Offshore Accidents

September 19, 2012

How Louisiana Determines Damages for Personal Injury

When a court award damages, the judges commonly look to whether or not that pain and suffering can be attributed to the defending party, the amount of time a victim suffered, and how much pain and suffering occurred. The cause is perhaps the most important aspect of whether or not a party will be awarded damages. It makes little sense for a defendant to have to pay for pain and suffering to the plaintiff if the defendant’s actions did not cause that pain and suffering. Then, the length and intensity of the suffering will help determine how much money will be awarded.

In a recent case, the plaintiff appealed from the Parish of Lafayette to the State of Louisiana Court of Appeal for the Third Circuit based on the issue of damages. In this case, the plaintiff was in a car accident where she suffered significant damage to her back. As a result of this injury, she spent approximately twenty-eight months with the chiropractor attempting to correct the damage sustained to her lower back.

Although the victim visited the chiropractor before the accident occurred, the doctor recorded the services rendered before and after the accident. The doctor stated that the victim’s injuries worsened and the accident definitely caused the worsened condition. The lower court awarded general damages and medical fees, but it only ordered enough general damages that would cover seven months after the accident. It explained that the victim was already seeing the chiropractor; therefore, the services she received after the accident were only relating to a condition that was already present before the accident.

September 12, 2012

Maritime Injury: The Jones Act and How it Applies to Recovering Damages (Part 2)

by Berniard Law Firm

This post is a follow up regarding the worker’s compensation claims in a maritime case previously discussed in “Maritime Injury: The Jones Act.” The Fifth Circuit Court of Appeals also addressed the complicated worker’s compensation aspects of this case in addition to the rejection of the use of The Jones Act in the injured party’s attempt to avoid an employer’s contributory negligence claim. In order to fully understand the worker’s compensation aspects of this case, it is important to consider some additional facts of the District Court’s decision.

As a reminder, a crane mechanic employed by a third party was injured on an oil rig due to the partial negligence of himself and the owners of the rig. He fell through an uncovered ladder from the top portion of the crane cab and was seriously injured when he landed on the deck below. After his injury, the employee was no longer able to work as a crane mechanic but remained an employee for his previous company.

While the injured man was unable to work as a crane mechanic, his employer gave him a clerical position and paid him significantly more than someone in a clerical position would earn. His employer continued to pay him the wage he earned as a crane mechanic and although he only worked approximately twenty hours a week, his employer paid him for fifty-five hours per week. The lower court determined that this dramatic increase in wages for the work done could be considered an advance of worker’s compensation benefits. They based this determination on the original intention of the employer. The Court of Appeals affirmed this decision by stating that the lower court had ample evidence to make this conclusion.

August 13, 2012

Wrongful Death Claim Based on Fatal Crane Accident Dismissed

by Berniard Law Firm

Death on the job is a sad reality that all too many Louisiana families face. When a loved one dies on the job, the victim’s family is not only left with an emotional hole, but a financial gap as well. Children, siblings and spouses who may have relied on the deceased’s income can face economic hardship. Fortunately, a wrongful death lawsuit can help ease this financial burden.

A wrongful death lawsuit seeks to recover damages a surviving family member or estate has suffered by the negligent death of a family member at the hands of another. Since these suits are brought on behalf of surviving family members, compensation cannot be recovered for injuries that are personal to the deceased. This means that pain and suffering and mental distress damages cannot be recovered through a wrongful death lawsuit. However, lost wages and other financial losses faced by the surviving family can be recovered.

A wrongful death is a death that is caused by the negligent act or omission of another. In certain circumstances, if the death is proven to be caused intentionally, a jury may be more likely to award a larger recovery. However, proving an intentional act can be difficult. This was illustrated recently in a case where a man was fatally wounded aboard a ship when he was struck by a crane load.

August 6, 2012

Boat Swell Accident Provides Look Into Res Judicata

by Berniard Law Firm

The first element of an independent action in equity that allows an individual to bypass res judicata analyzes whether the judge’s determination in the original case was truly fair and made in good conscience. When a judge shows bias, as in the boat swell case, the judge’s decision is likely swayed and not independent. This is unfair to the losing party and therefore helps a claim bypass res judicata.

