca-Cola at the time of the accident and that Coca-Cola was not vicariously liable for Mr. McFarland’s actions.

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toes-1438916-1024x683As if having car troubles was not bad enough, imagine also losing your toe in the process. Well, that exact scenario happened to Valerie Babin. After her vehicle broke down in Gonzales, Louisiana, Ms. Babin called American Towing Enterprises to tow her vehicle. An American Towing Enterprises’s employee, Floyd Russo, arrived to help Ms. Babin. At this point, Ms. Babin’s day went from bad to worse. As Mr. Russo partially loaded the vehicle onto the truck’s flatbed, Ms. Babin went to turn off her vehicle’s emergency flashers. At the same time, Mr. Russo lowered the truck bed, which landed on Ms. Babin’s foot, crushing her big toe. Despite attempts to save her big toe, Ms. Babin eventually required surgery to remove it.

Ms. Babin filed a lawsuit against Mr. Russo and American Towing Enterprises. At trial, the court awarded $673,380.35 in damages, finding Mr. Russo and American Towing Enterprises 60% at fault and Ms. Babin 40% at fault. When the injured individual is found partially at fault for his or her injury, his or her damages are reduced by the amount he or she was at fault. In Ms. Babin’s case, her fault reduced the total amount of damages to $404,028.21. Ms. Babin appealed the trial court’s determination of damages, claiming that the awarded amount was insufficient. Conversely, Mr. Russo and American Towing Enterprises appealed the trial court’s determination claiming that the amount awarded was excessive.

The Louisiana Court of Appeals (“the Court”) was tasked with determining whether the damages were insufficient or excessive. The Court examined two types of damages, general damages, and special damages. General damages often include mental or physical pain, suffering, inconvenience, loss of gratification or intellectual or physical enjoyment, or other losses of lifestyle. McGee v. A C And S, Inc., 933 So. 2d 770, 774 (La. 2006). The goal of general damages is to make the injured party whole. In other words, put the injured party in the same position he or she was at prior to the injury. Special damages are damages that the injured person will experience in the future. Ms. Babin argued that at minimum she should have received $400,000 for general damages and $557,028 in special damages for future medical care. The Court found that the trial court’s determination of general and special damages was reasonable. When addressing the amount of special damages for future medical care, the Court noted that the trial court awarded Ms. Babin $223,77.00 based on the testimony of two doctors at trial. When seeking future medical expenses, “the appellate record must establish that future medical expenses will be necessary and inevitable.” Bass v. State, 167 So. 3d 711, 716 (La. 2014). In addition, future medical expenses will not be supported when there is not medical testimony. The Court found the trial court’s determination of special damages was reasonable and disregarded the defendants’ argument that the awarded amount was unsupported by evidence. Lastly, the Court examined the loss of future wages. The loss of future wages requires the trial court to determine how much work the injured party will miss in the future because of his or her injury. For Ms. Babin, the trial court determined that Ms. Babin will lose $81,735.00 in future wages. The Court also found this amount reasonable.

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nice-bike-1547666-1024x768The majority of cases, civil and criminal alike, never make it to trial. The parties may settle the case out of court or the claims may simply be dropped by the plaintiff. A third reason why a case may not make it to the jury is if a judge grants a party’s motion for summary judgment; a fate that almost befell Orleans Parish citizen John Ludlow’s negligence claim in September 2015.

In September 2014, John Ludlow, Jr. was a bicyclist waiting for the ferry at the Canal Street Ferry Terminal. As he waited for the ferry, he sat on a concrete barrier and fell backward, hitting the rocks below the platform. Mr. Ludlow sustained extensive injuries because of his fall and in turn, filed a lawsuit against the State of Louisiana, Department of Transportation and Development, Crescent City Connection Division (hereinafter “the State”) in Orleans Parish District Court.

The State filed a few motions for summary judgment.  Summary judgment is when one party moves for the court to automatically rule in the moving party’s favor before a jury or judge has rendered a verdict.  A judge can grant a motion for summary judgment when the judge finds that there is “no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law” pursuant to La. C.C.P. art. 966(B).

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desertic-road-1446241-1024x768Employees can pit employers against each other just like children do with parents. If permission is limited by one person the employee/child will simply repeat their request to the other party.  What an employee is permitted to do can be ambiguous.  In a recent automobile accident case out of Shreveport however, the Louisiana Second Circuit Court of Appeal affirmed that employer “permission” in Louisiana provides a wide berth to an employee and can result in unexpected liability.  

A former employee of Water Works Irrigation Inc. (“Water Works”), Lovell Ellis, used his assigned company truck to pick up his girlfriend, Raquel Coleman, outside of his normal service area.  While the two were in the truck, Mr. Ellis ran off the road, wrecking the truck and injuring Ms. Coleman. Ms. Coleman claimed that Mr. Ellis was texting while driving and ran off the road. In his deposition, Mr. Ellis denied being on his phone but explained his swerving to avoid a log caused the accident. Later Mr. Ellis pled guilty to Driving While Intoxicated (“DWI”) but claimed that he drank only one beer.

As a result of the accident, Ms. Coleman sustained fractured vertebrae as well as other injuries. In January of 2012, Ms. Coleman filed a personal injury lawsuit against Mr. Ellis, Water Works, and Water Works’ Insurance company, United Fire Insurance (“United Fire”), seeking damages. After the dismissal of Water Works, the trial proceeded against Mr. Ellis and United Fire. The District Court found Ellis 100% at fault and United Fire liable for coverage.  The District Court awarded damages of $47,449.67 to be paid by either or both defendants.

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highway-14-junction-1628439-768x1024Underinsurance policies provide drivers an extra layer of protection. These policies compensate drivers for injuries suffered in accidents with uninsured or underinsured drivers, but the process of claiming under these policies can be problematic. Ted Luquette encountered this difficulty after he was injured in a car accident in Abbeville.

Luquette was driving home from church in Abbeville, Louisiana when he was hit by a car driven by Chad Mowbray, who through the owner of the vehicle, Billie Borga, was insured with Allstate. After the accident, Luquette settled for his injuries with Allstate for $100,000, which was the policy limit. Luquette then brought a lawsuit against his own insurance, Farmers Bureau. Luquette claimed he required surgeries resulting in damages in excess of $100,000 as a result of the accident, which entitled Luquette to a payout under his policy.

To demonstrate that Allstate was the only insurance that the Mowbray and Borga had, Luquette primarily relied on a discovery answer by Allstate, which stated that Allstate was not aware of Mowbray or Borga being covered by any other insurance policy. At trial, the jury was asked whether Luquette sufficiently proved that Mowbray and Borga were underinsured. Luquette did not object to this question, and the jury resolved that he had not shown that Mowbray and Borga were underinsured.

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