Articles Posted in Pain And Suffering Claims

bauer_elementary_asbestos_1-1024x768Although most people have heard of both state and federal courts, many do not know when a party in a lawsuit can move a case to a different court. This happened to Howard Zeringue, who first filed a lawsuit in Louisiana state court, but soon found himself in the United States District Court for the Eastern District of Louisiana after the company he sued removed the case to federal court. This case helps answer the question; My lawsuit was removed to Federal Court. What does that Mean?

Zeringue sued Crane Company (“Crane”) and twenty others for the injuries they allegedly suffered from asbestos exposure.  Zeringue claimed he was exposed to asbestos while working for the United States Navy and at two other jobs. Additionally, Zeringue claimed Crane designed and supplied products with asbestos to the sites where he worked and was exposed to asbestos. 

Although Zeringue initially filed the case in state court, Crane removed the case to federal court under the federal officer removal statute. See 28 U.S.C. § 1442(a)(1). Crane argued any product Crane allegedly manufactured and provided to the Navy would be subject to the Navy’s discretion on whether to use asbestos and whether to include a warning on the product. Zeringue filed a motion to remand the case back to state court. The district court ruled in his favor, holding Crane had not shown the government had exercised its discretion concerning the design and warning problems at issue.  Crane appealed the district court’s ruling that sent the case back to state court. 

larimer_sheriff_reserve-1024x683This scenario is not hard to imagine: you are driving along the road, and you get into an accident; however, the other vehicle is not just a regular car owned by a private citizen, but it is a dump truck owned by the local government. When suing a local governmental entity such as a sanitation department or police station, the injured party may face obstacles in naming precise owners of public vehicles or following procedural rules. A recent case out of St. Charles Parish demonstrates what kinds of procedural obstacles a plaintiff may face. It also helps answer the question; what happens if I name the wrong defendant in a lawsuit? Is my case over?

On January 13, 2010, three prisoners in the custody of the St. Charles Parish Sheriffs were being transported in a vehicle owned by the Sheriff’s office when it collided with a dump truck. As a result of the accident, the three alleged they had suffered “severe and grievous injury to body and mind.” On January 12, 2011, they filed a lawsuit against the Parish of St. Charles as the owner of the dump truck, the driver of the dump truck, and its liability insurer. Then the plaintiffs added the Parish of St. Charles Sheriff’s Office as the owner of the prisoner transportation vehicle and the employer of the dump truck driver. 

After discovery, St. Charles Parish filed for a motion of summary judgment, asking the court to decide the case in their favor because the allegations were legally insufficient because the Parish did not own the dump truck. In support of its motion, the Parish attached a Certificate of Ownership, demonstrating the St. Charles Parish Sheriff’s office owned the dump truck. The trial judge granted the motion. Subsequently, Greg Champagne, the Sheriff of St. Charles Parish, filed exceptions of prescription, which essentially asked the court to dismiss the lawsuit because the plaintiff did not file the case on time or failed to follow procedural rules. The court also granted the exceptions of prescription, and the plaintiffs appealed.   

door_front_door_input-1024x768Some doors, such as bathroom doors, are heavy and have quick automatic closing mechanisms attached. If a door of that nature hits you in the back on your way and knocks you down, who is liable? The following case out of New Orleans shows how courts deal with door-closing mechanisms and trip-and-fall lawsuits. 

In 2011, Gail Encalade visited her insurance agent’s office in an office building on General DeGaulle. Before leaving, she pushed the restroom door open without issue and entered the bathroom. When exiting, she pulled the restroom door, and the door began to close behind her. As it was closing, she alleged it hit her on the back, causing her to fall forward, sustaining injuries to her shoulder and face.

In April of 2012, Encalade sued for damages, America First Insurance Company (AFIC) and other defendants were negligent in failing to maintain safe public areas, that being the restroom specifically. She argued the AFIC should have known of the problems with the doorways and the door equipment. AFIC answered the lawsuit by filing a motion for summary judgment. 

asbestos_garage-1024x597Insurance policies are often lengthy and very complicated. Therefore, understanding who may be liable when an injury occurs is critical, as failure to do so may lead to complex and expensive court proceedings. The following Iberville Parish case demonstrates the problems that arise when multiple insurance companies and policies are involved in one lawsuit and when evidence is not properly admitted.  

After working as an electrician in several shipyards and plants in south Louisiana for most of his life, Sidney J. Mabile, Sr. filed a lawsuit against The Dow Chemical Company (Dow) and Westgate and its predecessor, Industrial Electrical Constructors, Inc. (IEC) for asbestos-related injuries. Following a jury trial, Sidney’s claims against Westgate and IEC were dismissed, although Dow was found to be one of three defendants liable for his damages. Dow and Sidney ultimately settled. 

While the case with Sidney was pending, Dow filed a cross-claim against Westgate and IEC (collectively Westgate). Dow argued that Westgate was under an Agreement for Services that mandated Westgate to indemnify Dow for claims brought by a Westgate employee against Dow for any injuries on Dow’s premises. In other words, Dow argued that Westgate owed Dow an indemnity for Sidney’s original claim. 

grinding_maintenance_labor_work_1-680x1024A disabling workplace injury can be a nightmare for an employee who suffers physical pain, mental side effects, loss of income, and the uncertainty of litigation. And when large sums of money are involved, an employer will want to fight tooth and nail to avoid liability. This can be particularly distressing when an employee wins at trial only to find the decision has been appealed. 

However, there is hope. Unless there has been a blatant error or abuse of discretion, a court of appeal will not want to overturn a factual conclusion or damage award from the trial court. Generally, that means an appeal will center around a question of law. See, e.g., Lasha v. Olin.

