Articles Posted in Litigation

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multi-drug-screen-test-and-kit-boxes-3474084-1024x696On TV, lawyers are often shown dramatically acting out speeches in courtrooms and confronting witnesses. Those litigators do often have to speak and cross examine individuals, but in reality, much of an attorney’s role is to make sure the procedural and pleading aspects of a lawsuit are done correctly. Some of this procedure is based on a strategy of knowing what court to file a claim in in order to gain the best opportunity for recovery for your client. A St. Mary Parish School crossing guard’s lawsuit was dismissed when the court found that he had already filed an identical claim which had been dismissed.

Belva Webb, a school crossing guard, was instructed by St. Mary Parish School District to complete a drug screening test.  This request came after parents complained to the school district that Webb seemed “unstable” when completing his crossing guard duties. The notice of this request came on February 17, 2012, and on February 23, Webb was told that the results of the test showed his prescription medication was “safety sensitive,” so he should not be working while on these medications. Due to the results of the test, the school district informed Webb that he should not come back to work unless he was contacted to do so.

Webb and his wife brought a lawsuit in federal court against several parties and alleging a violation of his constitutional rights, and that the various defendants had conspired to have Webb fired. All defendants filed a motion to dismiss Webb’s claims, which the federal court granted on the grounds that Webb failed to state a plausible claim for relief under 42 USC §§1983, 1985, and 1986.

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abundance-bank-banking-banknotes-259027-1024x683Perhaps one of the biggest myths about the law is that you can bring a lawsuit anywhere about anything. In reality, a court must have jurisdiction in order to hear a case. Jurisdiction is the power of a legal body to make binding decisions over the people involved.  In addition to having jurisdiction over the parties to the case, the court must also have subject matter jurisdiction. Subject matter jurisdiction is the ability for a court to hear the type of lawsuit brought to it. As one East Baton Rouge man found out, contesting a court’s subject matter jurisdiction can cause quite a headache. 

Carey Holliday brought a lawsuit against the Louisiana Workforce Commission (“LWC”) in December 2015 for wages allegedly unpaid. Specifically, Holliday claimed that he deserved $5,868.34 of “premium pay” for performing administrative work which he was not paid for.

LWC claimed in response that the Civil Service Commission never authorized the premium pay and, therefore, they are not required to pay Holliday.  LWC stated that premium pay approvals are under the Louisiana State Civil Service Commission’s exclusive jurisdiction and that there was no subject matter jurisdiction of the district court to hear the case. Further, LWC claimed that Louisiana Wage Payment Act, which Holliday had filed his claims under, did not apply.

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building-in-city-against-sky-256490-1-977x1024Domestic abuse is a global issue that requires the services of excellent lawyers and even better judges to sort out the myriad of problems that arise in each domestic violence case. The justice system must use all of the tools at its disposal to try to protect victims from their tormentors while also sorting through murky and disturbing factual scenarios. The facts of these cases often make assigning blame difficult. The case of Yulia Sirenko and Martin Munger demonstrates the convoluted issues that arise in such disputes. 

It is a tragic tale that begins in Moscow, moves through Dubai, and ultimately ends up in New Orleans in front of a trial judge tasked with determining who is at fault, who is in danger, and what remedies are necessary to stop the cycle of violence that has enveloped a family that includes young children. Mr. Munger and Ms. Sirenko, a married couple, got into a fight one night in their New Orleans home. The fight left Mr. Munger with a bleeding bite on his chest. He went to an urgent care facility, called a lawyer who advised him to obtain a protective order, and then called the police. Ms. Sirenko was subsequently arrested and spent 20 days in jail. At trial, both Mr. Munger and Ms. Sirenko sought protective orders against each other. They both also sought custody of their young son. The trial court found Ms. Sirenko’s account of a pattern of abuse by Mr. Munger to be credible and granted her a protective order against him. Mr. Munger was prohibited from contacting her except in very specific circumstances relating to their son. The trial court also awarded joint custody, but with Ms. Sirenko being designated as the primary custodian. Mr. Munger’s request for a protection order, on the other hand, was denied based on the trial court’s finding that he did not meet the necessary criteria due to its determination that he was the aggressor. Mr. Munger appealed this ruling, arguing that the trial court’s credibility finding was erroneous. He argued that Ms. Sirenko was not a credible witness and that a protective order in her favor was not warranted. He also argued that the trial court erred in dismissing his petition for a protective order. The Louisiana Fourth Circuit Court of Appeal, however, rejected his assertions of error and affirmed the trial court’s ruling. It based this finding on the great deference owed to a trial court in credibility determinations and evidence examination. It found that the trial court did not err in determining that Ms. Sirenko’s account of abuse was credible.

