Articles Posted in Property

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A Saint Martinville, Louisiana, construction company, Cole’s Construction Crews, Inc., recently had a judgment against it reversed and remanded back to the trial court. Back in 2007, Cole’s had filed a lawsuit against J-O-B Operating Company. A few months after filing suit, Cole’s requested production of documents and sent interrogatories (or a list of probing questions) to JOB. Almost two years later, in July of 2009, JOB finally answered the requests. Then, in June of 2011, JOB filed a motion to dismiss the suit, claiming that Cole’s had abandoned the lawsuit. Ultimately, the motion to dismiss was signed, and Cole’s then attempted to get the motion set aside. The trial court denied this attempt, and Cole’s appealed the case to the appellate court to get it reviewed.

Cole’s claims that granting the motion to dismiss was an error that should be reversed. First, JOB had just answered the interrogatories less than two years earlier, and second, JOB did not file the requisite affidavit with its motion to dismiss. Ultimately, the appellate court disagreed with the trial court’s ruling and decided that granting the motion to dismiss had been done in error. They came to this conclusion by considering the various aspects of the complex Louisiana abandonment law, which is discussed below.

In Louisiana, Article 561 of the Louisiana Code of Civil Procedure imposes three requirements on plaintiffs in order for their lawsuit to not be considered abandoned. The first requirement is that the plaintiff has to take some sort of formal action before the court with regard to the lawsuit. Next, this action needs to take place during a court proceeding and must be in the suit’s record, unless it is part of formal discovery. Finally, this action has to take place in the requisite amount of time. If three years have passed without an appropriate action as described above taken by either party, then the suit is automatically abandoned. Even though abandonment is self-executing, defendants are encouraged to get an ex part order of dismissal, just like JOB did in this case, to make sure that their right to assert abandonment is not waived.

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A high percentage of personal injury lawsuits are based upon claims of negligence. Negligence and intentional torts are both similar in that they result in harm to others. However, negligence actions differ from intentional torts because they are the result of a non-intentional action. There are essentially four elements of a negligence claim that must be met in order to prevail in a lawsuit. There must be a duty of cared owed to another, a breach of this duty of care, actual harm as a result of this breach, and causation. An individual will be on the hook for any harm that arises due to his or her’s negligence actions. If one’s standard of care deviates from that of a reasonably prudent person under same or similar circumstances, then the individual’s actions may be considered negligent.

The concept of the first element of a negligence claim of a duty of care is highlighted in this recent case. Ms. Ponceti and her daughter, Katilynn, lived in an apartment complex located in Louisiana owned by First Lake Properties (“First Lake”). While Katilynn was playing in the courtyard of the apartment complex, a teenager lost control of his bicycle and injured her. Ms. Ponceti sued First Lake, claiming that it was negligent in allowing the teenager to ride bicycles on the sidewalks of the apartment complex.

This is a personal injury lawsuit based upon the previously discussed negligence tort theory. In claiming First Lake was negligent in allowing bikes on the sidewalks, Ms. Ponceti needed to show that First Lake owed her daughter a duty to take reasonable care by preventing people from riding bicycles on its sidewalks that may potentially cause injury. Here a critical issue comes into play: does First Lake owe her such a duty?

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In Louisiana, the Department of Transportation and Development (DOTD) is responsible for the maintenance of public roadways “in a condition that is reasonably safe and does not present an unreasonable risk of harm to the motoring public exercising ordinary care and resonable prudence.” In order to accomplish this goal in a safe and legal manner, the DOTD follows guidance defined in the Manual for Uniform Traffic Control Devices (MUTCD). The issue in the case of Morales v. Davison Transportation Services arose out of a tragic multi-fatality multi-car accident in Madison Parish. The legal issue the Second Circuit Court of Appeal faced was whether or not to affirm a lower court’s granting of the DOTD’s Motion for Summary Judgment.

On November 7, 2007, a DOTD team was performing road grading on the inside shoulder of a flat and straight section of westbound I-20 in Madison Parish. A motor grader was scraping built up vegetation and dirt from the highway, and a shadow vehicle was following behind. The shadow vehicle was a truck that had an arrow board on top of it directing traffic into the next lane, a set of strobing lights and a sign cautioning drivers of the slow moving vehicle ahead. Records showed that the two DOTD vehicles were traveling approximately 3-5 miles per hour down the highway while performing their work.

The accident occurred when a semi-truck that was rapidly approaching the DOTD vehicles in the inside lane while trying to pass another semi swerved into the right lane but ended up clipping the back of the DOTD truck. The truck then hit the motor grader and ricocheted the first semi into opposing traffic were it collided head-on with an SUV. Both occupants of the SUV were killed, the semi driver suffered permanent brain damage and the DOTD truck driver was also injured. The children of the SUV occupants, the guardian of the semi driver, and the DOTD truck driver all brought suits for damages.

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In a fairly publicized case, three people were killed in 2008 by a diving boat explosion off the coast of Louisiana. This case is still working its way through the courts and got a little further from resolution in Jillian Morrison, LLC v. Sonia because of an obscure legal concept: ripeness.

Lawsuits need several parts to get off the ground. There has to be a plaintiff with claim with a valid legal basis, you need to have defendant that is liable for the claim. There can’t be any successful defenses, there has to be a court with jurisdiction and finally, the claim must be “ripe.”

Ripeness is a technical concept. For a case to be ripe it means that the cause of action being alleged has to have moved beyond the “abstract or hypothetical.” If the only question remaining is whether the law applies, you have a case. If there are still facts that need to develop to decide the case, then it will be determined to lack “ripeness.”

