Civil Matter

April 25, 2023

How Should Fault Be Apportioned in a Personal Injury Car Accident Lawsuit?

1980s_style_tow_truck-1024x768 Personal injury cases can lead to placing the blame on a party so the injured person can receive compensation for her injuries. But what happens after a traffic miscommunication if both sides blame the other for the wreck? Further, what if their insurance companies are unwilling to take all the blame and pay for the accident? The only way to solve this dilemma is through a trial which can help apportion the fault of each side after weighing the evidence. The following case out of Marksville, Louisiana, shows how fault should be apportioned in a personal injury car accident.

David Sampson was driving down the highway with a passenger, Mario Jacobs, with a second truck attached by a tow rope. The towed truck was being operated by Sandalon Jacobs. Florence Decuir was traveling toward an intersection with the highway where Sampson was driving. Believing she saw Sampson’s turn signal, Decuir turned onto the highway to make more space for the trucks. Allegedly, Decuir did not stop at the stop sign, so Sampson had to hit his brakes, causing the towed truck to rear-end the truck he was driving. Decuir denied seeing the accident.

Sandalon and Jacobs filed a lawsuit alleging personal injury due to the accident and named several defendants. However, by the time the bench trial came around, State Farm was the only defendant remaining. The trial court apportioned 95% of the fault to Decuir and only 5% to Sampson. The trial court determined Sandalon and Jacobs suffered from soft tissue injuries. Sandalon was awarded $46,500.00 in general damages and $5,397.81 in past medical expenses. Jacobs was awarded $35,200 in general damages and $7,377.73 in past medical expenses. State Farm appealed the trial court decision.

April 24, 2023

What is A Petition for Nullity of Judgment, and How can It be Used to Overturn a Jury Verdict

by Berniard Law Firm

gavel_wood_courtroom_legal-1024x683 After a lawsuit, a trial is when each side can articulate their case theories. Usually, the culmination of a trial is a judgment that can be appealed. However, there are other occasions where the court can discuss the judgments besides an appeal. An alternative to an appeal is the petition for nullity, which may further examine the case and the court’s decisions. What is a petition for nullity of judgment, and how can it be used to overturn a jury verdict? The following lawsuit, Jefferson Parish, Louisiana, answers this question.

Mr. Ezzell worked as a marine insurance adjuster until 2008 when he was punched in the head by Dr. Lucien Miranne in a bar. At the principal trial, Dr. Miranne was found liable for the injuries Ezzell suffered. Ezzell was awarded damages for past medical expenses, pain, and suffering, past lost wages, and two years of future lost earning capacity.

The jury’s judgment was primarily based on testimony by Ezzell and his doctors that attested to his injuries and poor cognitive functioning. For example, one witness, Dr. Thomas, said his injuries would “make it difficult for him to return to the level of employment he had before. Dr. Miranne appealed this judgment arguing Ezzell was faking and exaggerating his injuries, the same argument made at trial. Rather than overturn the judgment, the appellate court awarded additional damages for future pain and suffering to Ezzell.

April 23, 2023

Can the State be Held Liable for a Highway’s Defects?

by Berniard Law Firm

highway_jam_baustelle_jam-1024x769 As the weather gets nicer across the country, millions will travel to destinations near or far. Unfortunately, with this increase in traffic, accidents will occur due to the negligence of drivers. But what happens when the roadway’s integrity and safety come into question? Can the state be held liable for a highway’s defects? – The following lawsuit out of Morgan City, Louisiana, helps answer that question.

Mariah Schouest and Nicole Smith were good friends who lived and worked in Houma, Louisiana. They enjoyed going on long drives where they would listen to music and talk for fun. Typically, they would drive on Highway 90 toward New Orleans, but on this particular road trip, they decided to go West toward Morgan City.

Schouest was driving while Smith was sitting in the passenger seat. Having been on the road for some time, Schouest stopped at the gas station on the left since it was getting dark. To get there, she slowed her vehicle, flicked on her turn signal, and began to turn into the median. Unfortunately, before she could turn, the car was hit from behind by a pickup truck driven by Joshua Landry. Smith sustained a severe brain injury as a result of the crash.

April 22, 2023

Accident While Driving Your Car On The Job: You may not be covered!

by Berniard Law Firm

car_old_car_car-1024x683 Driving while on the job can be a common occurrence for many employees. Sometimes you may even use your personal vehicle on a workplace errand. If so, beware; Accidents happen, and your employer’s insurance may not cover you.

