Civil Matter

June 24, 2023

Workers’ Compensation Lawsuits and the Battle for Evidence

pelicans_australian_pelican_pelican-1024x1024 Unfortunately, heart attacks are one of the most common causes of death. If a loved one suffers a heart attack while on the job and you file a workers’ compensation claim, you must provide evidence to support your claim. But what happens if the employer files a motion for summary judgment before you can complete discovery?

Michael Mack Sr. worked as a prep cook at the restaurant Blind Pelican. While working a shift, he went into the restaurant’s bathroom, where he tragically suffered a heart attack. He was transported to Touro Hospital via ambulance and died later that night.

After Mack’s death, his wife, Denisa Allen, filed Form 1008, a disputed claim for compensation under La. R.S. 23:1231, on behalf of her minor child. She described the accident as a heart attack while he was on the job and provided medical data from the New Orleans coroner.

June 23, 2023

Trial Courts Must Use Clear, Definite Language For a Final Judgment to be Valid and Appealable

by Berniard Law Firm

hammer_court_dollar_dollar-1024x768 Every day, individuals rely on the court system to resolve disputes, to ensure due process, and to serve justice. Individuals who are victims of an accident and suffered injury often need the courts to be restored to their previous condition. However, when a court issues an unclear final judgment, you need an excellent attorney to assist in sorting through the confusion and helping you find relief.

Luis Espinoza-Peraza was involved in a car accident and sustained injuries after being rear-ended by a car owned and operated by Martha Alexander and Willard Belton. He brought this lawsuit in November 2012, seeking damages from Belton, Alexander, and their insurer, Allstate. Allstate immediately sought a peremptory exception raising res judicata, meaning there had already been a final judgment on the matter, and could not be re-litigated. According to Allstate, it had previously issued a check to Espinoza-Peraza in relation to the accident, and he cashed the check with full knowledge of it being a final settlement.

Even though the trial court maintained the peremptory exception at a June 2014 hearing, the trial court did not sign the written judgment until January 2016. In the meantime, Espinoza-Peraza had moved for a new trial, but that motion was denied in September 2014. Then, in March 2015, the trial court finally signed a written judgment denying Espinoza-Peraza’s motion for a new trial and dismissed Belton, Alexander, and Allstate from the suit. Espinoza-Peraza then filed an appeal for the permitted peremptory exception and the denial of his motion for a new trial.

June 22, 2023

The Fine Print: Untangling Insurance Coverage Overlap

by Berniard Law Firm

hurricane_katrina_as_seen_0-1024x640 Dealing with the elements is an inherent part of construction work. Yet, sometimes the elements get unexpectedly unruly. This is where insurance is supposed to step in and compensate for delays or damage. In the following case, however, overlapping insurance policies made determining who should step up difficult.

Gibbs Construction, L.L.C was the general contractor for appellant National Rice Mill, L.L.C. Rice Mill hired Gibbs to renovate their new luxury apartment complex, Rice Mill Lofts. Gibbs hired Rush Masonry, Inc. as a subcontractor tasked with restoring the masonry related to the renovations. Before the renovation, Westchester Surplus Lines Insurance Company issued Rush Masonry a commercial general liability policy. This policy covered the restoration from February 2011 to February 2013. On top of the CGL coverage, the Fireman’s Fund Insurance Company also issued an excess liability policy to Rush Masonry during the same time period. A Zurich American Insurance Company CGL policy issued to Gibbs, the general contractor, also covered the restoration. The Zurich policy was in effect from January 2011 to January 2013.

During the restoration, the construction site experienced three instances of water intrusion. The first occurred during a thunderstorm in July 2011, and the second happened during Tropical Storms Lee and Isaac. General contractor Gibbs filed a lawsuit against Rice Mill for failure to make payments under the general contract. Rice Mill counter-claimed against Gibbs, Rush, Zurich, and other parties.

June 21, 2023

Allocation of Fault and Damages in a Car Crash: Who is Right?

by Berniard Law Firm

car_crash_1-1024x768 If you ever find yourself injured in a car accident, it’s crucial to seek legal advice from a licensed attorney in your jurisdiction. Consulting with an attorney can help you understand your rights and determine if you are entitled to compensation, depending on the allocation of fault. Car accidents can be complex, and navigating the legal process requires expert guidance.

