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action-adult-affection-eldery-339620-1024x576The already tragic loss of a parent is only made worse when you believe that the death should have been prevented. Such was the case for Chester Domingue when his ninety-four-year-old mother, Onelia, passed away as the result of a fall in her nursing home, Camelot. While a medical provider cannot anticipate every danger that a client could encounter, what reasonable precautions does Louisiana law require to prevent as many dangers as possible?

Mrs. Domingue, like most ninety-four-year-olds, fell a lot. To be exact, she fell at least twenty-seven times while a resident of Camelot. After many of those falls, the Camelot staff put in place different protocols and precautions. Since Mrs. Domingue used a wheelchair, many of these protocols centered around not letting her get in and out of the wheelchair alone, especially when she needed to go to the bathroom. Yet, she still sometimes tried to use the bathroom by herself. When she did so on April 17, 2014, she hit her head, fracturing her spine and giving her a concussion. Less than a month later, she passed away from those injuries.

In the aftermath, her son wondered why his mother was left by herself to go to the bathroom in the first place. He brought a lawsuit against Camelot alleging medical malpractice for their inattentiveness to his mother’s potential danger. Camelot petitioned to have the case dismissed via summary judgment. They believed that they didn’t break any laws in how they treated Mrs. Domingue. The Trial Court didn’t think that Mr. Domingue had shown that there was a real question of material fact as to if Camelot was negligent. As a result, the Trial Court granted Camelot summary judgment and dismissed the case. 

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photo-of-blue-sedan-parked-on-the-side-of-the-road-1213293-1024x683In certain situations, car owners and their insurance companies may be liable for a death caused by a non-owner driving the car. However, that liability only arises when the car owner expressly or implicitly grants permission to the driver. A common fear for car owners is that someone borrows their car and is involved in some horrible situation. 

The Leger family found themselves in just such a nightmare situation when their car was taken from their driveway in Scott, Louisiana after midnight one summer night and involved in a fatal accident. Sanchez Walters was one of three people in that car during its fateful ride and was killed when the car was involved in a one-car accident. The Legers knew they needed the assistance of an excellent attorney when they were notified of a wrongful death lawsuit brought against them, one of the other people present in the car during the accident, and their insurance company, on behalf of Mr. Walters. Fortunately for the Legers and the other passenger, the wrongful death suit against them was dismissed before trial. The suit was maintained, however, against the insurance company, State Farm Mutual Automobile Insurance Company, for insurance coverage. KC brought the lawsuit on behalf of her minor daughter, AW, contending that the car was taken that night with express or implied permission, giving rise to insurance liability. The trial court granted summary judgment in favor of State Farm due to a lack of evidence supporting Ms. C’s claim. Ms. C subsequently appealed to the Louisiana Third Circuit Court of Appeal. Nevertheless, the Court of Appeal affirmed the summary judgment, similarly finding that Ms. C was unable to provide sufficient evidence to establish a factual question as to whether express or implied permission to use the car was granted.

The facts of this case are pretty sparse and that lack of concrete factual certainty led directly to Ms. Cs inability to provide enough evidence that showed that the car was taken with the owners’ express or implied consent. All that is known is that sometime in the early morning hours the Legers’ car was taken by Kylor Broussard, Nicholas Ledet, and Mr. Walters. The Legers each provided affidavits stating that they did not give express or implied permission to the three occupants to take the car. After the car was taken, it was involved in a single car accident that caused fatal injuries to Mr. Walters. Evidence could not even be supplied establishing who was driving the car at the time of the accident. Ms. C argued that Mr. Walters was a passenger in the car. She alleged that negligent entrustment by the Legers led to his death. Ms. C originally brought lawsuits against Broussard, Mr. and Mrs. Ledet on behalf of their minor son, Mr. Leger, and State Farm. Ms. C dismissed the lawsuit against Broussard and the Ledets on her own, and the trial court granted summary judgment in favor of Mr. Leger, dismissing all of the claims against him with prejudice due to the lack of evidence supporting negligent entrustment. That left the lawsuit against State Farm as the only remaining portion of the original lawsuit. State Farm responded by motioning for summary judgment, arguing that all of the evidence pointed to a lack of express or implied consent from the Legers allowing use of the car.  Ms. C failed to provide any exhibits of evidence to challenge the motion for summary judgment. She instead argued that Broussard’s deposition testimony and a police statement raised a genuine issue of material fact as to who the driver was at the time of the accident and whether they had permission to drive the car. The trial court agreed with State Farm that the evidence was severely lacking and granted summary judgment. Ms. C subsequently appealed only the lawsuit against State Farm to the Court of Appeal. The Court of Appeal, however, affirmed the trial court’s grant of summary judgment in favor of State Farm.

