Litigation

May 27, 2017

When Can an Insurance Company’s Bad Faith Handling in Auto Accident Claim Lead to Penalties?

Automobile accidents can be terrifying experiences. Severe automobile accidents that involve injuries can be truly devastating and life altering. In the event one is injured in an automobile accident, he/she has several options available to him/her in obtaining compensation for his/her losses. More specifically, one may have a claim against the other driver(s) who caused the automobile accident or have the ability to bring a claim against the other driver’s insurance company. Depending on the circumstances of the automobile accident, one may also have the ability to bring a claim against his/her own insurance company for compensation.

An insurance company is required to act in good faith with any individual making a claim, regardless of whether he/she is a policyholder with said insurance company. Generally, an insurance company has acted in bad faith if it fails to fulfill the obligations stipulated in the insurance policy language or if it fails to abide by the laws of the state where the claim has been filed. Some examples of bad faith include but are not limited to: refusing to pay a claim owed; failing to timely pay a claim owed; requiring unreasonable unnecessary paperwork to process the claim filed; failing to deny a claim within a reasonable amount of time; and failing to explain the reasons(s) for why a claim is denied. Consequently, having a great attorney who is competent in identifying bad faith can assist you pursuing a legal claim against the insurance company for its actions, while also assisting you with the original claim presented to the insurance company for the property damage and bodily injury you suffered in the automobile accident.

The following case out of East Baton Rouge, Louisiana is an example of an insurance company acting in bad faith and being legally penalized for doing so. On May 20, 2010, the plaintiffs, Dedra and Sheddrick Griffin filed a petition for damages against State Farm Mutual Automobile Insurance Company as a result of an automobile accident that occurred on January 13, 2010. On January 13, 2010, Jacob P. Savoy driving a 2001 Mitsubishi Spyder struck Mr. and Mrs. Griffin driving a 2000 Infiniti I30 from behind while traveling eastbound on U.S. Highway 190 in West Baton Rouge, Louisiana. The accident caused extensive property damage and personal injuries to Mr. and Mrs. Griffin. More specifically, Mrs. Griffin, the driver of the Infiniti sustained injuries to her shoulder, neck, and chest wall, in addition to aggravating pre-existing injuries to her neck, back, and legs, while Mr. Griffin sustained injuries to his left knee, chest wall, and back. Mr. and Mrs. Griffin were both treated by Dr. David Wyatt, an orthopedic surgeon. At the time of the accident, Allstate Insurance Company insured Mr. Savoy with liability limits of $10,000.00/$20,000.00, while State Farm insured Mr. and Mrs. Griffin.

May 24, 2017

Can the Winner of a Lawsuit Receive the Costs of Pursuing the Case? Louisiana Court of Appeal Answers That Question.

by Berniard Law Firm

In Louisiana, district courts (the lower level trial courts) have great discretion in awarding costs to a bell-county-texas-courthouse-1549054-1-1024x768 party. These costs can include expert witness fees, deposition fees, exhibit costs, costs for the clerk of court, the cost of obtaining medical records and related expenses. See La. R.S. 13:3666, and La. C.C.P. art. 1920. Certain costs, such as clerk costs, sheriff’s costs, and the cost of taking a deposition are taxed by the court. La. R.S. 13:4533. Although La. R.S. 13:4533 defines the term “costs,” it does not discuss who is entitled to costs and under what circumstances. In a recent case, the Louisiana First Circuit Court of Appeal discusses the assignment of costs upon a party.

In a jury trial held February 2014 in Louisiana’s Twenty-Second Judicial District Court, plaintiff Yvonne Arnaud was found to be one-hundred percent at fault for a vehicle collision that occurred on U.S. Highway 11 in Millard, Mississippi. The defendant driver, Silas Sumner was found to be zero percent at fault. Following the trial, Mr. Sumner and his co-defendants C.O.B. Enterprises and its insurer, Scottsdale Insurance Company, filed a motion seeking $53,346 in costs from Ms. Arnaud. About twenty-one thousand dollars of this amount was for expert witness fees. The District Court charged Ms. Arnaud for $30,589.95 in litigation costs, a little over half the amount sought by the defendants.

Ms. Arnaud appealed to the Louisiana First Circuit Court of Appeal. She argued that most of the expert witness fees charged to her were for work done by unknown individuals outside the courtroom. She also argued that the $30,589.95 costs in total litigation were excessive and that the District Court abused its discretion in charging any costs to her because she was indigent.

