Articles Posted in Semi Truck Accident

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A few months after being in a car wreck, the unthinkable happens, and as a result of the accident, your loved one passes away. As you are mourning the loss, you also have to start thinking about your legal options that stem from the crash and the possible avenues you have as a “survivor” of your loved one in order to receive some damages from the liable person. While this seems somewhat callous to talk about, especially in light of the pain you are already in from losing someone close to you, it is necessary to begin thinking about this somewhat quickly if you are going to actually be able to bring a survival action.

First, though, what exactly is a survival action? In simple terms, a survival action is an action for damages (an award of money) for injuries incurred by the deceased right before dying. You can think of a survival action as a lawsuit for injuries incurred that the actual deceased would have been able to bring had he or she not passed away. Since the decedent is not able to bring the suit himself or herself, the decedent’s estate has to bring the suit. This is typically a child or other close relative. (States will specify exactly which family members are allowed to bring a survival action in that state.)

Along with deeming who can bring a survival action, states also specify during what timeframe individuals are allowed to bring such a lawsuit. This is not because the state or the courts do not want individuals to be able to recover, but rather because a timeframe has to be set so that the liable individual does not have an indefinite period of time during which to worry about the possibility of a lawsuit.

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A case arising out of a St. Martin Parish accident has shed light on the responsibility placed on drivers following behind another vehicle. According to Journet v. Mouton out of the Court of Appeal for the Third Circuit, a driver following another vehicle must exercise great care. The case arose out of an accident where a man and his family swerved to miss a slowing sheriff’s deputy, crossed the center line, and slammed into a ditch on the other side of the road. The driver of the vehicle was severely injured and was left quadriplegic.

Reports indicate the deputy was responding to an emergency call but had missed the driveway and was slowing to turn around in another drive. The driver of the following vehicle, who was driving without a license, knew the officer knew him and knew he did not have a license. Therefore, the following driver deliberately chose not to pass the deputy and claimed there were no brake lights and no turn signal used by the deputy. However, the plaintiff’s wife contradicted this testimony, stating that she did see brake lights and a turn signal. The defendants filed for summary judgment, which was granted by the trial court and affirmed by the Court of Appeal.

To reach its decision, the court looked to relevant Louisiana statutes. Most pertinent amongst these is La.R.S. 32:81(A), which states a driver shall not follow another vehicle more closely than is reasonable and shall have regard for the speed of the other vehicle. The court also looked to a Louisiana Supreme Court interpretation of the matter, which held that it is the duty of the following driver to exercise a great deal of care and to keep a safe distance behind the lead car.

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We’ve all been there: you’re running late for work, so you rush out the door and into your car. You drive ever so slightly above the speed limit, and all the traffic lights you come across are green. Fortune seems to be on your side. Suddenly, a car seemingly comes out of nowhere and hits you. Are you partially to blame because you were in a rush and drove over the speed limit? If you are liable, how does it affect your ability to collect damages from the other driver and his or her insurance company?

Laura McKinney of Shreveport, Louisiana, faced those very questions after she collided with another driver on the morning of July 23, 2009. She was running late for her 6:00 a.m. shift at Holy Angels Residential Facilities, and the accident occurred just as she turned into its parking lot. A co-worker was leaving the parking lot and cut across several empty parking spaces to enter the main travel lane when she collided with McKinney. Neither party reported any injuries at the time, but McKinney developed left knee pain three weeks later and was diagnosed with a left knee contusion. She subsequently filed a lawsuit against the other driver and her insurance company.

At trial, several witnesses to the accident provided vital eyewitness accounts to help the court determine who was at fault. One witness testified that it appeared that McKinney was driving faster than the parking lot’s signed speed limit of 15 miles per hour. Another witness, however, testified that she did not think McKinney was driving above the speed limit. After weighing the evidence, the trial court ruled that McKinney was 40 percent at fault and the other driver was 60 percent at fault. McKinney’s damages award was therefore reduced by 40 percent, and the trial court entered a judgment in her favor in the amount of $7,632.60. McKinney appealed, arguing that the trial court erred in finding that she was 40 percent at fault and that the trial court also erred in awarding her an excessively low amount of damages.

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Under the respondeat superior legal theory, an employer can be held liable for his employees’ acts that occur within his scope of employment. This means that a truck company, for example, may be held responsible for an accident caused by one its drivers who was speeding or intoxicated while driving his route. This doctrine can be complicated when questions arise as to whether or not the employee was within the scope of his employment, or whether the person who caused the injurious accident was in fact an employee.