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surgeons-performing-surgery-2324837-1024x683Losing a family member just a few shorts weeks after the family member was discharged from surgery can cause one to wonder if the death occurred due to medical malpractice. Providing expert medical testimony can often be essential to succeeding in a medical malpractice lawsuit, and certainly in the case of defending against a summary judgement motion due to failing to provide such an expert.

On June 14th, 2012, Dr. Surakanti performed an angioplasty surgery on Ms. Shepherd, who was 74 years old, diabetic, morbidly obese, and unable to walk at the time of the surgery. Three weeks after Ms. Shepherd was discharged from Our Lady of The Lake Regional Medical Center (“OLOL”), she passed away. The heirs of Ms. Shepherd (“Plaintiffs”), filed a lawsuit against Dr. Rodney, Dr, Surakanti, Baton Rouge Cardiology Center, and OLOL. The plaintiffs alleged in the lawsuit that the angioplasty performed on Ms. Shepherd by Dr. Surakanti was unnecessary, and that the procedure amounted to medical malpractice. The plaintiffs sought all general and special damages that they could legally recover in their lawsuit.  

In response to the lawsuit, Dr. Rodney, Dr. Surakanti, and Baton Rouge Cardiology Center filed motions for summary judgement. These three parties claimed that the plaintiffs were unable to provide evidence to support the claims of the medical malpractice lawsuit for three reasons. First, a Medical Review Panel had already determined that the standard of care provided to Ms. Shepherd was not breached. Second, the plaintiffs did not provide an expert witness to testify that the standard of care was breached. Third, lack of consent to the procedure could not be proven because such evidence had to come in the form of testimony from an expert witness. OLOL filed a separate summary judgement motion for the same reasons. 

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party-glass-architecture-windows-34092-1024x683Obtaining insurance coverage to protect a new company purchase can be crucial to preventing financial loss. But does a company have policy coverage on a new purchase when the insurance company provides only a certificate of insurance? A case in the First Circuit Court of Appeal for Louisiana recently addressed the issue. 

J&M Piling Driving (“J&M”) requested a quote for insurance from Chabert Insurance Agency (“Chabert”), in August of 2010. J&M was looking to insure the company’s new vessel, called the Lil Cherie. The Lil Cherie sank one month later, and J&M discovered that Chabert was not willing to provide coverage for the accident despite issuing two certificates of insurance. 

J&M then filed a lawsuit against Chabert. In the lawsuit, J&M alleged that Chabert informed J&M that the vessel was covered by insurance and therefore J&M was under the impression that Lil Cherie was fully insured. J&M sought damages for the value of Lil Cherie, personal items on Lil Cherie, salvaging the sunken vessel, and loss of income. 

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close-up-photo-of-person-playing-piano-1246437-1024x683A night at a piano bar in New Orleans is usually a relaxing and enjoyable evening. Yet, the night can take a whole step in the opposite direction if you fall down the front step of the building on your way out. What happens to your personal injury case, however, when there’s doubt about whether or not the piano bar destroyed evidence you could have used against them? Is it appropriate for a trial court to determine whether or not the evidence was intentionally destroyed?

This was Mary Fiveash’s fate when she left Pat O’Brien’s piano bar on January 14, 2014. Ms. Fiveash fell down a tiled step outside Pat O’Brien’s, resulting in multiple injuries. The most severe injury was a spiral break of the humerus bone in her right arm. She alleged that the step’s poor condition and the bar’s lack of adequate maintenance of the step, caused her fall and, therefore, her injury. Where the Louisiana Fourth Circuit Court of Appeal picks up the story is in what happened after Ms. Fiveash filed her initial lawsuit against Pat O’Brien’s and their insurer Evanston Insurance Company. 

Ms. Fiveash filed her initial case on July 11, 2014, and on September 12, 2014, her and her lawyers emailed Pat O’Brien’s to request that a construction expert examine the step for use of his assessment at trial. On October 24, 2014, they agreed for an inspection to take place on November 24. No more than a day after this agreement, a trash can carried up the step at Pat O’Brien’s damaged the step’s threshold, causing the bar to deem it an immediate safety risk and needing repair before the inspection. They notified Ms. Fiveash of this and said the changes would still leave the step in “identical condition” from when her injury occurred. Ms. Fiveash agreed to this only because of the “identical condition” guarantee. When the inspection took place on November 24, it was clear there had been a significant improvement in the step’s condition, leading Ms. Fiveash to allege foul play against the bar. Specifically, she claimed they intentionally altered the step to harm her case at trial, leaving her only with the pictures taken of the step’s initial condition. 

