Articles Posted in Litigation

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adam-s-apple-1161808-1024x575Plaintiff Richard Reynolds sustained injuries in a multi-vehicle accident on March 15, 2008, in St. Tammany Parish. Reynolds alleged, amongst other counts, that his insurer, Automobile Club Inter-Insurance Exchange (ACE) and Insurance Auto Auctions Corporation (IA) failed to preserve Reynolds’ vehicle for inspection purposes to determine whether any defects existed, despite being put on notice of the need for preservation. ACE and IA defended themselves by stating there was “no cause of action” for what Reynolds was attempting to sue for, and the Supreme Court of Louisiana granted certiorari, or an order to review the decision of the lower court, to definitively rule on the viability of negligent spoliation of evidence as a cause of action in Louisiana.

Reynolds claimed that both ACE and IA did not preserve Plaintiff’s car despite the fact that they knew of the lawsuit.  Reynolds stated that the defendants knew a lawsuit was going to be filed and therefore had a duty to retain the vehicle in the condition in which they received it.

Negligent Spoliation of evidence, as argued by the Plaintiff, Richard Reynolds, is a claim for recovery due to defendants owing the plaintiff a duty to preserve, maintain, and to refrain from any alienation or destruction of Plaintiff’s vehicle for purposes of his litigation.

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pittsburgh-4-1234992-542x1024Mental and physical disability is a trying issue for families that can cause incredible stress, especially when the person suffering from these infirmities is unwilling or unable to recognize their condition.  Further, when the person is mentally unable to manage their health, personal, financial, and business affairs, legals steps must be taken to protect those interests and counsel from an excellent lawyer can mitigate some of the pain and stress such a situation can cause a family.  The Foster family faced just such a situation when Mrs. Patricia Foster suffered a ruptured brain aneurysm during surgery and as a result of brain injury no longer was able to live independently, care for herself, or make sound personal and financial decisions.  Her husband, Mr. Billy Joe Foster, thus sought a full interdiction so that he could make legal decisions on her behalf.  The trial court took testimony from Mr. Foster’s doctors and her family members and ruled that full interdiction was warranted.  Mrs. Foster appealed and the Louisiana First Circuit Court of Appeal upheld the full interdiction order.

An interdiction in Louisiana is a process whereby a concerned party requests that a court holds hearings to determine whether a person is unable to make reasoned decisions about personal and property matters.  If a court finds that interdiction is warranted, the court will appoint someone to make decisions for them.  A full interdiction is warranted when a court determines that the person in question is unable to competently make decisions about their personal affairs and their property.   “A court may order the full interdiction of a natural person of the age of majority, or an emancipated minor, who due to an infirmity, is unable consistently to make reasoned decisions regarding the care of his person and property, or to communicate those decisions, and whose interests cannot be protected by less restrictive means.  LSA-C.C. art. 389.  Essentially, a court will look to testimony of family members and doctors to determine whether a medical or other condition renders a person unable to make decisions in a reasoned manner, placing their interests at risk.  The person petitioning the court for the interdiction bears the burden of proving the interdiction is necessary by clear and convincing evidence.  LSA-C.C.P. art. 4548.

After Ms. Foster suffered the ruptured brain aneurysm, her family felt that she had become a different person and was acting strangely and illogically.  She began acting unreasonably and became fixated upon a man she knew from her past but had not spoken to in over fifty years.  Mr. Foster and their three sons all supported the interdiction based on these allegations because they had all seen the changed behavior in a formerly stable and reasonable person.  Mrs. Foster’s brother and sister also testified that Mrs. Foster had become an irrational person and supported Mr. Foster as consistently acting within her interests, thus making him a suitable legal guardian.  Further, Mrs. Foster’s physicians also supported interdiction.  Mrs. Foster’s medical psychologist testified that Mrs. Foster had admitted to trying to jump out of a moving car on two separate occasions.  The doctor testified that Mrs. Foster consistently acted illogically and that her obsession with a man from her past was delusional and a result of her condition.  A court appointed doctor who evaluated Mrs. Foster also came to the same conclusions and did not believe that Mrs. Foster would be able to live independently.

