Louisiana Personal Injury Lawyer Blog

February 2, 2023

New Orleans Court of Appeal Determines Obligation of Insurance Company Does Not Increase From Providing Coverage to Both Parties

reserved_sign_wedding_decorations-1024x683 Car accidents can be a problematic scenario for the parties involved emotionally and financially. This situation can become even more complicated when the insurance company provides coverage to both parties involved in the accident, and the injured party files a lawsuit against the insurance company, arguing that the injured party is a first-party claimant. The Fourth Circuit Court of Appeals for Louisiana recently addressed the issue.

In August 2009, Mr. Sapp drove a vehicle down Prytania Street in New Orleans, Louisiana. Unfortunately, Mr. Sapp collided with the car driven by Mr. Lee. After the accident, Mr. Lee filed a lawsuit in the Orleans Parish of Louisiana against Mr. Sapp and State Farm Insurance Company. In the case, Mr. Lee alleged that the accident resulted in personal injuries. All the parties reached a settlement agreement seven years after the accident occurred.

The settlement agreement covered all claims from the accident in 2009, except for the exception of “Reserved Claims.” The agreement between the parties provided that “Reserved Claims” meant all claims of bad faith by Mr. Lee against State Farm Mutual Automobile Insurance Company. One month after the settlement agreement was entered, State Farm filed an exception. In this exception, State Farm sought to dismiss all reserved claims except one. This one was for Mr. Lee’s misrepresentation claim, pursuant to La. R.S. 22:1973(B)(1). The Trial Court ruled in favor of State Farm, sustaining the exception and dismissing all of Mr. Lee’s bad faith claims except for misrepresentation. Mr. Lee then appealed the decision of the Trial Court.

February 1, 2023

Who is Liable for a Slip and Fall Accident in Louisiana, the Landlord or Tenant?

by Berniard Law Firm

hair salon slip fall A customer sustaining severe and permanent injuries from a slip and fall accident at a business can cause one to wonder about the potential liability of the business owner. This can become even more complex in a situation where the business owner has leased the unit from the party that owns the building. A building owner may be liable for the injury, even when the unit has been leased out.

On October 24th, 2014, Ms. Greer visited Sportsman’s Hairadise in Ponchatoula, Louisiana. Ms. Greer claimed that a salon employee instructed Ms. Greer to park behind the building and then access the unit through the rear entrance of the building. Ms. Greer used this entrance and had to take a single step down to enter the salon. Unfortunately, as Ms. Greer navigated down the step, she fell down and hit the concrete floor. Ms. Greer alleged that the fall caused severe, permanent, and debilitating injuries. Sportsman’s Hairadise leased the premises from Railroad Square, LLC (“Railroad Square”), which owned the building.

Ms. Greer filed a lawsuit against Railroad Square in the Twenty-First Judicial District Court for the Parish of Tangipahoa, Louisiana. Ms. Greer alleged that the premises contained several defects presenting harm. These harms included a step-down of greater height than allowed by building code, a surface made up of different gradients, an absence of handrails, a lack of adequately marked surface edges, and insufficient warnings of the step-down.

January 31, 2023

Louisiana Court Finds Medical Malpractice Allegations Broad Enough to Proceed

by Berniard Law Firm

Louisiana medical malpratice Medical procedures are never an enjoyable process. However, the process becomes even more miserable when recuperation is delayed because of infections. Darrin Coulon found himself in this situation after receiving shoulder surgery in 2011 from Dr. Mark Juneau at the West Bank Surgery Center. His recovery became even more difficult as he navigated the complex procedural requirements of filing a medical malpractice claim.

After receiving shoulder surgery, an infection required Coulon to undergo numerous additional surgeries and treatments. As a result, Coulon and his wife filed a Request for Medical Review Panel, alleging medical malpractice. Specifically, Coulon alleged that (1) the Surgery Center failed to develop, maintain, and enforce appropriate policies to prevent infections and (2) the Surgery Center was liable under a theory of respondeat superior for its employees’ actions. The Medical Review Panel found no evidence that the Surgery Center or doctor failed to meet the required standard of care or did not maintain appropriate policies and procedures to prevent infections.

Coulon and his wife subsequently filed a lawsuit for damages against the Surgery Center. In addition to the claims previously raised for the Medical Review Panel, they added that the Surgery Center failed to supervise and train the nurses who treated Coulon. The Surgery Center responded by filing a partial exception of prematurity, claiming that the claims that they failed to train and supervise the nurses were premature because Coulon and his wife did not previously raise those claims in the Medical Review Panel complaint. Coulon and his wife argued that the language in the prior complaint was sufficiently broad to include the additional claims in their subsequent lawsuit for damages.