A motor vehicle accident occurred at the intersection of Louisiana Highway 315 and Concord Bypass Road in Terrebonne Parish. The accident involved a pickup truck driven by Michael Gaither and a utility van driven by Deputy Warren Webre. Gaither used the turning lane to pass slower traffic when Deputy Webre’s van collided with his vehicle. The investigating officer cited both drivers, citing failure to stop and yield for Deputy Webre and improper lane usage for Gaither.

Following the accident, Gaither filed a lawsuit seeking damages for his injuries. He alleged that Deputy Webre’s failure to pay proper attention and yield caused the accident. Gaither claimed that even if he had turned left onto Concord Bypass Road, the collision would have occurred due to Deputy Webre’s actions. Gaither argued that Deputy Webre should bear a greater share of the fault.

June 20, 2023

Should Courts Limit Liability for Distracting Passengers?

by Berniard Law Firm

auto_wall_breakthrough_art-1024x683 From a serious crash to a minor fender bender, car accidents take a devastating emotional and financial toll on the people involved. Common principles of fairness suggest that if a distracting passenger helped cause the crash, they should also be liable to help pay. Unfortunately, deciding which acts are sufficiently distracting enough to warrant liability in comparative negligence law can be complicated. The thought-provoking lawsuit of Christy Robinette versus Old Republic Insurance Company sheds light on this issue, raising the question: Should courts restrict liability for passengers who contribute to distractions?

The case of Christy Robinette versus Old Republic Insurance Company involves a passenger (Robinette) and a driver (Zeno). During a heated argument, Zeno’s car collided with another and injured Robinette. Robinette brought a lawsuit for costs associated with her injuries.

Zeno argued that because Robinette was screaming and cursing at him, she should take some liability for the crash. The court ultimately denied relief based on a few justifications.

June 19, 2023

What is a Good Faith Termination in an Employment Case?

by Berniard Law Firm

police_police_man_uniform-1024x681 Workplaces have rules employees must follow. Termination for violation of these rules must be in good faith. What happens when an employee argues he was fired arbitrarily? The following case helps answer this question.

Nolvey Stelly was terminated from the Lafayette Police Department (LPD) for failing to follow orders. An investigation was ordered, and Stelly was suspended for fifteen days. He appealed the suspension, which was affirmed. Stelly then appealed to the trial court, which also upheld his suspension. Before his fifteen-day suspension, Stelly was called to a pre-determination hearing, which he secretly recorded and invited news outlets to attend. The recording and the invitation violated the LPD’s rules on professionalism. A second investigation was then conducted. During the investigation, Stelly was placed on paid administrative leave with strict orders not to engage in off-duty employment. Stelly worked a second job during this time, which prompted a third investigation of his misconduct. Stelly was then terminated.

Stelly appealed his termination to the Lafayette Municipal Fire and Police Civil Service Board (Board), which upheld the previous decisions. The trial court also affirmed the decision, which Stelly appealed. Stelly argued the ruling was not in good faith, the penalty was unreasonable, his actions did not violate the LPD’s operating procedures, his actions did not affect his working duties, and his discipline was not on par with his alleged offenses.

June 18, 2023

What are the liability standards for ambulances and other emergency vehicle drivers involved in a car accident?

by Berniard Law Firm

bellingham_fire_ambulance_4-1024x683 Determining liability can be complex when a car crash occurs and even more so when one of the vehicles involved is an ambulance. In Louisiana, the law applies a unique standard of care to emergency vehicle drivers. So what are the liability standards for ambulances and other emergency vehicle drivers involved in car accidents? The following lawsuit out of Lafayette, Louisiana, helps answer that question.

Gerald Janise was involved in a collision with William Gerard at an intersection in Lafayette, Louisiana. At the time of the accident, Gerard was driving an Acadian Ambulance Service vehicle. Janise filed a lawsuit against Gerard, Acadian Ambulance Service, and their insurer.

