Real Estate

June 29, 2013

Louisiana Court of Appeals Affirms Judgment in Favor of Defendant Companies in Property Damage Lawsuit

On February 27, 2012, a district court for the Parish of Lafayette ruled in favor of two defendants being sued by plaintiffs C.F. Kimball II and Linda R. Kimball for property damage. The first defendant, Luhr Bros. Inc. d/b/a Construction Aggregate, owns a shell yard across from the Kimballs’ property on the Vermilion River. The second defendant, Omni Marine Transportation, Inc., owns a vessel that made deliveries to the Luhr Bros. The Kimballs had asserted that both defendants had engaged in business activities that resulted in the destruction of a bulkhead belonging to and located on the Kimballs’ property. The defendants responded by saying that an exception to res judicata prevented the Kimballs from filing a lawsuit against both parties for such damages.

An exception to res judicata signifies that proceedings related to the same occurrence had already taken place and been concluded. Specifically, the defendants claimed that the parties had previously executed a Receipt, Release and Indemnity Agreement in 2002. The Kimballs acknowledged that such an agreement had been executed but claimed that the Release did not pertain to the bulkhead, which the Kimballs had only acquired in 2008. The Kimballs asserted that a Release could not be agreed to for property that was not even in existence at the time of the agreement.

The trial court ruled in favor of the defendants and dismissed the Kimballs’ lawsuit with prejudice, meaning that the Kimballs could not bring a new case on the same basis as the dismissed case. When a trial court rules in favor of the defendants on an exception of res judicata, any issue whose determination was essential to the judgment and already litigated is extinguished. Thus, the trial court found that the issue of destruction of property such as the bulkhead was essential to the proceedings that had already been litigated between the parties, that is, the proceedings that led to the production of the Receipt, Release and Indemnity Agreement.

June 25, 2013

Tragic Workplace Accident Provides Insight Into Duty of Care

by Berniard Law Firm

A former employee of the Mansfield, LA, branch of the International Paper Company, met with a fatal accident while on the job. While repairing a valve on the platform surrounding the top of a whitewater tank, he fell through the access opening and into the tank.

Access opening covers are not rooted firmly to the tank and are known to become dislocated if the tank contains overpressurized liquid, or if the liquid and debris overflow. Evidence in the form of photographs show that debris had accumulated around the access opening that the deceased had fallen into, indicating that the opening may have been dislodged before he had fallen into the tank. As a result of the incident, the widow of the deceased filed suit against the manager of the Mansfield paper mill and the engineering company that designed and constructed parts of the whitewater tank that the employee fell into.

The engineering company, Stebbins, had a contract with International Paper Company to inspect the durability of its whitewater tanks at many of its locations worldwide. The inspections conducted by Stebbins brought knowledge that some whitewater tanks were over-pressurized and were overflowing. The victims’ family contended that Stebbins’ knowledge of this hazard created a duty on the part of Stebbins to inform the International Paper company of the unsafe practice. The issue, however, was that Stebbins had no such inspection contract with the Mansfield paper mill where the deceased met with his accident.

June 20, 2013

Third Circuit Reverses Lafayette Court Ruling on an Exception of No Right of Action Claim

by Berniard Law Firm

On October 3, 2010, Darnall and Michelle Carter suffered the loss of their son Kyris in a drowning incident at a party. On April 25, 2011, the Carters filed wrongful death and survival actions against Steak House Steaks, Inc., James Nations Jr., the alleged owner of the property where the party was held, and XYZ Insurance Co. Wrongful death and survival actions are civil lawsuits initiated by the family members of a deceased victim to obtain a monetary settlement from the person or people responsible for the death of their loved one. Under Louisiana law, there is an established order concerning who has first priority to take these civil actions, with the children of the victim having the first right to file against the wrongdoing party. If the victim had no children then his or her siblings may bring the matter to court, and if the victim had no siblings, then the right falls to the victim’s parents.

Since Kyris Carter did not have any children or siblings, his parents Darnall and Michelle were within their rights to bring wrongful death and survival actions on his behalf. However, the trial court in Lafayette ruled in favor of a motion filed by the defendants in June 2011 for an “exception of no right of action” and dismissed the defendant parties from the lawsuit. According to the defendants, the plaintiffs had no right of action, that is, they did not have a right to bring the wrongful death and survival action claims because the defendants were not the owners of the property where the accident occurred, nor were they the hosts of the party where Kyris Carter died.