May 19, 2017

Louisiana Court Highlights Left-Turning Driver’s Presumption of Negligence in Monroe Accident Case

by Berniard Law Firm

train-sign-1445304-683x1024 When a driver fails to satisfy the standard of care, the driver’s negligence during an automobile accident may be considered in a lawsuit. The standard of care is the amount of caution that must be exercised by a person who is under a duty of care. A case out of Ouachita Parish demonstrates the special rules that a left-turning driver must follow and the presumption of negligence that attaches to a left-turning driver.

On the evening of November 11, 2011, while attempting to turn left, Cheryl Baker collided into Eloise Square’s vehicle at the intersection of Winnsboro Road and Highway 165 in Monroe, Louisiana. The traffic light was green in both directions. Baker’s vehicle was damaged across the front. Square’s vehicle was damaged along the front driver’s side.

On March 13, 2012, Baker filed a lawsuit against Square and her insurer, State Farm Mutual Automobile Insurance. On March 26, 2012, Square filed a lawsuit against Baker and her insurer, USAgencies. On May 12, 2012, these lawsuits were consolidated. On December 14, 2012, Square’s lawsuit was settled and dismissed.

May 16, 2017

Elderly St. Tammany Parish Woman Denies the Need for Interdiction

by Berniard Law Firm

old-woman-1437938-681x1024 According to the Alzheimer’s Association, 5 million people are currently living with Alzheimer’s disease. Statistics also show that people age 70 are 61% more likely to die from the disease before they turn the age of 80, compared to 30% of the people living without it. So what is Alzheimer’s disease? It is a type of dementia that causes problems with memory, thinking, and behavior. Symptoms worsen over time, rarely get better and are so severe that they can interfere with the daily lives of these individuals. A recent case out of the Louisiana First Circuit Court of Appeal is illustrative of just some of the hardships those who suffer from Alzheimer’s disease face.

In 2014, A St. Tammany Parish Trial Court decided that Shirley Fichtel, an elderly woman, needed an interdiction. Interdiction requires another person or persons to help the interdicted person to care for themselves and/or their personal affairs. This decision came after three different doctors determined that Shirley was no longer capable of caring for herself, her property or her finances. She could not keep her house clean and on several different occasions she had gotten lost while driving, experienced hallucinations, and had her utilities cut off. She was diagnosed as having “Alzheimer’s dementia” and tremors by all three doctors. Her son Matthew testified that Shirley repeated the same things over and over again while speaking and could not remember one conversation to the next. Shirley’s daughter Gretchen testified that she had been handling her mom’s finances for over twenty years.

Shirley believed that her property could have been handled by less restrictive means other than an interdiction and therefore she is appealing her interdiction. She believed that her current caregiver could take care of her as she had been the five weeks before trial. The Court of Appeal found that the caregiver had not been around Shirley enough to handle this task and believed the testimony of her lifetime doctors and her children, who had more time to spend with her, were more valuable than the caregiver.

May 15, 2017

Louisiana Insurance Dispute Highlights Complexities of Concursus Proceedings

by Berniard Law Firm

money-1537580-781x1024 Concursus proceedings can be complicated. In a concursus proceeding, multiple parties assert competing claims to money or property. La. C.C.P. art. 4651. These types of proceedings are designed to free the court from the burden of dealing with multiple lawsuits. As a party to a concursus proceeding, you assert your claims to a particular piece of property against all other claimants. This necessitates a good lawyer, as demonstrated by a recent case of the Louisiana First Circuit Court of Appeal.

In 2010, Joseph Shows was injured in an automobile accident that left him with extensive bodily injuries and significant medical expenses. Fortunately for Mr. Shows, he had prepared for such events by obtaining uninsured/underinsured motorist (“UM”) insurance through Farmers Insurance Exchange in the policy amount of $100,000. He was also covered under a health benefits plan provided by his employer Trimac Transportation, Inc., administered by Blue Cross and Blue Shield of Texas, Inc. (“BCBSTX”).

After the accident, Shows was able to recover $25,000 from the at-fault driver’s insurance company, Allstate, in addition to $63,933.34 of Shows’ $100,000 Farmers UM policy limit. However, one question remained: Who would receive the remaining balance of Mr. Shows’ UM policy limit, totaling $36,066.66? Farmers filed a concursus petition against Mr. Shows and BCBSTX to recover the remaining balance.

