Litigation

May 20, 2019

Louisiana Fourth Circuit Court of Appeal Considers Lawsuit Abandonment

alvaro-serrano-133360-unsplash-1024x683 What happens when you file a lawsuit and then fail to file any pleadings beyond the initial Petition for Damages? Is the case eligible for a new trial? Or is simply determined abandoned? Typically, when you wait too long to respond after a lawsuit has been filed, the case will be considered abandoned, and it will be dismissed. There are two types of case dismissals: (1) dismissal with prejudice, and (2) dismissal without prejudice. Generally, when a case is dismissed with prejudice, you cannot get a new trial even if the statute of limitations has not run out, and there is no right to appeal. See La. C.C.P. art. 2162.

In August 2005, Tyrone Johnson filed a tort claim against his employer, Pacarini, and his co-employee, Mr. Gay, alleging that he was injured at work when a t-bar weighing 4000 pounds rolled onto his right leg and ankle. In November 2008, a subpoena duces tecum was issued to Pacarini, meaning Mr. Johnson subpoenaed Pacarini to either have an agent appear in court or provide relevant documents to Mr. Johnson. Subsequently, Mr. Johnson failed to file another pleading until September 2014, when he filed an amended petition adding another defendant.

On January 30, 2015, Mr. Gay and Pacarini filed an ex parte motion to dismiss the case on the grounds that Mr. Johnson abandoned the case by failing to file any pleadings between 2009 and 2013. The motion to dismiss was granted with prejudice, which, as discussed above, means Mr. Johnson is not entitled to a new trial, although he did file a motion for a new trial which was subsequently denied. As a result, Mr. Johnson appealed, alleging that he intended to appeal the merits of the final judgment of the motion to dismiss. He alleged that the motion to dismiss should have been denied because he sent a letter to defense counsel regarding setting the case for trial.

May 16, 2019

Summertime Treat Turns Sour: No Case for Woman’s Fall in Grocery Store

by Berniard Law Firm

image-2-1024x683 While running errands all day, to the cleaners and the grocery store, the last thing on one’s mind is getting hurt along the way. Proving fault for an injury can sometimes be more of a pain than the injury itself. Collecting evidence like pictures or eye witness reports is the last thing you want to do after suffering a fall, but to prove your case in court, it is necessary. Failure to do so can result in not only the pain from your injury but also the bill.

In Kenner, Louisiana, Mary Upton went to get groceries with her husband. She entered Rouse’s grocery store after seeing an advertisement for the sale of watermelons. She walked around the display to find a good watermelon. As she stepped over to pick one up, she unknowingly placed her foot into the pallet openings under the box. She turned to show her husband the watermelon she had picked, but he told her he did not want that watermelon. Mrs. Upton turned back to return the watermelon to the box and as she stepped away from the display, she twisted her foot within the pallet and fell.

Mrs. Upton sued for damages of her injury. Rouse’s, along with their insurer Liberty Mutual, motioned for summary judgment on the basis that Mrs. Upton did not meet her burden of proof or provide any evidence that the grocery store acted without reasonable care. The trial court granted the motion and Mrs. Upton appealed. The Court of Appeal affirmed the summary judgment, effectively ending Mrs. Upton’s case.

May 15, 2019

Coworkers Conflict In Tangipahoa Parish Turns Physical and Costly

by Berniard Law Firm

image-1024x656 Everyone has that one coworker that just gets under their skin. Some days even the sound of their voice feels like it will push you over the edge. However, when things turn physical in the workplace, not only is an employee at fault, but the company may be as well.

In the Parish of Tangipahoa, Towana Carr worked at Sanderson Farms along with her co-employee, Kevin Webb. According to Carr, while at work Webb deliberately struck her with a “pallet jack” that knocked her into a wall. She then claimed Webb struck her with the equipment for a second time and left her with severe injuries. Prior to the accident, Carr claimed that Webb had threatened her with bodily harm outside of work. However, when she informed her employer, Sanderson Farms, of the threat, they said they could not do anything as the threat was not made on their property. Carr sued with a claim that Sanderson Farm was vicariously liable for her injuries. Sanderson Farm filed a petition stating that Webb was not acting within the scope of his employment; thus, Sanderson Farm not liable. The trial court dismissed all claims against Sanderson Farm and Carr appealed.

