Articles Posted in Pain And Suffering Claims

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craftsmen_building_scaffold_19584-1024x679The evolving nature of employment now means the relationship between employer and employee can be indirect and through different contracting methods. In addition, many people employed by one company are, in fact, on the job doing work for another. A recent case in Louisiana highlights these distinctions and the risks posed to workers and their families when seeking compensation.

While working in 2013, Michael J. Louque Jr. was crushed to death by a piece of heavy machinery that rolled off the truck it was being loaded onto. Mr. Louque was employed by River Parish Maintenance (RPM) but was working at the Motiva Enterprises, LLC (“Motiva”) manufacturing complex. Upon his death, the family of Mr. Louque filed a lawsuit against Motiva and others, seeking compensation for his wrongful death. 

The contract that brought Mr. Louque to the Motiva manufacturing complex was actually between RPM and Shell Oil Products US (“Shell”). This point is crucial in understanding the state of the Louque’s litigation, as Louisiana law prohibits employees from directly suing their employers in a tort claim rather than pursuing worker’s compensation benefits. See Deshotel v. Guichard Operating Company, Inc.

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paragraph_attorney_judge_process-682x1024The jury process is considered the great equalizer when it comes to the everyday man fighting large corporations. Juries in Louisiana are made up of twelve people tasked with evaluating the evidence and legal arguments of the parties. While juries do, their best mistakes can be made and corrected by the Judge overseeing the case. So what happens if a jury leaves out critical items of a damage award? Can a Judge increase a jury’s award of damages? The following lawsuit out of Lake Charles helps answer this question. 

Dwight Minton was a passenger in a car when he was hit by another vehicle. As a result, he filed a lawsuit against Christopher Gutierrez, the driver of the other vehicle, and GEICO Casualty Company, among others. In addition, Minton sought damages for the injuries sustained in the accident. 

The jury returned a verdict in favor of Minton, awarding damages of fifty-eight thousand five hundred dollars. Believing this award was too low, Minton filed a motion for judgment notwithstanding the verdict (JNOV), asking the trial Judge to increase the award. The Judge granted this motion and awarded damages over five hundred thousand dollars. 

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roof_tile_roofs_house-1024x768If you are injured by someone in their course of employment, you can contact their employer for your compensation. But unfortunately, employers hire independent contractors to skirt around liability when their workers mess up. Below is a cautionary tale about how cascading levels of independent contractors left an injured plaintiff with limited sources for his injuries. 

Jarrett Lemmon was in an accident involving Jonathan De La Mora that resulted in damage and injury. Lemmon sued Jonathan for causing the accident. Later, Lemmon amended his suit to add Jonathan’s employer, Rosendo De La Mora, and RoofCorp USA, LLC, as responsible for the accident, claiming that Jonathan was working within the scope of his employment when he struck Lemmon. RoofCorp USA, LLC was the parent company that hired Rosendo De La Mora to install roofs as an independent contractor. Rosendo De La Mora then hired his son Jonathan to help install the roofs, separate from RoofCorp’s payroll. RoofCorp filed a motion for summary judgment at the district court level, claiming they could not be held responsible; it was granted.  Unhappy with the ruling, Lemmon appealed.

The First Circuit Court of Appeals was then tasked with deciding if the trial court properly awarded RoofCorp summary judgment. To do so, the appeals court must determine if Jonathan was an employee of Roofcorp at the time of the accident, and the court must decide if Jonathan was in the scope of his employment when the accident occurred. Lemmon claims that Jonathan was an employee of RoofCorp in the court of his employment when he hit Lemmon. 

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cellphone_camera_phone_mobile-1024x683Courts often hear contradicting testimony and must decide who to believe or who is more credible. For example, the following Calcasieu Parish case involves two individuals who were married at the time of the altercation but have since divorced and the importance of providing the most credible testimony.   

