Semi Truck Accident

August 7, 2013

The Role of the Appellate Court and Specific Case Facts in Awarding General Damages

General damages are defined as those that involve mental or physical pain, inconvenience, loss of intellectual gratification or physical enjoyment, or other losses that can not be measured in monetary terms. In determining an award of general damages, the Louisiana Supreme Court advocates deference to the lower court, and intervention by an appellate court only in the case of clear abuse of discretion. In a recent case, a plaintiff filed a personal injury claim when she was struck in her car by another driver (the issue of sole liability was not appealed by that driver or her insurance company).

The trial court awarded $25,000 in general damages for injuries sustained by the plaintiff to her knees as a result of the accident. Although she also suffered a back and shoulder injury, she only sought damages for her knee injury, and the court considered evidence accordingly. The plaintiff argued the court erred in awarding too small a sum for general damages for her knee injuries, and for not awarding general damages for her back injury. The trial court’s decision was subsequently affirmed.

The primary medical information in this case was found in the testimony of the plaintiff’s long-time physician. He noted that although she was referred to therapy and diagnosed with a back sprain, she had other problems that did not relate to the accident. She was discharged from therapy because she did not attend sessions with any regularity, and had inconsistently reported that her knee pain was “bearable.” He further testified that the accident had aggravated arthritis in her knee and back, but that this was a pre-existing condition. Additionally, she had been on prescription medication for back pain long before the accident, had filed for Social Security Disability 13 years prior, and had even been involved in other automobile accidents both before and after the accident in question.

July 21, 2013

Second Circuit Affirms Notice Case Regarding Fallen Tree

by Berniard Law Firm

It is well established that an appeal court gives deference to a trial court’s finding of fact (ruling) unless the court was clearly wrong or acted in extreme error. In other words, even if the appellate court is convinced that they would have decided upon the evidence differently, the trial court’s findings cannot be reversed if it was reasonable that it could rule in the manner it did. Moreover, if there are two permissible rulings that could be determined, the trial court’s choice between the two cannot be found manifestly erroneous or clearly wrong.

On March 29, 2009, plaintiff Franklin Scott (“Mr. Scott”) was driving his tractor/trailer rig carrying saltwater west on Keatchie-Marshall Road in Caddo Parish (“Caddo”) where he failed to observe and avoid a fallen tree blocking the road. Mr. Scott’s truck slid 350 feet after the collision and hit several other trees before stopping. Among other injuries resulting in the crash, Mr. Scott suffered a “serious injury” to his neck.

Mr. Scott filed a personal injury suit in District Court against Caddo, property owners Roger and Marilyn Connell (“property owners”) and State Farm Fire and Casualty Company (“State Farm”) for failure to maintain the road from potentially hazardous conditions. After weighing the oral testimony of several witnesses, the District Court found in favor of Caddo. Mr. Scott appealed.

July 16, 2013

The Standard for Reviewing Medical Evidence After Auto Accidents

by Berniard Law Firm

Medical testimony after an automobile accident is complicated enough. When two accidents close in time are involved, it can get downright confusing. All the more so when a court is trying to determine which accident is to blame for not one but several different injuries. But despite questions of accuracy and the sufficiency of evidence, the role of a court of appeals is not to second-guess or set aside the trial court’s facts – provided they are reasonably arrived at and not obviously wrong.

This principle was on display in a case out of Vermilion Parish. Wanda Turner was involved in two accidents in 2010 – one in September and one in October. After the second accident, Turner filed suit against the insurer of the vehicle from the first accident, alleging neck pain, back pain, and migraines. She attributed all of her injuries to the first accident, rather than the second one, despite the fact that the second was more serious. The trial court ruled in Turner’s favor and awarded $8,500 in general damages ($3,500 for the migraines; $3,000 for aggravating her back condition; and $2,000 for her neck pain) and $1,800 in special damages to cover her medical expenses related to the first accident.

The defendant insurance company appealed the ruling, claiming a lack of medical evidence and unsupported testimony. The appellate court even noted numerous inconsistencies in Turner’s testimony. Despite this, and citing past legal precedent, the court explained that it was obligated to give great deference to the factual findings of the trial court. Unless those findings are obviously unreasonable or rife with manifest error, the appellate court will not set them aside. This was the standard applied to Turner’s claims.

July 13, 2013

Timeliness Due to Lawyer Mistake Essential in Court Ruling

by Berniard Law Firm

It is common knowledge that most courts have more cases than they can handle today. Many parties experience long waits between court dates in most courts. This is one of the many reasons that timeliness in the courtroom is so important. The following case arising from the Sixth Judicial District Court for the Parish of East Carroll, Louisiana, displays the importance of timeliness.

A Plaintiff was involved in a one car accident in March of 2008. She hit a large pot hole and lost control of her vehicle. She sued the makers of the road resurfacing machine and Carroll Parish Police Jury. She claimed that the machine that resurfaced the road was faulty and that the Carroll Parish Police Jury should have had the road fixed so as to avoid accidents.