Kim Simon was struck by an uninsured motorist when driving her personal vehicle while doing her job. Simon’s vehicle was damaged, but her employer’s insurance would not pay to fix the damages. So Simon sued her employer’s insurance to get coverage for her personal vehicle.

Her company’s insurance provider argued that Simon’s personal vehicle was not covered under the policy because it was not a “covered auto” defined by the policy. Simon argued that because the auto policy did not list any “covered autos.” Further, she felt Louisiana revised statute 22:1295(1)(e) required the insurance policy to cover her unlisted car.

April 21, 2023

How Can I Prove Ownership of Land Through Aquisitive Prescription in Louisiana?

by Berniard Law Firm

field_land-1024x768 Aquisitive Prescription. It is a strange-sounding set of words, yet it can be vital in proving ownership of land and property in Louisiana. What exactly is it? The subsequent lawsuit helps answer that question and the following one: How can I prove ownership of land through acquisitive prescription in Louisiana?

Crystal and Gwendolyn Smith sued Raymond Felton, claiming they owned land in White Castle, Louisiana. The Smiths claimed Felton misrepresented that he owned the property, had entered the property without permission, and intentionally damaged the home located thereon. The Smiths sought injunctive relief prohibiting Felton from entering the property. The Smiths also sought damages for the damage to the property and the mental distress they suffered.

In response, Felton argued he owned the land at issue. Although Felton did not have the actual title to the at-issue property, he provided a chain of titles dating back to 1897, whereas the Smiths only dated back to 1899. The trial court ruled in favor of Felton because he and his ancestors in title had been in possession of the at-issue property for over thirty years, which is required to establish ownership by acquisitive prescription. See La. C.C. art. 3486. The Smiths filed a motion for a new trial, which the trial court denied. They then appealed.

April 20, 2023

My Lawsuit was Removed to Federal Court. What does that Mean?

by Berniard Law Firm

bauer_elementary_asbestos_1-1024x768 Although most people have heard of both state and federal courts, many do not know when a party in a lawsuit can move a case to a different court. This happened to Howard Zeringue, who first filed a lawsuit in Louisiana state court, but soon found himself in the United States District Court for the Eastern District of Louisiana after the company he sued removed the case to federal court. This case helps answer the question; My lawsuit was removed to Federal Court. What does that Mean?

Zeringue sued Crane Company (“Crane”) and twenty others for the injuries they allegedly suffered from asbestos exposure. Zeringue claimed he was exposed to asbestos while working for the United States Navy and at two other jobs. Additionally, Zeringue claimed Crane designed and supplied products with asbestos to the sites where he worked and was exposed to asbestos.

Although Zeringue initially filed the case in state court, Crane removed the case to federal court under the federal officer removal statute. See 28 U.S.C. § 1442(a)(1). Crane argued any product Crane allegedly manufactured and provided to the Navy would be subject to the Navy’s discretion on whether to use asbestos and whether to include a warning on the product. Zeringue filed a motion to remand the case back to state court. The district court ruled in his favor, holding Crane had not shown the government had exercised its discretion concerning the design and warning problems at issue. Crane appealed the district court’s ruling that sent the case back to state court.

April 19, 2023

I Named the Wrong Defendant in a Lawsuit, is my Case Over?

by Berniard Law Firm

larimer_sheriff_reserve-1024x683 This scenario is not hard to imagine: you are driving along the road, and you get into an accident; however, the other vehicle is not just a regular car owned by a private citizen, but it is a dump truck owned by the local government. When suing a local governmental entity such as a sanitation department or police station, the injured party may face obstacles in naming precise owners of public vehicles or following procedural rules. A recent case out of St. Charles Parish demonstrates what kinds of procedural obstacles a plaintiff may face. It also helps answer the question; what happens if I name the wrong defendant in a lawsuit? Is my case over?

On January 13, 2010, three prisoners in the custody of the St. Charles Parish Sheriffs were being transported in a vehicle owned by the Sheriff’s office when it collided with a dump truck. As a result of the accident, the three alleged they had suffered “severe and grievous injury to body and mind.” On January 12, 2011, they filed a lawsuit against the Parish of St. Charles as the owner of the dump truck, the driver of the dump truck, and its liability insurer. Then the plaintiffs added the Parish of St. Charles Sheriff’s Office as the owner of the prisoner transportation vehicle and the employer of the dump truck driver.

