Car Accident

January 25, 2012

“Law of the Case” Doctrine, Part 2

In our most recent post, we began a review of the Third Circuit Court of Appeal’s application of the law of the case doctrine in a lawsuit that followed an auto accident in Vernon Parish. The plaintiffs, in opposing UUT’s motion for summary judgment, argued that UUT’s no-coverage arguments had previously been heard in a “peremptory exception of no right of action” filed by UUT which the trial court had denied. Both the Third Circuit and the Louisiana Supreme Court denied writs of appeal in that ruling; thus, the plaintiffs argued that the law of the case doctrine should “preclude UUT from re-litigating those same arguments” in the instant case. The plaintiffs also argued that the federal case cited by UUT offered “no precedential value in this state court action.” UUT’s reply asserted that the exceptions previously heard by the trial court “dealt with procedural, rather than substantive, matters,” and were not properly before the trial court at the exceptions hearing. In sum, UUT argued that the trial court’s rulings on the exceptions were interlocutory and therefore “subject to revision by the trial court at any time prior to rendition of final judgment.” The trial court granted UUT’s motion for summary judgment and dismissed all of the plaintiffs’ claims based on the finding that there was no coverage under the UUT policy. The plaintiffs appealed, arguing that UUT’s arguments had previously been heard and rejected in an earlier action (the peremptory exception) and therefore “the law of the case doctrine should have been applied because no new argument or evidence was produced by UUT.”

The Third Circuit concluded that UUT showed that “the policy it issued to Olympic did not provide coverage for the plaintiffs’ claims.” The truck Coronado wrecked was a vehicle leased from Olympic, and the UUT policy by its language excluded coverage for leased vehicles. Rather than refute UUT’s position on the merits, the plaintiffs simply “argued that the issue had already been litigated and that the trial court was bound to follow its earlier ruling.” The court rejected that the law of the case doctrine applied. It noted that UUT did not raise coverage issues when it filed its exceptions in the trial court. Instead, “the plaintiffs brought up the issue of coverage in their opposition to UUT’s exceptions.” In fact, UUT was not even made aware of the plaintiffs’ position on coverage until the day of the hearing. “Clearly,” the court concluded, “the issue of coverage under the UUT policy was not squarely before the trial court at the hearing on the exceptions.” In the view of the court, “[t]he issues raised in the motion for summary judgment filed by UUT … did not cause indefinite re-litigation of the same issue[s] as were raised in its [exceptions motion].” Accordingly, the court affirmed the trial court’s grant of summary judgment in favor of UUT.

The Willis case is a stark reminder to litigants that the rules of civil procedure in Louisiana can be extremely complex. Even when the disputed issue in a case (such as whether an auto insurance policy covers a particular driver) is fairly straightforward, a plaintiff can face a complicated path to a resolution without the counsel of an experienced attorney.

January 21, 2012

The Plaintiff’s Burden in Proving Special Damages

by Berniard Law Firm

Under Louisiana jurisprudence, special damages are the category of damages that can be “established to a reasonable mathematical certainty.” Myers v. Broussard. Special damages include awards for past and future lost earnings, since a plaintiff’s forgone income can be numerically calculated by the court. Given the relatively high level of precision, “when a trier of fact assesses special damages, the discretion is more limited or narrower than the discretion to assess general damages,” Eddy v. Litton, though the standard of review is still abuse of discretion. The plaintiff carries the burden to prove that he has suffered a loss of income to induce the court to award damages for lost wages in an amount that equals what the plaintiff would have likely earned if he had not been injured by the defendant and been able to work. In cases where there is “no basis for a precise mathematical calculation of the amount of lost earnings,” the trial court may award a “reasonable” amount of damages. However, “to allow a plaintiff to recover damages for lost wages in the absence of independent support is highly speculative.” Turner v. Cleveland Trust Co.