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The Berniard Law Firm’s principal attorney, Jeffrey Berniard, recently taught an Introduction to Personal Injury course. Having been an active part of Continuing Legal Education (CLE), Mr. Berniard was selected to teach the topic due to the firm’s specialization in medical malpractice, first party insurance disputes, and premises liability claims. Some of the topics covered included: Personal Injury Protection and First Party Benefits in auto policies; medical records disclosure including mental health and substance abuse treatment records; recoverable personal injury damages.

Under many state’s no-fault insurance laws, a claimant’s insurance company will only pay for Personal Injury Protection, or the first $10,000 out-of-pocket expenses. The remainder of expenses must be recovered from the Defendant. Many auto insurance companies do offer First Party Benefits packages, an optional supplement that will cover all medical expenses in the event of an accident for the policyholder or anyone else listed on the plan. However, many auto insurance companies also use a computer program that performs a calculation to value the severity of a victim’s injury. The program does not take into consideration the stress, pain, inconvenience, loss of enjoyment of life that a victim may have suffered.

Medical records unrelated to a victim’s injury, but pertaining to his/her health, are discoverable if “good cause” can be shown. Both state law and the federal Health Insurance Portability and Accountability Act (HIPAA) apply to a consent for release of medical records. The consent must contain ten items, including a statement that the health care provider cannot condition treatment upon the signing of the consent for release. However, because of the broadness of the item language requirements, HIPAA, and state law, a health care provider may refuse to honor the consent. If a consent cannot be obtained from the patient, HIPAA continues to allow health care providers to release information with a court order or a subpoena. If an attorney issues a subpoena without a court order, the health care provider will not release information unless certain assurances are made.

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Louisiana strongly favors arbitration between parties when they have a dispute. Generally, it is less expensive and less time consuming than taking the case to trial. The arbitrator will determine the outcome of the damages based on an assessment of all of the circumstances in the case. Each side presents their side of the story so that the arbitrator can make a fair determination of the damages.

In many cases, once the arbitrator makes a decision, neither side can contest the decision unless it violates the law in some way. The Supreme Court of Louisiana has stated, “Because of the strong public policy favoring arbitration, arbitration awards are presumed to be valid. Errors of fact or law do not invalidate a fair and honest arbitration award.” National Tea Co. v. Richmond, 548 So.2d 939, 932 (La. 1989). This type of thinking makes it very difficult to set aside a decision of an arbitrator once it is completed. A case from the parish of St. Landry illustrates this idea.

In that case, the plaintiffs, a family that included two small children, bought a mobile home that they later discovered had mold in the walls and the roof had rotted. The mold likely contributed to their children’s breathing problems, and the family sought damages from both the manufacturer and the seller of the mobile home. The parties were required to arbitrate because the family signed an Arbitration Agreement shortly after they bought the mobile home.

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In order to take a case to the courtroom, you must have a cause of action. Generally, a cause of action means that there is some law that the other person has violated, and that violation has harmed you, so you should be compensated for that harm. If the law does not offer the plaintiff a remedy, then they cannot bring a case to court. When a court determines whether there is a cause of action, it does not look at the evidence of the case. Instead, it looks to only the petition that the plaintiff has filed. It assumes that all the facts are true to make this initial determination. Once a cause of action is established, then the case can go through the normal procedures to get into a courtroom.

Langston Hughes Academy Charter School’s former financial advisor stole money from the school in the amount of $667,000. She spent a portion of those funds at the Treasure Chest Casino. The school attempted to sue the casino to recover at least a portion of that money. In order to recover, the school needed to show that they had a cause of action against the casino. The school argued three major causes of action.

First, the school argued under the Louisiana Unfair Trade Practices Act (LUTPA). LUTPA provides a cause of action for “unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” The plaintiff must “prove that the conduct offends public policy, is immoral, unethical, oppressive, unscrupulous, or substantially injurious to customers.” Hernaez v. Mothe Life Ins. Co., 09-0147, p. 7 (La. App. 5 Cir. 11/10/09), 28 So.3d 454, 458. While the LUTPA originally only applied to consumers and business competitors, the Louisiana Supreme Court recently expanded the definition to include all people.

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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.

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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!

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There are some circumstances under which states and local governments are immune from liability. For example, in most states a state or local government is immune in relation to the normal acts of governance. However, what things a government can be liable for is defined by the state constitution and state legislation. The government can limit its liability in any responsible and constitutional manner possible. In Louisiana, as it pertains to civil liability, state and local government liability is dealt with in La. R.S. 9:2800. In pertinent part this provision states:

“…no person shall have a cause of action based solely upon liability imposed under Civil Code Article 2317 against a public entity for damages caused by the condition of things within its care and custody unless the public entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and the public entity had a reasonable opportunity to remedy the defect and has failed to do so.”

This provision clearly describes the liability imposed on a Louisiana government in the case that the governmental entity owns and operates property. The types of property can range from sidewalks, roads, public educational institutions, and many other types of property. The essential aspect of when the governmental entity can be liable is based on actual or constructive knowledge and an opportunity to remedy the defect after acquiring the knowledge. Courts have taken great care in defining actual and constructive knowledge. The Louisiana Supreme Court has defined actual knowledge as knowledge of dangerous defects or conditions by a corporate officer or employee of the public entity having a duty either to keep the property in repair or report any defects to the proper authority. The Louisiana Supreme Court has defined constructive knowledge as it is defined in La. R.S. 9:2800, as the existence of facts that infer knowledge. What is crucial is understanding the scope of the definition of constructive knowledge. For example, an absence of a plan to inspect does not confer constructive knowledge on a governmental entity. In the past, plaintiffs have brought claims that attempted to expose local governments to liability based on the governmental entity’s lack of a procedure to inspect publicly owned property on a regular basis.

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