The second element requires that the original case claim have merit. If the claim is frivolous, then there is no reason for the court to negate res judicata and grant a new trial. This again protects judicial efficiency and duplicitous suits. When determining the merit of the underlying suit, a judge will simply read the complaint to see if it makes an actual claim that, if true, would lead to recovery. In the boat swell case, the personal injury claim did have merit and thus satisfied this prong.

The third element requires courts to determine whether fraud was a reason that the losing party did not prevail in the underlying case. Similar to the first element, fraud is likely to sway a judge’s decision to the detriment of the losing party. This is what happened in the boat swell case as the judge’s decision was basically bought with lavish hunting trips.

August 1, 2012

Houma Boat Swell Accident Victim Convinces Court of Appeals to Bypass Res Judicata

by Berniard Law Firm

Though courts are busy and judges have overflowing dockets, our justice system requires courts to find time to hear cases worthy of adjudicating. This means that judges must be as efficient as possible. One way of doing this is to require claimants to converge all of their complaints into a single lawsuit. Failure to do this will bar a claimant from bringing a second lawsuit against the same party. This legal theory based in civil procedure is known as res judicata. It seeks to maintain judicial efficiency and protect litigants from facing duplicitous lawsuit from the same claimant. This important principle is important to understand for anyone going forward in a lawsuit because it could prevent a claimant from asserting any material claims against a wrong-doer that were not asserted in the first legal action.

Though courts are assumed to be honest, deceit and bias can seep into the legal fabric. When this occurs, the justice system must reanalyze the applicability of res judicata. One illustrative example of an instance like this took place recently in the United States District Court for the Eastern District of Louisiana. The issue was complicated and was later resolved by the United States Court of Appeals for the Fifth Circuit.

The case in question involved a personal injury lawsuit where a yacht’s boat swells threw another boat into the air and injured a woman in that boat. That injured woman filed suit against the yacht owners and their insurance company. At trial, the judge found for the defendants, essentially stating that the defendant’s expert witness was more reliable than the plaintiff’s expert.

July 16, 2012

Deposition Two-Step: Conflicting Reasons for Quitting Job Early Leads to Perjury Charge

by Berniard Law Firm

This case is a welcome reminder of how an attorney’s advice may sometimes lead to more harm than good. Brown brought suit against his former employer, Skagit, under Title VII claiming racial harassment and constructive discharge. In a deposition, Brown testified that his sole reason for quitting his job at Skagit was due to racial harassment. However, in a deposition four months earlier in an unrelated personal injury case, Brown testified that he left Skagit solely because of debilitating back pain suffered during a car accident. Skagit sought dismissal of Brown’s claims based on his conflicting testimony, which the district court allowed and dismissed with prejudice. The court also went one step further finding Brown committed perjury. Brown’s appeal is based on a matter of fairness, arguing that a less severe sanction is in order and that he was entitled to explain the discrepancy between the testimonies.

To emphasize the facts, in the first case, based on racial harassment and constructive discharge under Title VII, 42 U.S.C. sec. 2000e, Brown testified as to how he felt endangered by his co-workers’ threatening behavior, which involved dropping heavy plates and pipes near him. He was also distraught by his co-workers flinging derogatory remarks at him on a daily basis. He felt compelled to quit his job, as his supervisors purportedly ignored this behavior. When asked why he quit his job, he testified that the only reason he quit was because of the racial harassment. He reiterated that there were no other reasons for his quitting.

In a completely unrelated deposition for a personal injury claim, Brown testified that the exclusive reason he left Skagit was due to his debilitating back pain, which prevented him from performing his job as a welder. He again emphasized and confirmed that this was his only reason for leaving his job.

April 10, 2012

Class Action Goes to Federal Court in Texas Plant Release Case

by Berniard Law Firm

Class actions are a type of action that most people have heard of but that may not be well understood. In Klier v. Elf Atochem North America, Inc. a class action was initiated against the operator of an industrial plant in Bryan, Texas. The class was divided into three subclasses for the purposes of settlement. Members of each class were granted specific remedies for their disparate injuries.

Class actions are a useful tool when a large number of people have been harmed by a single defendant but none or few of them have suffered sufficient harm to warrant filing an independent claim. Class action proceedings have res judicata power over plaintiffs who do not opt out. That means that if a plaintiff does not opt out of a class action, the verdict or settlement that results will be binding on that person and prevent them from filing that same claim in the future. If a plaintiff feels that his or her injury warrants a separate claim, that person is free to do so only after opting out of the class action.

