by

purse_money_credit_squeeze-1024x683For purposes of seeking an appeal, there is great importance in preserving the record, which may be done through admitting evidence at trial to support relevant claims. When the record has not been established at trial, it is difficult for the best attorneys to succeed on appeal. William Taylor (Mr. Taylor), the plaintiff in his case brought against Hanson North America (Hanson), ran into this evidentiary legal hurdle when he appealed the Office of Workers’ Compensation (OWC) decision denying his motion to Louisiana’s First Circuit Court of Appeal.

 Twenty years before the First Circuit Court issued its 2015 opinion affirming the OWC decision, Mr. Taylor was injured in a work-related accident. His injuries left him permanently and totally disabled. Afterward, the OWC determined that Mr. Taylor was entitled to workers’ compensation benefits. 

Years later, Mr. Taylor’s physicians recommended that he undergo a myelogram, CT scan, and physical therapy. However, Hanson, the successor in interest of his former employer, refused to authorize these treatments. In turn, Mr. Taylor filed a disputed claim with the OWC against Hanson, seeking penalties and attorney fees for Hanson’s failure to approve these treatments and for failure to timely pay his medical expenses and prescriptions. 

Continue reading

by

rear_mirror_mirrors_auto-1024x768Following an automobile accident, you will likely deal with insurance companies unwilling to pay what you believe you are owed. Insurance companies may rely on a multitude of evidence to support their decisions, including witness testimony. The following East Baton Rouge lawsuit demonstrates the weight courts may place on witness testimony following a car accident. 

Darral Norwood was driving a car owned by Toshika W. Smith, the mother of Laterrica Gustave. Gustave had Smith’s express permission to drive the car under certain circumstances without asking, although she was required to ask permission from Smith for all other purposes. Smith had an automobile liability policy on the car, where Smith was named as the only insured. The policy, however, included a provision excluding coverage of any damage caused by someone operating the vehicle at the time of the accident without the express or implied permission of the insured.   

On the day of the accident, Norwood, who did not have a driver’s license or a vehicle, claimed Gustave told him to take the car to work. Gustave, however, denied ever permitting Norwood to take the vehicle. Norwood, driving Smith’s car, then rear-ended Rachel Pray’s vehicle as she slowed down due to congested traffic. 

Continue reading

by

child_paternity_kids_baby-1024x669When a married couple welcomes a new child, the father is presumed to be the legal father.   In many cases, the legal father is also the biological father.  Unfortunately, there are cases when biological and legal fathers exist separately.   What legal rights and remedies does a biological father have to this child?  The timing of legal action is critical to answering the question.  

Courts typically use the parties’ initials in cases involving a minor child.  In a recent case on appeal from the Parish of Terrebonne, the alleged father, L.J.D., filed a lawsuit to establish paternity.  L.J.D. alleged involvement with M.V.S. while she was married to J.P.S.  M.V.S. had a child presumed to be J.P.S.’s legal child (the husband).  L.J.D. wanted the Thirty-Second Judicial District Court for the Parish of Terrebonne to order blood testing of all parties.  M.V.S. and J.P.S. responded, stating it was too late for L.J.D. to bring such an action because the child was older than one year.  The District Court disagreed that it was too late and ordered M.V.S. to get a blood test.  M.V.S. and J.P.S. appealed to the Louisiana First Circuit Court of Appeal, asserting the action was perempted.  

Peremption is a period of time fixed by the law for the existence of a right.  If the right is not exercised within the time limits statutorily prescribed, that right is extinguished at the end of the peremptive period.  See La. C.C. 3458.  Louisiana law states that if a child is presumed to be the child of another man, an action to establish paternity must be brought within one year from the child’s birth.  See La.C.C. 198. The article also provides that if the mother deceives the father about his paternity, the father has one year from when he knew or should have known about paternity or within ten years of the child’s birth to bring an action.  To request a court to order blood testing, a potential father must also have the right to file a petition to establish paternity.  See La. R.S. 9:398.2(A)(2). 

Continue reading

by

cow_beef_alm_cows-1024x683What happens when a cow crosses a road? Although that might sound like the start of a joke, that is the situation Zaine Kasem found herself in after being run over by a cow that escaped from a herd owned by Joyce B. Williams and H.R. Williams Cattle Company (“HRW”). 

