Articles Posted in Wrongful Death

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Louisiana law, in providing for uninsured/underinsured motorist (“UM”) coverage, reflects the state’s strong public policy of providing full recovery to victims who suffer damages in car accidents. If an at-fault driver lacks sufficient insurance coverage, the UM provision of the victim’s own policy will operate to make up the shortfall. UM coverage will be read into an insurance policy by default unless the coverage is rejected, and rejection “shall be made only on a form prescribed by the commissioner of insurance,” where the “form shall be provided by the insurer and signed by the named insured or his legal representative.” The following requirements must be met in order to create a valid rejection: 1.initialing the rejection the UM coverage; 2. printing the name of the insured or legal representative; 3. signing the name of the insured or legal representative; 4. filling in the policy number; and 5. dating the form. In cases of dispute, the insurance company bears the burden of proving that the insured rejected UM coverage, but a properly completed form “creates a rebuttable presumption that the insured knowingly rejected UM coverage.” A dispute over the waiver of UM coverage formed the basis of a case that came before Louisiana’s Second Circuit Court of Appeal earlier this year.

On July 21, 2008, Richard Gunter, a Bossier Parish police jury employee, was injured when the parish-owned vehicle he was riding in as a passenger was struck by another vehicle. Gunter filed suit against the driver of the other vehicle and her insurer, Gunter’s own insurer, and St. Paul Fire and Marine Insurance Co. Gunter alleged that St. Paul provided UM coverage for the police jury. St. Paul filed a motion for summary judgment, stating that the police jury had rejected UM coverage under its policy. The trial court granted summary judgment on behalf of St. Paul; Gunter appealed on the grounds that material facts about whether the police jury knowingly and properly rejected UM coverage were in dispute.

St. Paul’s position that the police jury rejected UM coverage was based on the fact that the parish administrator had completed a UM waiver form on September 27, 2007. Yet, the parish president’s testimony via affidavit revealed uncertainty as to whether the administrator had the authority to reject UM coverage, or whether such an action required approval by the parish finance committee. The court noted that “the record does not show that [the parish administrator] acted with the agreement, knowledge, or approval of the police jury in rejecting UM coverage for the policy period at issue.” Thus, “considering the strong public policy favoring UM coverage,” the court concluded that there were “genuine issues of material fact as to whether [the parish administrator] was authorized … to reject UM coverage on behalf of the police jury as its legal representative and whether the police jury knowingly rejected UM coverage for the relevant policy period.” Accordingly, the court reversed the trial court’s granting of summary judgment.

 

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In trial, experts are individuals who have specific knowledge about their field beyond what the average person would have. That knowledge could be about a broad, technical field such as neuroscience or it could be something as simple as a neighbor who constantly watches the happenings in the neighborhood. As a result of their experiences, those individuals have special knowledge that they are able to share with the judge and jury at a trial.

However, in order to allow an expert to testify at trial, there are certain criteria that must be met. Recently, thanks to a State of Louisiana Third Circuit Court of Appeals case, those requirements have been spelled out explicitly. The case involved the death of a teen as he was driving down a slippery highway in the evening on Highway 102 in Jefferson Davis Parish. He lost control of his vehicle as he was driving around a curve and the vehicle struck a headwall of a cement culvert that ran under the roadway. The vehicle rolled over into the ditch and partially ejected the teen; his head and neck were trapped between vehicle and the ditch. He died as a result of his injuries.

The family brought a wrongful death action against the Department of Transportation and Development (DOTD), arguing that the road was maintained in a hazardous condition. They contended that headwall of the concrete culvert was slightly above grade by about three inches and that the slope of the ditch was steeper than it should be. Obviously, both of these claims involve a lot of technical information about highways and regulations that the average person would not know. Therefore, when this case got to trial, both sides called in experts to determine whether these conditions were violating any rules and whether the above grade culvert and the slope of the ditch could have contributed to the accident regardless of whether they were maintained improperly.

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Our justice system puts a great deal of important decisions in the hands of juries. Criminal defendants and civil defendants often find their fates in the hands of some number, varying by jurisdiction, of people with no specific training whatsoever. Our system gives a great deal of deference to the trier of fact at the trial level. Nobody, save perhaps the actual participants in the case, is in a better position to determine exactly what happened in a given case. The jury hears all of the admissible evidence and at the end of the day they determine not only what happened in a civil trial but, once liability is conceded or established, how much the plaintiff is entitled to recover for their injuries. Once the jury renders a verdict, its findings will not be overturned absent a determination that they abused their discretion. The Louisiana Supreme Court has gone out of its way to stress just how much deference should be granted to jury verdicts on review. They noted that a jury finding regarding damages is entitled to “great deference on review” in Wainwright v. Fontenot, 774 So.2d 70, 74. The Louisiana Supreme Court further indicated that “an appellate court should rarely disturb an award on review” in Guillory v. Lee, 16 So.3d 1104.