In order to certify a class for a class action under the Federal Rules of Civil Procedure in the first place, a court must find that the class is so numerous that joinder of all members is impracticable, that there are questions of law or fact common to the class, that the claims or defenses of the representative parties are typical of the claims and defenses of the class and that the representative parties will fairly and adequately protect the interests of the class. Each of these requirements must be met in order for an action to go forward as a class action.

April 8, 2012

Happy Holidays to all of our Friends

by Berniard Law Firm

Happy Holidays from the Berniard Law Firm! We will resume blog posting on Tuesday.

March 26, 2012

Lawsuit Over Jackson Parish Car Wreck Dismissed Due to Late Filing

by Berniard Law Firm

Under Louisiana law, the plaintiff in a personal injury lawsuit may file his complaint with the court by fax. However, the plaintiff must, within five days of transmitting the fax, forward to the clerk of court the original, signed complaint and any fees that are due. If the plaintiff fails to forward the original document, the faxed copy will “have no force or effect.” La. R.S. 13:580. The fax option can potentially help preserve an action that is facing the expiration of its prescriptive period. However, as we will see with the recent case of Taylor v. Broomfield, the courts do not take lightly the requirement that the original complaint must be submitted to the clerk within the time frame outlined in the statute.

On September 17, 2009, Jarred Taylor was involved in a serious car accident in Jackson Parish. The other party to the collision was Brandon Goss who was driving a Mack truck owned by Broomfield, Inc. Taylor suffered various injuries including two broken ribs, multiple contusions, and lacerations to his face. Taylor’s lawyer initiated a lawsuit against Broomfield and its insurer on September 17, 2010 (exactly one year after the accident and the last day of the prescriptive period) by transmitting a faxed complaint to the Jackson Parish Court. The faxed complaint was not notarized. Although Taylor’s counsel had, according to Louisiana statute, until September 24, 2010 to send the original complaint to the court’s clerk, the original document was not filed until October 5, 2010. The original complaint filed with the clerk on October 5 included a verification notarized by one Donna Kay Tucker on September 20, 2010.

On November 12, 2010, Broomfield filed an exception of prescription requesting that Taylor’s suit be dismissed because it was filed after the one-year prescriptive period had elapsed. A hearing was held on January 13, 2011. In opposition to Broomfield’s exception, Taylor’s attorney argued that when his office faxed the complaint on September 17, 2010, his staff immediately mailed the original complaint, along with the filing fees, to the clerk of court. Several staff members from the law firm testified to this effect, but none of them could explain who the notary, Donna Kay Tucker, was or why the complaint’s verification reflected a date after the day the firm put the document in the mail. Ultimately, the trial judge denied the exception of prescription and held that the notary date was “merely harmless error” and that the complaint had been timely forwarded by Taylor’s counsel per state law. Broomfield appealed.

March 22, 2012

Texas Class Action Regarding Chemical Release Demonstrates Premise of “Close Enough” in Doctrines

by Berniard Law Firm

Our system of law is designed to handle most situations. A great deal of situations can be dealt with under the doctrines of law. Our system also has a failsafe of to ensure basic fairness when law provides no satisfying result. Equitable doctrines fill in the gaps in law. Historically a separate system of courts would dispense equitable remedies. In most modern American jurisdictions, though, equitable relief is granted by courts of law. In the case of Klier v. Elf Atochem North America, Inc. the district court employed an equitable doctrine incorrectly. That court used a doctrine called cy pres.

The doctrine of cy pres comes the French “cy pres comme possible” which literally translated means “as close as possible.” It is an equitable doctrine that allows a court to look for the second best way in which to use undistributed funds. This doctrine was first used in the area of testamentary charitable contributions. If a person’s will left a sum of money with general charitable intent but he gift somehow failed, a court would look for something else to do with the money that would serve the same or a similar purpose. The doctrine was later adapted to the area of class actions.

In Klier v. Elf Atochem North America, Inc. a class action was filed against the owner of a factory that had allegedly caused damage through toxic emissions near Bryan, Texas. The court found that there were three classes of people harmed and divided the money accordingly. Subclass B members were presented with two options for compensation. Members of this subclass could opt to receive a one-time payment or continuous medical monitoring over time. The rate of participation in the medical monitoring program was incredibly low. This led to money being left at the end of the medical monitoring program. The parties had to return to court to figure out what to do with the leftover money.