The Court of Appeal stressed that “[i]n matters of credibility, an appellate court gives great deference to the findings of the trier of fact.” Franz v. First Bank Sys., Inc., 868 So.2d 155 (La. Ct. App. 2004). This deference is owed due to the fact that the trial court gets to examine the witnesses as they are giving testimony. It gets to look at the evidence first hand. It has the best view of the evidence and “the demeanor and mannerisms of the witnesses.” The Court of Appeal simply has the record created at trial upon which it can base its rulings. Particularly in cases where conflicting testimony exists, “reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed…” Stobart v. State through Dept. of Transp. And Development, 617 So.2d 880 (La. 1993). Thus, the Court of Appeal will defer to these determinations unless the determination clearly goes against the evidence presented. There was no indication of such an erroneous ruling here. The Court of Appeal pointed out how thoroughly the trial court examined the evidence and compared it with the testimony of the witnesses. The evidence of bruises and other injuries, documented in photographs, lined up with Ms. Sirenko’s testimony. The trial judge clearly explained how the evidence was linked together with that testimony. Thus, the Court of Appeal found no error in the granting of a protective order to Ms. Sirenko under Louisiana’s Domestic Abuse Assistance Act. La. R.S. 46:2131. The Court of Appeal also upheld the trial court’s decision to dismiss Mr. Munger’s protective order. The trial judge determined that Mr. Munger was the aggressor and the evidence supported that determination. Once again, the Court of Appeal deferred to the trial court’s analysis of the evidence.

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photo-of-person-holding-black-pen-959816-1-1-1024x682Sometimes, the most complicated cases can have the most simple resolution. For West Baton Rouge plaintiffs who sued mining companies for extracting resources underneath their property without their knowledge, the ultimate outcome of the lawsuit rested on the plain meaning of statutory language.

TMR Exploration, Inc. was a mining company owned by Raymond Lasseigne. Since surface property (houses and land) are often legally separate from mining rights (the resources underneath the surface), the Louisiana Commissioner of Conservation granted TMR a permit in 2007 to extract minerals from A. Wilbert’s Sons, LLC’s property. The only trouble was that this property belonged to no A. Wilbert but rather the descendants of a Peter and Elnora Hill, specifically Calvert Hill. This oversight resulted in TMR slant drilling into Mr. Hill’s property without his knowledge. This type of drilling is set up on one property and then drilled through the ground at an angle to access resources on a different property. Accordingly, Mr. Hill had no knowledge that TMR (and successive mining companies) had extracted minerals two miles underneath his property for six years.

Mr. Hill brought this lawsuit against TMR and Mr. Lasseigne in December of 2013, claiming that Mr. Lasseigne knew it wasn’t A. Wilbert’s Sons, LLC’s property but rather knew it was Mr. Hill’s. Mr. Lasseigne countered this, arguing that TMR’s involvement in mining underneath Mr. Hill’s property ended in June 2010 and was passed on to a different mining company. According to Louisiana statutes, one cannot sue the head of a business directly for negligence that his or her business caused “more than three years from the date of the alleged act.” La. R.S.12:1502. Mr. Lasseigne’s involvement in the mining ended June of 2013, six months before Mr. Hill brought this lawsuit. Accordingly, the Eighteenth Judicial District Court ruled in favor of Mr. Lasseigne, and Mr. Hill appealed to the Louisiana First Circuit Court of Appeal.

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blur-car-caution-dash-163945-1024x683Sometimes, there are situations that appear to have an obvious result. Person A causes injury to Person B and B sues A. All the evidence points to A being at fault and B being hurt and in need of recovery.  However, what if in the middle of the case, the court held that B was not hurt at all and therefore did not need to recover? How does a result like this even come about? What does B do? This situation is illustrated in a case arising from a New Orleans motor vehicle accident from 2014.

On January 7, 2014, Michael Mirandy (“Mirandy”) was driving down Interstate 10 in New Orleans on his way home from a doctor’s appointment where he had been treated for injuries from a car accident the previous year. Unfortunately for Mirandy, he was rear ended by a car driven by Gary Walters, Jr (“Walters”). Three days after the accident, Mirandy returned to his physician, Dr. Chad Domangue (“Domangue”) with complaints of pain in his neck and back. Domangue ordered an MRI that month and compared it to previous MRI Mirandy underwent on July 13, 2013. When he compared the two MRIs, it was clear that many discs and vertebrae that had been normal in 2013 were now injured, and those that were already inflamed or displaced in 2013 were now in worse shape.