The Third Circuit recently considered an automobile collision case in which the plaintiff was awarded damages for lost wages by the trial court. Lori Johnson claimed that, due to the injuries she sustained when her car was struck from behind by David St. Romaine on Highway 1 in Marksville, she was unable to perform her part-time weekend work as a farrier (horse-shoer). The trial court awarded Johnson $7,200 for loss of income, which St. Romaine appealed. The Third Circuit reviewed the trial record containing Johnson’s testimony that she was unable support a horse’s weight on her injured shoulder and therefore could not install the shoes. She estimated that she typically earned between $400 and $750 per month, but was unsure of the exact amount because it was a cash business and she did not keep records. Johnson also admitted that she did not report her income from the farrier business to the IRS. The court concluded that, “[a]lthough the uncorroborated testimony of the plaintiff can support a lost wage award, based on the facts of this case, we find that Johnson’s testimony regarding the lost wage claim is insufficient.” In the court’s view, Johnson’s wage calculation was a mere “guesstimate” that could not support an award for foregone income. Thus, the court concluded that it was error for the trial court to award damages for lost wages based on only this speculative information, and reversed that part of the judgment.

This case reminds litigants that claims for special damages must be corroborated by some minimum amount proof. Although the court allows that a plaintiff’s testimony alone can in some cases support a special damages award, the facts of each situation will weigh heavily on the court’s decision process. Clearly, here, the Third Circuit did not approve of the trial court’s treatment of Johnson’s claim for wages, perhaps particularly because Johnson did not report her income as taxable.

January 19, 2012

Third Circuit Rejects Trial Court’s Apportionment of Fault in Lafayette Auto Accident

by Berniard Law Firm

It is well settled in Louisiana jurisprudence that an appellate court’s review of a trial court’s apportionment of fault in a negligence action is subject to the manifest error standard. In other words, in order for an appellate court to overturn a trial court’s assessment of fault, it must conclude that no reasonable factual basis exists to support the trial court’s finding and that it is clearly wrong. The Third Circuit reached this conclusion in Thibodeaux v. Trahan, a recent case that was marked by witness testimony that was “externally conflicting and often internally inconsistent.”

On the afternoon of October 18, 2006, Melinda Trahan was driving a school bus owned by the Lafayette Parish School Board on Richfield Road in Duson. Harold Thibodeaux, driving an RV, pulled out from a side road in front of Trahan’s bus and made a quick left turn into the parking lot of Thib’s Corner, a grocery store. Trahan, who approached Thibodeaux’s RV from the rear, also turned her bus into Thib’s Corner, at which point the two vehicles collided. Thibodeaux suffered a knee injury in the collision and sued Trahan and the school board for damages. The trial court heard testimony from the parties as well as several witnesses and ultimately found both Trahan and Thibodeaux at fault for the accident. It awarded Thibodeaux damages for pain and suffering and medical expenses, but reduced the amount by 40 percent, the amount of his fault. Thibodeaux appealed, arguing that the trial court erred in finding him partially at fault for the accident. On appeal, the Third Circuit noted that “the trial court was left with numerous conflicting versions of how the accident occurred.” It did, however, make specific findings of fact. Specifically, the trial court found Thibodeaux at fault “for having pulled out in front of Ms. Trahan while driving an RV in the rain while she was driving a school bus.” It concluded Trahan was at fault because she should have maintained better control of her bus when she saw Thibodeaux’s RV pull out into her path. The Third Circuit reviewed the testimony from the record and arrived at a different explanation of how the collision occurred: it concluded that Thibodeaux did nothing wrong when he pulled onto Richfield Road from the side street, but that he “failed to ascertain that the left turn could be made with reasonable safety” and therefore breached his statutory duty to execute the turn properly. Still, the court concluded that “the majority of the fault in this instance should be allocated to Ms. Trahan,” as she “was in a better position, as the following vehicle, to prevent the accident from happening.” The court concluded that the accident would have been avoided if Trahan had stopped her bus “within the adequate stopping distance existing between her and the RV,” rather than being forced to take an evasive turn into the Thib’s Corner parking lot. Accordingly, the court reversed the trial court’s apportionment and assessed 80 percent of the fault to Trahan and 20 percent to Thibodeaux.