An employer may be held liable for intentional acts of an employee under LA Rev Stat § 23:1032 (2014). The courted followed Baumeister v. Plunkett, 673 So. 2d 994 (La. 1996) and used a set of factors to determine whether an employee’s intentional conduct is closely enough connected to his employment duties to impose vicarious liability on his employer for the conduct: 1) whether the tortious act was rooted in his job duties, (2) whether the offense act was reasonably incidental to the performance of the employee’s duties, 3) whether the act at the place the place of work, and (4) whether it happened during normal business hours.

May 14, 2019

Understanding the Concurrent-Cause Doctrine in Louisiana and How it Applies to Property Insurance

by Berniard Law Firm

oil-platform-1336513-1024x683 The term concurrent-cause is a legal doctrine that may be vital to your commercial property. If loss or damage occurs as a result of two or more causes, one event may be covered while the other is not. It would not matter if the events happened at the same time, or if one event occurred before the other. That is why [i]t is essential that the insured produce evidence which will afford a reasonable basis for estimating . . . the proportionate part of damage caused by a risk covered by the insurance policy.” Travelers Indem. Co. v. McKillip, 469 S.W.2d 160, 163 (Tex. 1971).

The following case discusses the legal implications that a concurrent-clause can play in litigation in Louisiana.

Seahawk operated a drilling rig used in the Gulf of Mexico. In February 2010, the Rig became damaged, the legs were misaligned due to severe weather conditions.

May 12, 2019

Louisiana District Court Erred in Granting Motion for Summary Judgment for Doctor-Defendants

by Berniard Law Firm

hospital-02-1505482-1-1024x768 When we think of the practice of law, we may think of flashy lawyers in the courtroom arguing against one another with impassioned rhetoric. In reality, the law practice is not that glamorous. In many cases, there are no trials, and a judge simply hands down a judgment without any theatrics. Summary judgment is an example. Summary judgments occur when there are no factual disputes between parties, thus forgoing the need for a trial. However, to obtain summary judgment, a party must file a motion for summary judgment. In the case below, we will see how a Louisiana Appellate Court decided that the District Court erred in granting a motion for summary judgment.

Carolyn C. Harris had terrible stomach pains and went to Our Lady of the Lake Regional Medical Center to receive treatment. Her first doctor, Dr. B, examined her on December 29, 2008, and scheduled a colonoscopy the next day. However, due to unanticipated conflicts, the colonoscopy was rescheduled for January 5. In the meanwhile, Harris began to suffer from a respiratory illness and was moved to the ICU. On January 5, 2009, her second doctor, Dr. C, performed the delayed colonoscopy. During the colonoscopy, Harris’s colon was perforated. She began to vomit, and soon after, she went into cardiac arrest and died. Harris’s representatives sued the doctors for medical malpractice, but the doctors responded with a motion for summary judgment, which the District Court granted. Harris’s representatives appealed.

In Louisiana, summary judgment is applicable only when there are no factual disputes between the parties according to the evidence submitted. Also, the person filing the motion for summary judgment must be able to obtain a judgment under the applicable law. La. C.C.P. art. 966(B)(2). The applicable law, in this case, is the list of requirements for a plaintiff to file a claim for medical malpractice. A plaintiff suing for medical malpractice must show by a preponderance of the evidence that there was a standard of care applicable to the defendant, that the defendant failed to meet that care, and the failure to meet that care led to the injury or death. La. R.S. 9:2794. For a defendant to succeed in a summary judgment motion in a medical malpractice case, the defendant has to show that the plaintiff cannot show at trial at least one of the above through the preponderance of evidence.

May 11, 2019

Plaintiff Cannot Bring Medical Malpractice Claim Against Doctor Due to Untimely Filing of Lawsuit

by Berniard Law Firm

hospital-bc-laboratory-form-with-syringe-2-1315572-1024x768 Time governs our lives. It also governs the law. If you have been injured and decide to file a claim, there is generally a time limit to do so. If you do not file within this time, you may never get your claim heard. The case below is an example.