Mirandy and his wife then sued Walters for damages in the Civil District Court for Orleans Parish. Both Domangue and Mirandy’s orthopedic surgeon testified that many of Mirandy’s injuries were not present before the 2014 accident and because of that accident, he needed surgery. During the jury charge conference, one of the jury charges suggested that the accident was a “minimal or minor collision.” Mirandy’s counsel objected to this language and the court agreed to modify it. However, the charge was not modified and after four days of trial, the jury held that while Walters was at fault for causing the accident, Mirandy was not injured. As a result of this judgment, Mirandy did not received damages. He appealed to the Court of Appeal for the Fourth Circuit, arguing that the unmodified jury charge improperly instructed the jury, and that the District Court erred when it found that he was not injured in the car accident.

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architectural-photography-of-white-and-green-church-bell-792554-646x1024Freedom of speech is one of America’s most celebrated rights. However, it does not mean that courts tolerate all types of speech. After all, we have all heard that the freedom of speech does not allow an individual to falsely yell fire in a crowded theater. Despite there being restrictions, courts take the freedom of speech extremely seriously and will not allow it to be encroached simply because someone felt offended by a certain use of free speech. 

Robert and Lisa Mayeux and their daughter, Rebecca, were members of the Our Lady of the Assumption Catholic Church. Upon hearing from their daughter that George J. Charlet, Jr., a fellow churchgoer, sexually abused her, Robert and Lisa sued not only Charlet, but also Reverend Jeffrey Bayhi and the Roman Catholic Church of the Diocese of Baton Rouge as well for being complacent of the abuse despite knowing that Charlet was abusing their daughter. 

Louisiana Television Broadcasting (“LTB”) ran several stories of the above sexual abuse case. Many of these stories prominently featured Bayhi. In some of the graphics that accompanied the stories, there were texts that stated that Rebecca was abused by a priest and that the priest had died during the investigation. However, these texts were erroneous. Charlet, the alleged perpetrator, was not a priest–Bayhi was. However, LTB did acknowledge that these texts were erroneous later in time. Furthermore, these stories showed video footage of Bayhi in his priest’s cassock. Bayhi filed a lawsuit against LTB for defamation. LTB filed a Motion to Strike in accordance with La. C.C.P. art. 971, stating that Bayhi did not have a legitimate claim. The Trial Court granted LTB’s motion.

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building-in-city-against-sky-256490-977x1024You lose your case. However, your lawyer tells you not to despair. She tells you that you can appeal the trial court’s judgment at the appellate court. However, it is not always that simple. Appellate courts, like trial courts, do not just accept every single case that comes their way. They must first have jurisdiction over a case, which simply means that they must meet certain requirements to hear the case. Without jurisdiction, an appellate court will be unable to take your case even if your claim may be legitimate. 

A multi-vehicle accident occurred on a highway in Jefferson Parish on December 25, 2014. The accident began when the vehicle driven by Max Beagle struck the vehicle driven by Elridge Thompson, Jr. Shadid Chaudry, who witnessed the collision between Beagle and Thompson, stopped his vehicle nearby to render assistance. Carrie Thiele was in the passenger seat of Chaudry’s vehicle. However, upon exiting the vehicle, Thiele was struck by a motorcycle driven by David Casse, who had swerved to avoid Chaudry’s vehicle. Upon hitting Thiele, Casse was thrown off his motorcycle while his motorcycle continued to move towards Thompson’s vehicle, eventually crashing into it. 

Thompson filed a lawsuit against both Beagle and Casse and their respective insurance companies. Casse in turn filed a lawsuit against Thiele. In Casse’s lawsuit, he claimed that his collision with Thiele caused him severe injuries. Thiele filed a motion, stating that Casse’s lawsuit was barred because Casse’s lawsuit was filed more than a year after the accident. The Trial Court, without giving any written opinion, agreed with Thiele and dismissed Casse’s lawsuit. 

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photo-of-person-holding-black-pen-959816-1-1024x682Trials can be extremely expensive. One of the most expensive parts of a trial can be the costs associated with taking depositions. Therefore, it is in a party’s best interest to recuperate those costs in the aftermath of a successful outcome. In fact, it is the general rule that included in the damages of a successful party are the costs associated with depositions. However, a trial court may sometimes erroneously or negligently include such costs in a party’s damages. 

On October 24, 2014, Pratima Shah, while making a left turn from Causeway Boulevard to Jefferson Highway in Metairie, crashed into a vehicle driven by Dr. James Mayo. Shah filed a lawsuit against Mayo and the Government Employees Insurance Company (“GEICO”), Mayo’s insurance provider. Two days before the trial, Shah’s lawyer filed a Motion to Exclude Live Trial Testimony and for Costs, which was made to bar Mayo from testifying at the trial and to recuperate the costs associated with the perpetuation deposition Shah’s lawyer had to take of Mayo. 