May 13, 2017

Dispute Over Attorney Fees In New Orleans Turns into Volleyball Game Between Courts and Arbitrators

by Berniard Law Firm

the-law-society-1241368-683x1024 Louisiana law strongly encourages arbitration as a method of resolving disputes. Arbitration is a form of alternative dispute resolution whereby parties agree to be bound by the decision of neutral third parties. Arbitration promotes efficiency in dispute resolution because it attempts to resolve disputes before court involvement becomes necessary. It prevents courts from becoming backlogged with excessive caseloads. While arbitration promotes court efficiency, it can be a burdensome roadblock to certain litigants seeking recovery. A recent Louisiana case is illustrative.

Tiffany Christian and David were associate attorneys at The Law Office of Paul C. Miniclier in New Orleans, Louisiana. In 2008, both resigned, taking along with them one of the firm’s clients, Carolyn Hall-Williams. At the time of Ms. Christian and Mr. Binegar’s resignation, Ms. Hall-Williams had a lawsuit pending in the federal District Court for the Eastern District of Louisiana. While that lawsuit was eventually settled, the Miniclier Law Firm wanted to collect fees associated with Ms. Hall-William’s representation during her time as a client of the firm. The Miniclier Law Firm filed an intervention with the federal District Court. A magistrate judge awarded the law firm the costs associated with Ms. Hall-Williams representation, but no attorney fees. That award was later modified by a federal District Court judge to include a sum for attorney fees.

Unsatisfied with the award, the Miniclier Law Firm appealed to the U.S. Fifth Circuit Court of Appeal. The Fifth Circuit kicked the case back down to the federal District Court and ordered that the case is stayed (or postponed) until the parties commenced with arbitration. The federal District Court ordered Ms. Hall-Williams to proceed to arbitration, and a petition to arbitrate was filed with the Louisiana State Bar Association (“LSBA”). The LSBA has a Fee Dispute Program which helps resolve disputes between lawyers and their clients as well as disputes between lawyers. Ms. Hall-William’s fee agreement with the Miniclier Law Firm required that fee disputes be arbitrated with the LSBA. The LSBA dismissed the arbitration, in part because the parties could not reach an agreement concerning the scope of the proceedings and the potential impact on the law regarding attorney fee contracts.

May 12, 2017

Louisiana Court of Appeal Upholds Plaintiffs’ Pauper Status

by Berniard Law Firm

faculty-of-law-1492587-1024x768 Are you being or have you been sued and simply can’t afford court costs and litigation due to financial instability? If this is your case, you can file an affidavit of poverty also known as obtaining pauper status pursuant to La. C.C.P. art. 5183. By applying and obtaining this status, the court will permit you to continue litigation without requiring any payments before or throughout the litigation process. If in the course of litigation, the opposing side suspects that you are not actually eligible to obtain pauper status, they may request a hearing and provide evidence to show that you lack the required eligibility criteria (1/125 of the poverty level). At issue in an appeal from the Thirtieth Judicial District Court, the Third Circuit Court of Appeal entertained the discussion of whether or not an unconditional tender of a judgment can be used to revoke a pauper status.

The issue itself arose out of a claim made by plaintiffs Tammy and Tommy Dubois regarding medical expenses for an injury that was caused due to the defendants’ (Scottsdale Insurance Company and SMI Group) negligence. The plaintiffs prior to the court proceedings had gone through the correct procedure as outlined by La. C.C.P. art. 5183 and were granted pauper status.

The District Court ruled in favor of the plaintiffs on their negligence claims and the plaintiffs were awarded $211K. Unhappy with the amount awarded to them, the plaintiffs filed an appeal of the judgment. In response to the appeal, the defendants filed a motion to have the plaintiffs’ pauper status revoked claiming they had been “unconditionally tendered” payment of both the judgment and of the interest on the judgment in two separate checks. The plaintiff’s counsel refused to cash the checks, but the defendant argued that the money was readily available to them, therefore, their pauper status should be revoked because they did, in fact, have access to a sufficient amount of money.

May 10, 2017

Louisiana Court Finds Medicaid to Be “Other Insurance” Under Revised Statutes

by Berniard Law Firm

A car accident can create a significant change in one’s life. If nothing else, it can generate a large monetary cost that will be difficult to repay. Automobile insurance, which each person must have to a certain extent, can help with this cost. Other sources like governmental benefits may be of help to some, but it is essential to understand how public benefits and private insurance policies may interact. Louisiana law requires that a person who is suing an insurance company, such as the insurer of another driver at fault for a car accident, must exhaust any other insurance policies that the plaintiff may be entitled to benefits. La. R.S. 22:2062(A). This statute further states that benefits paid by a plaintiff’s insurance policy will be credited against any amount that the defendant insurance company may be said to owe, up to the policy limits of the plaintiff’s insurance. If there is no policy limit, then the full amount will be considered a credit.