December 9, 2011

Plaintiff Learns Painful Lesson About Treating Injuries Without Delay

by Berniard Law Firm

Early in the morning of August 25, 2006, Angela Brignac visited a McDonald’s in Baton Rouge. While she was stopped at the drive-thru’s menu board, her car was struck from the rear by a truck operated by Brian Mumphrey. The collision occurred because Mumphrey’s foot slipped off the brake pedal when he bent down to retrieve his wallet from the truck’s floor. Brignac did not call the police, but did exchange information with Mumphrey. She then ordered breakfast and went on her way. Later that evening, after Brignac went home and discussed the accident with her boyfriend, she called the police to report the accident and went to the hospital to be examined.

Approximately a year later, Brignac filed a lawsuit against Mumphrey and Farm Bureau, his insurance carrier. Brignac’s complaint alleged injuries to her right shoulder, back, neck, head, mouth, and jaw as a result of the collision. The trial court awarded Brignac $3,587 in damages for past medical expenses she incurred treating her jaw injury. It also awarded her general damages in the amount of $6,000, but denied her claims for past and future medical expenses for her shoulder injury. Brignac appealed this judgment, arguing that the trial court erred in failing to award medical expenses related to her shoulder injury. Brignac alleged that she had consistently complained of right shoulder pain from the date of the accident. She testified at trial that she reported both shoulder and jaw pain in the emergency room on the evening of the accident, but the shoulder issue was not documented in the ER records which were completed by both the ER doctor and the triage nurse. The first documented complaint of shoulder pain did not come until six weeks after the accident when Brignac was seen by Dr. Johnston who diagnosed her with a strained rotator cuff. Johnston prescribed pain medications, physical therapy, and exercise, and also administered cortisone injections in Brignac’s shoulder. He testified at trial that while he believed Brignac’s shoulder injury was related to the car wreck, his opinion was “based on history and what she tells me solely.” Brignac did not follow Dr. Johnson’s physical therapy recommendations and was eventually discharged as a patient from the therapy center for failing to show up for appointments. The First Circuit observed that “the trial court was not convinced that Ms. Brignac proved that her shoulder injury was related to the accident.” And, after reviewing the record, the court could not say that the trial court’s factual determination on causation was “manifestly erroneous or clearly wrong.” The court held,

“Noting other possible causes for Ms. Brignac’s shoulder injury, including the repeated lifting of her child, and considering the lapse of time between the accident and Ms. Brignac first seeking treatment for the shoulder problem, the [trial] court was not convinced that Ms. Brignac proved that her shoulder injury was related to the accident. We find no manifest error in this conclusion.”

December 7, 2011

Court Explores Standard of Review in Baton Rouge Car Wreck Case

by Berniard Law Firm

On August 7, 2002, James Wilson was driving his car southbound on Essen Lane in Baton Rouge. When he attempted to make a left turn onto the on-ramp for I-10, Wilson pulled into the path of an oncoming car driven by Barbara White northbound on Essen. The crash left Wilson with serious injuries. Following the incident, Wilson filed suit against the Louisiana Department of Transportation and Development (“DOTD”). His complaint alleged that the DOTD negligently installed lane delineators on Essen Lane at the intersection with I-10; Wilson’s negligence theory was based on his assertion that the lane delineators blocked drivers’ view of oncoming traffic. Wilson asserted that the DOTD’s negligence caused his accident because he couldn’t see White’s car when he attempted to turn onto I-10. After a trial the jury returned a verdict in favor of the DOTD. It found that the DOTD was not negligent and that its installation of lane delineators did not cause the accident. Wilson filed a motion requesting a JNOV which was denied by the trial court. Wilson then appealed on the basis that the jury’s verdict was not supported by the evidence.