Apparently, Mayo was initially going to be unavailable for the trial. Therefore, Shah’s lawyer had to travel to New York, where Mayo resided, to take a perpetuation deposition of Mayo. A perpetuation deposition is a deposition that is made because a witness cannot make it to the actual trial. The statements made in a perpetuation deposition can be used in lieu of the witness’s live testimony. However, Mayo was able to make it to trial, so Shah’s taking of Mayo’s perpetuation deposition would have been a waste of time and money if Mayo was able to testify in person at the trial. The Trial Court did, however, allow Mayo to testify at the trial. Despite allowing Mayo to testify, the Trial Court ruled in favor of Shah. The Trial Court ruled that Shah was entitled to $2,885.00. This amount did not, however, include the costs associated with the perpetuation deposition Shah’s lawyer made. Shah appealed, asking for money damages to recuperate the costs associated with the perpetual deposition. 

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aged-alarm-clock-antique-background-552774-1024x762When a lawsuit is filed for an injury, most people assume that the claim will be sorted out in court in a timely manner.  Sometimes, however, a case can get significantly delayed by years, even before a trial has occurred. In these instances, it is also possible that the case becomes “abandoned” if neither side takes any action towards furthering the course of the lawsuit.  For one West Feliciana woman, the defense tried to do just that and claimed case abandonment.

In September 2005, Sheryl Cummings filed a lawsuit individually and on behalf of Shedrick Cummings, alleging that Shedrick became a quadriplegic after sustaining severe injuries from a football game at West Feliciana High School Stadium.  Cummings named the West Feliciana Parish School Board (WFPSB), West Baton Rouge Parish School Board (WBRPSB), and several insurance companies, including AIG Insurance (National Union), claiming that there was insurance accident policy coverage of $1,000,000. 

The district court judge dismissed claims against several insurance companies and severed the claim from WFPSB from the claims against National Union.  In July 2009, all of Cummings’ claims against WFPSB were dismissed. In January 2016, National Union filed a motion to dismiss Cummings’ claims, alleging abandonment because of no steps taken on the case in over three years.  The trial court granted the motion and dismissed the claims. Shedrick Cummings appealed the decision to the State of Louisiana First Circuit Court of Appeal.

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black-calculator-near-ballpoint-pen-on-white-printed-paper-53621-1024x603Businesses face many liability risks or risks of being sued. These include injuries to their employees on the job. Workers’ compensation is designed to address such injuries. In Louisiana, businesses in specific industries may agree to pool together with one another in order to “self-insure” these claims.  This means that the businesses pay the claims from a specific fund rather than handle them through outside insurance companies. The concept of indemnity is important in these sorts of arrangements. Indemnity involves the paying back of money or the defense in court of one party by the other. Of course, money is not unlimited, and organizations providing may exclude certain coverage in particular situations. The business affected may not agree with this.  The Fourth Circuit Court of Appeal recently considered such a dispute.  

Two employees of The Columns Hotel in New Orleans got into a physical altercation while at work.  One of them was injured and sued the hotel and his coworker. As part of this same lawsuit, the Columns Hotel (“the hotel”) brought in the Louisiana Restaurant Association Self-Insurers Fund.  The hotel claimed that the indemnity agreement between the parties should have applied in this situation. The fund disagreed, filing for summary judgment to have the court dismiss the claim on the basis that the agreement was not insurance.  The trial court agreed and dismissed these particular claims. The hotel appealed.

The issue for the Fourth Circuit Court of Appeal ultimately dealt with how to interpret the indemnity agreement.  Although the hotel argued that insurance law should apply to this contract, Louisiana law specifically excludes self-insurance organizations from the Louisiana Insurance Code. La. R.S. 23:1195(A)(1).  Thus, the Fourth Circuit looked at the indemnity agreement between the hotel and the fund itself to determine how it should be applied.  Contracts in Louisiana must be interpreted only to determine what the parties intended the terms to mean. La C.C. art 2045 Here, the parties disagreed as to what situations would be excluded from coverage by the fund.  The exclusions the fund relied on were bodily injury, as well as assault and battery. The exception for bodily injury excluded from coverages situations where someone was injured by actions that should have been reasonably expected to cause such an injury.  The court applied this to the fight between the employees. Their actions during the altercation would have been reasonably expected to cause injury. Thus, the Fourth Circuit found that the bodily injury exclusion would have applied. Therefore, the fund had been entitled to summary judgment on that point.    The other exclusion was that of assault and battery. The exclusion includes reference to bodily injury caused by assault and battery. In Louisiana, battery is a “harmful or offensive contact” and assault is any action that would threaten such contact. Lawson v. Straus, 750 So. 2d 234 (La. Ct. App. 1999).  Under these definitions, the fight between the employees would be considered assault and battery.  Thus the agreement would not cover the se bodily injuries. Because these two exclusions applied to the situation, the Fourth Circuit found that summary judgment had been correctly granted.  

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