January 30, 2023

If You Give a Horse a Carrot – When are Visitors Covered by the Equine Immunity Statute?

by Berniard Law Firm

Horse bite lawsuit Feeding a horse a treat can seem all fun and games until the horse bites you. This is a lesson Danielle Larson, a visitor to Equest Farm in City Park in New Orleans, learned the hard way in 2013 when a horse bit her while she was feeding it a carrot.

Larson was from Illinois but came to New Orleans often to visit her boyfriend. She had ridden horses since childhood and had been previously shown the correct way to feed a horse. Larson had been visiting Equest Farm for a few years before the horse bit her in September 2013. Larson went to see the school horses on the day of the incident. On her way there, two riders told her to be careful because, at the school, ponies had purportedly bitten a child. While Larson was feeding a horse a carrot, the horse knocked the carrot from her hand, and then the horse bit off her thumb as she reached for the dropped carrot. As a result, Larson required extensive medical care and will likely have to use a prosthetic thumb or transfer a toe to her hand.

There was some dispute about whether there was a sign posted warning people not to feed the horses. The horse at issue overall had a good reputation but had previously bitten a child who had held the horse’s ears while riding him.

January 29, 2023

What Court has Jurisdiction over Louisiana Police Disciplinary Action Tort Claims?

by Berniard Law Firm

who has Jurisdiction over Louisiana Police Disciplinary Action Tort Claims Even if your lawsuit has good facts, to prevail, the court must have subject matter jurisdiction to hear your case. Subject matter jurisdiction is the “legal power and authority of a court” to listen to a given proceeding. See La. C.C.P. art. 2. Understanding these complex jurisdictional requirements is imperative to ensure you get your day in court.

In 2007, Plaintiffs T.H. and C.B. were terminated from the Louisiana State Troopers after an investigation suggested that they had provided a third party with confidential information violating employment policies and the law. The plaintiffs appealed this termination to the State Police Commission. The Commission overturned their terminations and instead ordered that they only be suspended.

The plaintiffs then filed a lawsuit in district court to recover damages for a litany of reasons. The Defendants subsequently filed an exception for lack of subject matter jurisdiction. They claimed that La. Const. art. X, § 50 gives the State Police Commission exclusive jurisdiction over cases where the State Police terminates employees. Therefore, the district court would lack subject matter jurisdiction over the claim.

January 28, 2023

Louisiana Man Denied Texas Workers’ Compensation Because He Was Not a Texas Employee

by Berniard Law Firm

texas_flag_texas_flag-1024x683 The importance of legal contracts cannot be understated. Though we generally sign contracts on social media or online shopping websites without ever looking at their provisions, it is essential to carefully look at contractual provisions in insurance policies and the like. For example, you never want to discover that your injury is not covered by insurance after you have been injured.

Adam O’Bannon, a Louisiana resident, was an employee of Moriah Technologies, Inc. (“Moriah”), a Texas corporation. In June of 2012, O’Bannon injured himself while working as a Moriah employee. Texas Mutual Insurance Company (“TMIC”) was Moriah’s workers’ compensation insurer. However, TMIC did not provide any workers’ compensation to O’Bannon.

Bannon argued that TMIC owed him workers’ compensation and filed a claim with the Louisiana Offer of Workers’ Compensation (“OWC”) against TMIC. At court, TMIC asked the workers’ compensation judge (“WCJ”) to dismiss O’Bannon’s claim through a motion for summary judgment because its policy did not provide coverage to Moriah for O’Bannon’s workplace injury. The WCJ agreed and dismissed O’Bannon’s case. O’Bannon appealed, arguing that the WCJ erred in holding that TMIC did not have a policy that provided O’Bannon workers’ compensation.

January 27, 2023

Injured Worker’s Lawsuit Rejected for Failing to Show Any Genuine Issue of Material Fact

by Berniard Law Firm

elevator lawsuit louisiana Most court cases do not proceed to actual trial. In the context of criminal cases, the defendants often accept plea deals. In the context of civil cases, however, parties often settle or the case is simply dismissed through motion practice.

For a plaintiff to succeed in a civil case, he or she must show that there are facts that can prove his or her claim. If there are no such facts, then he or she cannot prove his claim, thus rendering a trial unnecessary. In cases where the plaintiff does not have facts to support his or her claim, the opposing party often files a motion for summary judgment in order to dismiss the claim.

