Car Accident

September 17, 2013

Proper Service Essential for Successful Legal Remedy

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?

September 16, 2013

Inspecting Summary Judgment When Case Involves Improper Lawyer Actions

by Berniard Law Firm

Filing a Motion for Summary Judgment in Louisiana

Can a trial court properly grant a motion for summary judgment when material issues of fact still remain? According to Louisiana law, a motion for summary judgment is not properly granted if material issues of fact still remain. Summary judgment is only properly granted if pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show that no genuine issues of material fact exist.

The purpose of summary judgment is to circumvent a full-scale trial if there are no issues of fact. At trial, fact finders determine what the genuine facts are, and in the case of dispute, the fact finders have to decide what proposed facts are the most plausible in the context of the case. If no issues of fact exist, then this costly and time-consuming process can be avoided by granting a motion for summary judgment.

September 12, 2013

Louisiana Legal Malpractice Claim Arises from Car Accident

by Berniard Law Firm

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.

September 9, 2013

Missing One Deadline is Crucial to Victim’s Suit in the Parish of Acadia

by Berniard Law Firm

Understanding the distinction between a final judgment and an interlocutory judgment is crucial to making sure your case does not get dismissed as untimely. A final judgment determines the merits of the case in whole or in part while all other judgments are interlocutory.

Interlocutory judgments are intermediate rulings decided by the trial court. These judgments do not dispose of the merits of the claims. Usually, an interlocutory judgment cannot be appealed immediately; only final judgments can be appealed. However, in Louisiana, the Court of Appeals allows for individuals to file a writ for supervisory review within 30 days from when the trial court makes its interlocutory ruling. If the writ was filed in a timely fashion, the appellate court will review the merits of the claims that were decided by the trial court. If the writ was not filed in a timely manner, the appellate court will dismiss the case.

The 30 day period to file the writ is a steadfast rule. Countless cases have been dismissed because writs are filed after the given 30 day time period. Many fail to realize that the 30 day period begins right when the trial court makes its ruling. Filing a writ after this 30 day time period results in a complete dismissal of the case.

August 23, 2013

Injury Case Shows the Ultimate Impact Summary Judgment Can Make

by Berniard Law Firm

In a typical case, either party can move for summary judgment. The defendant can move for summary judgment after the plaintiff files the complaint. The plaintiff can move for summary judgment after the defendant has answered the plaintiff’s complaint.

Summary judgment is a common procedural occurrence within civil and criminal trials. The purpose of summary judgment is “to secure the just, speedy, and inexpensive determination” of actions. A party is granted summary judgment when there is no genuine issue of material fact. In other words, a party is granted summary judgment if the court finds that no reasonable jury would ever find in favor of the non-movant (the party that is not moving for summary judgment) based upon the facts in the record. When it is beyond a reasonable doubt that the movant is entitled to summary judgment, summary judgment is granted and the case never reaches a jury. However, if there is even the slightest chance that a jury could find for the non-movant, summary judgment is not granted and litigation continues until a jury determines who should win the case.

In this particular case, Ricky Whittington Jr., was rear-ended by an eighteen-wheel tractor trailer rig in the Parish of Rapides on June 2, 2009. He sustained extensive injuries from this accident and had to go through back surgery as a result. Mr. Whittington filed suit against the operator of the eighteen-wheel tractor, the operator’s employer, and the employer’s insurer, QBE Specialty Insurance Company (“QBE”). In addition, he also named General Insurance Company of America (“GICA”) as the fourth defendant. The issue on appeal is whether the trial court erred in granting summary judgment to the fourth defendant, GICA.

August 20, 2013

Court of Appeals Increases Damages for Lost Wages

by Berniard Law Firm

The jury is the ultimate trier of fact. In our democratic society, we place high value on the idea of being judged by a panel of your peers. In addition, it allows the accused to be judged by the prevailing community standards. The jury is supposed to be more in touch with the average person than the average judge would be. Generally, since the jury is held is such high regard, the court of appeals is hesitant to overturn any of their decisions. The court explained this notion in a case arising from Cameron Parish, Louisiana.

In that case, a truck driver swerved to avoid a sign placed there by the Department of Transportation and Development. The sign was too far on to the road, the truck driver did not notice the misplacement fast enough, and had to swerve to avoid hitting the sign. When he swerved, he lost control and ended up in a ditch that Hurricane Ike damaged. The truck flipped and, although the truck driver was not harmed upon the collision, he was stuck in the vehicle upside-down. After forty-five minutes of being pinned upside-down, the truck driver died of asphyxiation. His wife and three children sued the DOTD based on general damages, lost past and future wages, survival damages, and funeral expenses.

The lower court found that the DOTD was fifty percent at fault and the truck driver was also fifty percent at fault. As such, the lower court awarded damages that amounted to $700,000 in total. Fault determinations are extremely fact intensive, so the lower court, as the trier of fact has broad abilities to make these determinations. As such, they are difficult to overturn in the court of appeals.

August 19, 2013

Appeal Dismissed Because of Late Payment, Abandonment

by Berniard Law Firm

In a recent case, Johnson v. University Medical Center in Lafayette, the Louisiana Court of Appeal for the Third Circuit reversed a trial court decision to dismiss a plaintiff’s case for abandonment due to her failure to timely pay the costs of appeal. The plaintiff in the case, Lela Johnson, originally filed a medical malpractice action against both the University Medical Center in Lafayette and the Medical Center of Louisiana in New Orleans. The case has proceeded through courts since the original petition for damages was filed on March 15, 2006.