After discovery, St. Charles Parish filed for a motion of summary judgment, asking the court to decide the case in their favor because the allegations were legally insufficient because the Parish did not own the dump truck. In support of its motion, the Parish attached a Certificate of Ownership, demonstrating the St. Charles Parish Sheriff’s office owned the dump truck. The trial judge granted the motion. Subsequently, Greg Champagne, the Sheriff of St. Charles Parish, filed exceptions of prescription, which essentially asked the court to dismiss the lawsuit because the plaintiff did not file the case on time or failed to follow procedural rules. The court also granted the exceptions of prescription, and the plaintiffs appealed.

April 18, 2023

Door Closing Mechanism Causes Trip and Fall, Who is Liable?

by Berniard Law Firm

door_front_door_input-1024x768 Some doors, such as bathroom doors, are heavy and have quick automatic closing mechanisms attached. If a door of that nature hits you in the back on your way and knocks you down, who is liable? The following case out of New Orleans shows how courts deal with door-closing mechanisms and trip-and-fall lawsuits.

In 2011, Gail Encalade visited her insurance agent’s office in an office building on General DeGaulle. Before leaving, she pushed the restroom door open without issue and entered the bathroom. When exiting, she pulled the restroom door, and the door began to close behind her. As it was closing, she alleged it hit her on the back, causing her to fall forward, sustaining injuries to her shoulder and face.

In April of 2012, Encalade sued for damages, America First Insurance Company (AFIC) and other defendants were negligent in failing to maintain safe public areas, that being the restroom specifically. She argued the AFIC should have known of the problems with the doorways and the door equipment. AFIC answered the lawsuit by filing a motion for summary judgment.

April 17, 2023

Injured on a Boat on Land, Can you File a Lawsuit with Maritime Claims?

by Berniard Law Firm

maritime_ship_daymark_65533-1024x768 Activities on the water carry inherent risks. If you are injured while on the water, laws of admiralty and maritime jurisdiction generally rule. There are also allowances to invoke admiralty jurisdiction for injuries on land. To do so, one must satisfy conditions of both location and connection with maritime activity. But what happens if you are injured on a boat on land? Can you file a lawsuit with maritime claims? The following lawsuit out of Manchac, Louisiana, helps answer this question in the context of a prescription argument.

Eddy Welch filed a lawsuit in October of 2013 against Jefferson Daniels to recover damages from bodily injuries he sustained from being a guest passenger on Daniel’s boat. While Welch attempted to come down from the boat’s upper level, a piece of steel rail caught his arm, and he sustained injuries. Welch claimed the injury was from a defect that posed an unreasonable and foreseeable risk of harm.

Procedural jostling caused Welch’s lawsuit to be transferred to another parish. Welch subsequently filed his amended petition with the new trial court, stating the incident falls under admiralty jurisdiction. Daniels then filed a motion for summary judgment and exception of prescription set forth under La. C.C. art. 3492.

April 16, 2023

Proving ADA Violations: Sufficient Evidence is Required for Discrimination Lawsuits

by Berniard Law Firm

psychology_psychotherapy_531071-1024x768 Discrimination in the workplace should never be accepted. If you feel that you have been discriminated against for age or disability reasons, the law allows you to seek damages. A lawsuit of that nature is not unlike others; proof and evidence are required to proceed with your claims. The following case out of New Orleans shows why sufficient evidence is required to proceed with a discrimination or hostile workplace claim.

Dr. Gerald Lahoste is a tenured associate professor in the Psychology Department at the University of New Orleans (UNO) Psychology Department. Dr. Lahoste filed a lawsuit against the Board of Supervisors of Louisiana State University and Agricultural and Mechanical College (LSU), asserting his rights under the Americans with Disabilities Act and Title VII of the Civil Rights Act were violated. Dr. Lahoste alleged LSU did not provide him with reasonable accommodations for his major depressive disorder. He argued he had been harassed and discriminated against, and his journal articles and grant had decreased due to his request for accommodations.

LSU filed a motion for summary judgment, as they believed Dr. LaHoste could not prove discrimination or that a violation of Title VII. LSU also alleged that Dr. LaHoste failed to provide documentation regarding his diagnosis. Dr. LaHoste responded to the motion for summary judgment by arguing that LSU did not meet to discuss his condition. The trial court granted summary judgment for LSU, effectively ending his lawsuit. Dr. LaHoste appealed the trial court’s decision in hopes of overturning it.