In the case of Deligans v. Ace American Ins. Co., the defendant conceded the issue of liability. The trial in this case only concerned the amount of money to be awarded in damages. After the jury heard all of the evidence in that case, they awarded the plaintiff several dollar amounts for specific types of damages. The jury awarded Mrs. Deligans money for past physical pain and suffering, future physical pain and suffering, past mental pain and suffering, future mental pain and suffering, past medical expenses, future medical expenses, past loss of enjoyment of life and future loss of enjoyment of life. The jury did not award Mrs. Deligans any money in the areas of past disability or future disability. Ms. Deligans complained on appeal about the inadequacy of the award she was granted by the jury.

The appellate court found that the jury in this case had in fact abused its discretion. After explaining the deference due to such a finding at great length, the appellate court actually raised the award that the jury awarded Ms. Deligans. When an appellate court makes such a finding, it can only raise the award to the “lowest amount which is reasonably within the court’s discretion.” The appellate court looked to jury awards in similar cases when making this determination. The appellate court then awarded Ms. Deligans the lowest amount it felt was within the purview of the jury to have given without abusing its discretion. Even when the jury verdict is overturned, it is still given great deference.

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On February 24, 2003, D H visited the North Monroe Medical Center to have a benign tumor removed from her breast. The procedure was performed by Doctor A, a general surgeon, and Doctor B, a radiologist. The procedure involved inserting a metal wire, guided by x-ray, into the breast and “hooking” the tumor. Once Doctor A removed the mass of tissue, Doctor B compared pre- and post-operation images and confirmed that the tumor had been taken out. The tissue was sent for pathological analysis, which revealed that it was not the intended tumor, but rather normal breast tissue. A mammogram several months later revealed that a section of the wire hook and the tumor remained in H’s breast. Doctor A, therefore, performed another procedure in which he successfully removed the wire fragment and the tumor.

H filed a medical review panel complaint against Doctor A and the North Monroe Medical Center. The panel found in favor of the defendants, and H filed a medical malpractice suit on January 19, 2007. She amended the complaint to include Doctor B on October 30, 2008. In February, 2011, following the completion of H’s case, the defendants moved for directed verdicts, which the trial court granted. H appealed the trial court’s granting of directed verdicts in favor of Doctor A and Doctor B. Under Louisiana law, a directed verdict should be granted when, after considering all the evidence, it is clear to the court that the “facts and inferences so overwhelmingly favor a verdict for the movant, that reasonable jurors could not have arrived at a contrary conclusion.” This, naturally, in the case of a defendant’s petition for a directed verdict, requires that all of the plaintiff’s evidence be properly before the court. Expert testimony is not absolutely required in order for the plaintiff to overcome the burden to show that the defendant was negligent. In fact, on appeal to the Second Circuit Court of Appeal, H argued that expert testimony was not necessary to establish malpractice, as the actions that led to her injury were “obviously careless acts” and, as such, negligence could be inferred. The court disagreed, offering that “although the procedure itself may be considered routine, considering the procedure as a whole, specifically the judgment calls required of Drs. A & B, it is clear that this is not a scenario from which lay persons could infer negligence.”

This conclusion led to the analysis of the trial court’s refusal to certify Dr. Roderick Boyd, H’s witness during the trial, as an expert in radiology. As a result of Dr. Boyd’s being certified in general surgery only, he was unable to comment on most of Doctor B’s involvement in H’s procedure during his testimony. The court’s review of the record of Dr. Boyd’s voir dire revealed that “Dr. Boyd had performed several hundred needle localization breast biopsies. He does regularly review radiographic images as a function of his occupation as a general surgeon and in connection with biopsies such as the one performed in this case.” Therefore, the court’s “not accept[ing] Dr. Boyd as an expert in this type of procedure to include a reading of the radiographic images was clear error. The court concluded, “We cannot speculate on Dr. Boyd’s opinion or its impact on the jury’s decision. Nonetheless, … we must reverse the trial court’s grant of both defendants’ motions for directed verdict, and remand for further proceedings.”

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Black’s Law Dictionary defines a common carrier as “A commercial enterprise that holds itself out to the public as offering to transport freight or passengers for a fee. A common carrier is generally required by law to transport freight or passengers . . . without refusal, if the approved fare or charge is paid.” Common carriers include vehicles such as buses, planes, trains, and even taxis. Generally, the individual who is driving or running the vehicle is unknown to the passengers and those passengers are, in effect, putting their lives in the hands of a complete stranger. As a result, a common carrier has special, heightened obligations to the people they are transporting. Therefore, if someone is injured, then the common carrier is more likely to be held liable.

The danger involving public transportation is especially apparent in situations where there are children involved. For example, in a recent case involving the Avoyelles Parish School Board, they were held liable for an injury that a child sustained on a school bus. In this case, a child was injured as a result of the bus driver backing up into a wet, grassy area and getting the school bus stuck in the mud. The school bus had to be hauled out of the mud while the children were on it. The child involved injured his knee; he suffered from bilateral knee contusions after he hit his knee on the back of one of the chairs.

The school bus is considered under the definition of a common carrier even though the children do not directly pay for their transportation as they get on the school bus. As a result, law surrounding the common carrier doctrine governs the school bus case. Although Louisiana generally relies on codes to make up their laws, the common carrier doctrine exists even in this state.

