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close-up-photo-of-man-wearing-black-suit-jacket-doing-thumbs-684385-1024x678Being allowed to use an employer owned vehicle is a nice benefit to have. When there is an accident there may be questions of who pays for the damage or injuries.  In this case, any accident and insurance policy questions were completely in favor of the insurance company and backed up by both state statutes and case law guidance. But, poor customer service by the insurance company turned a complete legal victory into costly litigation. 

Naddia Melder was employed by Grimes Industrial Supply. One of the benefits of her employment was the use of a pickup truck owned by Grimes. In March 2007, Mrs. Melder was involved in an accident with one other vehicle. It turned out that the other vehicle was underinsured and Mrs. Melder’s uninsured motorist insurance claim against her personal insurer was denied. Mrs. Melder brought a lawsuit against her personal insurance carrier, Louisiana Farm Bureau Casualty Insurance Company, in order to find a way for insurance to cover the accident.

Farm Bureau asked the Trial Court to grant summary judgment in favor of denying coverage for the accident and the Trial Court agreed. Mrs. Melder then appealed. Mrs. Medler’s appeal was based on her view that the Trial Court incorrectly determined that she was driving a vehicle that was owned or furnished by someone else and that her insurance policy did not extend to cover this vehicle. There was an exclusion in her policy which stated that coverage would not be extended to vehicles furnished to her, but she believed it should not apply because it conflicted with a Louisiana law. She also argued that the insurance payments she received were received late.

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close-up-court-courthouse-hammer-534204-1024x569After a hard fought jury trial, an appeal can be expected. But, what cannot be anticipated is a transcribing error by the court that renders the judgment as invalid and makes any appeal impossible. Excellent attorneys can catch errors by other parties and avoid multiple extra steps before a lawsuit can be resolved. That was the case here as mismatching damage award classification labels extended a lawsuit well beyond its anticipated end.

Willie Brown, Jr., was a customer at the Silver’s Casino in Breaux Bridge. After a power outage at the casino and at the direction of an employee of the Casino, Mr. Brown tripped over a sidewalk while he was entering the premises. Mr. Brown suffered injuries to his right knee, left shoulder, and also his head.

Mr. Brown saw a doctor for his injuries and was diagnosed with a cervical disc issue. The doctor recommended surgery to repair the injuries and estimated that the surgery would cost $85,000. Mr. Brown also saw a doctor at the request of Silver’s Casino and received a much lower medical cost estimate. Silver’s doctor suggested that Mr. Brown did not need surgery and instead only needed an injection for pain that would cost $1,000.

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gasoline-station-during-night-time-92077-1024x489The five factor Daubert test is used in federal courts to determine if the methodology used by medical and other experts is reliable. The five factors that may be considered under the Daubert standard to determine whether the methodology is valid are: (1) whether the theory or technique in question can be and has been tested; (2) whether it has been subjected to peer review and publication; (3) its known or potential error rate; (4) the existence and maintenance of standards controlling its operation; and (5) whether it has attracted widespread acceptance within a relevant scientific community. See Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993).

In this case, Natalie Konrick (“Ms. Konrick”) worked as a security guard at a refinery in Louisiana that was owned by Chalmette Refinery, L.L.C. (“Chalmette”) and operated by Exxon Mobil Corporation (“Exxon”). She, unfortunately, had a stillborn baby, allegedly as a result of the toxins to which she was exposed to while working at Chalmette. Ms. Konrick obtained experts Dr. Robert Harrison, Dr. Cynthia Bearer, and Dr. Lauren Waters to testify regarding the general causation of her having a stillborn baby.

The District Court granted Chalmette’s motion to exclude the three expert’s testimony because it found that their opinions were based on unreliable methodologies. As a result of the grant of the motion to exclude expert testimony, summary judgment was granted in favor of Chalmette because there was no evidence of general causation as to the stillborn baby.

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close-up-court-courthouse-534204-1024x569The jury trial is an infamously complicated process. From the trials of OJ Simpson to Paul Manafort, the jury’s role is to determine the truth behind the legal jargon, and to serve and protect justice. Juries rely on the information presented to them by experienced lawyers and judges to navigate the complexities of the courtroom. However, sometimes there are mistakes made. Despite some inaccurately presented technicalities, the Fifth Circuit Court has ruled to uphold the sanctity of the juror’s role as a fact-finder. 

On the afternoon of November 11, 2012, Mr. Vince, an operator at an aluminum plant in Gramercy, was travelling home on U.S. Highway 61 after his work shift. The road, known by locals as “Airline Highway,” stretched over a bridge which merged with an entrance ramp from a boat club in St. James Parish, Louisiana. Mr. Koontz, owner of a Denali and its attached yacht, stopped for several minutes at the ramp and decided to merge only when he felt that Mr. Vince’s car was at such a distance that it had not yet reached the bridge. He proceeded to merge onto the highway as Mr. Vince’s truck approached. As Mr. Vince drove onto the bridge, he looked down to check a fantasy football score on his phone. When he looked up, he was immediately confronted with the sight of a 27-foot yacht attached to a GMC Yukon XL Denali. The car collided with the boat, and Mr. Vince was knocked unconscious. 

Although the crash caused merely aesthetic damage to the car, Mr. Vince filed a lawsuit against State Farm Automobile Insurance Company (“State Farm”) claiming a loss of consortium. 

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photography-of-police-car-during-night-time-1098663-1024x683High speed police chases are sometimes dangerous, even for those not involved.  The Louisiana Emergency Vehicles Statute essentially excuses emergency vehicle drivers, such as police vehicles, from obeying certain traffic laws while responding to a call or pursuing a suspect.  This applies unless the emergency response driver endangers life or property with “reckless disregard”. La. R.S.32:24. Of course, the question remains of what  types of behavior would make the difference.  The Louisiana Third Circuit Court of Appeal recently answered this question in an unpublished opinion.