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bulldozer-1-1219006-1-1024x690In 2012, an independent contractor, Charles Kamrath, contracted with Creek Services, LLC to move one of their bulldozers. Kamrath had previously moved the same bulldozer with his trailer without any complications. On February 24th of 2012, Kamrath loaded the bulldozer to his trailer and commenced the transportation to Hammond, Louisiana. Unfortunately, the flatbed from the trailer detached and struck an oncoming car driven by Alice Lewis on Cullom Road in Springfield, Louisiana. The impact resulted in severe injuries to Lewis and she subsequently died shortly thereafter.

Lewis’ family, the plaintiffs, filed a wrongful death lawsuit in Livingston parish against not only Kamrath and Creek Services, but also their insurance companies Allstate and Houston Specialty. The defendants, Creek Services and Houston Specialty, claimed that Creek Services was not vicariously liable (which means they argued they were not responsible for the acts of Kamrath) for the wrongful death of Lewis under the doctrine of respondeat superior. In plain English, the defendants sought to release Creek Services of any liability because of a lack of an employee/employer relationship between Kamrath and Creek Services. In cases such as this one, whether a worker is labeled as an independent contractor or an employee is incredibly important. Such a determination is a question of fact, and different liabilities attach under each label. If Kamrath is an employee, then the doctrine of respondeat superior says that the employer, Creek Services, will be liable for damages, while Kamrath will be released of it. See La. Civ. Code art. 2320.  If, however, Kamrath is an independent contractor (the determination of which is made through a variety of court imposed factors listed below), Creek Service’s liability will be severed, and Kamrath will be the party solely responsible for the plaintiffís incurred damages.

An exception to the lack of liability on the part of the employer exists even if the worker is determined to be an independent contractor.  See Triplette v. Exxon Corp., 554 So.2d 1361, 1362 (La. App. 1st Cir. 1989). This exception states that the employer may be held liable if it maintains operational control over the activity in question. The most important aspect is whether the employer retained the right to exercise control over the work. Thus, actual control is not necessary. In the determination of whether an independent contractor relationship exists, courts have routinely examined the following factors: a valid contractual relationship between the parties; work is of an independent nature; the contract allows for the work to be done per the contractor’s methods without any control or direction from anyone else; an agreed upon price for the services; and the duration of the work is for a specific amount of time and not subject to termination at will by either of the parties.

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justice-1426299-768x1024In the law, it is quite rare for a case to ever be considered simple. Though the issues may seem quite obvious and clear to a plaintiff, it is almost never a good idea to represent oneself “pro se”. This is partially because of the subtle procedural pitfalls which may decide the outcome of a case. In the vast majority of legal matters, it is a good idea to carefully select an experienced attorney to guide the plaintiff through the legal process.  Unfortunately for a Pro Se Plaintiff in a case arising out of Calcasieu Parish the complexities of appellate procedures caused him to lose his rights to appeal.

In the original matter before the trial Court Pro Se Plaintiff Sidney Stagg alleged that he was injured while walking in a parking lot by a vehicle being driven by a Suddenlink employee.  The defendants filed various motions stating that the Plaintiff could not prove any of the alleged acts, specifically they produced evidence that the vehicle did not hit Mr. Stagg.  After an initial hearing following the defendants’ motion for summary judgment, the Fourteenth Judicial District Court of the Parish of Calcasieu granted the motion and dismissed the plaintiff’s case with prejudice. This means that the plaintiff would be unable to file another action regarding the same transaction. The judgment was signed on June 26, 2014, and the court signed an order granting the plaintiff an “out of time” appeal on December 5, 2014. The defendants filed a motion to dismiss the unlodged appeal on February 6, 2015, essentially contesting the  district court’s grant of the out of time appeal since the plaintiff’s appeal was untimely. Notably, the plaintiff never filed an opposition to defendants’ motion.