The First Circuit began it analysis with a recitation of the standard of review for a challenge based on the jury’s alleged manifest error. Because the determination of negligence is a factual one, an appellate court must apply a two part test to reverse the jury’s finding. Part one involves the appellate court’s deciding that a “reasonable factual basis” does not exist in the record for the jury’s finding; part two requires the appellate court to determine that the record establishes that the jury’s finding is “clearly wrong.” Additionally, when

factual findings are based upon the jury’s weighing of witness credibility, “great deference” must be given its decision. The rule of thumb is that where there are two or more permissible views of the evidence, the jury’s choice between them cannot be manifestly erroneous.

November 21, 2011

Louisiana Fourth Circuit Court of Appeal Punishes For Duplicitous Suits

by Berniard Law Firm

As part of our Constitutional right to due process, an individual is allowed to bring grievances before a court. However, certain judicial policies may be enacted to deny plaintiffs from bringing suits that have already been litigated, are being brought with the intent to harass, or are frivolous. The purpose behind such policies is to make courts as efficient as possible by deterring such actions. A recent case out of the Louisiana Fourth Circuit Court of Appeal shines a light on several of these deterrents.

In Mendonca v. Tidewater, Inc., the plaintiff sought to nullify several final judgments made by the district court. Mendonca’s list of suits stretched over four years, with multiple appeals and pleas for annulment. However, none of Mendonca’s nullity claims or his appeals were successful. In his final appeal for anulment, the Fourth Circuit Court of Appeals handed down three restrictions that laid Mendonca’s long line of cases to rest.

The first of these restrictions was the court’s upholding of the defendent’s plea of res judicata and failure to state a claim. When res judicata is enacted, the court declares one of two denials. First, that the claim has been subject to a final judgment and thus no longer qualifies for an appeal, or second, that the litigant cannot bring a claim against the same party in a second claim because all claims should have been brought against that party in the initial suit. The policy considerations supporting res judicata is to preserve court resources and protect defendants from being subject to litigation multiple times, with the possibility of having to pay damages more than once. A defendant’s plea that a plaintiff has failed to state a claim goes hand-in-hand with res judicata. If res judicata is applicable, then all duplicitous claims cancelled. In Mendonca’s case, this means that there were no new claims. Since there were no such claims, the court held that Mendonca’s nu

November 15, 2011

Baton Rouge Plaintiff Loses Defamation Claim Due to Prescription

by Berniard Law Firm

The following case highlights the importance of waiting no time in bringing a cause of action that is available. In 2008, Debra Goulas worked as a bookkeeper for Sunbelt Air Conditioning Supply in Baton Rouge. Jessie Touchet, owner of Sunbelt, and Diane Jones, Goulas’s manager, accused her of stealing over $500 from the company during February and April that year. This serious accusation resulted in Goulas being tried for felony theft. The crime of theft is committed when one is involved in a trespassory taking and carrying away of the property of another with the intent to permanently deprive the true owner of that property. Goulas was subsequently acquitted of this particular theft.

Following the criminal trial and Goulas’s ultimate accquital, she filed a lawsuit against Touchet and Jones in July, 2010 alleging defamation. Specifically, Goulas argued that Touchet and Jones “intentionally and negligently inflicted emotional distress” upon her, and that their accusations were “founded in malice to damage her person and reputation.” The complaint sought damages for medical expenses, physical and mental pain and suffering, and loss of wages. The defendants filed an exception of prescription. The basis of the exception was that Goulas’s claims were based on the defendants’ actions that allegedly occurred during February and April of 2008. By the time Goulas filed suit in 2010, more than one year had passed, thereby prescribing the claims. In October, 2010, the trial judge granted the defendants’ exception of prescription and dismissed Goulas’s claims with prejudice.

