Louisiana Personal Injury Lawyer Blog

January 28, 2023

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

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.

January 23, 2023

When is It Too Late to File a Products Liability Claim in Louisiana?

by Berniard Law Firm

louisiana brain injury lawyer It can be puzzling — if not outright humorous — to observe the warnings in many pharmaceutical advertisements about how a drug’s side effects can be so severe that the potential harms outweigh the possible benefits. What’s not at all funny is when one of those side effects causes a patient actual harm.

Cory Jenkins began taking the FDA-approved drug Abilify in October, 2010 as part of ongoing treatment of his condition. One known side effect of Abilify is tardive dyskinesia, a serious neurological disorder that causes muscle twitching. Jenkins began showing symptoms of dyskinesia in late 2012 and early 2013. He visited the Ochsner Medical Center in New Orleans and was instructed to stop taking Abilify. Shortly thereafter the twitching ceased. By August of 2013, the symptoms returned, even though Jenkins was no longer taking Abilify. In October, 2013 Jenkins sought care from several neurologists, including one who officially diagnosed him with dyskinesia. In October, 2014 Jenkins filed a lawsuit for damages against Bristol-Myers Squibb Company and Otsuka American Pharmaceutical Inc., the makers of Abilify.

In the U.S. District Court for the Eastern District of Louisiana (“District Court”), Jenkins asserted two claims under the Louisiana Products Liability Act (LPLA). The District Court held that both claims had prescribed — meaning Jenkins did not file within the time required to commence an action — and granted the defendants’ motions for summary judgment. Claims brought under LPLA have a one-year prescriptive period; the period begins from the day the injury occurs or when damage is sustained. La. C.C. art. 3492. Damages are said to be “sustained” when they have revealed themselves with enough certainty to support the existence of a cause of action. In Louisiana, the start of the prescriptive period does not depend on a physician’s diagnosis. Instead, what controls is the date the injury occurred. Jenkins argued that there was a factual dispute over whether he had developed dyskinesia in April, and that it was not certain until his diagnosis in August. But because Jenkins admitted in his pleadings that his symptoms began in April, 2013, the District Court held that the prescriptive period for his claims against the defendants began running in April, 2013.

January 22, 2023

Baton Rouge Parent Denied Compensation Resulting from Son Abandoned on School Bus

by Berniard Law Firm

abandoned school bus lawsuit How much of an award or compensation could a parent expect when a school board is found liable for inflicting trauma on a child? A trauma to a child would have a profound effect on the parent as well as the child. Is it not reasonable to expect the school board to pay for the emotional damages the parent suffered? Unfortunately for a Baton Rouge mother, her failure to include in her written pleadings a claim for general damages resulted in a finding of no damages despite trial testimony supporting her emotional distress. A superior lawyer always includes all possible claims in written pleadings to avoid this unfortunate outcome.

Demondre Morgan was a kindergartener at Westminster Elementary School in Baton Rouge, Louisiana when he fell asleep on his school bus one September afternoon. After the route was complete, the school bus driver parked and locked her bus without noticing little Demondre. Demondre’s mother, Shunquita Morgan, was waiting for her son at the school bus stop when the bus never arrived. Meanwhile, Demondre awoke to find himself on the bus alone, started to cry, and was heard by two passers-by who rescued him from the bus. Morgan had reported Demondre missing to the police during this interval, and Demondre was returned to his mother about two hours after his normal drop-off time.

Morgan filed a lawsuit against the East Baton Rouge Parish School Board (“School Board”). Her pleadings included damages for her son as well as for economic loss for herself due to Demondre’s fears about riding the bus. She did not include a request for any other damages such as emotional distress for herself. The School Board admitted liability. The trial court awarded a total of $4,184.00 in medical and general damages for Demondre. Morgan was not awarded any damages because she did not present any evidence of economic loss and her attorney only sought emotional distress damages at the very end of the trial. The trial court ruled that the pleadings had not been expanded to include emotional distress damages for Morgan.

January 21, 2023

Baton Rouge Restaurant Owner Not Responsible for Slip and Fall Accident

by Berniard Law Firm

slip fall lawsuit louisiana The following scenario is not uncommon. Person enters restaurant without incident. Same person exits restaurant, fails to notice the one-step curb just beyond the door, falls, gets injured, and files a lawsuit against the restaurant. When is a restaurant owner responsible for such an incident? A recent case out of Baton Rouge explored this question and provided useful guidelines for owners and patrons alike.

