Litigation

May 12, 2017

Louisiana Court of Appeal Upholds Plaintiffs’ Pauper Status

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.

May 4, 2017

What Happens When Your Judgment Lacks The Magic Words

by Berniard Law Firm

lamp-post-1230572-689x1024 Language is key when it comes to the law. A court cannot give a plaintiff what he or she asks for if the request is vague. In a similar vein, a judgment’s lack of certain magic words can render it defective. Words have precise meanings in order to be given legal effect. This is illustrated by a recent of the Louisiana Fourth Circuit Court of Appeal. In this case, the Court of Appeal found that a trial court’s judgment lacked the required decretal language required to give the document legal effect.

Baraki Tsegaye was a taxi driver in New Orleans. While waiting for a fare outside of a hotel a pole fell on him and he was injured. Tsegaye sued Royal Engineers & Consultants, LLC, who were responsible for the light pole that struck him. Royal Engineers argued that they had no notice that the light pole was defective and filed a motion for summary judgment for the lawsuit to be dismissed with prejudice. To dismiss a case with prejudice means the case would be permanently ended. The Trial Court granted Royal Engineers’ motion for summary judgment but the judgment did not contain any decretal language, or words giving a legal effect. Tsegaye appeal the judgment.

The Louisiana Constitution grants the Courts of Appeal with appellate jurisdiction as well as supervisory jurisdiction. See La. Const. Art. V, § 10(A). Under La. C.C.P. art. 2082, appellate jurisdiction can be invoked as a matter of right by a litigant. And according to La. C.C.P. art. 2201, the decision to invoke supervisory jurisdiction lies within the discretion of the court. In order for a Court of Appeal to consider a case, there must be a final judgment.

May 2, 2017

Gretna Woman’s Excessive Force Lawsuit Against Gretna Police Fails For Lack of Evidence

by Berniard Law Firm

ambulance-light-1245195-1024x683 Excessive police force has become a nightly topic in the American news cycle. Ranging from discrimination to life-and-death situations, no one wants to be on the receiving end of mistreatment. In a recent case, a Louisiana woman experienced what she felt was excessive force by law enforcement officers in her own home. The Court of Appeal, however, disagreed. In its decision, the Court of Appeal discussed the burden of proof necessary to succeed on civil rights claims against government officers.

On November 16, 2011, the Gretna Police Department Special Response Team (“SRT”) entered Ms. Willie Nell Bullock’s home to execute a drug warrant. Video footage shows that two minutes after entering the home, an officer escorted Ms. Willie Nell Bullock outside and unfolded a chair for her on which she could sit. Ms. Bullock’s health was poor. She recently underwent surgery and suffered from advanced stage cancer, blood pressure, and diabetes. A year after this event, Ms. Bullock’s family filed a Section 1983 civil rights claim against the Gretna Police Department in federal court. The Bullocks’ alleged that Willie’s Fourth Amendment rights were violated by Gretna Police Department’s use of excessive force. The Trial Court granted the Police Department’s motion for summary judgment because of the dubious reliability of the claims asserted by the plaintiff, and the defendant’s qualified immunity. Ms. Bullock’s family appealed.

To prove a violation of a constitutional right by excessive use of force, the plaintiff must provide evidence that her injury resulted from the defendant’s clearly excessive use of force. That use of force in question must be so excessive that it is objectively unreasonable. Ramirez v. Martinez, 716 F.3d 369, 377 (5th Cir. 2013). This type of analysis requires the U.S. Courts of Appeal to look at the totality of the circumstances in determining whether the plaintiff has met her burden of proof.

April 30, 2017

Louisiana Court Discusses Evidentiary Issues in Case Against Louisiana Department of Transportation and Development

by Berniard Law Firm

us-highway-1-1631163-1024x683 In recent years, many have reported on America’s crumbling infrastructure. Reports show roads, bridges, and dams in disrepair, and raise significant questions about whether governments are applying appropriate modern standards when it comes to our infrastructure. In a recent case, the plaintiffs alleged that the Louisiana Department of Transportation and Development contributed to the death of a teenager in failing to apply appropriate standards in the Highway 923 overlay project. In this case, the Louisiana Third Circuit Court of Appeal discusses some of the evidentiary issues involved in establishing legal liability.

Two cousins, Weston Brown and Dustin Brown were traveling on Louisiana Highway 923 in Catahoula, Louisiana. Weston was fifteen years old at the time, and Dustin was seventeen. Dustin was driving. He passed a vehicle in the other lane before returning to his lane. He then saw a white car stopped in the middle of the road and tried to pass it in the other lane. Amanda Coleman was driving in the other lane and began to turn left. Dustin reacted and swerved to the left. His wheels hit the asphalt near the road’s shoulder. He tried to correct by swerving right. But he overcorrected. Dustin’s truck fell into a ditch, striking solid concrete. It flipped into the air, sending Weston Brown flying to his death.

All parties agreed that Dustin was driving at an excessive speed, but there was an issue of whether Louisiana’s Department of Transportation and Development (“DOTD”) contributed to the accident by failing to apply appropriate and modern standards in maintaining Highway 923. Built in the 1950s, the highway uses 1948 standards. An overlay project was conducted on the highway in 1988, expanding the travel lanes and decreasing the width of the shoulders. While DODT contended that the 1948 standards were appropriate in conducting the overlay project, and no modern updates were needed, the Plaintiffs argued that the American Association of State Highway Transportation Officials requires conformity with modern standards.