In applying the Louisiana Code of Civil Procedure Article 2087(A)(1) and Article 1974, the Circuit Court observed that the delay period for seeking a new trial expired on July 8, 2014, and the period for  filing a motion for devolutive appeal expired on September 8, 2014. Since the plaintiff’s appeal was dated by the clerk’s office on January 5, 2015, and that appeal was labelled as an “out of time” appeal, the Circuit Court held that the original appeal request was untimely under the Louisiana statutes. This  means that the plaintiff’s appeal was successfully defeated by the defendants’ motion to dismiss the plaintiff’s unlodged appeal.

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independence-day-1436454If you are fortunate enough not to sustain serious injury as a result of someone else’s negligent actions, you may not realize that the compensation for your injuries can be apportioned and spread to other liable parties. Further still, if you were partially responsible for causing your own injury, you will likely see a reduction in the amount of damages you can recover. This was the case for a Ponchatoula High School band student who was injured while on a school-sponsored band trip in Tennessee.

In May 2006, Kent Kinchen, while on a band trip to the Smokey Mountain Music Festival in Gatlinburg, Tennessee, sustained an eye injury after a game involving Airsoft novelty guns, purchased at a tourist shop earlier that day with his fellow classmates. A year later, Kent and his father Barry Kinchen, filed a lawsuit seeking damages against the Tangipahoa Parish School Board for the incident.

The trial court found the School Board partially liable for the injury because “allowing the students the opportunity to purchase various weapons while on the school sponsored trip created an atmosphere that did not provide all students with reasonable supervision…” The trial court awarded the Kinchens $20,000 in “general damages”, which cover mental or physical pain or suffering, inconvenience, loss of gratification or intellectual or physical enjoyment, or other losses of lifestyle that cannot be definitively measured, $14,329.34 in “special damages”, which are damages that can be more readily measured, like medical costs or loss of wages, and awarded Mr. Kinchen $1,000 for related claim of loss of consortium, which refers to the loss of love and affection, companionship, loss of material services, support, etc. The school board, appealed the finding of liability, and the Kinchens appealed the amount of damages, arguing that the amount was “abusively low.”

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for-the-love-of-money-1543612-1024x768Love gone bad, broken promises and loans not written down come to a head in the following case in Jefferson Parish.  In the case at hand, Mr. Palmisano and Ms. Nauman-Anderson had been romantically engaged for several months, during which time Mr. Palmisano allegedly credited Ms. Nauman-Anderson with nearly $26,000 dollars in loans. These loans were allegedly subject to an oral agreement at the time that they were advanced and no effort was made to memorialize the loans (put them in writing) until the romantic relationship between the parties had ended. Upon severing romantic ties, Mr. Palmisano provided Ms. Nauman-Anderson with a promissory note in order to commemorate their alleged agreement but Ms. Nauman-Anderson refused to sign the note, claiming that the loans were in fact gifts. In response, Mr. Palmisano brought suit for a breach of contract.

Following a summary judgment granted by the Twenty-Fourth trial court of Jefferson Parish the case was dismissed. In dismissing Mr. Palmisano’s suit, the trial court affirmed Ms. Nauman-Anderson’s theory that the Louisiana Credit Agreement Statute precluded claims against her.  See Louisiana Credit Agreement Statute, La. R.S. 6:1122

Ms. Nauman-Anderson claimed that the Louisiana Credit Agreement Statute provided a complete defense because the promissory note was unsigned and the statute does not allow an action to be maintained based on an oral promise.  Mr. Palmisano appealed the trial court’s decision to the Louisiana Fifth Circuit of Appeal.

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law-offices-1477311-1-1024x743The Court of Appeals in the Second Circuit of Louisiana recently took on a “case within a case.” This phrase is used in situations of legal malpractice against an attorney’s actions. For years a standard was set for these trials that required the client of the malpracticing attorney to prove the amount of damages by going through the original case they brought to the attorney. Jenkins v St. Paul Fire & Marine Insurance Co set forth a new standard.  Jenkins v. St. Paul Fire & Marine Ins. Co., 422 So. 2d 1109 – La: Supreme Court 1982.