Debra Williams was exiting Walk-On’s, a restaurant in Baton Rouge, when she fell from the sidewalk curb to the parking lot. Williams was talking with a group of people when she fell and claims she did not see there was a step down. Williams sustained injuries from her fall and filed a lawsuit against Walk-On’s and its insurance company, Liberty Mutual. In support of her petition, Williams attached the affidavit of a forensic architect who stated the curb area did not contain any warnings or different paint color. The architect also cited numerous building codes but failed to demonstrate how the codes were applicable to the Walk-On’s curb. The trial court found that the architect’s affidavit did not factually support Williams’s claim and was unpersuasive. The trial court dismissed the case and an appeal followed.

In Louisiana, a merchant owes a duty to persons using their premises to keep the property in a reasonably safe condition. La. R.S. 9:2800.6(A). An injured party must prove that the condition causing the injury posed a foreseeable and unreasonable risk of harm and the merchant had actual or constructive notice of the danger but failed to exercise care in removing the danger. See Dupas v. Travelers Prop. Cas. Ins. Co., 762 So.2d 127 (La. Ct. App. 2000). In determining whether a condition is unreasonably dangerous, a court essentially will decide whether the social utility and value of the potential danger will outweigh and justify the potential harm to others. See Reed v. Wal-Mart Stores, Inc. 708 So.2d 362 (La. 1998). Moreover, if a condition is deemed “open and obvious” it will not be deemed to present an unreasonable risk of harm. No legal duty is owed when the condition encountered is obvious and apparent to all. See Moore v. Murphy Oil USA, Inc., 186 So.3d 135 (La. Ct. App. 2015).

January 20, 2023

Insufficient Medical Evidence Leads to Louisiana Court Throwing Out Default Judgment in Bar Fight Lawsuit

by Berniard Law Firm

bar fight lawsuit louisiana We all try our best to avoid trouble, but sometimes fights happen. It may be best to avoid a brawl if you see one occurring. However, when you see your friend in a bind, human nature kicks in, and before you know it, you’re in an altercation that you never signed up for. If you are injured in a fight, proceed carefully when suing the party that caused your injuries. Ryan Martinez learned this lesson the hard way following the Louisiana First Circuit Court of Appeal ruling in the following case.

Martinez intervened in an altercation between his friend and the defendant, Trevor Wilson, at Chevy’s nightclub in Hammond. (“Chevy’s). During the fight, Wilson allegedly attacked Martinez, and Martinez stated that the strike resulted in a mandible fracture. Martinez, after that, sued to recover damages, listing Wilson, Chevy, and their insurers as defendants and asserting Wilson’s liability for battery. The trial court entered a preliminary default against Wilson, as he was absent from court and had not filed a response to the petition.

Two years later, the trial court conducted a hearing to confirm the default judgment. Although Wilson did not appear at the hearing, Martinez submitted various items as evidence, such as a smoothie receipt and various uncertified medical records. As a result, the trial court signed the judgment finding Martinez entitled to collect $110,128.66 in personal injury damages and medical expenses from Wilson. Wilson promptly appealed the trial court’s decision awarding Martinez the previously noted damages.

January 19, 2023

New Roads Man Denied Coverage Under Uninsured Motorist Provision of Employer’s Insurance Policy

by Berniard Law Firm

Car Accident uninsured motorist coverage louisiana What happens when a motorist is injured in an automobile accident while operating a vehicle owned by an employer? While Louisiana law often permits named insured employees to receive reciprocal coverage under an employer’s insurer, insurance law is a complex and, at times, unclear field, especially in relation to uninsured/underinsured motorist coverage. In the case of Chris Loudermilk of New Roads, Louisiana, the Louisiana First Circuit Court of Appeal felt that Loudermilk was not permitted to recover under the language of his employer’s insurance policy.

Loudermilk was injured in an automobile accident while operating a vehicle owned by his employer, Environmental Safety and Health Consulting Services Inc. (ES&H). Loudermilk filed suit against the drivers at fault and their insurers, as well as XL Specialty Insurance Company, ES&H’s insurer.

In acquiring insurance for ES&H, the company’s CFO executed a valid Uninsured Motorist Bodily Injury Coverage Form to reject uninsured motorist coverage completely on June 23, 2010. The policy was renewed in June 2011 through June 2012, and it was in effect at the time of Loudermilk’s accident. At the time of the renewal, ES&H added two entities to the “named insured” section of the policy.