Janise claimed at a red light, Gerard did not obey the traffic signals or exercise proper caution and collided with Janise’s car. Gerard filed a summary judgment motion, arguing under La. R.S. 32:24, the driver of an emergency vehicle responding to an emergency can only be held liable if his conduct amounts to reckless disregard for others’ safety. The court denied Gerard’s summary judgment motion.

June 17, 2023

Delay in Filing Results In Dismissal Of Medical Malpractice Lawsuit

by Berniard Law Firm

medical_drug_medicinal_products-1024x683 We have all heard advice not to procrastinate. This is especially true if you are considering bringing a lawsuit. If you are considering filing a medical malpractice lawsuit against your doctor, you cannot wait indefinitely because Louisiana law has strict time limits for filing medical malpractice lawsuits. The following case out of Lafayette Parish shows the harsh consequences if you delay filing your case.

While working, Daniel McCauley injured his knee. He underwent treatment, but it was unsuccessful. McCauley returned to the same doctor, Dr. Malcolm Stubbs, approximately six years later, complaining of pain. He underwent additional procedures on his knee for the next five years. Nonetheless, McCauley continued to suffer from knee pain, which he claims to still suffer from to this day.

Over a year after stopping treatment from Dr. Stubbs, McCauley filed a medical malpractice lawsuit against Dr. Stubbs related to procedures Dr. Stubbs had performed on McCauley three and six years before him filing the lawsuit. The trial court granted an exception of prescription and dismissed the claim because McCauley did not file the lawsuit within three years or one year after his doctor-patient relationship with Dr. Stubbs ended. McCauley appealed, arguing the trial court erred in holding his claim was time barred.

June 15, 2023

Asbestos Case Sent Back To State Court Because Of Lack of Causal Nexus

by Berniard Law Firm

bauer_elementary_asbestos_1-1024x768 Unraveling the complexities of jurisdiction is essential when determining which court has the authority to hear a lawsuit. Whether a case is heard in state or federal court can have strategic implications, but the path to federal court is paved with complex legal requirements. In this article, we delve into the intricacies of jurisdiction and explore the factors determining whether your lawsuit can be heard in federal court.

The four Legendre brothers filed a lawsuit against Huntington Ingalls, Inc. (formerly known as Avondale) in Louisiana state court. The Legendres claimed Avondale exposed their sister to asbestos, resulting in her death from mesothelioma.

The Legendres’ father had worked at Avondale’s shipyard building tugs for the United States government. He used asbestos for insulation in the tugs’ engine rooms. The Legendres claimed asbestos had stuck to their father’s body and clothing, which exposed their sister to asbestos when he returned home from work.

June 14, 2023

Courts Dismisses Claims Brought By Employee Who Voiced Criticisms In “Reply All” Email

by Berniard Law Firm

spam_mail_email_mailbox-1024x532 We can all relate to the embarrassment of hitting “reply all” on an email only intended for a smaller audience. Although usually “replying all” just results in embarrassment that eventually subsides, sometimes it can lead to more severe actions, such as losing your job.

Frith Malin worked as a deputy director at the Orleans Parrish Communications District (“OPCD”), which was responsible for providing 911 services. After she had worked there for eight years, the executive director of the OPCD emailed all employees to inform them one of OPCD’s board members had been named CEO of another organization so that he would be stepping down from OPCD’s board. Malin accidentally hit “reply all,” instead of emailing just OPCD’s executive director criticisms about the departing board member.

Three days later, Malin was suspended. OPCD conducted an internal investigation, which led to Malin’s eventual termination. A few months before sending the email, Malin had reported the Human Resources manager who investigated commentary related to sexually explicit images on six different occasions. There was no evidence Hobson was aware Malin had reported her, and Hobson was never disciplined. Following her termination, Malin filed a lawsuit against OPCD under 42 U.S.C. § 1983, claiming a violation of her First Amendment rights. She also brought claims under Title VII and La. R.S. 23:967, Louisiana’s whistleblower statute. She alleged OPCD had retaliated against her for reporting the Human Resources manager. OPCD filed a motion to dismiss, which the trial court granted. Malin appealed, arguing the trial court erred in dismissing her claims against OPCD.