There had been a heavy rainstorm. One of HRW’s employees inspected the pasture and fence, but he did not see any damage caused by the storm. Nonetheless, a cow escaped from the herd through a damaged fence and entered Kasem’s front yard in St. Gabriel, Louisiana. Kasem described the scene as a “circus” with many people running around trying to capture the cow. Finally, she went outside to see what was happening, and the cow ran into her, knocked her into the bed of a truck, and caused her to suffer injuries to her eye, nose, back, and neck, requiring medical treatment and pain and suffering.

Kasem sued Williams and HRW, claiming they breached the duty under La. C.C. art. 2321 to restrain their cattle and prevent them from entering other properties, injuring others, or otherwise causing damage. Williams and HRW filed a motion for summary judgment in response to the lawsuit.

Continue reading

by

crane_load_crane_crane-1024x683When you are preparing for a lawsuit, it is crucial to understand what evidence you will be allowed to present in support of your claim. On the flip side, if there is evidence you do not think the other party should be able to present, you can file a motion to try to exclude that evidence. Rulings on evidence can have a major effect on a case because they limit what a jury gets to see or hear. 

In product liability lawsuits, it is essential to understand the various parties involved in the manufacture and sale of the at-issue equipment. The following lawsuit out of St. Charles Parish Louisiana shows the importance of understanding the rules of evidence and when and how to produce evidence at trial.

Grove U.S. LLC manufactured, sold, and delivered the at-issue Grove crane to H&E Equipment Services. H&E then leased the crane to Dow Chemical to use in Taft, Louisiana. While in use Grove sent H&E a notice of a Product Improvement Program related to issues involving the crane’s boom extension and structural deficiencies. H&E was authorized to repair because it was an authorized distributor. A manager at H&E contacted the crane’s supervisor at Dow to make the repairs. Dow’s supervisor said they would remove the parts instead of permitting H&E to do so. 

Continue reading

by

penitentiary_jail_police_crime-1024x768Jails are supposed to be safe for the people in them and can’t expose inmates to unnecessary risk of injury. Even though prisons are not required to be legally comfortable, they must still provide safe living conditions. If someone gets hurt because of unsafe conditions in jail, they can seek relief from the county. This relief may come in different forms, but the inmate must follow administrative procedures outlined in the jail handbook or other administrative guides before filing a lawsuit.

Korey Bossier had water running through his jail cell from a nearby shower that he slipped on and injured himself. As a result, he filed a lawsuit against the Lafayette parish sheriff and jail for a tort action. At the trial court, the jail claimed the handbook had specific administrative remedies for grievances that Bossier did not undertake. The trial court threw out the case because Bossier did not follow specific administrative procedures outlined in the jail handbook before filing the lawsuit. Bossier appealed to the Third Circuit Court of Appeals to review his case. 

In his appeal, Bossier argued the jail handbook does not have any section on administrative steps for an inmate to take when submitting a tort action or grievance. The only language in the grievance handbook does not clearly state any proscribed administrative remedies. The jail read the same section of the handbook as requiring a grievance report to be filed before any tort action can occur in a state court. The appeals court reviewed the trial court’s decision to see if the lower court correctly applied the law.

Continue reading

by

louisiana_shrimp_boats_grand-1024x709In the realm of lawsuits, there are always two sides to the story, presenting challenges in determining who will emerge victorious. However, even when faced with factual disputes, there is still hope for success in your worker’s compensation claim. The case of David Thibodaux, a truck driver for Grand Isle Shipyard, serves as a prime example of overcoming obstacles in the pursuit of justice. Despite skepticism about the origin of his injuries and facing resistance from his employer, Thibodaux’s perseverance and the support of a skilled attorney led to a favorable outcome. This story emphasizes the crucial role of legal counsel in guiding individuals through the complexities of workers’ compensation claims and ensuring the presentation of compelling evidence to support their case.

Thibodaux was allegedly injured while working as a truck driver for Grand Isle Shipyard. He was driving a truck in Isabel, Louisiana picking up sand. His truck stalled in a pothole he had attempted to drive through, and the front axle of his truck broke. Thibodaux claimed the truck bounced around, and he hit his arm on an armrest. He was eventually able to stabilize the vehicle. 

Within a few days, Thibodaux informed his supervisor he was injured. He claimed his supervisor did nothing in response. Approximately eight days later, Grand Isle Shipyard terminated Thibodaux. He claimed at the time of his termination, he had not filed a workers’ compensation claim, nor had anyone at Grand Isle Shipyard informed him of how to file such a claim. However, before his termination, Thibodaux had visited his doctor related to the accident because of ear and neck pain. His doctor prescribed him various pain medications. Nevertheless, Thibodaux continued to have pain and sought additional medical treatment. 