Goulas appealed, alleging error on the trial court’s ruling that her defamation claim was prescribed. Goula’s reasoned that she could not initiate her defamation action until her criminal trial was concluded in March, 2010; accordingly, she argued that prescription did not begin to run until Frederick Jones publicly accused her of theft when testifying at her trial. The First Circuit noted that Louisiana recognizes a qualified privilege that protects parties from charges of defamation related to statements they make during a trial. “It necessarily follows that, during this time, the one-year period that applies to the filing of a defamation action is suspended.” However, the court explained, the suspension of prescription applies “only to allegedly defamatory statements made by parties to a lawsuit.” In this situation, Frederick and Jones were not parties to Goulas’s criminal prosecution, so the prescription suspension did not apply. The court concluded that “since there has been no suspension of the 2008 alleged defamatory statements,” the trial court properly granted the defendants’ exception of prescription.

November 3, 2011

Baton Rouge Pedestrian Strike Reminds Drivers of Duty to Keep a Lookout

by Berniard Law Firm

It is well settled in Louisiana law that automobile drivers are required to exercise care to avoid colliding with pedestrians. Motorists are charged with the duty to see what an “ordinarily prudent” driver should see to prevent striking pedestrians in the roadway. In fact, La. R.S. 32:214 requires drivers to

“exercise due care to avoid colliding with any pedestrian upon any roadway and shall give warning by sounding the horn when necessary and shall exercise proper precaution upon observing any child or any confused or incapacitated person upon a highway.”

A driver’s liability for injury to a pedestrian is based on ordinary negligence principles. The traditional duty/risk analysis is used to compare the driver’s behavior to “how a reasonably prudent person [would] have acted or what precautions [he would] have taken if faced with similar circumstances and conditions; the degree of care required is dependent upon the foreseeable dangers facing the driver. It can be particularly challenging for a court to conduct the duty/risk analysis when a victim dies as a result of his injuries and there are no eyewitnesses to the accident other than the defendant himself. The “trier of fact is free to believe in whole or part the testimony of any witness,” which means that the a judge or jury may disregard a defendant’s own testimony about whether he saw–or should have seen–the victim. Scoggins v. Frederick. However, under Louisiana civil procedure, “a court cannot make [such] credibility determinations in ruling on a motion for summary judgment.” This rule of procedure led to the First Circuit Court of Appeals’ reversal of the trial court in Woodward v. Hartford Insurance Co.

October 25, 2011

Medical Malpractice Case in Louisiana Shows Importance of Panels

by Berniard Law Firm

Is the Failure to Observe a “Do-Not-Resuscitate” Order Medical Malpractice?

A common element in medical malpractice cases we have previously examined on this blog is the role of Louisiana’s medical review panel. As a brief review, claims brought against healthcare providers under Louisiana’s Medical Malpractice Act (“MMA”) must be reviewed by a medical review panel before proceeding to court. The panel’s purpose is limited to determining whether the evidence supports the plaintiff’s allegation that the healthcare provider failed to observe the appropriate standard of care. If the board determines the standard was not met, it must then decide whether that failure contributed to the plaintiff’s injury. The panel’s report, though not conclusive, is admissible in any subsequent litigation.

