Negligence

April 3, 2023

What is the Deadline to File a Workers’ Compensation Claim in Louisiana?

inside_ambulance_ambulance_lighting-1024x576 Physically demanding jobs can result in workplace injuries that prevent employees from working and earning a wage. However, it is essential when filing a worker’s compensation claim not only to prove your claim but to do so within the timelines required by the courts. A workplace accident claim filed in Metairie, Louisiana shows the importance of timeliness in workers’ compensation lawsuits and helps answer the question; What is the Deadline to File a Workers’ Compensation Claim in Louisiana?

Tramaine Eugene-Robinson was working as an EMT for East Jefferson General Hospital in late 2014. While transporting a patient on a stretcher, a malfunction occurred, causing her to drop the patient and injure her back and knees. When EJGH did not pay her wage benefits, Ms. Eugene-Robinson sued in 2017, alleging that she had suffered an injury of a “developmental nature,” meaning that the injury developed sometime after the actual accident. Although EJGH acknowledged that the plaintiff had experienced an injury at work, they argued that her claim was untimely under La. R.S. 23:1209(A).

La. R.S. 23:1209(A) sets time limits on worker’s compensation claims. The courts have recognized two different situations that establish the date that an injury turns into a disability: 1) the date the employee must stop working due to the injury or 2) the date that an employee is diagnosed as disabled. Winford v. Conerly Corp.

April 2, 2023

Can I get Workers’ Compensation Benefits if I Don’t Immediately Report My Injury?

by Berniard Law Firm

washing_machine_dryer_laundry-1024x768 Many jobs require physical labor, which comes with some risks of injury on the clock, especially for those who install and move equipment. Sometimes you get injured while working, and you think, “maybe I can just work through this.” However, if you attempt to work through an injury and don’t report it immediately to your employer, they may try to avoid paying you workers’ compensation benefits. This happened to James Payton, a veteran and previous employee of NASA. Payton’s case helps answer the question; Can I get Workers’ Compensation Benefits if I Don’t Immediately Report My Injury?

James Payton began working for Sears in 2013. Before this position, Payton served in the military and worked for NASA for 31 years. He was hired at Sears as an appliance technician, which requires some physical labor. During a shift, Payton was installing a washer/dryer in a residence and injured his back. Payton had never been involved in another accident or had injured his back before his employment with Sears.

Payton continued working after his injury in the hope it would correct itself. Unfortunately, the injury worsened over the next few days, and Payton found it challenging to complete simple actions, such as getting out of bed or driving a car. After visiting a physician and receiving an MRI, it was confirmed that Payton had herniated discs in his lower back, and he was advised to avoid heavy lifting. He then reported his medical diagnosis to Sears approximately a month after the initial injury.

April 1, 2023

What is the Deadline to Answer and the Effect of Requests for Admissions in a Louisiana Lawsuit?

by Berniard Law Firm

request_hooks_chain_steel-1024x683 If you are involved in a lawsuit, you probably have a lot of things on your mind. However, you must pay attention to the required deadlines and time to respond to documents from the other side, including requests for admission. If you do not respond on time, you might be deemed to have admitted to facts that are helpful to the other side. That could cause significant implications for your lawsuit. The following Louisiana lawsuit shows the deadline to answer and the effect of admission requests.

Steven Richard was involved in a car accident in Concordia Parish, Louisiana, involving a vehicle driven by Fred Taylor. Richard later sued Taylor, Fred’s Automotive (the shop where Taylor’s vehicle was repaired), and Caitlin Insurance, the insurance company that covered Fred’s Automotive.

Fred’s Automotive and Caitlin Insurance brought a motion for summary judgment. They argued they could not be liable to Richard because their limited liability company had not existed when the accident occurred. As evidence, they introduced a printout with the relevant recording and other operating information for their limited liability company. The trial court granted their motion for summary judgment and dismissed the claims against Fred’s Automotive and Caitlin Insurance.

March 31, 2023

Slip and Fall in Louisiana Convenience Store Lawsuit Discusses Open and Obvious Risk

by Berniard Law Firm

wooden_pallets_pallets_stack-768x1024 If you have ever watched a legal television show, you have seen the wide variety of evidence presented. Even if your lawsuit is not as high-stakes as the latest murder mystery show, it is still important to present sufficient evidence to satisfy your burden of proof and prevail on your claim. Otherwise, your case could get dismissed on a motion for summary judgment. The following lawsuit involving a slip in fall in a Louisiana convenience store discusses the concept of open and obvious risks.