Patricia Bowen worked at the Earl K. Long Medical Center (“EKL”) located in Baton Rouge. On October 10, 2012, Bowen suffered serious injuries at work when the elevator she used dropped and went up abruptly as she exited it. On October 9, 2013, Bowen filed a lawsuit against EKL, alleging that EKL was negligent for not performing proper maintenance or maintaining preventive maintenance on its elevators.

January 26, 2023

Medical Malpractice Claim Sent Back to the Trial Court due to Doctor’s Affidavit

by Berniard Law Firm

medical malpractice louisiana vaccine Lawsuits are filed every day. However, not all of these lawsuits are worth the attention of the courts. Courts are already swamped with dozens and dozens of cases on their dockets and they cannot afford–both monetarily and temporally–to hear every case that comes to their courtrooms. As a result, courts allow parties to file a motion for summary judgment, which allows courts to drop a lawsuit if there is no issue of material fact among the parties.

Petrie and Bertha Thompson’s one-year-old daughter Jessica Thompson passed away three days after being taken to The Center for Pediatric and Adolescent Medicine, L.L.C. (The Center) in Thibodaux. Jessica was examined by The Center’s nurse practitioner Gaudin. The Thompsons accused Gaudin of providing substandard care to Jessica. More specifically, the Thompsons alleged that Gaudin administered immunizations that should not have been administered. The Thompsons argued that Jessica passed away because of these immunizations and sued Gaudin, the Center, and HP, who was Gaudin’s alleged supervisor.

A medical review panel reviewed the Thompsons’ claims against HP and The Center and found that there was no breach of the applicable standard of care and that the administered immunizations were appropriate for Jessica. After the release of the panel’s findings, Gaudin filed a motion for summary judgment. The Thompsons responded with an affidavit of Dr. Robert S. Chabon who opined that, contrary to the panel’s findings, that Gaudin’s administration of the vaccinations did indeed cause Jessica’s death. Gaudin argued that Dr. Chabon’s affidavit was untimely, not in proper form, and conclusory and thus the Trial Court should not accept the affidavit into evidence. Though the Trial Court accepted the affidavit, it found the affidavit to be insufficient to create a genuine issue of material fact and thus granted Gaudin’s motion for summary judgment.

January 25, 2023

Can Independent Contractors Performing Manual Labor Receive Workers’ Compensation Benefits in Louisiana?

by Berniard Law Firm

workers compensation lawyer louisiana There are many ways that someone can be denied workers’ compensation benefits. Sometimes it is determined that the accident giving rise to the injury never occurred, other times the claim is filed too late, and in other cases the capacity in which the worker was hired determines eligibility for benefits. The last scenario is illustrated in a case brought to the New Orleans Office of Workers’ Compensation (“OWC”) in 2016.

Federico Martinez was among several workers hired by Jarislov Rames to lower a washer/dryer unit from Rames’ second floor apartment to street level. During the operation, one of the cords used to lower the unit broke loose and lacerated Martinez’s hand.

After the job was finished, Rames drove Martinez to the emergency room and paid the up-front $500 fee for Martinez to receive stitches. When Martinez demanded payment for the washer/dryer job, Rames withheld the $500 from Martinez’s pay and told Martinez that the rest of the emergency room fee would be deducted from future payments.

January 24, 2023

Does Your Work-Related Accident Qualify for Workers’ Compensation Benefits?

by Berniard Law Firm

forklift accident lawyer What may seem like a simple worker’s compensation claim can turn into a surprisingly complicated dispute over the nature of the injury and the payment of benefits. For many years, Reginald Crockerham worked as a forklift operator for Weyerhaeuser Holden Wood Products in Tangipahoa Parish. After almost two years of lower back injuries caused by the forklift’s bad tires, suspension, and seating, Crockerham underwent discectomy surgery and a two-level fusion.

Crockerham filed a claim for benefits with the Louisiana Office of Workers’ Compensation (OWC). The OWC found that Crockerham proved that he suffered a work-related accident within the scope of his employment with Weyerhaeuser and awarded him temporary total disability (TTD) benefits as well as past and future medical expenses. Weyerhaeuser appealed to Louisiana’s Court of Appeal for the First Circuit.

Weyerhaeuser argued that Crockerham’s injury did not meet the legal definition of “accident” under state law. In a workers’ compensation case, the claimant must prove by a preponderance of the evidence that an accident occurred on the job and harm came from it. An “accident” is an unforeseeable event that occurs suddenly — with or without human fault — and directly causes an injury. The injury must be more than slow deterioration or gradual weakening. La. R.S. 23:1201.