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blur-car-caution-dash-163945-1024x683Sometimes, there are situations that appear to have an obvious result. Person A causes injury to Person B and B sues A. All the evidence points to A being at fault and B being hurt and in need of recovery.  However, what if in the middle of the case, the court held that B was not hurt at all and therefore did not need to recover? How does a result like this even come about? What does B do? This situation is illustrated in a case arising from a New Orleans motor vehicle accident from 2014.

On January 7, 2014, Michael Mirandy (“Mirandy”) was driving down Interstate 10 in New Orleans on his way home from a doctor’s appointment where he had been treated for injuries from a car accident the previous year. Unfortunately for Mirandy, he was rear ended by a car driven by Gary Walters, Jr (“Walters”). Three days after the accident, Mirandy returned to his physician, Dr. Chad Domangue (“Domangue”) with complaints of pain in his neck and back. Domangue ordered an MRI that month and compared it to previous MRI Mirandy underwent on July 13, 2013. When he compared the two MRIs, it was clear that many discs and vertebrae that had been normal in 2013 were now injured, and those that were already inflamed or displaced in 2013 were now in worse shape.

Mirandy and his wife then sued Walters for damages in the Civil District Court for Orleans Parish. Both Domangue and Mirandy’s orthopedic surgeon testified that many of Mirandy’s injuries were not present before the 2014 accident and because of that accident, he needed surgery. During the jury charge conference, one of the jury charges suggested that the accident was a “minimal or minor collision.” Mirandy’s counsel objected to this language and the court agreed to modify it. However, the charge was not modified and after four days of trial, the jury held that while Walters was at fault for causing the accident, Mirandy was not injured. As a result of this judgment, Mirandy did not received damages. He appealed to the Court of Appeal for the Fourth Circuit, arguing that the unmodified jury charge improperly instructed the jury, and that the District Court erred when it found that he was not injured in the car accident.

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photo-of-person-holding-pen-1028726-1024x683Why do we buy insurance? Most people expect that when they buy insurance, they will receive financial reimbursement for losses caused by accidents or many of life’s unexpected circumstances. It can certainly be a surprise when they expect insurance and then the insurance company refuses to provide it. What are their options when this happens? Filing a lawsuit is one, but won’t always guarantee a day in court, as a 2017 case from the Court of Appeal for the Third Circuit illustrates.

Advanced Radiographics Inc., (“ARI”) is a company that stores health records for medical providers in Louisiana. Its corporate office and one of its warehouses are located in Duson, Louisiana, but the company also has eight other locations. For insurance, ARI purchased general liability coverage which covered all ten of ARI’s locations, and property insurance which only covered ARI’s corporate office. Colony Insurance Company (“Colony”) provided the property insurance which was purchased through insurance broker Kellie Stein (“Stein”) of Brown and Brown of Baton Rouge, LLC (“Brown”).

Unfortunately for ARI, in 2014, a car crashed into the Duson warehouse and caused a fire to break out. ARI filed an insurance claim to Colony, but Colony denied it. For refusing to file, ARI sued Colony, Stein, and Brown in the Fifteenth Judicial District Court for Lafayette Parish. Stein and Brown filed a peremptory exception of no cause of action and in 2016, the District Court granted the exception. ARI then appealed, claiming that the exception of no cause of action should not have been granted.

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camera-event-live-settings-66134-1024x683No one wants to be held liable for the injuries of another. Wet floor signs, warning tags, and regular inspections are all ways we provide notice to others of hazardous conditions. Sometimes, though, when a hazard is unexpected or has never presented itself as a potential risk of harm, liability is inevitable. The question then becomes, what is the cost?