April 27, 2017

Lawsuit Against Louisiana Department Wildlife and Fisheries “Barred” and “Not Ripe”

by Berniard Law Firm

three-herons-1395291-1024x819 When a plaintiff files a lawsuit, he or she must make sure that the filing is done in the right court at the right time. The court hearing the dispute must have the power to adjudicate and resolve those claims. Sometimes, certain legal doctrine can bar a court from hearing a case, such as sovereign immunity. And similarly, cases can only be decided if the timing is right – the claim must not be brought to early or too late. The effect of filing the claim in the wrong court or at the wrong time can lead to a dismissal, wasting a substantial amount of time and money. In a recent decision, the United States Fifth Circuit Court of Appeal found that a case against the Secretary of the Louisiana Department of Wildlife and Fisheries was both barred by sovereign immunity and not ripe for adjudication.

The initial controversy in this East Baton Rouge case arose when the owners of Comite Dirt Pit, Inc. (CDP), Plaintiffs Richard and Betty Rush, failed to comply with the Louisiana Scenic Rivers Act (LSRA). The LSRA prohibits mining, logging, and the removal of trees within 100 feet of rivers such as the Comite River. La. R.S. 56:1856. The Louisiana Department of Wildlife and Fisheries (LDWF) had multiple temporary restraining orders (TRO) served upon CDP, which was situated on the Comite River, to cease its activity. The Plaintiffs challenged these TROs and filed a lawsuit alleging that LDWF was in violation of the Takings Clause and the Tenth Amendment. The lawsuit was dismissed because the Trial Court found that there was no subject matter jurisdiction. The Plaintiffs appealed.

There were two significant legal issues in this case. First, the Eleventh Amendment prohibits lawsuits in which the damages would be paid from public funds (i.e. lawsuits against the government). See Edelman v. Jordan, 415 U.S. 661 (1974). This is known as sovereign immunity. Though the lawsuit named Robert Barnham as a defendant, he was the Secretary of the Louisiana Department of Wildlife and Fisheries. Thus, if the defendant was found guilty of the Rush’s allegations, the damages would be paid with state money and the Eleventh Amendment. The Fifth Circuit accordingly found that the suit was barred and it had no jurisdiction over the Plaintiffs’ complaints.

April 26, 2017

Court of Appeal Considers Dance Ballroom to Be a “Merchant” Under Liability Statute

by Berniard Law Firm

ballroom-sign-1195748-1024x768 The Louisiana Merchant Liability Statute aims to protect persons from unreasonable risks of harm by unscrupulous merchants. At the same time, it limits the liability of merchants and protects them from frivolous lawsuits. In order to succeed on a merchant liability claim, the plaintiff must show that the merchant knew or should’ve known of the dangerous condition that harmed the plaintiff. In a recent case, while considering that a dance ballroom can be considered a “merchant, the Louisiana First Circuit Court of Appeal found that the plaintiff failed to show that the defendants had knowledge or constructive knowledge of the risk of harm.

In October 2010, D’Andrea Mills slipped and fell on a spilled drink and broken glass on the dance floor while attending a private party at the Lyceum Dean Ballroom in Baton Rouge. Mills sustained injuries, including two broken bones, which later required surgery, and was taken to the local ER for assistance. Mills filed a lawsuit seeking damages against Cyntreniks Plaza, L.L.C., the owner and operator of the Lyceum. Cyntreniks moved for summary judgment, seeking to have the case thrown out before trial. In its motion, Cyntreniks argued that Mills failed to satisfy her burden of proof under the Merchant Liability Statute, La. R.S. 9:2800.6, and there were no genuine issues of material fact for the court to determine.

The Trial Court granted summary judgment in favor of Cyntreniks and dismissed Mills’ claim. Mills appealed the judgment to Louisiana’s First Circuit Court of Appeals. The Circuit Court affirmed the lower court’s grant of summary judgment in favor of Cyntreniks. Judge Holdridge dissented.

April 23, 2017

Louisiana Trial Court Trips Up On Procedural Aspects of Improper Medicine Dosage Lawsuit

by Berniard Law Firm

medicine-5-1544051-1024x768 It is no secret that a lawsuit has the potential to become a tangled web of procedural issues. This is why it is always a good idea to secure a good attorney with experience in dealing with the court system. Perhaps less common is the situation where the judge, the party responsible for ensuring an efficient and timely resolution of the dispute, gets tripped up in this procedural web. This is exactly the situation below.

The dispute centers on a medical malpractice claim. Ms. Johnson showed up to Tulane University Hospital and Clinic (Hospital) one evening suffering from a severe headache and double vision. The Hospital staff administered an IV in Johnson’s arm, which later became infected. The Hospital discharged her with some antibiotics and told her to follow up with her primary care physician. Ultimately, the infection worsened and required a more serious antibiotic treatment and even surgery. Johnson sued the Hospital and the nursing staff.

Johnson alleged six total negligence claims against the Hospital and the nurses. Pursuant to the Hospital’s summary judgment motion, the Trial Court dismissed all five allegations against the nursing staff but allowed one claim to proceed against the Hospital. That one claim pertained to the antibiotic dosage the Hospital prescribed to Johnson after her initial visit.