Although Mr. and Ms. Cooper agreed there was an altercation in their home, they disagreed with the subsequent facts of this case. Mr. Cooper alleged Ms. Cooper handed him her phone to show him a picture. He then alleged that Ms. Cooper angrily began demanding the return of her phone, and when Mr. Cooper refused, she battered his testicles. Mr. Cooper claimed he sustained permanent damage due to Ms. Cooper’s actions and subsequently filed a lawsuit seeking damages. 

Ms. Cooper, on the other hand, alleged that Mr. Cooper took her phone out of her hands with substantial force. She then alleged she pleaded for the return of her phone, but Mr. Cooper refused, and he then put her phone in his pocket. Ms. Cooper claimed she attempted to remove the phone from his pocket and may have unintentionally come into contact with his testicles and penis. However, she alleged she never intentionally grabbed or battered him. At trial, Ms. Cooper moved for an involuntary dismissal of Mr. Cooper’s claim. The 14th Judicial District Court for the Parish of Calcasieu granted Ms. Cooper’s motion and dismissed Mr. Cooper’s claim. This appeal to the Louisiana Third Circuit Court of Appeal follows. 

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coins_currency_investment_insurance_0-1024x683One’s life is forever altered after an incapacitating injury. While the situation comes with enough issues, problems are enhanced when medical providers merge and change the disability benefits you have relied upon for a year. Unfortunately, this is precisely what happened to Michael Swinea after Humana Inc. bought Kanawha Insurance Company. 

Swinea required a total knee replacement after he was injured in March 2012. After this surgery, Swinea attempted to return to work. After working for about six months, Swinea’s physician instructed him to stop working again. Starting in April 2012, Swinea was given $2,700 per month in disability benefits through Kanawha. In November 2013, however, Humana bought Kanawha, and Swinea’s payments ceased. Humana informed Swinea that he would no longer be covered in a letter mailed to his home address.

After receiving the letter, Swinea contacted the appeals body specified in the letter. The Humana appeals body instructed Swinea to send any pertinent documents that he would like to be considered during the review. After complying, Swinea received a letter from a Humana Grievance and Appeals Specialist notifying him that his request for disability benefits was denied. 

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safety_medical_ocean_rescue-1024x683When subcontractors get injured at work, it can be confusing to determine who is liable for damages. This case shows a company’s failed attempt at using the “two contract defense” to dismiss claims in a slip and fall case. It also helps answer the question; What is a two-contract defense in Louisiana Lawsuits?

In 2013, Quiana Lorden worked for Southern Care Hospice (“SCH”). At the time of the underlying incident, she was assisting a hospice patient living at Merryville Rehabilitation (“Merryville”), a skilled nursing facility (SNF). While helping the patient out of the shower, she noticed a large amount of water had pooled on the floor and called a housekeeper to clean it. However, the housekeeper spread the water to other areas of the floor while attempting to clean, causing Lorden to slip and injure her knee. 

Lorden filed a lawsuit against Merryville, among other related parties, to recover damages. Merryville filed for summary judgment, arguing that they were exempt from tort claims because they were Lorden’s “statutory employer” under La.R.S. 23:1061. The court granted their motion and dismissed the claim. Lorden appealed, arguing that material issues of fact remained as to whether Merryville was her statutory employer. 

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traffic_lights_green_light-1024x678Cities need to ensure public utilities are safe and properly installed. Road fixtures, such as traffic lights and speed limit signs, are an essential part of infrastructure. When road fixtures are installed negligently, the public needs to be able to hold the liable parties accountable. 

So who should be responsible if a road sign crashes into your car or a utility pole falls on you? It depends, and proving why an entity is liable requires a skilled lawyer familiar with the use of experts. In the following case, a plaintiff is seeking to hold the City of Baton Rouge responsible for damage to his car caused by a falling traffic signal. The case shows why the proper use of expert testimony is critical to ensuring both sides get their day in court. 

Randolph Barnett was driving in East Baton Rouge Parish when a school zone sign hanging overhead suddenly fell and crashed onto his windshield. Barnett sued the City of Baton Rouge and the Parish of East Baton Rouge via the Department of Public Works. The trial court granted summary judgment for the City, thereby dismissing the case. Barnett appealed this decision for review by the appellate court. 

