Civil Matter

June 29, 2010

Jones Act Case Dismissed in Federal Court: Norco Tankerman will not be Able to Collect From his Employer

In October 2007, a Norco tankerman was injured aboard the M/V DUSTIN CENAC at dock #2 of the Valero Corporation’s facility in Norco. The tankerman was completing the loading procedure of the barge when the Valero dock man prematurely began lifting the loading arm and he was pinned between the arm and a winch on the barge. He brought suit against his employer and owner of the barge, Cenac towing, and Cenac filed a motion for summary judgment. The motion was granted on February 12 when a Federal judge ruled that no issue of material fact existed as to whether they were negligent.

The Jones Act provides seaman with a cause of action for injuries that result from an employer’s negligence. To prove negligence, the injured party must prove that the employer had a duty to them which was breached and that the breach was the cause and proximate cause of the accident. Proving proximate cause goes beyond merely proving that without the breach of duty the injury would not have occurred but also that the injury naturally and foreseeably resulted from the breach.

In this case the judge found that nothing in the complaint or depositions showed negligence on the part of Cenac. While the injured tankerman’s attorney suggested possible negligence by the Valero employee and suggested the vessel may have been unseaworthy due to a malfunctioning loading arm, the tankerman testified that nothing done by the Cenac’s crew did anything to contribute to his injury.

June 27, 2010

Four People Injured in One-Vehicle Natchitoches Crash: What Happens When Passengers Get Hurt?

by Berniard Law Firm

Early in the morning hours of Saturday, February 6th, 20 year old Jamane M. County of Montgomery was driving a 2002 Honda Civic South on U.S. Highway 71 when he lost control of the car. According to an article on thetowntalk.com,

The car ran off the right side of the road, vaulted across a creek, hit an embankment on the opposite side and overturned.

County and two of his passengers sustained moderate injuries and were taken to nearby hospitals; County to Nathitoches Regional, 18 year old Kayla Monroe to Louisiana State University (LSU) Medical Center, and a male juvenile to Rapides Regional Medical Center. A third passenger,19 year old Kimber Vanantwerpen, was injured seriously and also taken to LSU Medical Center.

June 25, 2010

Legal Responsibility for Accidents/Harm in Orleans Parish Nursing Homes

by Berniard Law Firm

Admitting your elderly mother into a nursing home is supposed to relieve stress and lift a burden from your shoulders. You believe she is going to receive the proper care she needs that you are unable to provide.

Unfortunately, for Edward Lewis, tragedy happened after he made this tough decision. His 93-year old aunt, who Lewis considered a mother, drowned in a whirlpool at Easthaven Rehabilitation Care Center in 2002. The nursing home told Lewis that his aunt died peacefully in her sleep but it wasn’t until one month later he learned the truth — an employee had placed his wheelchair-bound aunt in a whirlpool unsupervised, even after Lewis told the staff he did not want her in the water. Sadly, actions that cause harm or even death to a nursing home resident can generate minimal response from the state.

In Louisiana, nursing homes are required to report all “suspicious deaths.” Per a NOLA.com article approximately 4,500 nursing home residents die every year in Louisiana and of 250 wrongful deaths reported from 1999-2005, only 15 of those deaths were labeled as “suspicious.” Steven Miles, a University of Minnesota professor who published a 2002 report called “Concealing Nursing Home Deaths,” said almost half of the reported cause of deaths in nursing homes across the nation is wrong. For example, back in 1998 in Arkansas one 78 year old nursing home resident

June 23, 2010

A General Overview of Negligence and Wrongful Death Claims

by Berniard Law Firm

Wrongful death. Negligence. We hear these terms thrown out all the time when we read the newspaper or watch TV. Both terms have a similar connotation. We know something “bad” happened to someone, something that should never have happened. However, most people don’t really know what these terms mean.

The legal concept of negligence means that someone has suffered physical and/or mental injuries caused by someone else being careless. Negligence is not derivative of an accident – someone else was not diligent and that failure to act properly was the cause of the injury. An example is featured on <a href="http://realestate.nola.com/?classification=real+estate&temp_type=search&tp=RE_nola&tl=42&guid=114135"NOLA.com when a family suffered damage to their home because of an inspector’s negligence in failing to report defects in the house.