The Defendants filed a motion for summary judgment. A motion for summary judgment asks the court to dismiss the case because there are no facts in dispute and those facts can only lead to one conclusion. The Defendants argued that since the pothole was open and obvious, a possible mechanism to avoid liability because the Plaintiff should have seen the pothole, then the Defendants should not be liable. In addition, Defendants pointed out that those who maintain roads and sidewalks are not required to have completely uniform surfaces that are entirely free from potholes or cracks because such a requirement would be an impossible feat.

July 12, 2013

Demonstrating Permissive Use of Vehicles Key to Insurers’ Liability

by Berniard Law Firm

Motorist Jennifer Lopez was injured in a hit-and-run accident with a truck near Vinton. At the time of the accident, the truck was being driven by someone other than its owner, Teri Ardoin. The driver fled the scene but the truck was tracked down and Ardoin identified as the owner. Lopez filed suit against both Ardoin and her insurer, Safeway Insurance Company. At trial, the issue was Safeway’s liability as insurer of the truck. The trial judge awarded damages to Lopez, but because of Safeway’s policy limits, Lopez’s own insurer, State Farm, had to cover the balance.

On appeal, Safeway contended that its coverage of the vehicle could not be proven without first establishing that the insured gave permission to drive the truck to the unknown driver. The appeal raises questions of the omnibus insurance clause provided by Louisiana statute, La.R.S. 32:900(B)(2). Under this law, an automobile insurance policy shall cover any person who uses the insured’s vehicle with express or implied permission of the insured. It’s up to the plaintiff to establish use of the vehicle with express or implied permission of the insured.

Demonstrating this permissive use requires fact-finding at the trial level. Without some proof of “manifest error,” such fact-finding will not be overturned on appeal. The trial judge in this case found that Ardoin’s truck was the truck involved in the accident. Further, he found Safeway liable for the accident. Several pieces of evidence were put forth to show this, including eyewitness reports identifying the truck and careful observation and recording of the license plate number.

July 5, 2013

No Contest Ruling Means Damages in Marrero Car Accident Case

by Berniard Law Firm

On May 8, 2007, in Marrero, Louisiana, two cars were sitting at the intersection of Ames and Lapalco Boulevards. One car carrying a couple sat ahead of a truck carrying one individual. The man driving the truck’s foot slipped off the clutch and the truck rolled into the back of the car. The couple said that the truck hit the car with such force that they jumped out of their seats. Their trunk and bumper had also been slightly pushed in, where there were no damages to the vehicle prior to the accident. The police arrived to document the accident and no injuries were reported on either side.

However, shortly after the accident, the couple experienced a variety of medical issues. While soreness and bruising is common after accidents, the couple experienced a much more serious version of injuries following the accident. The woman claimed roughly $13,000 in medical bills while the man claimed roughly $19,000 after the accident.

During trial, the man driving the truck admitted that this foot slipped off the clutch and he ran into the back of the car. Therefore, the court awarded a directed verdict that concluded that the man in the truck was 100% at fault, and therefore 100% liable, for the accident. The only issue that remained for the jury to decide was how much the couple should be awarded for damages. However, the jury came back with an award of $0.00 for the couple.

July 3, 2013

Car Accident Damage Award Increased in Monroe, Affirmed on Appeal

by Berniard Law Firm

The American justice system places juries in charge of some fairly weighty decisions. However, juries are not the final arbiter of a plaintiff’s rights. There are several post-verdict motions that can be made at the trial level as well as an entire system of appellate courts to which a plaintiff can turn if a jury verdict fails to satisfy.

Sheila Martin, an adult woman incapable of caring for herself, brought suit through her parents against the driver of the vehicle that struck Ms. Martin’s mother’s vehicle, thereby injuring Ms. Martin. The driver, Bruce Walker, conceded liability but no settlement could be reached as to the appropriate amount of damages. Trial proceeded on the issue of damages alone. The jury determined that Ms. Martin was entitled to $25,96.58 for medical expenses, $6,500 for past physical pain and $500 for past mental anguish. No damages were awarded for any future expenses or suffering, most likely because a doctor who had treated Ms. Martin signed a form indicating that she was back to pre-accident status and would not require any future care.

The plaintiffs, however, were not completely pleased with this verdict. They felt it was inadequate compensation for the totality of Ms. Martin’s injuries and as such filed a motion for what is called additur. Additur is an additional award of damages added to a jury verdict by the trial court judge. Judges are not permitted to engage in this type of change in the verdict in all states but Louisiana law allows for it. The judge in Ms. Martin’s case tacked an additional $17,000 on to her award citing Ms. Martin’s soft tissue injury as the reason for which she was entitled to recovery. The court broke down its additional $17,000 into $14,000 for past physical pain, $2,000 for past mental anguish and $1,000 for loss of enjoyment of life.