Moore drove his car to a Murphy Oil gas station in Hammond, Louisiana. After he had purchased some items in the convenience store, he walked towards the door. While he reached for the door, he turned back and talked to the store manager. As he left the store, his foot contacted a pallet display stand with water bottles that were located right outside the door. He tripped and stumbled but did not fall. Moore reported this to the store manager. Afterward, he received treatment for his back pain. Murphy Oil paid for this treatment for about four months.

When Murphy Oil stopped paying for his treatment, Moore filed a lawsuit alleging that the display with water bottles was an unreasonably dangerous condition. The defendants, Murphy Oil and Liberty Mutual Fire Insurance, filed a motion for summary judgment. The court denied this motion, and the case went to trial. Before trial, Moore agreed that his damages were not over $50,000. At the trial, the court ruled in favor of Moore and awarded damages of $37,500. After they lost, Murphy Oil and Liberty Mutual appealed, arguing that the trial court incorrectly denied their summary judgment motion.

March 30, 2023

When Is A Louisiana Jury Verdict Considered Excessive?

by Berniard Law Firm

money_finance_house_mortgage-1024x678 What happens if you win a lawsuit but the other side moves to reduce the amount of money you were awarded? This is the situation Marcus Berry found himself in after he was awarded over a million dollars in damages due to injuries he suffered in a car accident.

Following a car accident, Berry sued the driver of the car that hit him, Leon Berry, and his insurer, Auto-Owners Insurance Company. The other driver admitted liability but contested the nature and extent of the damage Berry suffered.

At trial, the jury agreed Berry was injured as a result of the accident. They awarded him a total of $1.29 million in damages. This consisted of $900,000 for pain and suffering and loss of enjoyment of life previously, presently, and in the future, as well as $390,000 for medical expenses. Following this award, the defendants moved for a new trial or remittitur (a procedure where the court can reduce an excessive verdict), arguing that the jury had awarded excessive damages.

March 26, 2023

Louisiana Court Holds Plaintiff’s Failure to Have Surgery Precludes Argument for Future Medical Expenses

by Berniard Law Firm

surgery_medicine_science_1501907-1024x683 Scheduling a post-accident surgery promptly may be essential to ensure complete physical recovery. Sometimes, the scheduling of post-accident surgery matters less. However, scheduling your surgery prudently may pay off when recovering damages in court, as one plaintiff found in a recent appeal discussed below.

In 2010, Karl Kimsey was involved in a car accident in DeRidder, Louisiana. Mr. Kimsey alleged a left knee injury and underwent an arthroscopic procedure in late 2010. Kimsey filed a lawsuit against his car insurance company. In 2013, an initial judgment awarded damages, lost wages of $300 a week limited to his period of recovery and required the scheduling of a recommended reconstructive surgery. The defendant’s insurance company would pay for the surgery, provided it happened within one year of the judgment. If the surgery did not happen within one year, any party could return to court. Both parties appealed that order, but their appeals were dismissed because the judgment was conditional and thus not final. Mr. Kimsey did not have the surgery within one year and appealed the final trial court order.

Mr. Kimsey’s main issues on appeal were that the court erred in not awarding future medical expenses, not awarding the argued lost earning capacity of Mr. Kimsey; and erred in the amount awarded of an expert fee for Mr. Kimsey’s expert. The relevant standard of review for these issues are“manifest error” or “clearly wrong”——a demanding standard to meet in Louisiana that requires the reviewing court to review the record in its entirety “to determine whether the trial court’s finding was clearly wrong or manifestly erroneous.” Stobart v. State through Department of Transportation and Development,

March 23, 2023

Will an Appeals Court Consider Evidence that Attorneys forget to “Offer and Introduce?”

by Berniard Law Firm

law_justice_court_judge-1024x768 Most lawsuits begin with a petition that lays out the facts and basis for a claim. These facts are pertinent to the survival of each claim and defense. Many pretrial hearings and motions are based on what is pleaded in the petition. The face of each pleading can determine the case’s outcome from the beginning.

To attack the petition to have a lawsuit thrown out of court, attorneys will file motions alleging various exceptions. These exceptions can be based on different issues surrounding the case, such as a prescription or peremption exception. When arguing those exceptions, the attorney must be conscientious to “admit” all the evidence into the record that bolsters their position. The following lawsuit out of Ascension Parish, Louisiana, shows how important it is to properly admit evidence into the record when arguing in Court and what can happen when an attorney forgets to “offer and introduce” evidence filed with a motion.