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1980s_style_tow_truck-1024x768Personal injury cases can lead to placing the blame on a party so the injured person can receive compensation for her injuries. But what happens after a traffic miscommunication if both sides blame the other for the wreck? Further, what if their insurance companies are unwilling to take all the blame and pay for the accident?  The only way to solve this dilemma is through a trial which can help apportion the fault of each side after weighing the evidence. The following case out of Marksville, Louisiana, shows how fault should be apportioned in a personal injury car accident. 

David Sampson was driving down the highway with a passenger, Mario Jacobs, with a second truck attached by a tow rope. The towed truck was being operated by Sandalon Jacobs. Florence Decuir was traveling toward an intersection with the highway where Sampson was driving. Believing she saw Sampson’s turn signal, Decuir turned onto the highway to make more space for the trucks. Allegedly, Decuir did not stop at the stop sign, so Sampson had to hit his brakes, causing the towed truck to rear-end the truck he was driving. Decuir denied seeing the accident. 

Sandalon and Jacobs filed a lawsuit alleging personal injury due to the accident and named several defendants. However, by the time the bench trial came around, State Farm was the only defendant remaining. The trial court apportioned 95% of the fault to Decuir and only 5% to Sampson. The trial court determined Sandalon and Jacobs suffered from soft tissue injuries. Sandalon was awarded $46,500.00 in general damages and $5,397.81 in past medical expenses. Jacobs was awarded $35,200 in general damages and $7,377.73 in past medical expenses. State Farm appealed the trial court decision.

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gavel_wood_courtroom_legal-1024x683After a lawsuit, a trial is when each side can articulate their case theories. Usually, the culmination of a trial is a judgment that can be appealed. However, there are other occasions where the court can discuss the judgments besides an appeal. An alternative to an appeal is the petition for nullity, which may further examine the case and the court’s decisions. What is a petition for nullity of judgment, and how can it be used to overturn a jury verdict? The following lawsuit, Jefferson Parish, Louisiana, answers this question.

Mr. Ezzell worked as a marine insurance adjuster until 2008 when he was punched in the head by Dr. Lucien Miranne in a bar. At the principal trial, Dr. Miranne was found liable for the injuries Ezzell suffered. Ezzell was awarded damages for past medical expenses, pain, and suffering, past lost wages, and two years of future lost earning capacity. 

The jury’s judgment was primarily based on testimony by Ezzell and his doctors that attested to his injuries and poor cognitive functioning. For example, one witness, Dr. Thomas, said his injuries would “make it difficult for him to return to the level of employment he had before. Dr. Miranne appealed this judgment arguing Ezzell was faking and exaggerating his injuries, the same argument made at trial. Rather than overturn the judgment, the appellate court awarded additional damages for future pain and suffering to Ezzell. 

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highway_jam_baustelle_jam-1024x769As the weather gets nicer across the country, millions will travel to destinations near or far. Unfortunately, with this increase in traffic, accidents will occur due to the negligence of drivers. But what happens when the roadway’s integrity and safety come into question? Can the state be held liable for a highway’s defects? – The following lawsuit out of Morgan City, Louisiana, helps answer that question.

Mariah Schouest and Nicole Smith were good friends who lived and worked in Houma, Louisiana. They enjoyed going on long drives where they would listen to music and talk for fun. Typically, they would drive on Highway 90 toward New Orleans, but on this particular road trip, they decided to go West toward Morgan City. 

Schouest was driving while Smith was sitting in the passenger seat. Having been on the road for some time, Schouest stopped at the gas station on the left since it was getting dark. To get there, she slowed her vehicle, flicked on her turn signal, and began to turn into the median. Unfortunately, before she could turn, the car was hit from behind by a pickup truck driven by Joshua Landry. Smith sustained a severe brain injury as a result of the crash.

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