Semi Truck Accident

October 5, 2013

Jury Trials and Government Entities: How a Car Accident Tested the Concept

In May 2004, an employee (Dauzat) of the City of Marksville backed an emergency fire department vehicle into another car containing Daisy Marcile and multiple passengers. Ms. Marcile and her passengers were injured and filed suit against the City of Marksville for damages.

Per La. R.S. 13:5105, a political subdivision of Louisiana cannot be tried by a jury unless it waives this prohibition and either the plaintiff or political subdivision requests a jury trial in the time provided by law. According to Arshad v. City of Kenner, any waiver must be a blanket waiver covering all cases, not a specific suit.

This statute has come under fire before. In Beauclaire v. Greenhouse, the Supreme Court of Louisiana ruled that the waiver provision (section D) of La. R.S. 13:5105 met the standards of the equal protection clause of the constitution, “as the statute allowed either party to demand a jury trial in accordance with the law once the political subdivision waives the the prohibition” and denied either party from seeking a jury trial when the prohibition had not been waived.

September 17, 2013

Proper Service Essential for Successful Legal Remedy

by Berniard Law Firm

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 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.

August 10, 2013

Findings of Fact: Just As Important As Conclusions of Law?

by Berniard Law Firm

Findings of fact refer to the findings of a jury on issues of fact submitted to it and are distinct from conclusions of law. Generally, a jury resolves questions of fact, whereas a judge, or an equivalent resolves questions of law. However, in Rayne, Louisiana, Mary Betty Williams, the plaintiff in a personal injury case, appealed the trial court judge’s determination that she did not carry her burden of proving that the defendant caused the accident at issue.

On December 8, 2009, Ms. Williams and Paula Trahan were involved in an automobile accident in Rayne, Louisiana. Accordingly, Ms. Williams filed suit against Ms. Trahan, asserting that Ms. Trahan caused the accident and was responsible to pay damages to Ms. Williams for pain and suffering, medical expenses, and lost income. At trial, both Ms. Williams and Ms. Trahan offered conflicting testimony that the other was to blame for the accident. Moreover, Ms. Trahan testified that the accident report filed included only portions of the statement she made to Patrolman Joshua Board at the scene of the accident. According to Patrolman Board, he found “a little plastic shard” of debris in the area where the accident occurred, which he believed fell from one of the vehicles involved in the accident. However, Patrolman Board further testified that he never checked either Ms. Williams’ or Ms. Trahan’s vehicle to determine whether the plastic shard had fallen from one of their vehicles or had resulted in damage to either vehicle.

After the accident, Ms. Trahan submitted an amended statement to reflect what she says accurately describes the incident and includes the portions of her statement not included in the initial accident report filed by Patrolman Board. However, at trial, Patrolman Board denied that Ms. Trahan’s amended statement reflected what the she told him at the scene of the accident. Nonetheless, the trial court awarded judgment in favor of Ms. Trahan and dismissed Ms. Williams’s claims, concluding that Ms. Williams had not carried her burden of proof. According to the trial court judge, “the scales are evenly balanced. I don’t feel that the plaintiff has carried her burden, because both versions are plausible, but neither one has more credibility than the other. So this is a case where plaintiff cannot recover, because she could not prove, by a preponderance of the evidence, that the accident was the fault of the defendant in this case.” As a result, Ms. Williams appealed the trial court’s determination and submits that the trial court erred in its conclusion that she did not prove Ms. Trahan caused the accident.