Anthony Williams arrived at Christus Schumpert Hospital (“Hospital”) with complaints of nausea, vomiting, and abdominal pain. He also had a history of schizophrenia. Though Williams was supposedly watched closely by nursing staff, Williams managed to leave the hospital. An alert was issued. Unfortunately, Williams was found less than an hour later without a pulse. He died on November 1, 2011. His mother, the plaintiff, filed a medical malpractice complaint only against the Hospital on November 1, 2012. Because Louisiana law requires a medical review panel to review a medical malpractice claim, she waited to file a claim in the District Court. Once the panel’s decision was released on April 23, 2014, the plaintiff filed a claim in the District Court on July 9, 2014. In this claim, however, the plaintiff added one of the doctors of the Hospital, Dr. Davis, as a defendant. Dr. Davis responded to the claim by arguing that too much time had passed since Williams’s death, and therefore, under the legal doctrine of prescription, he could not be named as a defendant. Prescription simply means that a legal claim must be brought within a certain amount of time to be valid. The District Court agreed with Dr. Davis that he was prescribed from being a defendant.

Louisiana law states that a medical malpractice claim must be filed within a year from the alleged malpractice or within a year from the date of discovery of the alleged malpractice. La. R.S.9:5628(A). For a claim under the latter, it must still be filed within three years from the date of the alleged malpractice. However, the time to file can be extended under certain situations. For instance, if a plaintiff could not have filed a claim because of reasonable ignorance of relevant facts, the time to file begins when the plaintiff discovers or should have discovered the relevant facts to file a claim. Davis v. Johnson, 36 So.3d 439, 442 (La. Ct. App. 2010). Louisiana courts determine that a plaintiff should have discovered the relevant facts if he or she had sufficient information to seek inquiry. Abbott v. Louisiana State University Medical Center-Shreveport, 811 So. 2d 1107.

May 10, 2019

What are the Rules for the Abandonment of a Lawsuit in Louisiana?

by Berniard Law Firm

45-Email-03-13-19-1024x772 When someone files a civil lawsuit in the Parish of Jefferson in Louisiana, or anywhere else in the state, it can often leave a defendant wondering how long the case will take to wrap up. In cases where neither party has a strong desire to settle, discovery procedures may take years to complete. Capitalizing on this concern, a stubborn plaintiff or defendant may use stalling tactics to leverage the other party into a settlement. How can the opposing party fight this stalling tactic? The following case discusses the rules governing what constitutes an “abandoment” of a lawsuit in Louisiana.

On September 23, 2010, a medical corporation (Claiborne Medical Corporation) and Dr. Fiaz Afzal (“Plaintiffs”) filed suit against Ellen Mullins and ABC Insurance Company (“Defendants”) for legal malpractice. On January 6, 2012, Plaintiffs took Defendant Mullins’ deposition, and the parties had a deposition for Dr. Afzal scheduled for January 31, 2012. On January 30^th, at Defendant Mullins’ request, Dr. Afzal’s deposition was postponed. Three years after her own deposition, with Dr. Afzal’s deposition never taking place, Defendant Mullins filed a motion for a dismissal on grounds of abandonment. The argument was that the Plaintiffs had not taken any action in the case since January 6, 2012 (the date of her own deposition). On January 15, 2012, Plaintiffs served Defendant Mullins with discovery requests, and on February 11, 2015, they filed a motion to set aside the trial court’s dismissal.

In an effort to protect both sides of a lawsuit, Louisiana law rules a case automatically abandoned “when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years…” La. C.C.P. art. 561. The Louisiana Supreme Court has recognized that this rule is not to create dismissals on a technicality, but instead to provide a resolution when a party has clearly given up on the case. La. DOT & Dev. v. Oilfield Heavy Haulers, L.L.C., 79 So.3d 978 (La. 2011). In Oilfield, a defendant’s letter to reschedule a discovery conference was considered a “step” by the defendant when the plaintiff responded to the letter and complied with the defendant’s request.

