Articles Posted in Litigation

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source_grass_lawn_water-1024x683The Collateral Source Rule in Louisiana law prevents a tortfeasor (a person who harmed another) from benefiting from the victim’s receipt of funds from an independent source.  So what does that mean?

Let’s say you were injured in a car wreck. As a result of your injuries, you have back surgery before the lawsuit settles. If you have health insurance, that surgery may be paid for by your health insurer. However, your health insurance company pays only part of the bill; they pay some agreed-upon amount with the medical provider. The collateral source rule allows the injured person to argue for the amount paid for the surgery plus 40% of the difference of the billed amount. An example is shown below:

  1. Joe is injured in a car wreck, has health insurance, and undergoes a $100,000 back surgery by ABC Back Drs.
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courthouse_court_law_justice-1024x683Lawsuits and appeals can bring up complicated legal issues such as jurisdiction. Jurisdiction is a legal principle that determines the extent and authority of a court to hear and decide cases. There are two primary types of jurisdiction: personal jurisdiction and subject matter jurisdiction.

The first type, personal jurisdiction, is a court’s power to have jurisdiction over the person or parties in the lawsuit. For example, a court in Ohio would most likely have jurisdiction over a resident of Ohio because that person lives and resides there. However, a Florida court would be less likely to have personal jurisdiction over that same Ohio resident unless some exceptions or circumstances occurred.

The other type of jurisdiction is called subject matter jurisdiction, which is a court’s power to have jurisdiction over the subject matter of a lawsuit. The Louisiana Fourth Circuit in Joseph stated that regardless of whether the parties address or challenge subject matter jurisdiction, courts have a duty to determine whether this type of jurisdiction exists before hearing a case. To do this, appellate courts, therefore, must first determine whether the ruling from the trial court that the appellant, the person appealing the decision of the lower court to the higher court, is an appealable judgment.

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headlights_roads_night_highways-1024x683Insurance claims can be complex, even for the courts. Lawsuits involving multiple plaintiffs and defendants are just as complicated. Claims, cross-claims, and counterclaims can arise from a single accident. Questions can arise during litigation, such as; can you appeal a partial summary judgment in Louisiana? A recent motorcycle accident in Arnaudville, Louisiana, demonstrates how convoluted insurance claims can become, as shown in the court’s opinion below. 

 The Colomb Foundation, Inc. (“Colomb”) was a property owner with a building erected along Louisiana Highway 93. As Erik Moran (hereafter “Moran”) drove by Colomb’s property at night, a flood light came on that Moran mistook for the headlight of an oncoming car. Moran alleged he was blinded by the light, which caused him to wreck his motorcycle into a gate located on Colomb’s property. 

After the accident, Moran filed a lawsuit against Colomb and its alleged liability insurer, United Specialty Insurance Company (“USI”). Shortly after, USI contacted Colomb to explain that they would not cover Moran’s claims under their insurance because Colomb’s insurance policy had been canceled six months earlier. The cancellation occurred due to a failure to pay the insurance premium. Colomb challenged this cancellation by filing a cross-claim against USI. Then, to make matters even more complicated, Colomb filed third-party demands against four additional parties, including Standard Lines Brokerage, Inc. (“SLB”), which is the entity in charge of the collection and cancelation of insurance policies for USI. 

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court_hammer_auction_law-1-1024x768Most consumers in the U.S. are aware of increasingly high medical costs. For most people, those high costs are not directly paid; instead, they appear on a bill along with what one’s insurance company will pay as part of an agreement with the medical provider. Many insured consumers will look for “in-plan” medical providers to ensure that most costs are covered. Those “in-plan” providers are part of a preferred provider organization (PPO), which is a subscription-based medical arrangement that allows a substantial discount on rates to be charged. 

PPOs are organized by separate companies that generate revenue by charging an access fee. This type of PPO arrangement sets the backdrop for Best Comp, a recent case by the Louisiana Court of Appeals where plaintiffs sought class certification and defendants, the PPO, challenged it. The central evidence that plaintiffs presented for class certification was a data disc containing a Microsoft Excel spreadsheet showing the recommended discounts for each provider.  