Sometimes the legal question is whether an injured worker qualifies for relief under a law. For example, an employee seeking coverage under the Jones Act must be classified as a seaman. To be one, your duties must “contribute to the function of the vessel or the accomplishments of its mission.” Determining who is a seaman under the Jones Act is a hotly contested issue, as seen in the case below. 

21_washer_dryer-1024x768Police officers can often put themselves in dangerous positions when responding to calls related to domestic violence because tensions and emotions are usually running high. In close-knit communities, it is also not uncommon for victims and perpetrators of domestic violence to have prior relationships with the police. Such was the case for Maringouin’s Chief of Police, John Simien (“Chief Simien”), who was both a friend and family member to Mr. and Mrs. Wright, when he got a call to come to the Wright’s house during a dispute.  

Mr. Wright was the former Mayor of the Town of Maringouin, and the night before the dispute, he told his wife, Mrs. Wright, that he wanted a divorce. As a result, Mrs. Wright left the couple’s house and secured a restraining order against Mr. Wright. The next day, Chief Simien received a distressed call from Mrs. Wright, asking that he come to the house. When Chief Simien arrived at the house, he took Mr. Wright to his car for a ride away from the home so that Mrs. Wright could collect clothes and medications for her and her son, Charles Wright, Jr. (“C.J.”).

When Chief Simien and Mr. Wright arrived back at the house, Mrs. Wright, C.J., and Mrs. Wright’s brother, Maxie Gray (“Mr. Gray”), were loading a washer and dryer into a pickup truck. Mr. Wright attempted to get out of the car, but Chief Simien grabbed his wrists and forced him back into the car. C.J. also confronted Mr. Wright, placing his hands around his father’s neck, while Mr. Gray hit his brother-in-law in the leg, all of which constrained Mr. Wright inside the car.

grape_season-1024x678
Imagine shopping at the grocery store, selecting fruit, when suddenly you are flat on your back.  Not just embarrassing but also painful and potentially injury-causing.  Who should be liable in this type of case? In a similar case involving a Lake Charles Kroger store, the answer lay in who had notice of the hazard.   

Glenda Parks was shopping at Kroger, perusing the produce section.  After she passed the grape display, she slipped and fell.  A store employee was working close by and helped Parks up.  Parks proceeded to shop in the same area, then walked back to the grapes where she had fallen.  She noticed several grapes on the floor, including some smashed ones.  The Kroger employee was cleaning up the grapes and the surrounding floor.  Parks was in the store for approximately twelve minutes in total.  

Parks filed a lawsuit against Kroger, and Kroger filed a motion for summary judgment. The Fourteenth Judicial District Court for the Parish of Calcasieu agreed with Kroger that Parks would not be able to show that Kroger had the requisite notice of the hazard.  Parks appealed to the Louisiana Third Circuit Court of Appeal.  

ford_e_series_wagon_10-1024x814Customers have an expectation of safety while shopping in retail stores. When a customer is injured while on the premise, they are entitled to damages. However, a customer may only recover damages if adequate proof is shown. Proof of an unreasonable risk of harm is a critical element of Louisiana slip and fall cases. The following case out of Slidell, Louisiana, shows why facts are crucial when pursuing a slip and fall lawsuit.

Hope Held was injured while shopping at Home Depot with her child. She alleged her injuries were due to the misplacement of a wire hand truck(truck) in the electronic section of the store. After her fall, she was found by an employee, Jeffrey Crossland, and was escorted out of the aisle to receive help and complete an accident report.

Held filed a lawsuit for her injuries against Home Depot. The store responded by successfully filing a motion for summary judgment in the trial court. Held disagreed and appealed the judgment to the appellate court.

texas_flag_texas_flag-1024x683Have you ever been involved in a car accident that potentially involved two states and wondered which state’s laws would govern your personal injury lawsuit? Say, you have an insurance policy issued in Texas, and you get into a car wreck in Louisiana. Which state’s laws will apply if you file a lawsuit related to the accident? The following case shows how Louisiana Courts use a choice of law analysis to determine what state laws should apply in these situations. 

Rafael Garces-Rodriguez and Julio Alonso (Rafels) were involved in a car accident when another motorist struck their car from behind. At the time of the accident, they were insured by Progressive County Mutual Insurance Company. Two years after the accident, Rafels filed a lawsuit against Progressive seeking compensation for their injuries and other damages sustained during the car accident. Progressive filed a motion with the court seeking dismissal of the case, asserting that Rafels rejected uninsured/underinsured motorist coverage (UM coverage). 

Progressive argued that Texas law should apply in the case because the policies were issued in Texas. Under Texas law, rejection for UM coverage is required to be in writing. However, there are no other special procedures or particular language that needs to be used for the writing. See: Ortiz v. State Farm Mut. Auto. Ins. Co., 955 S.W.2d 353 (Tex. App.-San Antonio 1997, pet. denied). A satisfactory rejection in Texas requires minimal effort by the insured. 

feet_toe_human_body-1024x683No one wants to experience pain and suffering after spending money and time getting surgery. Nonetheless, some people fall victim to these complications. A person can be prone to injury when a defective product is inserted into their body. This was the case with Kale Flagg.

Kale Flagg underwent foot surgery to install toe implants made by Stryker Corporation (“Stryker”) and Memometal Incorporated (“Memometal”) (collectively, the “Manufacturers”). Unfortunately, several months after the surgery, Flagg’s implants broke and caused him extreme pain. This resulted in him undergoing multiple surgeries to try to fix the problem. 

Flagg filed a lawsuit against the Manufacturers alleging implants were defective, which caused his ongoing suffering and deformity. The Manufacturers responded by seeking a motion to dismiss under the Federal Rule of Civil Procedure 12(b)(6), and the district court granted the motion. Flagg appealed.

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