Continue reading

by

skeleton_bone_medical_doctor-1024x768The case of Danell Brice, a home health nurse who was attacked while visiting Timothy Bragg’s apartment, highlights the complex legal issues surrounding the duty of care owed by healthcare professionals in situations involving potential harm to third parties. Brice filed a lawsuit against Dr. Lynn Simon, Braggs’ treating psychiatrist, and Dr. Vasanthi Vinayagam, who provided medical treatment to Braggs. The central dispute revolves around whether the doctors had a duty to warn Brice about Braggs’ changed medication and potential for violence. This article examines the court’s ruling on the motion for summary judgment and the application of relevant statutes in determining the doctors’ liability.

While visiting Bragg’s apartment, Danell Brice, a home health nurse, was attacked by Braggs. Braggs was admitted to Serenity Community Mental Health Center, an outpatient partial-day program for psychiatric patients. Braggs had paranoid schizophrenia and benign hypertension and was considered “poorly integrated.” When Brice was taking Bragg’s blood pressure in his apartment, he made sexual advances toward her. When Brice attempted to leave the apartment, Braggs shoved her into a corner by the door. However, she managed to push Braggs away and leave his apartment. Brice said that she sustained injuries when she pushed Braggs away from her.

Brice sued Dr. Lynn Simon, Braggs’ treating psychiatrist at Serenity, and Dr. Vasanthi Vinayagam, who treated Braggs for minor medical conditions at Serenity. Brice alleged that both doctors failed to warn her that Braggs’ medication was changed, failed to provide her with adequate security when treating Braggs, failed to protect her from a predicable assault, and breached their standard of care.

Continue reading

by

green_mold_harmful_mold-1024x768A pre-existing illness requiring time off is difficult, especially if one believes the work environment is worsening the condition. However, proving the environment is the cause of the worsening condition is difficult to do. So, how can a pre-existing illness affect a worker’s compensation claim? What happens if you cannot prove a causal link between a work environment and a worsening condition? The following Louisiana Court of Appeals case helps answer these questions. 

Amy Duplechin was a teacher at St. Landry Parish School beginning in 2000. She suffered from a respiratory condition causing several absences from work. After a semester-long sabbatical, Duplechin claimed her condition worsened due to alleged exposure to mold in her classroom. She claimed she found mold on the back of a bookshelf and growth along the air conditioner’s side. 

According to the School Board, the mold was cleaned by Duplechin and the custodial staff, and she was moved to a new classroom. Duplechin claimed the School Board failed to pay indemnity benefits and medical benefits timely and sought payment of penalties and attorney fees. Still, the workers’ compensation judge decided the law favored the School Board. 

Continue reading

by

american_bank_banking_banknote_0-1024x683When terminating employment in Louisiana, it is crucial to understand the laws governing the timely payment of owed wages. However, a question arises when an employee fails to explicitly state “discharged” or “resigned” in their petition. Kevion Dillon found herself in such a situation after experiencing harassment and discrimination that led her to resign from her position. Despite not using specific terminology, she sought to receive her final wages within the 15 days mandated by Louisiana law. This case sheds light on the importance of legal guidance to navigate the complexities of claiming unpaid wages and exercising one’s rights when facing employment challenges.

Kevin Dillon worked at Babies R US, which Toys R Us owned. After she resigned due to the alleged harassment and discrimination she suffered from, Dillon filed a lawsuit under the Louisiana Employment Discrimination Law, La. R.S. 23:301. She also brought other claims against Toys R Us, including alleging Toys R Us had violated La. R.S. 23:631 and 632, the Louisiana Wage Payment Act, by not timely paying her final wages within the 15 days required under the statute. 

Dillon then filed a Rule to Show Cause related to her Louisiana Wage Payment Act claims. In response, Toys R US filed an exception of no cause of action, which the trial court granted and dismissed Dillon’s wage claims. The trial court explained there was no legal remedy available to Dillon because she did not use the words “discharged” or “resigned” in her petition. Dillon then appealed, arguing her petition properly asserted a cause of action under the Louisiana Wage Payment Act. 

Continue reading
Contact Information
1140 St Charles Ave
New Orleans, LA 70130
Phone: (504) 521-6000
Fax: (504) 617-6300

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

Please do not include any confidential or sensitive information in a contact form, text message, or voicemail. The contact form sends information by non-encrypted email, which is not secure. Submitting a contact form, sending a text message, making a phone call, or leaving a voicemail does not create an attorney-client relationship.

Copyright © 2016 – 2024, Berniard Law Firm
JUSTIA Law Firm Blog Design