To determine scope of employment, one must look to what the employer pays the employee to do and what, exactly, the employee was doing when the accident occured. If a truck driver deviated from his route to go to a bar, for example, then it will likely be determined the driver was engaged in frolic for his own benefit and therefore was not within the scope of his employment. This means if an accident occurs while that truck driver is on his way to the bar, then the truck company will not be held liable. If, on the other hand, the truck driver had to deviate from his standard route because of a flooded road, then the detour is still considered to be to the employer’s benefit and within his scope of employment. An accident that occurs while on detour will still be imputed to the truck company.

A recently decided case by Court of Appeal for the First Circuit helps illustrate issues of determining the employee/employer relationship. The importance of this aspect is if the party responsible for the accident is found to be an independent contractor rather than an employee, liability cannot be placed on the employer. So, in the case heard on appeal by the First Circuit, a woman who was injured by the negligent driving of a delivery van driver sought to join the subcontracting broker and the delivery service that hired the individuals responsible for the accident. To determine whether an independent contractor relationship existed, the court looked to case law and the facts before it.

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It is vital to know proper court procedures at the outset of litigation or else an otherwise valid claim might be thrown out of court without ever being heard. One prime example is the need to send initial court documents to a defendant within a set deadline (sending such documents, such as a citation or summons, is known as service of process). Case in point, the Lafayette Parish Court of Appeal, in Boka v. Oller, recently upheld the dismissal of a claim without even considering the merits because service of process was delivered too late. Therefore, it is important to know the rules before bringing a lawsuit or a good claim might be lost due to a mere technicality, such as delivering papers too late. For a non-lawyer, an attorney can be instrumental in making sure proper procedures are followed so that the party has a chance to present their case in court.

In Lafayette Parish, Louisiana Code of Civil Procedure Article 1201 requires that service of the citation must be requested within a deadline of ninety days from commencement of the action. Article 1201 also notes that service of process on defendants is “essential” and “without them all proceedings are absolutely null.” The deadline for service is to ensure that defendants are aware of an action and have enough to prepare. Therefore, as a delay in service is deemed unfair to the defendant, a court may dismiss a claim if service of process is sent too late.

There are some limited exceptions to the rule, but, due to the risks involved in these exceptions, generally a party should attempt to serve process on time. For example, one exception permits late service if there is good cause for the delay. However, as the court is unlikely to accept run-of-the-mill excuses for delays, proving a good cause for failure to serve process on time can be difficult. As noted below, the court in Lafayette Parish found that there was no good cause for late service as the plaintiff knew the defendant’s address.

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A class action suit occurs when a group of people bring a case together as representatives of an entire class of people who are similarly situated. In order to bring a class action in Louisiana, a judge must certify the class. This means that the class of plaintiffs meets the requirements for their class action to go forward. One of the requirements a class must meet to be certified is that it must have what is known as numerosity. In Louisiana numerosity is defined as meaning that the class is too large for the individual plaintiffs to pursue their claims separately or it is too large for the individual plaintiffs to be joined to the case in a practical manner. The following case illustrates what happens when questions about numerosity arise in a class action.

On May 15, 2009 a vacuum truck owned and operated by Environmental Services, Inc. was driving on Louisiana Highway 27 between Singer and DeQuincy when a valve broke and 300-500 gallons of motor oil leaked out onto the highway. The leak was discovered when the truck arrived in DeQuincy, and the impacted portion of the highway was closed within approximately 15 minutes of the truck’s arrival.

The plaintiffs seeking to certify this class action brought suit alleging that they suffered physical injury due to inhaling the fumes from the spilled motor oil and also alleged that they suffered damage to their vehicles and livestock in their vehicles from driving over the spilled oil. The plaintiffs sought to certify a class that included everyone who drove over the spilled oil before it was cleaned up.

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Throughout Louisiana there are many roads that do not have marked center lines. When an accident occurs on one of these roads, a careful investigation must be made to determine which side of the road the accident occurred on. Then, if a lawsuit is filed, the trier of fact can determine which driver was responsible for the accident. A recently decided case that was affirmed by the Court of Appeal for the Third Circuit serves as an example of how such fault determinations are made and how the law plays into these accidents.

In that case, a woman was on an unmarked road getting ready to turn left into a private driveway. From the other direction, another vehicle crossed the center of the road in order to pass cars parked along the side of the road. By doing so, the second driver failed to re-enter his lane before reaching the first vehicle. The second car slammed into the first, causing serious injury to the first driver and severe damage to her vehicle. An investigation of the crash, particularly of skid marks, showed the accident did indeed take place in the first driver’s lane and that the second driver was driving much faster than the posted speed limit. The first driver filed a lawsuit against the other driver and won compensation for her damages. To find the second driver at fault, the judge in the case examined existing statutes to determined the second driver broke the law by moving into the other lane to pass vehicles when the other lane was not clear for a reasonable distance and f or traveling at excessive speed.