The plaintiffs were Opelousas-based healthcare entities representing healthcare providers who treated employees under the Louisiana Workers’ Compensation Act. The providers subscribed to PPO agreements with defendant Bestcomp, Inc., and alleged that Bestcomp discounted their billing without the notice required by statute La.R.S. 40:2203.1. 

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tax_forms_income_business-1024x683If you’re in a car wreck, you expect, or hope, to be covered for UM Bodily injury (UMBI) up to certain policy limits. However, when signing up for insurance, you must carefully review the coverages. The law in Louisiana has strict requirements when it comes to selecting or rejecting Uninsured motorist coverage. If you aren’t careful, you may unknowingly reject or limit the coverage you thought you had. New Orleans citizen Zachary Addison learned this lesson the hard way after being involved in a car incident in 2013. 

After his car accident, Mr. Addison filed a lawsuit against the other party involved and his insurance company LM General Insurance. Mr. Addison sued his insurance company to ensure they would provide adequate coverage for his injuries. In a motion for summary judgment, LM General Insurance argued to the trial court that Addison was not covered for uninsured/underinsured motorist coverage and bodily injury coverage and that he only selected UMBI coverage for his economic damages. LM General filed the motion based on the fact that Mr. Addison electronically selected economic-only UMBI coverage. 

When obtaining insurance, Addison received a quote via telephone and was given the option to send documents by mail, fax, or electronically. He chose to submit the documents electronically; the electronic documents had selections of coverage pre-made based on the quote he received. The pre-selected information could not be changed. Mr. Addison electronically signed the documents. 

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court_civil_ceremony_legal-1024x683Default judgments usually occur when one side fails to Answer a lawsuit after being served. You must collect and produce sufficient evidence to establish your claims to succeed with a default judgment. This is the same as if you were going to trial. Evidence is the key to all lawsuits; lawsuits live and die by what can and cannot be proven in court. Therefore, the party pursuing a default judgment must present competent evidence proving their claims following the standards for default judgment in Louisiana, as demonstrated by the case below.

Willie Evans was injured in a trip and fall accident while working for ADM Grain Elevator (“ADM”). As a result of the injury, ADM sent Evans to Dr. Jolly for treatment and pain management. Dr. Jolly alleged that Evans failed a drug test and tested positive for cocaine in his urine. Evans claimed that for the first drug test, there was no paperwork evidence of ordering a drug test that Evans had signed. For the second drug test, Evans alleged that Dr. Jolly sent falsified results of the test showing cocaine to ADM. This resulted in Evans being terminated from ADM.   

Evans sued Dr. Jolly for defamation, alleging that Dr. Jolly was liable to Evans for slander and defamation of his character for damaging his reputation and character and causing him to lose his job. When Dr. Jolly failed to file an answer to the lawsuit after he was served in the time required by law, Evans filed a motion for preliminary default. The trial court granted the motion for preliminary default. At the default confirmation hearing, the trial court ruled in favor of Evans for his defamation claims and against Dr. Jolly for mental anguish, pain, and suffering in the amount of $20,000, along with court costs and legal interests. 

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sparks_working_industry_metal-1024x711What happens if you are hurt on the job? Not only do you have to deal with the physical effects of your injury, but you also have to navigate when it is safe to return to work. The workers’ compensation system is designed to aid injured workers. It can provide compensation for lost wages and medical treatment. However, it can often be complex to navigate. 

This is the situation Eduardo Sanchez, an ironworker at MEMCO Inc., found himself in after he slipped from a metal beam while working. His safety harness caught him. Once safely on the ground, medical personnel at the worksite examined him, and he was sent home to rest. The next day, Sanchez reported to work and complained of a headache and pain in his back, neck, and testicle. He was sent home. Sanchez’s supervisor at MEMCO sent him to see a doctor. The doctor diagnosed Sanchez with a cervical and lumbar strain and released him to return to work “as tolerated.”

Two days later, Sanchez went to the emergency room complaining of chest, testicular, and lumbar pain. The emergency room doctor diagnosed him with lumbosacral strain, chest wall contusion, and a scrotal contusion. Sanchez returned to the doctor who first examined him. He released Sanchez to return to work on restricted duty “as tolerated.” About ten days later, Sanchez returned to the doctor, who discharged him to return to work “full duty.” 

