Motorcycle Injury

February 22, 2013

Court Discusses Limits on Use of Uninsured Motorist Coverage

The arena of insurance law is a very confusing area in which, quite often, significant knowledge and experience is required for a quality outcome. It is important to know which types of coverage are available and applicable for different circumstances. Without knowing which coverage can apply and to what extent it can apply, an insured individual may find themselves without the coverage they thought they would have in the event of an accident. In some circumstances, insured individuals attempt to insure themselves in the event that the person who they get into an accident with is uninsured or underinsured. This has the result of allowing the insured to have access to a pool of money under all circumstances. Sometimes two different people may have uninsured coverage on the same vehicle or under the same policy. The impact of this kind of insurance largely depends on the relationship status of the parties. This type of a scenario was the focal discussion point in Hardy v. Augustine.

In this case, the Court discussed a way in which the plaintiffs attempted to add more claims to the general damages claim. Mr. Augustine was driving down the road and swerved into oncoming traffic. Mr. and Mrs. Hardy’s son was driving a motorcycle and was involved in a tragic head-on collision with Mr. Augustine after he swerved into oncoming traffic, which ultimately took his life. The tragic event led to Mr. and Mrs. Hardy bringing action against Mr. Augustine and his insurance company. The Hardys brought two distinct claims: they sued for past and future loss of love, affection, and companionship and they also sued for past and future grief and anguish. At the trial level, the jury awarded damages for each distinct claim. The jury awarded damages for both claims plus medical expenses and funeral costs.

Assuming that the amount of damages were going to exceed Mr. Augustine’s insurance coverage, the Hardys brought suit against State Farm, its own insurance company, under two different uninsured insurance policies. One policy was owned by Mr. Hardy and the other was owned by Mrs. Hardy. Each policy would pay up to $100,000 for each incident. State Farm paid $100,000 under the first policy, but refused to pay under the second policy citing the anti-stacking statute as a legal basis for denial of making a payout under both policies.

February 18, 2013

Workers’ Compensation is One of the Only Remedies for Injured Employees

by Berniard Law Firm

In Louisiana, an employee can only be compensated for a work related injury through workers’ compensation. This means that if an employee is negligently harmed during the course of work, the only remedy available is what is provided through the workers’ compensation act. This is true unless the injury was as a result of intentional conduct. In the business world, many general contractors contract out work to subcontractors. Legally the issue in such a case becomes how to define who the employee is employed by in case of an injury. In Louisiana, there is a doctrine called the two contract theory. The basic outline of this theory is that in a situation where there are three parties in a contract which includes a general contractor, subcontractor, and subcontractor’s employee, the subcontractor’s employee is considered an employee of the general contractor. This mean that if the subcontractor’s employee is injured while performing work for the general contractor, the employee will only be able to receive workers’ compensation, not any damages based on negligence or any other branch of tort law. This may, at first glance, seem like a harsh result. However, in the modern business world, there are so many employment contractual relationships that liability must be limited to what is reasonable under the circumstances. The two contract theory should not be viewed as a way to protect business, but rather as a means for the judicial system to not be able to overreach.

In a recent case, Mason v. Waste Management Inc. Et Al., the law concerning employee rights is discussed in such a circumstance. Lamare Kindle and Wallace Bradley, were employed by Waste Management Inc. Mr. Bradley was employed directly by Waste Management. Mr. Kindle was employed by CPST Inc. CPST was a subcontractor which had contractually agreed to supply Waste Management with employees in an effort to help Waste Management collect trash it was required to contractually pick up. Waste Management had agreed to pick up trash in a contract with the Morehouse Parish Police Jury. So the contractual relationships are broken down as follows: Morehouse Parish Police Jury needed a company to come pick up trash in its area. Waste Management agreed to pick up the trash and signed a contract with Morehouse Parish to do so. Mr. Bradley was employed by Waste Management. In an effort to fulfill its obligation to Morehouse Parish, Waste Management needed to hire temp workers. CPST contractually agreed to supply Waste Management with employees. Mr. Kindle was employed by CPST.