A wrongful death claim arises when the victim died as a result of someone’s negligence. This type of claim, the victim’s surviving family is eligible for the amount of damages. This differs from a typical negligence claim because there, the actual victim is alive and able to receive the damages. Originally, a wrongful death claim was nonexistent because presumably the claim for damages died with the victim. Today, luckily, that is not the case and the grieving family is eligible for compensation for their loss.

June 21, 2010

Area Residents Fortunate in Monroe Train Derailment

by Berniard Law Firm

Residents of Monroe, Louisiana, and the surrounding area are fortunate that a train derailment appears benign. The train derailed the evening of Saturday, February 20th, in the vicinity of Highway 165. Fortunately, other than the damage sustained by the derailed cars and the train tracks, the accident seems to have caused little harm.

According to a report by Zack Southwell that appeared on thenewsstar.com, the cause of the accident was initially unclear and under investigation. But Caldwell Parish deputies have assured the public that the accident poses no danger to the surrounding area. The report quoted Chief Deputy Glen Gilmore as saying, “We had (hazardous materials) crews out here also, making sure the wreck caused no danger. They declared the area safe shortly after midnight [on Sunday].” A representative of Union Pacific indicated that “most of the cars that derailed were empty,” but she added that some were carrying a non-hazardous fuel oil additive.

The folks living near the accident site are indeed lucky that the derailed cars were not carrying more hazardous substances. Train derailments are not always so harmless. For example, during a 2008 derailment near Lafayette, the damaged BNSF cars leaked 11,000 gallons of toxic hydrochloric acid onto the ground surrounding the accident site. As reported by newsinferno.com, the acid gathered in yellow pools and emitted vapors that formed a toxic cloud around over Lafayette. The spill forced the evacuation of 3,000 local residents, shut down businesses and closed roads until officials could neutralize the acid and remove all contaminated soil. In addition to lost business and property damage resulting from the accident, several folks required treatment for medical ailments related to the spilled acid.

June 19, 2010

Intoxicated Tailsheek Man Gets Ten Years for Injuring Woman in Traffic Accident

by Berniard Law Firm

According to a recent article in New Orleans’ Times Picayune, Kenneth Allain of Tailsheek pled guilty last month to charges that he permanently injured a 75 year old woman by ramming his car into her while under the influence of prescription drugs. The accident occurred on Louisiana 41 about three miles south of Louisiana 21 in northeastern Tammany Parish. The injured woman, Edythe Proze, was driving in front of Allain and stopped to make a left turn when Allain continued driving, slamming into the back of her vehicle. Troopers at the scene determined that Allain was intoxicated and took a blood sample.

Allain pled guilty to first degree vehicular negligent injuring and was sentenced to ten years in prison: five years for the crash (the max allowed under state law), and five years because he was a repeat offender.

Proze was taken from the scene with moderate injuries. She is now faced with “life-changing” injuries and is living in an assisted-living facility.

June 17, 2010

The Complexities of Medical Malpractice Lawsuits

by Berniard Law Firm

When Kimberly Carter, a Little Rock, AR, resident, was visiting family in Louisiana in November of 2001, a misstep in a hole in the ground led to a legal battle that would not be resolved until 2010. After suffering an injury from the hole, Carter was transported to Women’s and Children’s Hospital in Lake Charles. Dr. Clark Gunderson, an orthopedic surgeon, viewed Carter’s x-rays and determined she suffered a spiral fracture in her right tibia that would require surgery. Carter chose to stay in Louisiana to have Dr. Gunderson perform the surgery.

After the surgery and some time had passed, Carter would later sue Dr. Gunderson for medical malpractice when a mal-rotation in excess of fifteen degrees was discovered by Dr. Johannes Michael Gruenwald, a board-certified orthopaedic traumatologist at the University of Arkansas Medical Center. Dr. Gruenwald was providing Carter’s post-operative care. In August of 2007, Carter filed a suit alleging malpractice by Dr. Gunderson. A three-day trial resulted in a jury verdict finding that Dr. Gunderson had not deviated from applicable standards. This judgment was affirmed on appeal.