On December 14, 2010 Vicki Badeaux (“Badeaux”) arrived at the set for an informational video that was to be filmed by the Louisiana Department of Economic Development (“LDED”). Badeaux was scheduled to act in the video and brought several outfits to the set for the crew to pick one for her to wear. James Dupree (“Dupree”), the LDED Fast Start Department Manager wanted to review the script with Badeaux before filming, so he instructed her to hang her clothes on a nearby C-stand, a general purpose stand that was kept on the set. When Badeaux tried to hang her clothes on the C-stand, it fell and hit the right side of her head. Badeaux declined medical assistance and ended up being able to act in the video that day. However, two weeks later, Badeaux began to feel sharp pain in her right temple. Almost a year after the incident, in December of 2011, she filed a personal injury lawsuit against LDED in the Nineteenth Judicial District Court for East Baton Rouge Parish.

At the end of the case, the District Court found that both parties were at fault for the 2010 incident, with LDED 75% at fault for Badeaux’s damages and Badeaux 25% at fault. It was held that Badeaux suffered $41,655 in general damages—damages that cannot be calculated with relative certainty, such as mental or physical pain or suffering, inconvenience, loss of gratification or intellectual or physical enjoyment, or other losses of daily life. Mack v. Imperial Fire & Cas. Ins. Co., 167 So. 3d 691 (La. App. 2014). With the general damages total and allocations of fault, the District Court held that LDED was liable to Badeaux for 75% of her total damages, plus interest, therefore owing her $37,500 and court costs. LDED appealed and the Court of Appeal for the First Circuit determined it would review the District Court’s finding of general damages, as well as its overall holding of LDED’s liability to Badeaux.

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architectural-photography-of-white-and-green-church-bell-792554-646x1024Freedom of speech is one of America’s most celebrated rights. However, it does not mean that courts tolerate all types of speech. After all, we have all heard that the freedom of speech does not allow an individual to falsely yell fire in a crowded theater. Despite there being restrictions, courts take the freedom of speech extremely seriously and will not allow it to be encroached simply because someone felt offended by a certain use of free speech. 

Robert and Lisa Mayeux and their daughter, Rebecca, were members of the Our Lady of the Assumption Catholic Church. Upon hearing from their daughter that George J. Charlet, Jr., a fellow churchgoer, sexually abused her, Robert and Lisa sued not only Charlet, but also Reverend Jeffrey Bayhi and the Roman Catholic Church of the Diocese of Baton Rouge as well for being complacent of the abuse despite knowing that Charlet was abusing their daughter. 

Louisiana Television Broadcasting (“LTB”) ran several stories of the above sexual abuse case. Many of these stories prominently featured Bayhi. In some of the graphics that accompanied the stories, there were texts that stated that Rebecca was abused by a priest and that the priest had died during the investigation. However, these texts were erroneous. Charlet, the alleged perpetrator, was not a priest–Bayhi was. However, LTB did acknowledge that these texts were erroneous later in time. Furthermore, these stories showed video footage of Bayhi in his priest’s cassock. Bayhi filed a lawsuit against LTB for defamation. LTB filed a Motion to Strike in accordance with La. C.C.P. art. 971, stating that Bayhi did not have a legitimate claim. The Trial Court granted LTB’s motion.

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building-in-city-against-sky-256490-977x1024You lose your case. However, your lawyer tells you not to despair. She tells you that you can appeal the trial court’s judgment at the appellate court. However, it is not always that simple. Appellate courts, like trial courts, do not just accept every single case that comes their way. They must first have jurisdiction over a case, which simply means that they must meet certain requirements to hear the case. Without jurisdiction, an appellate court will be unable to take your case even if your claim may be legitimate. 

A multi-vehicle accident occurred on a highway in Jefferson Parish on December 25, 2014. The accident began when the vehicle driven by Max Beagle struck the vehicle driven by Elridge Thompson, Jr. Shadid Chaudry, who witnessed the collision between Beagle and Thompson, stopped his vehicle nearby to render assistance. Carrie Thiele was in the passenger seat of Chaudry’s vehicle. However, upon exiting the vehicle, Thiele was struck by a motorcycle driven by David Casse, who had swerved to avoid Chaudry’s vehicle. Upon hitting Thiele, Casse was thrown off his motorcycle while his motorcycle continued to move towards Thompson’s vehicle, eventually crashing into it. 

Thompson filed a lawsuit against both Beagle and Casse and their respective insurance companies. Casse in turn filed a lawsuit against Thiele. In Casse’s lawsuit, he claimed that his collision with Thiele caused him severe injuries. Thiele filed a motion, stating that Casse’s lawsuit was barred because Casse’s lawsuit was filed more than a year after the accident. The Trial Court, without giving any written opinion, agreed with Thiele and dismissed Casse’s lawsuit. 

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