July 2, 2013

Summary Judgment and its Significant Impact in the Judicial System

by Berniard Law Firm

Is it possible for your case to be over even before it begins? Yes … well, sort of. Through what is known as summary judgment, it is possible for a court to render a decision in favor of one party and against another before there is a trial on the issue. You may be wondering, “What is the point of this?” and “Isn’t it only fair that I get my day in court?” Essentially, the purpose of summary judgment is to avoid unnecessary trials and litigation. It is important to note that although orders for summary judgment are common in civil cases, they do not apply in criminal cases because a criminal defendant has a constitutional right to jury trial.

According to a report researched by the Federal Judicial Center, 26% of all plaintiffs file motions for summary judgment, whereas defendants file 71% of all summary judgment motions. A judge may also on his or her own determine that summary judgment is appropriate. Nonetheless, orders granting summary judgment for defendants can have detrimental effects on plaintiffs who have sustained injuries, financial hardships, and who may have even lost a loved one. The adversity associated with orders of summary judgment can be shown in a recent case out of Jefferson Parish. Favre v. Boh Bros. Construction Co., L.L.C.

In Louisiana, summary judgment is appropriate if the declarations under oath, depositions, admissions of fact, and legal authorities show that there is no genuine issue as to a material fact and the party requesting the order is entitled to a judgment as a matter of law. A fact is considered to be a material fact if it is needed to prove one party’s case, or establishes a point that is crucial to a party’s position and success. Also, a genuine issue is an issue where two reasonable parties disagree. So, for example, if two parties could reach only one conclusion as to the dispute, then there is no need for a trial and summary judgment is appropriate.

June 30, 2013

Car Accident Caused by Slow Merge Raises Legal Issue of Sudden Emergency Doctrine

by Berniard Law Firm

Car accidents can be difficult to navigate because of conflicting evidence, opinions and the fact the circumstances often lead the people involve rattled and unable to recall facts clearly. In a recent case, Bethany Dixon appealed a trial court judgment against her involving a vehicular accident that occurred on I-20 near Acadia in Bienville Parish. In part because Ms. Dixon could not recall exactly how the accident occurred, the court relied on the evidence put forth by the defendant, Charles Tucker, who rear-ended her as she merged onto I-20 from an on ramp. Mr. Tucker believed Ms Dixon was travelling at around 30 mph while he was travelling at the speed limit, 70 mph.

The trial court relied on the sudden emergency doctrine, which states that when a driver merges onto a limited access highway, the driver it merges in front of will not be liable if the lead driver created a hazard that could not be avoided. Here, the court accepted the narrative that Mr. Tucker rear-ended Ms Dixon’s vehicle because Ms. Dixon failed to signal or yield to oncoming traffic, and Mr. Tucker did not have enough notice to avoid the hazard Ms Dixon created. In addition, an eighteen-wheeler in the lane next to him prevented him from switching lanes.

Appealing a ruling is a risk, and is often a question of strategy. In this case, Ms. Dixon was unable to win the appeal in part because the Appellate Court was deferential to the trial court. Ms. Dixon claimed that the trial court erred in its factual findings, rather than legal findings, so the Appellate Court could not simply consider the case anew from start to finish. Instead, the Appellate Court could only reverse the lower court’s finding if the lower court did not have a sufficient factual basis for its findings. Here, the Appellate Court found a reasonable factual basis for the trial court’s outcome, and upheld its decision.

June 17, 2013

Appeal Necessary in Car Accident Case Where District Court’s Finding of Fact Strays

by Berniard Law Firm

On a June night in 2006, Jeryd Zito was driving on a highway going through Plaquemines Parish when an ambulance appeared seemingly out of nowhere. Zito swerved to avoid it, but was not fast enough, hitting the left back corner and the left side of the ambulance. After the accident, Zito sued the owner of the Ambulance, Advanced Emergency Medical Services, Inc., and its insurer, to recover for the damage caused by the accident. While this may seem backwards, the person causing an accident suing, but the issue is much more complicated.

Zito claimed the accident was Advanced’s fault because the drivers were negligent in not taking the proper precautions to warn oncoming traffic that the ambulance was broken down on the side of the road. During the trial, the big issues were how far into the right lane, if at all, the ambulance was, and if there were any warnings on it, such as reflective tape, to signal to oncoming drivers there was something in the way. The rationale is that, while the vehicle was off to the side of the road, people are not expected to see in the dark or sense a blockage up ahead versus a general expectation of reasonable efforts being made to avoid accidents.

The trooper who investigated the accident testified that based on skid marks, the ambulance was parked five feet from the right lane, it was covered in reflective tape when he got there, Zito told him that he (Zito) was on his cell phone at the time of the accident and that there was no evidence that Zito tried to break before he hit the ambulance. The trooper issued Zito a citation for careless operation of a vehicle, which Zito paid without dispute.