William and Rosa Cambre owned a building they leased to Premier Performance Marine, L.L.C (Premier). Premier had the building insured by an Atain Specialty Insurance Company (Atain) policy. Therefore, when a storm severely damaged the building, Attain paid Premier under the insurance policy.

March 22, 2023

A Louisiana Court Signs Two Final Judgments, What Happens?

by Berniard Law Firm

courthouse_building_clock_tower-1024x685 When a case ends at the trial court level, the judge signs a physical order document laying out the court’s decisions. This physical order document is called a final judgment; every case will only have one final judgment. Final judgments cannot be amended easily by either the trial court or the parties. The only permissible amendments are those that fix basic errors, such as spelling or arithmetic; all other modifications or changes should be brought up on appeal or in a motion for a new trial. Starnes v. Asplundh Tree Expert Co.

A final judgment is not the end of a case. Almost every case has a right to appeal. The appellant will point to the section they believe is wrong and ask the appellate court to fix the issue. So what happens when a Louisiana Court signs two final judgments? The following case out of Baton Rouge demonstrates what occurs when this happens.

A graduate student at LSU fell and injured his ankle while leaving his university apartment when leaving for a work trip. He petitioned for worker’s compensation but later decided to bring a lawsuit against LSU for his injury in the 19th Judicial District Court in the Parish of East Baton Rouge. The 19th judicial district ruled that because he was in the course of his employment, the only remedy that this graduate student could receive was worker’s compensation.

March 21, 2023

All or Nothing—Piecemeal Peremptory Exception Reversed for Louisiana’s Drug Fraud Case

by Berniard Law Firm

owens_drug_company-1024x857 The legal system is complicated, with many “dos-and don’ts.” Whether or not you can have your case heard in court first requires following the rules guiding the sufficiency of your claim. If your complaint fails to show that you have a right to bring the case against your defendant, your case might be dismissed. But how strictly interpreted is this rule? What does it look like when a cause of action is sufficient to be heard or ripe for dismissal?

The State of Louisiana brought a lawsuit against various pharmaceutical companies participating in manufacturing and selling Actos. The State alleged that the pharmaceutical companies misrepresented Actos’s efficacy and side effects. The State also claimed that research showed that Actos greatly increases the chance of bladder cancer. The State alleged the pharmaceutical companies failed to disclose this information.

In its case against the pharmaceutical companies, the State alleged that it would not have bought and distributed Actos if its risks had been clarified. Because of the drug companies’ alleged misrepresentation, Louisiana sought to recoup damages due to fraud, redhibition, unjust enrichment, and infringement of the Louisiana Unfair Trade Practices Act (LUTPA), La. R.S. 51:1405, and violations of the Louisiana Medical Assistance Programs Integrity Law (MAPIL), La. R.S. 46:437.1. In response, the drug companies brought various objections—peremptory exceptions including no cause of action, res judicata, no right of action, and dilatory exceptions including vagueness or ambiguity of the State’s petition, and the petition’s not following state law requirements. La. C.C.P. art. 891.

March 20, 2023

Does Parental Liability Extend Over Adult Children in Louisiana Lawsuits?

by Berniard Law Firm

children_s_children_asian-1024x683 In the United States, parents are often deemed responsible for the criminal conduct of their minor child. But the rules guiding this concept could be more precise and are subject to much controversy. How do we decide when that duty exists and when it ends? A Louisiana court answers the question, does parental liability extend over adult children in Louisiana?

A Louisiana man, Garry Lewis, was the victim of burglary and criminal committed by 22-year-old Royal Rhodus and 23-year-old Beaux Melancon. Royal and Beaux allegedly broke into Mr. Lewis’s property and took three of his vintage cars, racing and damaging the cars and then hiding the cars and attempting to sell the vehicles for parts. Subsequently, Lewis put flyers in his business window that stated the names of both Royal and Beaux as well as the names and addresses of their respective parents. The flyers included descriptions of the alleged crimes committed and suggested that Royal and Beaux would “be the girlfriends of other inmates” once they were arrested.

Royal’s parents, Jerry and Belinda Rhodus, filed for injunctive relief against Mr. Lewis, requiring him to remove the flyers and pay them damages. In response, Mr. Lewis filed a reconventional demand with Royal as an additional defendant, seeking damages from Royal’s parents. Mr. Lewis later added Beaux and his parents, Danny and Brenda Melancon, as defendants.