Mr. Bradley was driving a truck registered to Waste Management. Mr. Kindle was a passenger in the truck driven by Mr. Bradley. Upon coming to a train track Mr. Bradley made the tragic mistake of crossing over the tracks as a train passed the intersection. Both Mr. Bradley and Mr. Kindle was sadly killed as a result of the collision with the train. Mr. Kindle’s parents sued Waste Management alleging that it was liable for any negligence that was attributed to Mr. Bradley while he was driving the garbage truck. The police report stated that the accident was likely the result of Mr. Bradley’s inattentivness. Waste Management argued that under the two contract theory, Mr. Kindle was its employee and because there was negligence and not intentional conduct, the only remedy available was workers’ compensation. Because Waste Management held a position as a general contractor in relation to Morehouse Parish, and CPST held a relationship with Waste Management as a subcontractor, the circumstance of the contractual relationships fell under the definition of the two contract theory. Therefore, Mr. Kindle was considered an employee of Waste Management and the only remedy available was workers’ compensation.

February 12, 2013

Laissez les Bon Temps Rouler!

by Berniard Law Firm

The Berniard Law Firm is proud to be a New Orleans-based organization and nothing says NOLA better than Mardi Gras!

We wish all of our readers a happy, and safe, Mardi Gras holiday!

February 4, 2013

Kentucky Supreme Court Case Shows Need for Excellent Representation

by Berniard Law Firm

A recent case within the Kentucky Court of Appeals demonstrates very extremely the need for quality counsel in all court proceedings. Regardless the subject or reasons you may find yourself in court, it is important that the lawyer you hire is not only able to represent you well in the courtroom and past it. While you would like to think the courts have the rule of law well established in the minds of their judges, a qualified attorney will also review the matters at hand to make sure all ‘facts’ are correct in the proceedings.

In the case of Bramer Crane Servs., LLC v. Structure Builders & Riggers Mach. Moving Div., LLC, a lien issue was reviewed by the superior court of the state. While the actual facts of the case are not important for this post, what is important is that the findings of the court were inherently flawed. Cited in the case was a fact that was severely outdated, as much as 20+ years and two revisions.

As the blog Zlien notes, instead of a clean finding, the court had lapsed in its research and failed to note updated law. The issue was that the ruling relied on judicial precedence rather than a review of legislation passed during this time. While one would like to consider the issue a simple lapse in judicial research, the fact remains that this unpublished decision could very easily have gone unnoticed without people stepping up.

January 25, 2013

North American International Auto Show (NAIAS) Unveils Car Safety Gadgets to Avoid Distracted Driving, Accidents

by Berniard Law Firm

At their core, car accidents are inherently unexpected events that only some of the time can be avoided. Two common causes behind avoidable accidents are obstructions in the roadway and distracted driving. While road crews do their best to clean up roads and highways of clutter, flat tires and other types of vehicle damage are unfortunately too common. Similarly avoidable, whether applying makeup, eating in the car, trying to look up sports scores or, perhaps most infamous, texting with friends, Louisiana drivers and those across the United States often try to multi-task to pack more activity in their day. The problem with this is that, all-too-often, carrying out tasks while driving can cause a collision that can have disastrous results, both financially and physically.

The North American International Auto Show opened to the public this week in Detroit and amidst all the new models of cars are a variety of technological features aimed to help drivers avoid catastrophe. While major manufacturers brought along show features, like the Ford VIRTTEX Driving Simulator that replicates distracted driver scenarios in a booth, a variety of parts and technology demonstrations show promise in accident avoidance.

One type of new age tech that is creating buzz is V2X technology, wherein cars are able to communicate and, thus, avoid collisions, signal road conditions and alert to traffic jams. DENSO, a Japanese automotive part company, recently revealed a myriad of technology, including their Active Safety systems, that use monitoring provisions to detect and regulate against car problems. Beyond detection, though, DENSO has prioritized human machine interface (HMI) technology that helps prevent accidents and maintain driver attention. In all, the NAIAS featured an assortment of safety efforts (see the NTSB Chairman’s summary here) all geared to give drivers a technological advantage.