Both defendants, whose principal places of business correspond with the last word of their names, are operated by the State of Louisiana. After a dismissal of her original suit by the Supreme Court of Louisiana due to her failure to properly notify the defendants of the action because she had requested service of process on individuals who had not been individuals who were authorized to accept such information on behalf of the defendants, Ms. Johnson’s decided to re-file the original suit in trial court. Once again, Ms. Johnson’s service of process was held insufficient by the trial court and she moved to appeal that judgment.

Service of process is a legal term of art which essentially describes the process in which plaintiffs notify defendants of a pending suit. When the plaintiff files a complaint with a court, any defendant in the case must be given notice of the pending case and an opportunity to be heard and defend themselves against the complaint. This requirement is a basic constitutional right conferred upon everyone who has been accused of some wrongdoing and it is the accuser’s responsibility to ensure that the constitutional right of the accused is protected. The importance of service of process to our legal system and the rights of defendants makes it necessary for trial courts to dismiss actions, without regard to the merits of the plaintiff’s claims, if service of process is deficient in some way or another.

August 17, 2013

Court Re-Allocates Liability for U-Haul Accident in New Orleans

by Berniard Law Firm

Appealing turned out to be a beneficial move for U-Haul International, Inc., and U-Haul Company of Georgia, who were sued when Mr. Omar Erazo’s truck came off his rented U-Haul van while he was moving back to Louisiana from Georgia. Unfortunately, when the truck detached from the van on I-10 in eastern New Orleans, it collided with Mr. James Gaunt’s vehicle, resulting in serious injuries to Mr. Gaunt.

On appeal of the trial court’s findings against them, U-Haul raised a number of issues. The first issue was whether the trial court erred by conducting improper research, considering outside evidence that should not have been admitted. The appellate court sided against U-Haul on this issue, stating that a judge may conduct legal research on a site such as Westlaw and see the number of hits that “U-Haul” and “auto transport” returns.

Another issue was whether the trial court erred by assessing 90% of the fault to U-Haul and only 10% to the driver, Mr. Erazo. Here the appellate court agreed with U-Haul that 90% was too much liability considering that U-Haul employees largely followed protocol based upon the information Mr. Erazo provided them. When Mr. Erazo noticed that his truck was coming unhinged and called U-Haul, he did not convey that he felt it was unsafe to continue towing the truck. However, his subsequent conduct – driving slowly with lights blinking while making sure his wife kept a safe distance away – showed he did believe continuing to tow the truck was unsafe. If he had informed U-Haul of this belief, they would have sent someone out to help him.

August 15, 2013

Judge’s Ruling for Medical Malpractice Patient in Lafourche Parish Overturned on Appeal

by Berniard Law Firm

In a recent medical malpractice case, the jury found that the plaintiffs did not prove, by a preponderance of the evidence, the standard of care applicable to the emergency room doctor they had sued for a medical malpractice allegation. Because the plaintiffs had not proved their case the suit was dismissed. However, on a motion by the plaintiffs, the trial judge issued a judgment notwithstanding the verdict, reversing the jury’s decision and awarding the plainiffs over five million dollars in damages. The doctor and hospital board appealed this decision.

A plaintiff in a medical malpractice case alleging that the doctor was negligent must prove 1) the amount of skill or knowledge possessed by a typical doctor or the amount of care ordinarily exercised by licensed doctors in Louisiana practicing in a similar community or under similar circumstances as the doctor being sued. 2) that the doctor either did not have required level of knowledge or skill or did not use ordinary level of care and 3) that the result of this lack of knowledge, skill or care caused the plaintiffs injuries which would not have otherwise occurred. The jury found that the plaintiffs failed to establish the level of care used by Louisiana emergency room physician in similar circumstances therefore they could not have proved either of the other elements.

A judge may issue a judgment notwithstanding the verdict when the evidence is so strongly in favor of one party that reasonable jurors could not give a verdict for the other party. When a party (the party who lost the jury verdict) moves for a judgment notwithstanding the verdict the motion must be denied if there is evidence for the other party (which won the jury verdict) that could lead a reasonable person to side with the other party. The court should resolved all reasonable inferences and factual questions in favor of the party who won the jury verdict. This is a very difficult standart for the moving party to clear. The jury verdict must have been completely illogical and unfounded for a judge to override it. When an appeals court reviews a trial judge’s decision to grant a judgment notwithstanding the verdict the same standard is used. In this case the courts must evaluate the evidence given my both sides medical experts to determine whether reasonable people could have found that the plaintiffs failed to prove the applicable standard of care.

August 14, 2013

Summary Judgment Upheld by 3rd Circuit in Negligence Suit

by Berniard Law Firm

Regardless of the issue at law, parties in a civil suit can halt further litigation by obtaining a motion for summary judgment. The party seeking summary judgment, known as the movant, must show there is no genuine issue of material fact despite the allegations asserted by the non-moving party. The court will consider a fact “material” if “its existence potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the relevant legal dispute.” Furthermore, a fact will be deemed at issue “if there exists any reasonable doubt as to its existence.”

On July 12, 2006, Raymond Alex, Sr. (hereinafter “plaintiff”) was driving his employer’s, BNSF Railway Company (hereinafter “defendant”), truck south on North Eastern Avenue in Crowley when he was rear-ended by a large tractor-trailer rig driven by Edward Zenon, Jr. (hereinafter “Mr. Zenon”) of Creole Fermentation Industries, Inc. The plaintiff alleged the accident injured his neck and caused radiating pain down his right arm into his hand. His recovery consisted of neck injections and surgery.

Interestingly, the plaintiff signed off on the operating condition of the truck before driving it and after the accident signed a report admitting the defendant was not to blame for his injuries.