In Jenkins the court decided that in situations where a plaintiff proves his prima facie case upon a showing that his former attorney is negligent (such as a showing that your attorney did not file your lawsuit in time) it makes more sense for the negligent attorney to carry the burden of overcoming the client’s accusations by proving they never could have won their original claim. Then the jury would be left with deciding causation and damages. Therefore, if the client can prove the attorney accepted the job and failed to timely assert the claim there is a prima facie case of negligence against the attorney. From here, the burden is on the negligent attorney to overcome the claim of legal malpractice.  To do this the negligent attorney will typically try to show that the client would have never won the lawsuit he was hired to pursue on their behalf.  Such a situation is shown in the facts below:

In May 2009 the Plaintiffs, suriving daughters of Brenda Noid, hired attorney Mason Oswalt for a medical malpractice/wrongful death claim arising from the death of their mother. On February 8, 2010 Oswalt filed the complaint naming a doctor, and St. Francis Medical Center as the Defendants. Oswalt received a letter dated February 18, 2010 from Patient’s Compensation Fund (“PCF”) saying Oswalt had until April 5, 2010 to pay a $300 filing fee. The payment was not done in time and the PCF notified Oswalt that the claim was not going to be considered. Oswalt sent a $300 check to PCF on May 6, 2010 asking that the Plaintiff’s claim be reinstated because the failure to pay was because of a clerical error. The PCF denied this request on May 12, 2010.

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construction-workers-1215154-1024x738Construction contracts can be confusing because contractors often use many subcontractors to carry out the terms of the contract. This is why when a dispute arises those involved in construction contracts need the best lawyer possible to untangle contractual provisions especially in the context of payment to subcontractors.

The Dryades Young Men’s Christian Association and Ellis Construction, Inc. entered into a contract for a project known as the Dryades YMCA Natatorium and Wellness Center in New Orleans, Louisiana. Ellis then entered into a subcontract with Rotolo Consultants, Inc. (RCI). RCI formed a contract with Tymeless; Tymeless was a subcontractor of the first subcontractor, RCI. After performing the terms of its subcontract, Tymeless invoiced RCI. Although RCI made a partial payment, RCI did not pay Tymeless completely. In its lawsuit, Tymeless claimed that RCI was liable to it for the full amount of the contract, plus interest, attorney’s fees, and costs. In response to Tymeless’ lawsuit, RCI filed a dilatory exception of prematurity, based on the payment provision in its subcontract with Tymeless: “Payments are to be made as follows: 90% of Sub-Contractorís approved invoices or pay request will be paid subject to the conditions following, after payment by the Owner for Sub-Contractor’s work. Retention of 10% will be released upon satisfactory completion of this contract and release of final payment by the Owner.” RCI argued that because of this provision, “unless and until” Ellis paid RCI, RCI could not pay Tymeless the amount Tymeless wanted. The district court in New Orleans found that the contract had a “pay-if-paid clause” and dismissed the lawsuit filed by Tymeless.

On appeal, the issue was whether the provision in the subcontract was a “pay-if-paid” clause or a “pay-when-paid” clause. Most courts now treat pay-when-paid clauses differently than pay-if-paid provisions. A “pay-when-paid” clause creates a window of time in which the general contract has to pay the subcontractor. The general contractor has to pay the subcontractor within a reasonable time, even if the general contractor does not receive payment from the owner. A “pay-when-paid” clause can be interpreted in two ways: setting a condition before payment, or fixing a specific point in time at which payment is due. Most states hold the view that “pay-when-paid” clauses function as time mechanisms, and not as a condition precedent. The more restrictive “pay-if-paid” clause indicates that the general contractor is only required to pay the subcontractor if and to the extent that the general contractor has received payment from the owner for the subcontractor’s work. In other words, the risk of nonpayment is transferred from the general contractor to the subcontractor. Louisiana law aligns with the national viewpoint of a “pay-when-paid” clause; under Louisiana law, such a payment clause sets a reasonable time for payment. Southern States Masonry, Inc v. J.A. Jones Constr. Co., 507 So. 2d 198 (La. 1987). On the other hand, “pay-if-paid” clauses create a condition precedent to the subcontractor’s payment. Imagine Constr., Inc. v. Centex Landis Constr. Co., Inc., 707 So. 2d 500 (La. App. 1998).