In a recent case, the Louisiana Fourth Circuit Court of Appeal attempted to determine just what the law means by “other insurance”. This case involves Charles Brown, who was injured in a car accident in 2012 when another driver failed to stop at a stop sign. Mr. Brown sued the other driver and that driver’s insurance company now called the Louisiana Insurance Guaranty Association (LIGA). In response, LIGA argued that it should not be made to pay Mr. Brown’s expenses since he had received Medicaid benefits that exceeded the policy limit of the insurance policy at issue. Mr. Brown moved for partial summary judgment, arguing that either LIGA was not entitled to a credit for the Medicaid payments, that it would still be liable despite its credit, or that the statute does not block liability behind the first $15,000 in per-person benefits. In response, LIGA argued both that the Medicaid benefits exceeded its liability coverage and that Mr. Brown’s lack of automobile insurance coverage prevented his recovery. The District Court heard the arguments and denied Mr. brown’s motion while granting that of LIGA. The District Court dismissed the claim, ruling that Mr. Brown’s Medicaid payments entitled the insured defendant to a credit. Mr. Brown appealed to the Fourth Circuit Court of Appeal.

Mr. Brown argued that the District Court should not have considered Medicaid benefits to be “other insurance” for the purposes of the statute and that the benefits should not have been credited as they did not cover the extent of his injuries. He also argued that the Federal Social Security Act controlled such a case, or that the District Court misapplied the statute as a credit rather than a partial recovery prevention.

May 6, 2017

Louisiana Whistleblower Law Protects Against Employer Retaliation

by Berniard Law Firm

whistle-1423801-1024x768 The State of Louisiana has laws in place to protect whistleblowers with legitimate claims. These laws are critical to protecting workers and promoting healthy corporate self-governance. In Louisiana, La. R.S. 23:967 protects an employee whistleblower from retaliatory actions when in good faith, the employee advised the employer of some unlawful practice. It allows the employee to commence a civil action against the employer for the employer’s retaliatory actions. In a recent case, the U.S. Fifth Circuit Court of Appeal spells out the legal elements required to succeed on a whistleblower claim.

Justin Richardson worked for Axion Logistics, LLC, in Baton Rouge. Axion promoted Richardson to general manager within two months of hiring him. Shortly thereafter, Richardson became aware that two Axion employees were fraudulently billing an Axion client. Richardson reported these acts up the chain of command, including Axion’s president, its CEO and its CFO.

At one point, Axion’s CEO requested that Richardson not to tell anyone about the matter. Axion’s CEO and president allowed the illegal practice when they refused to inform the client. Subsequently, Richardson expressed to the CFO that Richardson would notify the client if Axion was unwilling to do so. A few weeks thereafter, Axion management criticized Richardson’s job performance. The president then terminated Richardson’s employment within a month, on the grounds that Richardson “was not a good fit” for the company.

May 5, 2017

Louisiana Lawsuit Shows How Hard It Can Be to Collect on a Judgment

by Berniard Law Firm

money-money-money-1240837-1024x768 Getting a judgment in your favor can often feel like a big win in court. After a judgment has been declared by the court many people believe the losing side simply gets out their checkbook and pays what they owe. While this may happen in some cases, many times after getting a judgment a person must fight an uphill battle to collect on that judgment. This is exactly what happened when a Louisiana company, Monster Rentals, obtained a default judgment against Coonass Construction of Arcadia (CCA).

In March of 2013 Monster Rentals brought a lawsuit against CCA to collect $4122.28 in unpaid invoices. CCA failed to answer the complaint. In accordance with Louisiana law, a default judgment was entered against the company. Essentially, if after a party being sued fails to answer a lawsuit for a certain period of time it is assumed they agree that they owe the amount in controversy. This is one reason it is so important to seek a good lawyer when you find out there is litigation pending against you. If you simply ignore the problem in hopes it will disappear it often can be a sure way to lose the case and end up owing money. In the default judgment against CCA the Trial Court awarded Monster Rentals both the $4122.28 and reasonable attorney fees.

Monster Rentals then began the difficult task of attempting to collect on the judgment. In order to collect on a judgment when someone is unwilling to pay, the party that is entitled to collect needs to get the court to place a lien or garnishment on some asset owned by the party that owes the money. In order to collect, Monster Rentals tried to place a garnishment on unpaid receivables owned by CCA. In order to do this Monster Rentals approached the court and asked it to set a fixed dollar amount for attorney fees in order to facilitate the collection of the judgment.