January 24, 2013

Admissibility of Photos One Part of Drive-Through Accident Involving Ambulance

by Berniard Law Firm

In the case of Johnson v. Smith, an ambulance driver drove his vehicle into the rear panel of another driver’s vehicle. This occurred in the drive-through lane of a Taco Bell. The defendant ambulance driver was determined to be at fault and lost at trial. On appeal, the defendants urged that certain pictures that had been deemed inadmissible at trial were crucial to their case. They claimed that it constituted reversible error on the part of the trial court not to admit the photographs in question. The appellate court disagreed and affirmed the trial court’s opinion.

The first reason for the appellate court’s decision on the matter of the admissibility of the photographs was that the photographs were not properly authenticated. While the law does not require photographs to be perfect representations of what they stand for, there is a standard that must be met. Photographs must be “sufficiently correct” before being admitted at trial. A trial court is permitted to admit photographs that have inaccuracies as long as the inaccuracies are explained. In this case, the police officer who was attempting to authenticate the photographs as taken by him may or may not have appeared in one of the photographs. This put the true origin of the photographs into question for the trial court. Because evidentiary rulings of a trial court are given great deference on appeal, the appellate court would only have disturbed this finding if it had found an abuse of discretion. Finding no such abuse of discretion, the court did not reverse on these grounds.

Another interesting reason for the appellate court’s decision in this case is that the court did not find that the photographs, if admitted, would have been at all helpful to the defendants who were urging the admission of those photographs. The court noted that the photographs may have been helpful to the plaintiffs in this case but found that the photographs would not have advanced the cause of the defendants. This type of harmless error is not going to result in a new trial for an aggrieved party. The appellate court found that the only real purpose that these photographs served was to establish the identity of the vehicles involved in this accident. None of the parties to the suit disputed the identity of the vehicles involved in the underlying accident.

January 21, 2013

Identifying the Wrong Defendant in Civil Suit Can Lead to Lost Opportunity

by Berniard Law Firm

The civil justice system has a few bare minimum requirements that must be met before a party can be successful in any given litigation. In order for a party to be successful in a civil action, that party’s case must make sense to the court in terms of the party accused, injury presented, etc. Initiating action against the correct defendant seems like it would be a given, however that is not always the case. Ms. Charise Thomas was injured in a particular location, eventually suing the owner of the location, Mr. Antonio Harris, due to the incident. Ms. Thomas also sued that man’s father, Mr. Aaron Harris. Unfortunately for Ms. Thomas, she did not initiate action against the estate of one Mr. Thirkield J. Smith, the owner of the property on the date of her accident.

The trial court granted Aaron Harris a peremptory exception of prescription and Antonio Harrris a summary judgment. These two different types of relief are granted for different reasons, having similar results but different standards of review on appeal. Each requires different elements in order to be granted to the moving party. In this case, they were also both upheld by the appellate court.

An exception of prescription is granted by a trial court when a certain time period has elapsed between the incident giving rise to a particular suit and the filing of that suit. Since Ms. Thomas never ended up filing against the appropriate party, Aaron Harris’ peremptory exception of prescription was granted and upheld on appeal. The trial court’s decision is given a fairly high amount of deference on appeal and is reviewed under the manifest error standard. If the trial court is found not to have abused its discretion, its decision will not be overturned.

January 14, 2013

Location Dictates Applicable Law, Law Dictates Fault in Marksville

by Berniard Law Firm

Location can be crucial in determining what law applies to a given situation. When an ambulance driver struck Mr. Dwight Johnson’s truck in the Marksville Taco Bell drive-through lane, Mr. Johnson and his friend were injured. His truck was damaged as well. Since this accident occurred in a parking lot, the general tort law of Louisiana applies to the case; the Highway Regulatory Act, while potentially persuasive, is not controlling in a situation like this. Relying solely on this source of law could prove detrimental to a party in a personal injury action. The defendants in this case, Smith v. Johnson, were unsuccessful for many reasons, not the least of which was that they failed to convine the court to place the blame for the accident anywhere but on themselves.