May 7, 2019

Louisiana Court of Appeal Upholds High Legal Fee Awarded to Attorney in Class Action

by Berniard Law Firm

business-law-1238207-1024x683 Attorneys are known for being way too expensive to the general public. Most people think that attorney’s charge an obscene amount for every little task that they do pertaining to a case, such as talking on the phone with their client or sending an email. However, unknown to most people attorneys are not allowed to charge fees that are excessive. The courts have a system in place to assure that clients are not being taking advantage of when it comes to paying legal fees.

Recently, in the City of New Orleans the Louisiana Fourth Circuit Courts of Appeals affirmed a decision by the trial judge on a reasonable legal fee, to be paid to attorney Carolyn Gill-Jefferson. Ms. Gill-Jefferson was paid the legal fee For her expedited services rendered on behalf of the class counsel in connection with the court authorization of hundreds of minors’ settlements necessary to the disbursement of settlement funds. See Billieson v. City of New Orleans, unpub., 14-752 (La. App. 4 Cir. 2015).

This case central issue is whether the award of $457,500 to Ms. Gill-Jefferson was excessive. There are several requirements that must be satisfied in determining a fee is reasonableness as stated in Rule 1.5(a), Rules of Professional Conduct (emphasis added); See State, Dept. of Transp. and Development v. Williamson, 597 So. 2d 439, 442 (La. 1992).

May 5, 2019

Second Summary Judgment Motion Affirmed in Slip and Fall Case

by Berniard Law Firm

foot-bridge-1364767-1024x685 Selling a home can be a stressful time with many issues to consider. You want to make sure you are getting a fair price and that the home appeals to potential buyers. One aspect you might overlook is potential liability for injuries that occur when potential buyers tour your home.

While touring a home in Bossier City’s Oak Alley neighborhood, Plaintiff’s Tammy Todd and Terr Michael Todd were shown an unfinished space above a garage. While walking down the steps, Mrs. Todd twisted her ankle at the landing, forcing her to have foot and ankle surgery and follow-up physical therapy. Mrs. Todd decided to file a lawsuit because she felt because the landing threshold was unsafe it created an unreasonably dangerous condition in the home.

Multiple summary judgments, were filed by the Defendants, in this case, each concerning the question of whether the landing was maintained in an unreasonably dangerous condition. In the first summary judgment, between the Plaintiffs and the Home Builders Association of Northwestern Louisiana (“HBA”), the court found that the condition was not maintained in an unreasonable way and granted summary judgment in favor of HBA. The second summary judgment, between Plaintiff’s and Mr. Angel (the homeowner), also found that the landing was not maintained in an unreasonable condition. Finally, HBA and their insurer, Ohio Casualty, filed a second summary judgment and used the trial court’s reasoning from Mr. Angel’s case to make a showing that the landing was not maintained in an unreasonable condition. Plaintiffs appealed the second summary judgment between HBA and Plaintiffs.

April 30, 2019

Louisiana Appeals Court affirms no damages should be allocated to minors Because of Lack of Proof

by Berniard Law Firm

girls-playing-1564125-1024x768 What happens when a plaintiff is injured, and damages are denied? How can a plaintiff prove they suffered injuries from an accident? According to Louisiana law, a plaintiff must prove, by a preponderance of the evidence, that his or her damages were the result of an injury caused by the defendant. Wainwright v. Fontenot, 74 So.2d 70, 77 (La. 2000). The following Louisiana Fifth Circuit case demonstrates the plaintiff’s burden of proof needed for a Louisiana court to award damages.

On March 5, 2013, Regina, and her minor children, Darren and Darinesha were traveling northward in the center lane of Williams Boulevard when their car was sideswiped by a car driven by Mr. Hashim on Williams Boulevard in Jefferson Parish. The airbags in both cars failed to deploy, and the cars only sustained minor headlight and paint damage. The plaintiffs, Regina Tezeno, and her minor children, Darren and Darinesha Tezeno filed a lawsuit against Mr. Joel Hashim and his insurer.

The district court attributed 100% fault to Mr. Hashim and awarded Regina Tezeno special damages of $1,035.00 and general damages of $4,500.00. Yet, the trial court dismissed the award claims to her minor children with prejudice. The plaintiffs appealed the trial court’s refusal to award damages to the children.