A plaintiff who believes he has been a victim of medical malpractice must first determine whether a particular claim is even subject to the MMA, and therefore whether it must be submitted to a medical review panel prior to litigation. This is an important matter, because a medical malpractice claim against a health care provider is “subject to dismissal on an exception of prematurity if such claim has not first been presented to a medical review panel.” The Louisiana Supreme Court, in the case of Coleman v. Deno, identified six factors which are to be considered when determining whether a claim falls under the medical malpractice umbrella. But even with these factors as a guide, the decision may not necessarily be straightforward. A recent case that demonstrates the “grey area” of medical malpractice claims involved a hospital’s ignoring a patient’s Do-Not-Resuscitate Order (“DNR”). Agnes Liles was admitted to the Northern Louisiana Medical Center (“NLMC”) in Ruston on July 10, 2009. A few days later, he went into cardiac arrest. Despite NLMC’s knowledge of Liles’s DNR, hospital employees resuscitated Liles. The process left him with physical disabilities until his death two months later. Liles’s two daughters filed suit against NLMC for recovery of the medical expenses attributable to Liles’s post-resuscitation care as well as physical and mental pain and suffering, loss of enjoyment of life, and cognitive decline. They also asserted a claim for bystander recovery. NLMC filed an exception of prematurity in the trial court arguing that the plaintiffs’ claims must be reviewed by a medical review panel prior to litigation. The trial judge overruled the exception after a hearing and NMLC filed for supervisory review of the judgment with the Second Circuit Court of Appeal. The court relied primarily on two cases to ultimately conclude that “the actions by the nursing personnel in failing to honor the DNR order were not covered under the MMA as medical malpractice, but instead should be governed by Louisiana negligence principles of law.” The first case contained the Louisiana Supreme Court’s pronouncement that

October 19, 2011

Tractor-Trailer Accident on I-20 Leads to Court’s Consideration of Request for Remittitur

by Berniard Law Firm

A defendant who wishes to challenge a jury’s damages award can petition the court for a new trial. As this is often an undesirable path for both the defendant and the plaintiff, Louisiana law offers an alternative approach: when the trial court believes that the verdict is “so excessive … that a new trial should be granted for that reason only,” La. Code Civ. Proc. art. 1814, it can order remittitur. This option is available only if the plaintiff agrees to it, under the assumption that accepting a lower amount of damages may prove preferable to another trial. The trial court is permitted to order remittitur “only if the issue of quantum is clearly and fairly separable from other issues in the case.” The recent case of Great West Casualty Co. v. AAA Cooper Transport offers an instructive example of Louisiana’s remittitur statute as applied by the Court of Appeals for the Fifth Circuit. On November 27, 2006, a tractor-trailer which operated by Juan Rodriguez-Salas was struck by another tractor-trailer; the second truck was being driven by Ray Johnson and was owned by AAA Cooper Transportation. Rodriguez-Salas’s truck rolled over, and he suffered injuries to his right shoulder as a result. Rodriguez-Salas sued Johnson and AAA Cooper in the U.S. District Court for the Middle District of Louisiana. He sought to recover for his medical expenses and damages for pain and suffering and lost wages. After a trial, the jury awarded Rodriguez-Salas $38,000 for lost wages; $120,000 for pain, suffering, and mental anguish; and $10,000 for loss of enjoyment of life. AAA Cooper, objecting to the damages award, filed a motion for a new trial. The district court entered judgment on the verdict and denied AAA Cooper’s motion. AAA Cooper appealed, seeking a reduction in Rodriguez-Salas’s $130,000 general damages award on the theory that Rodriguez-Salas’s injuries were to only one shoulder and only required treatment for eight months; in AAA Cooper’s view, $40,000 was an appropriate amount.

The Fifth Circuit, in applying Louisiana law, first reviewed the district court’s finding that a new trial was unnecessary. The district court determined that sufficient evidence of Rodriguez-Salas’s “injuries, medical treatment and recovery, and the effect of both on his work and daily activities” had been presented at trial “to reach a fair determination of his general damages and lost wages.” The Fifth Circuit agreed, noting that the record included such evidence as Rodriguez-Salas’s testimony about his injuries, testimony from doctors about Rodriguez-Salas’s condition, and Rodriguez-Salas’s medical records. Accordingly, in affirming the trial court’s judgment, the Fifth Circuit concluded that “the district court did not abuse its discretion” and that “the award [was] not against the great weight of the evidence.”

Although remittitur offers the parties in litigation a more efficient means by which to resolve a dispute over a damages award, it is still subject to many of the same limitations that apply to appeals in general — that is, that great deference must be afforded a jury’s award of damages. Only through a showing of abuse of discretion by the trial court can a defendant prevail on a remittitur action.