Workers Compensation

October 9, 2012

Chlorine Gas Leak Case Offers Lesson on Products Liability Claims

Four workers who were employed by the Prairieville-based Proserve Hydro Co. were working on at a Honeywell International facility when a hose carrying chlorine gas ruptured, causing them injury. The workers sued Triplex, Inc., the company that had sold the hose to Honeywell, under the theory that it was liable for their injuries as the manufacturer of the hose. The U.S. District Court for the Middle District of Louisiana, applying the Louisiana Products Liability Act (LPLA), granted summary judgment in favor of Triplex, and the workers appealed.

In its review, the U.S. Court of Appeals for the Fifth Circuit noted that The Louisiana Supreme Court has identified four elements that a plaintiff must establish in a products liability suit under the LPLA. It focused particualrly on the requirement that the defendant must be the “manufacturer” of the product according to the state’s definition. The lower court’s summary judgment was based on Triplex’s position that it was not a manufacturer of the hose within the meaning of the LPLA. The hose in question was a “Resistoflex Chlorine Hose Part # HB30HB30HB-1560.” It consisted of a Teflon inner-core surrounded by a braided material jacket. The core and jacket were assembled by the Crane Resistoflex Company and shipped in bulk to Triplex for distribution. Upon receipt of an order from Honeywell, Triplex cut the hose to the requested length, installed Resistoflex-approved fittings to either end, and pressure-tested the hose. Triplex recorded the specifications of this work on an assembly test certificate which listed “Resistoflex” as the manufacturer of the hose.

The court looked to the LPLA to determine whether, based on its cutting the Resistoflex hose and installing the end fittings, Triplex fit the definition of “manufacturer.” It noted that the workers’ expert conceded that the hose rupture occured a significant distance away from any end fitting and did not appear to result from the modifications Triplex performed. It also affirmed the point that “the simple act of testing a product after modifications,” as Triplex did, “does not transform a seller into a statutory ‘manufacturer.’” The court was not persuaded that Triplex exercised any “control over… a characteristic of the design, construction or quality of the product,” given that Honeywell specified the exact Resistoflex part number and the end fittings it required. Accordingly, the court concluded that Triplex was not a manufacturer under the state law definition, and therefore could not be found liable for the workers’ injuries under the LPLA.

October 1, 2012

Maritime Injury Leads to Lawsuit Against Employers Leads to Jurisdiction Issue

by Berniard Law Firm

An employee working on the deck of a marine vessel suffered injuries to his back and hips after a crane moving equipment from the dock swung a cargo basket at him and pinned him to the ship. The employee sued the company operating the crane as well as his own employer who operated the ship he was loading.

The plaintiff-employee, Hamm, and the defendant-companies, Island Operating Company (IOC) and Rodan, disagree about what jurisdiction controls this case. The plaintiff argues that his claims fall under admiralty jurisdiction and as such elected to undertake a non-jury trial as allowed under Rule 9(h) of the Federal Rules of Civil Procedure. But the defendant companies desire a jury trial and believe that the case falls under the Outer Continental Shelf lands Act (OCSLA).

What law is applicable in this case—admiralty or OCSLA—is determinative in this case due to the different statute of limitations. If the case falls under federal maritime law then the employee has three years to file his claim, but if the case falls under OCSLA then the case will fall under the law of the adjacent state (in this case, Louisiana) and the employee had to file his claim within a year. If OCSLA is found to be the applicable law then the employee’s claim will not be valid since he filed suit fifteen months after the accident. If federal maritime law applies, then not only will Hamm be entitled to the non-jury trial he wants, but Rodan and IOC will not be able to throw the case out.

September 19, 2012

How Louisiana Determines Damages for Personal Injury

by Berniard Law Firm

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.

August 15, 2012

Injury Due to Workplace Discrimination Handled in Court of Appeals

by Berniard Law Firm

Discrimination in the workplace is unfortunately all too common. But, how do you determine if you might be able to file a claim for workplace discrimination that resulted in a loss of job? Although this is a challenging subject that should be decided for each individual situation, the Court of Appeals for the Fifth Circuit (which includes Louisiana) has come up with a general outline for discrimination cases. This outline might be helpful to determine whether you should bring a case if you feel your workplace has discriminated against you.

It is illegal for an employer to fire an employee because of the employee’s race. If race was a “contributing factor” in the loss of employment then it is illegal, even if there are other, lawful reasons for the termination of employment. There are three major steps to determine whether or not you might have a case for workplace discrimination.