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police_baltimore_police_officer-1024x648Despite stringent rules and regulations designed to keep unlicensed drivers off the road, minors often find their way behind the wheel. Police in Gonzales, Louisiana, were forced to reckon with the seriousness of such a driver when a high-speed police chase on Interstate 10 turned deadly in May of 2004. The outcome of this chase became the subject of a lawsuit left unsettled until 2017—a case which pondered: to what standard should police be held when engaged in an active car chase?

Just before eight o’clock in the evening, a Gonzales city police officer noticed an Oldsmobile without its headlights activated. The car, failing to stop or slow down, was pursued onto Interstate 10 by Louisiana State Police. The chase continued for nearly twenty minutes despite attempts to stop the vehicle with a spike strip. Then, the Oldsmobile’s fourteen-year-old driver lost control of the car and spun into a vehicle traveling in the opposite direction, driven by the Bristols. The Oldsmobile driver died on impact, while all seven passengers in the other car were severely injured, prompting a lawsuit against the Louisiana State Police. At trial, a jury found no liability for the Bristols’ injuries on the part of the department, and an appeal followed.

The Louisiana Highway Regulatory Act is excepted by La R.S. 32:24—which provides, under certain circumstances, statutory immunity to drivers of emergency vehicles. As such, police officers are allowed to exceed maximum speed limits and disregard other road rules so long as they maintain regard for the safety of others and have their audible or visual signals activated. However, this exception is not absolute: juries are allowed to determine, based on the circumstances and after being instructed on the law, whether a standard of ordinary negligence or a heightened reckless disregard standard should gauge the standard of care for an emergency vehicle driver. Lenard v. Dilley, 784 So.2d 706 (La. Ct. App. 2001).

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hospital_hospital_corridor_921034-682x1024Personal injuries occur every day in society and should be taken seriously. Yet, courts must judge the importance of each accident. As a result, not all injuries are ruled in favor of the injured individual. A lawyer representing an injured person must investigate the circumstances and facts surrounding the injury with due diligence. The lawyer must show the court that his client’s case should be heard because the evidence says so. However, when video evidence of a slip and fall injury in a hospital is not obtained, should a court allow the lawyer to continue investigating his client’s accident? A case out of Baton Rouge explores this question and reminds lawyers of their responsibility to act diligently in attaining evidence for their clients.

Bobbie Davis Cole was visiting her sister, a Baton Rouge General Medical Center (BGR) patient. When Ms. Cole entered the hospital, she slipped and fell on a slippery substance on the floor and was then helped by the security guard. Ms. Cole filed a lawsuit against BGR, claiming the security guard told her that others had fallen in the same area she had. 

BGR moved for summary judgment. A summary judgment would allow for the dismissal of the case. In filing this motion, BGR argued that Ms. Cole could not prove a foreign substance on the hospital floor injured her. Ms. Cole took the testimony of the security guard, who asserted he looked at the video camera footage and did not see anything on the floor. At the hearing for summary judgment, Ms. Cole filed a motion of continuance, which would allow her to continue the discovery process, contending that she was not ready to go forth with the hearing without having the surveillance video of her fall. The trial court denied her continuance motion and granted the hospital’s summary judgment dismissing Ms. Cole’s case. An appeal of the ruling followed.

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bandit_playmobil_shield_western-683x1024It’s reasonable to want to feel safe at work, no matter your job. Employers must keep their employees free from unnecessary danger and generally provide a safe working environment. Even given this duty, the law doesn’t always hold them responsible for the actions of criminals. A recent lawsuit out of Lafayette discusses the principles court asses to determine what remedies are available to employees when crime happens.

Melody Smith (Smith), an employee of Circle K, was robbed at gunpoint by Marcus Sam while making a bank deposit for the store. After the incident, Smith filed a lawsuit and was eligible for workers’ compensation benefits. Workers’ Compensation is an exclusive remedy for accidents in the workplace. R.S. 23:1032(A)(1)(a).

Smith later filed an amended and supplemental lawsuit that claimed Circle K committed intentional torts of assault and battery on her because they created an environment for her to be robbed. Smith argued that because Sam overheard her manager telling her to make a bank deposit the robbery was inevitable. Circle K disputed Smith’s claims and filed a motion for summary judgment. 

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