One plaintiff in this case, Mr. Johnson, testified that he saw the ambulance, noticed that it was stopped and noted that its brake lights were illuminated. Only then, according to his testimony, did he proceed. There was no testimony concerning Mr. Johnson’s view being obstructed, nor was there evidence that he was speeding presented at trial. Mr. Smith, the ambulance driver, testified that he felt the impact with the other vehicle rather than saw it and evinced that he was not paying attention to the situation in front of him while proceeding forward in his vehicle. The Highway Regulatory Act is not binding on activities in parking lots. It is, however, persuasive. In this case, it was persuasive against the defendants.

This case was not the first time that the Louisiana appellate courts have allocated fault in accidents that occurred in parking lots. The court mentioned two notable cases in its analysis in this case. In Gatheright v. State Farm Mut. Auto. Ins. Co., a standard of due caution was set that applied to all motorists proceeding in a parking lot. In that case, the plaintiff was traveling too fast and not applying her brakes. As a result, she was found to be 100 percent at fault for the accident giving rise to the case. The standard set forth in this case appears to have been refined and clarified in a line of cases that have come after it.

January 3, 2013

Prescription Limits Discussed in Case Coming from Baton Rouge Fall

by Berniard Law Firm

Lawsuits have limitations on when an individual can sue. These limitations are important so that people will not dread being sued for some things for their entire lives. It is also important because evidence will be fresher and readily available the sooner the lawsuit commences. However, these limitations also imply that those injured and lawyers need to act quickly and efficiently in order to get claims filed in timely manner.

In Louisiana, these limitations are known as liberative prescription. Their common-law counter-part is the statute of limitations. There are also two other types of prescription in Louisiana: acquisitive and prescription of nonuse. Acquisitive prescription is a means of getting ownership of property though possession for a period of time. For example, if you possess land for an uninterrupted period of ten years in good faith, hold it publicly and peacefully, and act as if you are the owner then you will eventually actually own the property. The common-law counter-part for this concept is adverse possession. The last type of prescription is the prescription of nonuse whereby your rights, other than ownership, can be extinguished if you do not use the property for a period of time. Usually that time frame is ten years as well.

The length of each liberative prescription is different depending on the type of case. For example, personal injury cases have a liberative prescription of one year. Therefore, the case must be brought within one year of the date of the accident or the court will not hear the case.

December 27, 2012

Worker’s Injury After Hours at Workplace Puts Claim Process Under Scope

by Berniard Law Firm

To bring a case to court, it seems obvious that you must have some kind of legal basis for your claim. For a personal injury case, that could mean that someone else caused you to slip and fall; you slipped because the floor was wet. In that type of case, someone else had a duty to keep the floor clear from slippery things, and they did not follow through on that duty. Because of their lack of follow-through, you can likely bring a case to court so that the person that failed to keep the floor clear of slippery things will be responsible for their actions. However, if you slipped in your own house because your son spilled on the kitchen floor, you are very unlikely to have a case against your ten-year-old son.

While the explanation seems simple, it is not in many cases. The law is filled with qualifications and loop holes. In the previous example, you cannot bring a case if no one had a duty to keep the floor clear from slippery things. In personal injury cases, there needs to be a duty to create liability.

There are also time, place, and manner restrictions in bringing lawsuits as well. The classic example is restricting work injuries to worker’s compensation claims. Generally, if you are injured while at work, then you do not file a separate lawsuit, you file a worker’s compensation claim. It is similar to an in-house procedure for taking care of injury claims. Worker’s compensation is an insurance that the employer uses so that they cannot be sued in the regular courts. It provides damages in the form of wage replacement and medical expenses. Therefore, if you tried to bring a case for being injured while you are at work to a normal courtroom, you would likely be dismissed because the worker’s compensation program should be handling your claim, not the court.