The details of the party in question are not laid out by the Court of Appeal or the lower court, but the particular facts concerning who hosted the party or who may have been responsible for the drowning accident should not have been taken into account when the trial court was deciding the motion. In 2012, the Court of Appeal held that the trial court had erred in its assessment of the legal procedural issues involved in the defendant’s motion. The purpose of the “exception of no right of action”, it said, is “to challenge whether a plaintiff is the proper party to file an action, not whether a defendant is the proper party against whom an action can be filed.” In other words, even if Darnall and Michelle Carter had mistakenly initiated a lawsuit against the wrong defendants, the motion used by the defendants should not have been the one used to challenge such an error. The “exception of no right of action” can only be used to challenge whether a plaintiff is the right person to be filing the lawsuit in the first place. Since Darnall and Michelle were proper plaintiffs in this lawsuit, there was no ground for this exception.

June 13, 2013

How Juries Determine Fault for Injuries Caused by Hurricane Katrina Damaged Floors

by Berniard Law Firm

Many floors were damaged in Hurricane Katrina. A Louisiana, jury was asked the question: when a floor is rotten, who is at fault when a person visiting the home is harmed?

Juries are often asked to determine liability for an accident. When a person is injured, a jury determines who is liable by listening to both sides of the story and determining who was at fault. If the liable party is insured; insurance companies have to pay big dollars to the person injured. Determining who is at fault can be very difficult.

Sharon Lewis was visiting her father, Clifton Lewis, when she sustained a fall in her father’s home in Marrero, Louisiana. Sharon was walking on the floor in the dining room when she stepped into a soft spot. The floor collapsed and her foot fell through the floor, causing substantial injuries.

June 10, 2013

Property Owners Not Liable Unless They Caused Sidewalk Defect

by Berniard Law Firm

According to an American Law Report, it is generally the rule that the owner or occupant of a property touching a public sidewalk does not, solely by reason of being the owner, owe to the public a duty to keep the sidewalk in safe condition. This rule of nonliability is not affected by a statute or ordinance requiring an abutter to construct or maintain an adjoining sidewalk, unless there is an express, contrary provision.

However, the abutter will be liable for injuries resulting from a defective or dangerous condition that is created by his or her own acts, which constitutes negligence or a nuisance under the circumstances. For example, an abutter may be liable for injuries resulting from negligent construction, alteration, or repair of the sidewalk, even though these acts in and of themselves do not create liability.

The courts have usually considered compliance with the requirements of a statute regulating the construction of sidewalks. In a number of cases, knowledge or notice of the defect is a factor for liability, although the courts in many other cases have not treated this issue, given the fact that knowledge or notice of a defect on a sidewalk, as well as its direct cause, is difficult to ascertain.

June 4, 2013

Legal Concepts: Louisiana Code of Civil Procedure and Hearsay

by Berniard Law Firm

The law has a wide variety of rules in place to force a clean route to evidence, especially from authorities on the topic, like people present or involved with the case’s topic. Hearsay is a statement, other than one made by the person themself while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted. Article 802 of the Louisiana Code of Evidence states “Hearsay is not admissible except as otherwise provided by this Code or other legislation.”

Understanding Legal Terms

Assertive Conduct:

May 22, 2013

Statute of Limitations Key to Alleged Insurance Fraud Case

by Berniard Law Firm

Many laws or actions include a statute of limitation which provides for a certain length of time for claims to be brought. After that time runs out, the claim can no longer be brought in court. The case of Joseph v. Bach & Wasserman illustrates just how important the statute of limitations can be to a case.

The case arose out of an alleged insurance fraud regarding several retail food trailers in Jean Laffite. The Josephs alleged that Wasserman defrauded them by charging them rent from properties he had illegally possessed from them. They also allege that Wasserman was supposed to place them on the insurance policy for the properties in question, but never did despite charging them insurance premiums. Wasserman in turn claimed that the Josephs owed him $375,000 in back payments. In 2004, the Josephs state that they found out that they did not owe Wasserman any back payments and he had charged them exorbitant fees. They filed suit in Orleans Parish in December 2004. In January 2005, the state court found deficiencies in the Josephs’ claim and gave them fifteen days to correct the problems, but the Josephs failed to respond and their state claim was dismissed with prejudice.

In 2011, the Josephs filed a complaint in federal district court alleging violations of the Racketeer Influenced and Corrupt Organizations Act (RICO) and various state law claims. On February 8, 2012, the federal district court granted Wasserman’s motion to dismiss and declined to exercise jurisdiction over the state law claims. This case deals with the Joseph’s appeal of the district court’s decision.

May 7, 2013

Abandonment Examined by Appellate Court in Construction Lawsuit

by Berniard Law Firm

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.

April 13, 2013

The Threshold Issue in Negligence Lawsuits – Explanation of Duty

by Berniard Law Firm

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?

March 19, 2013

Lead Berniard Law Firm Attorney Demonstrates Expertise with CLE Instruction

by Berniard Law Firm

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.