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freedom-of-speech-1058617-1024x900When the law is clear and unambiguous and its application does not lead to absurd consequences, then the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature. If however there are multiple interpretations to a statute, the court will examine it in order to figure out what the legislative intent was behind it in hopes of clearing up any and all ambiguities. The Louisiana Fifth Circuit Court of Appeal was recently faced with the task of interpreting a statute in order to determine whether or not it was properly applied at the trial level. The particular piece of legislation at issue is Louisiana’s Code of Civl Procedure Article 971. The issue rose within the context of a lawsuit brought by Chris E. Yount against Douglas Handshoe for defamation and several other related claims in which Mr. Handshoe was granted a special motion to strike pursuant to Article 971 asserting that his speech was protected under the First Amendment.

The defamation itself arises from a series of posts and comments authored by Mr. Handshoe and codefendant Jacke E. Truitt on www.slabbed.org, which is owned and operated by Mr. Handshoe and his company New Slabbed Media, LLC. On February 13th 2014 Mr. Handshoe published a drawing authored by Mr. Yount’s 13 yr old son on www.slabbed.org which had been used in Mr. Yount’s prior divorce proceedings in the 24th Judicial District Court. The captions authored by Mr. Handshoe clearly identified the author as a minor child and the divorce proceedings the child was involved in. The trial court found Mr. Handshoe’s blog posts were protected by his right of free speech under the United States and Louisiana Constitutions. Thus granting Mr. Handshoe’s special motion to strike dismissing all of Mr. Younts claims. Mr. Yount then filed for an appeal of the trial court’s ruling to the Louisiana Fifth Circuit Court of Appeal. Mr. Yount on appeal argued that the trial court erred in application of Article 971 because he is a private figure and the claims arise out of comments made in connection to a private rather than public issue.

The appellate courts decision hinges on the interpretation of Article 971.  That code article can be interpreted so that the special motion to strike will apply to any and all statements made in connection with any issue under consideration by a government body or alternatively that it will apply only to statements made in connection with public issues under consideration by a government body. Because the statute can be interpreted in multiple ways with adverse effects and absurd consequences the appellate court examined the purpose of the law to determine which of the above meanings conforms to the true purpose of the legislature. The court identified Article 971 as Louisiana’s Anti-SLAPP (Strategic Lawsuit Against Public Participation) statute, lawsuits under this statute involve a civil complaint or counterclaim filed against non-governmental individuals because of their communications to a government body or electorate on an issue of some public interest. The special motion to strike was created to limit discovery, dismiss meritless claims quickly and award attorneys fees to the winning party regarding SLAPP claims.

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fireman-s-playground-1496789-1024x768Playgrounds bring great joy to young children.  Countless hours are spent sliding down slides, swinging on swings and traversing monkey bars throughout the state of Louisiana.  While it might come as news to some, playground equipment has certain set standards for what age range is appropriate to play on the equipment.  In a recent case involving a Baptist Church Aftercare program in Jefferson Parish these standards were discussed when unfortunately a young girl broke her arm while playing on their playground.

In September 2010, a 19-month old girl fell and broke her arm playing on a playset while in an aftercare program at Riverside Baptist Church. The playset was only meant for children 5 years old or older.  The parents of that child felt that Riverside failed in providing age appropriate equipment and therefore sued Riverside for damages in a negligence claim.

Personal injury can arise in many different scenarios, ranging from automobile accidents to medical malpractice cases. A common occurrence in these claims include the theory of negligence. The legal foundation for a negligence (failure to use reasonable care) theory in Louisiana involves five elements: (1) the defendant (the party being sued) had a duty to exercise reasonable standard of care; (2) the defendant failed to exercise this duty; (3) because the defendant’s lack of exercising this duty properly caused the injury; (4) the defendant’s ‘substandard’ care was within the scope of liability (i.e. even if the cause, were they legally liable for the cause); (5) did actual damages (injury or economic loss) occur. La. C.C. art. 2315. 

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