As evidenced by this case, when one is injured in an accident, a lawsuit may be filed against another driver in an attempt to recover damages. To succeed on such a claim, the plaintiff must show the other driver was negligent and that negligence caused the plaintiff’s injuries. If a driver is speeding, crosses the center line, or is drunk, for example, the driver is likely to be found negligent. If injuries are sustained as a direct result of that negligence, then compensation may be obtained to cover medical expenses, pain and suffering, and lost wages. Then, the plaintiff can focus on moving past the accident and getting life back to normal.

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The term wrongful death refers to cases in which the decedent’s death was the fault of another. The other “person” could be one individual, such as someone driving under the influence of drugs or alcohol; it could also be a group of people or a business, such as the decedent’s employers or the manufacturers of a product whose defect or malfunctioning resulted in the user’s death. Wrongful death lawsuits may be initiated by family members of the decedent in order to obtain monetary benefits, such as for wages the decedent would have earned if he were still alive. Before filing a lawsuit, it is important to establish whether the person bringing the case has standing to do so. Standing indicates that the moving party has a sufficient connection to or is substantially affected by the harm being alleged, in this case the wrongful death of the victim.

In order to bring a wrongful death lawsuit, the plaintiff must have standing as a close relative of the deceased. The first family members who would be favored to have standing would be the decedent’s spouse and children. Louisiana Civil Code states that the surviving mother or father of the deceased may only have standing if there is no spouse or child surviving the decedent. If the deceased had no surviving parents, spouse or child, then his or her brothers or sisters would have standing to bring a lawsuit. Finally, if the decedent had no surviving siblings, spouse, parents or children, then his or her grandparents would have standing to file a wrongful death claim. Note that a mother or father who abandoned the decedent while he or she was still a minor would not have standing.

Though children are the first to have standing in a wrongful death case, standing may be challenged when the parentage is called into question. A Louisiana court stated that “a filiation action inherently accompanies an illegitimate child’s wrongful death and survival action.” Thus, children born out of wedlock, that is, to parents who were not married at the time of birth, must be able to prove paternity in order to have standing. According to Louisiana law, a husband will be presumed to be the parent of a child when the child is born within 300 days of the termination of a marriage (300 being considered the maximum possible time of gestation). Outside of this exception, proceedings must be conducted to establish standing.

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When a legal issue goes to trial attorneys on both sides must abide by the rules of evidence. These rules pertain to how witnesses may be questioned and which evidence may be admitted. An error in any of these areas may lead to an objection which may be upheld by the judge. However, sometimes the judge allows evidence that the Court of Appeal finds inappropriate. When this happens, the entire case may have to start over again. This is the situation for one case arising out of an accident in Lafayette.

In Cawthorne v. Fogelman, an accident occurred when the defendant turned right out of a drive and into the road’s outer lane, but struck the plaintiff’s vehicle. The plaintiff suffered severe neck and back injuries as a result of the collision. This lawsuit was subsequently filed. According to court documents, the defendant checked the road before turning out of the drive, saw no oncoming cars in the lane he was turning into, and saw no vehicles in the inside lane with their blinker on. After hearing testimony from expert witnesses the jury found for the defendant.

On appeal to the Court of Appeal for the Third Circuit, the plaintiff asserted the trial court erred in allowing the defendant’s deposition to be admitted into evidence in place of the defendant’s live testimony. In other words, a written transcription of the defendant’s statements was made available to the jury, but the defendant was not physically present to be questioned by the plaintiff and to be seen and heard by the jury.

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Put simply, summary judgment is a decision rendered by a court for one party and against another without the litigation of a full trial. According to the Louisiana Supreme Court, summary judgment is appropriate when all relevant facts are brought before the court, the relevant facts are undisputed, and the sole remaining issue relates to the legal conclusion to be drawn from the facts. As you can probably understand, arguing for or against a party’s motion for summary judgment is not only a complex process, but also one that carries much risk.

On September 2, 2008, Daniel Milbert fell off of a roof and broke his ankle. Shortly thereafter, Mr. Milbert received surgery to repair his ankle at the Lafayette General Medical Center and was placed on a pain pump. After speaking to one of his doctors about an increase in pain following his discharge from the hospital, Mr. Milbert was instructed to call if the pain worsened. After attempting to contact doctors at the medical center, Mr. Milbert and his wife were required to leave messages with Dexcomm, an answering service in Lafayette. After Mr. Milbert was diagnosed with compartment syndrome and had to undergo surgery, he and his wife filed suit against Dexcomm on December 23, 2009. Accordingly, Dexcomm filed a motion for summary judgment alleging that the right of recovery had expired. At trial, the court agreed with Dexcomm and granted the motion for summary judgment.

Mr. Milbert and his wife appealed.

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