According to the Supreme Court case Martin v. East Jefferson General Hospital

June 15, 2010

Tragic Auto Accident in Morehouse Parish Illustrates Insurance Coverage Requirements for Substitute Vehicles

by Berniard Law Firm

Imagine the following scenario: you are involved in a fender-bender in the parking lot of the grocery store. Your car is taken to the body shop for repairs. Since you need transportation to get to work and other places in the mean time, you rent a car from the local agency. When picking up the car, you’ll no doubt be offered liability insurance through the agency–at an additional cost, of course. There may also be coverage available through the credit card you use to pay for the rental. And then there is the policy you maintain on your regular car. Does it extend coverage to the rental?

Louisiana law recognizes a “temporary substitute vehicle,” which is commonly defined by insurance companies as a short-term substitute for a car that is out of service due to breakdown, repair, servicing, theft, or destruction. State statute requires automobile insurance companies to “extend to temporary substitute motor vehicles … any and all such insurance coverage in effect in the original policy.” La. R.S. 22:681. In other words, the auto insurer must provide the same coverage to the rental car as was already in place on the regular vehicle.

The recent case of Smith v. Louisiana Farm Bureau Casualty Insurance Company, No. 45,013, Ct. of App. of La., 2d Cir. (2010), explored the definition of “temporary substitute vehicle” in detail. On the morning of May 28, 2005, Brian Smith was driving a 2003 Nissan Altima on U.S. Highway 425 in Morehouse Parish. At the same time, Joshua Pruett was driving a 1998 Dodge Ram pickup truck on the highway in the opposite direction. Pruett’s truck was pulling a utility trailer containing crawfish and ice that had been loaded in Crowley. The ball on the truck’s trailer hitch was too small for the trailer and Pruett did not use any safety chains to ensure that the trailer remained attached to the truck. The trailer eventually disconnected from the truck, at which point it crossed the highway’s center line and collided with Smith’s Altima. Smith died at the scene from the severe trauma he sustained in the accident.

June 13, 2010

Medical Malpractice Case Demonstrates the Importance of Proper Venue

by Berniard Law Firm

In litigation, the term venue means “the location where an action or proceeding may properly be brought and tried under the rules regulating the subject.” In other words, for each suit, there is a particular court where the plaintiff should file based on the situation’s unique facts. The Louisiana Code of Civil Procedure’s general rule of venue states that a defendant must be sued in the parish where he is domiciled (where he lives). LSA-C.C.P. Art. 42.

However, the Code also provides the following exception:

“An action for the recovery of damages for an offense … may be brought in the parish where the wrongful conduct occurred, or in the parish where the damages were sustained.” LSA-C.C.P. Art. 74.

June 11, 2010

Proving a Claim of Asbestos Exposure

by Berniard Law Firm

When you file a claim alleging asbestos exposure, what do you need to prove? This is an important question that, if not satisfied, may be the end of your lawsuit. Simply being exposed to any asbestos is not sufficient to maintain a claim. You, as the plaintiff, have the burden of showing that you were exposed to the defendants asbestos-containing product, and that particular exposure was a substantial factor in causing the damage. Simply showing that exposure to asbestos occurred will not be sufficient.

A 2008 Jefferson Parish case, Thibodeaux v. Asbestos Corp. Ltd., illustrates the importance of producing adequate evidence to support your asbestos claim. Here, the Thibodeaux’s filed suit against Eagle Asbestos and its insurer, OneBeacon, alleging personal injuries as a result of their exposure to asbestos, namely mesothelioma. Mrs. Thibodeaux died from mesothelioma that her family claimed was the result of her exposure to Eagle’s asbestos at Charity Hospital, where she worked. The Thibodeauxs would eventually lose this case because the court found that the evidence they provided was insufficient to support the claims they alleged. They did not prove that Mrs. Thibodeaux was exposed to Eagle asbestos. Without that, their argument was simply speculation.

So what do you need to prove exposure to a particular defendants asbestos?