First, the court will decide if the person who was allegedly discriminated against has a “prime facie” case for discrimination. That is, whether the case looks like discrimination on the surface without diving too deep into the facts. The court will base this decision on four qualifications. First, the person allegedly discriminated against must be a member of a protected class. A protected class has been defined by law as race or color, nationality, sex, or religion. However, an individual can be considered a protected class in relation to the particular situation in the workplace. Therefore, an individual can be a protected class even if that individual is not considered a minority in comparison to the general population. Second, he or she must be qualified for the position that they held. Third, he or she must have actually been terminated from employment. Lastly, he or she must have been replaced by someone from outside the protected class in which the person who allegedly discriminated against belongs. Assuming all of these qualifications are met, you can move on to step two.

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.

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.

January 25, 2012

“Law of the Case” Doctrine, Part 2

by Berniard Law Firm

In our most recent post, we began a review of the Third Circuit Court of Appeal’s application of the law of the case doctrine in a lawsuit that followed an auto accident in Vernon Parish. The plaintiffs, in opposing UUT’s motion for summary judgment, argued that UUT’s no-coverage arguments had previously been heard in a “peremptory exception of no right of action” filed by UUT which the trial court had denied. Both the Third Circuit and the Louisiana Supreme Court denied writs of appeal in that ruling; thus, the plaintiffs argued that the law of the case doctrine should “preclude UUT from re-litigating those same arguments” in the instant case. The plaintiffs also argued that the federal case cited by UUT offered “no precedential value in this state court action.” UUT’s reply asserted that the exceptions previously heard by the trial court “dealt with procedural, rather than substantive, matters,” and were not properly before the trial court at the exceptions hearing. In sum, UUT argued that the trial court’s rulings on the exceptions were interlocutory and therefore “subject to revision by the trial court at any time prior to rendition of final judgment.” The trial court granted UUT’s motion for summary judgment and dismissed all of the plaintiffs’ claims based on the finding that there was no coverage under the UUT policy. The plaintiffs appealed, arguing that UUT’s arguments had previously been heard and rejected in an earlier action (the peremptory exception) and therefore “the law of the case doctrine should have been applied because no new argument or evidence was produced by UUT.”

The Third Circuit concluded that UUT showed that “the policy it issued to Olympic did not provide coverage for the plaintiffs’ claims.” The truck Coronado wrecked was a vehicle leased from Olympic, and the UUT policy by its language excluded coverage for leased vehicles. Rather than refute UUT’s position on the merits, the plaintiffs simply “argued that the issue had already been litigated and that the trial court was bound to follow its earlier ruling.” The court rejected that the law of the case doctrine applied. It noted that UUT did not raise coverage issues when it filed its exceptions in the trial court. Instead, “the plaintiffs brought up the issue of coverage in their opposition to UUT’s exceptions.” In fact, UUT was not even made aware of the plaintiffs’ position on coverage until the day of the hearing. “Clearly,” the court concluded, “the issue of coverage under the UUT policy was not squarely before the trial court at the hearing on the exceptions.” In the view of the court, “[t]he issues raised in the motion for summary judgment filed by UUT … did not cause indefinite re-litigation of the same issue[s] as were raised in its [exceptions motion].” Accordingly, the court affirmed the trial court’s grant of summary judgment in favor of UUT.

The Willis case is a stark reminder to litigants that the rules of civil procedure in Louisiana can be extremely complex. Even when the disputed issue in a case (such as whether an auto insurance policy covers a particular driver) is fairly straightforward, a plaintiff can face a complicated path to a resolution without the counsel of an experienced attorney.

January 23, 2012

Exploring the “Law of the Case” Doctrine in Vernon Parish Car Accident Litigation

by Berniard Law Firm

Under the Louisiana Code of Civil Procedure, judgments are either interlocutory or final. A judgment that “determines the merits [of an issue] in whole or in part” is a final judgment, while a judgment that determines “only preliminary matters” is an interlocutory judgment. Generally speaking, final judgments can be appealed, but interlocutory judgments cannot unless there is a statutory exception that permits the appeal. See La.Code Civ.P. art. 2083. If a court renders a judgment that addresses fewer than all of the claims or that concerns fewer than all litigants in a case, that judgment is not final and may be revised by the court at any time prior to a final judgment. See La.Code Civ.P. art. 1915(B). With parallel reasoning, if a court of appeal denies a writ of appeal, thereby declining to exercise its supervisory oversight of a trial court, the court of appeal cannot affirm, reverse, or modify the judgment of the trial court. This means that “any language in the court of appeal’s … writ denial purporting to find no error in the trial court’s … ruling is without effect.” See Bulot v. Intracoastal Tubular Services, Inc..

Related is the “law of the case doctrine.” This principle pertains to:

“(a) the binding force of trial court rulings during later stages of the trial, (b) the conclusive effects of appellate rulings at the trial on remand, and (c) the rule that an appellate court will ordinarily not reconsider its own rulings of law on a subsequent appeal in the same case.” Petition of Sewerage & Water Bd. of New Orleans.