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In order to sue, there are certain rules and procedures you must follow. There are not only federal rules; there are also state rules and local rules. All of these rules should be combined in order to correctly deal with the court system. In many cases, if you do not comply with these extensive rules, then the court will not hear your case. Obviously, these rules are important, but can be very time consuming to follow.

A recent case provides us with an excellent example of following the rules to the letter. In this case, an individual was killed on Highway 90 near Iberia Parish. His accident occurred on a temporary road near a construction zone; he was the only person involved in the accident. As a result, his mother sued for wrongful death. She listed Toyota Motor North American, Inc., Toyota Motor Engineering & Manufacturing North America, Inc., Toyota Motor Sales U.S.A., Inc., and the Department of Transportation and Development.

One of the many procedures that must be followed is the service of process. Service of process involves giving the other party a letter or some kind of notification that they are being sued. Its purpose is obviously to inform the other party that they are being sued, but also let them know that they will need to respond and possibly go to court to defend the suit.

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Late in the afternoon of April 15, 2001, Geraldine Fruge and her eight-year-old granddaughter, Hannah Lejeune, were involved in an auto accident on US Highway 171 in Beauregard Parish. Fruge, who was driving southbound, lost control of her Pontiac and veered into oncoming traffic. Tragically, both she and Lejeune were killed when their car struck a Ford pickup truck heading northbound. It had been raining on and off throughout the day and Highway 171 was wet at the time of the crash. The victims’ family brought a wrongful death action against Louisiana’s Department of Transportation and Development (DOTD). The plaintiffs alleged that due to the highway’s construction, water was allowed to collect and pond on the roadway. They alleged that this condition amounted to a defect that caused Fruge’s car to hydroplane. After jury returned a verdict in favor of DOTD, the plaintiffs appealed.

The primary duty of Louisiana’s DOTD is to maintain the public roadways in a condition that is reasonably safe and which does not present an unreasonable risk of harm to motorists who exercise ordinary care. As discussed in this prior blog post, a plaintiff must prove the following elements in a tort action against DOTD arising from accident on the roadway: (1) that the condition that caused the damage was in DOTD’s control; (2) that the condition amounted to a defect that presented an unreasonable risk of harm; (3) that the DOTD was aware or should have been aware that the defect existed; and (4) that the defect was the cause of the plaintiff’s injuries. Upon review, the Court of Appeal for the Third Circuit began “with the second element: whether Highway 171 contained a condition that created an unreasonable risk of harm.”

The court reviewed the record and examined the testimony presented by eyewitnesses, experts, and accident investigators, much of which centered around the ridges or ruts in the travel lane that on the day of the accident held water on the road. The court noted that “it is clear that the jury could not have come to any conclusion other than the fact that the travel ruts on both lanes of Highway 171 were holding some water at the time of the accident. Thus, the pivotal question is whether this retention of water was a defect in the highway that created an unreasonable risk of harm.” After an exhaustive review of matters such as rut depth, roadway gradient, tire tread depth, and the physics of hydroplaning, the jury found that the condition of the road did not present an unreasonable risk of harm. “The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one.” Accordingly, the court held that “the evidence in the record provides a reasonable factual basis for the jury to have concluded that Highway 171 was not defective,” and affirmed the trial court’s judgment.

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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.

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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.

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A man died in Calcasieu Parish following an altercation with the Lake Charles Police Department. The victim, Deshotels, was chased out of a neighbor’s garage by her husband. The husband grabbed him in a chokehold, which ultimately rendered him unconscious. On their way to a burglary call in the same area, the police en route received a call from dispatch that the neighbor had apprehended Deshotels. Believing it to be the same call, they arrived at the apartment complex, expecting to deal with a burglary suspect, not a trespasser. When Deshotels attempted to run from the police officers, one of them tased him twice to stop his resistance so the others could handcuff him. The officers noted that Deshotels had turned blue and stopped breathing so they uncuffed him and called an ambulance.

His family sued the officers involved, the Lake Charles Police Department, and the Calcasieu Parish Sheriff’s Office. They brought charges for excessive force and failing to provide appropriate medical assistance against the officers involved in cowing Deshotels. Against the other officers present, they brought bystander liability claims for not preventing the tasing. The trial court granted summary judgment to the police department, dismissing the bystander liability and excessive force claims against the majority of the officers. However, the family’s claims of failure to render appropriate medical assistance and excessive force by the tasing officer are currently pending before the district court. The family appeals the dismissal of these claims.

An excessive force claim will succeed if the plaintiff can show that he suffered an injury that resulted directly and only from the use of force and that the force used was objectively unreasonable. In police situations, courts consider factors like whether the suspect posed an immediate threat to the safety of others, whether he was actively resisting arrest or trying to flee, the existence of alternative methods of arrest, the nature of the offense involved, and the risks and dangers faced by the officers. But because police officers are usually required to make split second judgments in tense situations, the court evaluates the officer’s use of force from the perspective of a reasonable officer being thrust into that scene. Since the excessive force claim against the tasing officer was denied summary judgment, the appellate court looked the other officer’s actions in subduing and handcuffing Deshotels. Were the actions reasonable under the circumstances?

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