In April 2012, Gwendolyn Martin was a passenger in a car driven by her son at about 1:00 AM in the town of Eunice, Louisiana.  When their car proceeded under a green light into an intersection, a police car driven by Officer Jacob Hanks collided with them. The officer had been responding to an emergency call that then developed into a high speed chase. The suspect, with officers in pursuit, had been driving over 90 miles per hour.  As a result of the collision, Ms. Martin was injured. She thus sued the city and Officer Hanks. In 2016, the trial court found in favor of the defendants pursuant to the Louisiana Emergency Vehicles Statute. Ms. Martin appealed.

In order to determine whether or not the trial court had ruled correctly in this case, the Third Circuit considered the facts in accordance with the statute’s requirements.  The statute specifically allows for emergency vehicles to proceed through red lights or stop signs, to exceed speed limits, and to disregard regulations regarding proper movement direction.  These exceptions only apply when the emergency vehicle uses signals to warn others, such as lights or sirens. The statute also requires that the driver of the emergency vehicle drive in a relatively safe manner.  La. R.S.32:24.  The court considered testimony from other police officers that had responded to the emergency call.  These statements showed both that the call had been legitimate and that all the responding officers, including Officer Hanks, used sirens and lights during the high speed chase.  Officer Hanks also testified that he had attempted to stop at the red light in question, and he had ultimately slowed to about 10 miles per hour when the accident occurred. Officer Hanks stated that he had attempted an evasive maneuver when he saw the other vehicle driven by Ms. Martin’s son.   In its decision, the Third Circuit considered other cases with similar situations including Lemonia v. Lafayette Parish Consolidated Government, 893 So.2d 925 (La. Ct. App. 2005).  Based on facts similar to the ones in Ms. Martin’s case, the Third Circuit held that the exceptions in the statute had been satisfied.

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accounting-black-budget-53621-1024x603If you and the opposing party in your lawsuit reach a settlement agreement, it might seem like your legal battle is over. However, trouble can arise if the other party does not do what they promised to do. This is the situation Cheri Gardner found herself in following a car wreck and the resulting settlement with State Farm.  

In July 2009, Gardner was involved in a car wreck. Just under a year later, she filed a lawsuit against State Farm, Lisa Haefner, and AllState Insurance for her injuries. Gardner had to have spinal cord surgery and amassed medical bills exceeding $70,000. 

In May 2011, Gardner and State Farm underwent mediation and entered a “10-Day Option to Settle” contract that State Farm’s attorney drafted and provided to Gardner. The settlement stated that any liens for medical expenses that State Farm would agree to pay as part of the settlement had to be presented before July 13, 2013. After the parties signed the settlement agreement, Gardner’s attorney provided State Farm with a letter for a medical lien from BlueCross BlueShield of Louisiana from May 28, 2010 for a lien of $7,143.10. 

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blond-hair-desk-employee-1181534-1024x684Employment discrimination can take many forms. One common form is gender discrimination. However, an employer may be able to avoid liability if they can provide legitimate and nondiscriminatory reasons why they decided to hire someone else that are not based on the candidate’s gender.

Tensas Parish School Board (“TPSB”) needed a head football coach and athletic director for Tensas High School, so they posted a job advertisement in March 2011. Due to budgetary constraints, TPSB requires that all coaches also teach. Sue Ann Easterling, who had prior experience coaching high school basketball, softball, gymnastics, volleyball, and track and field, applied for the job. Including Easterling, a total of seven people applied for the job. Easterling called the superintendent, Carol Johnson, after submitting her application in order to express her interest in the job. During the call, Easterling and Johnson discussed how Easterling had no experience as a football coach or as an athletic director, although she was a certified teacher. Easterling was not one of the three applicants contacted for follow-up interviews. 

The first man to whom Johnson offered the position turned down the job at the last minute. The next man, Rex McCarthy, who was offered and accepted the job was already the interim head football coach at the high school. When Easterling learned she had not received the job, she requested that she be considered for any job openings the following year. McCarthy resigned from the position the following year. Easterling still was not hired for the position.

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The Louisiana Department of Transportation and Development (“DOTD”) has a duty to maintain safe and accessible transportation infrastructure for the state. One might think that because the DOTD is such a large entity, no damages could be recovered from an accident due to unsafe conditions on transportation infrastructure. However, it is possible for a plaintiff to recover damages against the DOTD.

On April 24, 2014, Antonio White (“Plaintiff”) was working at night with a crew painting lane strips on the road. He was operating a crash attenuator truck when he was struck from behind by an 18-wheel tractor trailer driven by David Hornak (“Defendant”), who was operating the trailer as an employee of J.I.T. Distributing, LLC (“J.I.T.”). The Plaintiff suffered injuries from the accident and filed suit against multiple parties, including the defendant, J.I.T., and the DOTD. 

At the trial court level, DOTD filed a motion for summary judgment stating the reason for the accident was the Defendant had fallen asleep at the wheel. DOTD argued they could have done nothing else to prevent the accident from happening. The trial court found that the cause of the accident was solely due to the Defendant and J.I.T. and granted DOTD’s motion for summary judgment. DOTD was dismissed from the case with prejudice, and the Plaintiff appealed. 

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blur-car-cars-163945-1024x683Determining who is at fault in an accident is difficult, as everyone wants somebody to blame. Sometimes, the answer is not so crystal clear. Often, more than one person is to blame. When a court has to determine and assign fault to multiple parties in a car accident, it is using a theory known as comparative negligence to make the determination. 

In a recent Louisiana case, a father and son (“Plaintiffs”) were struck in the back by the defendant in Baker, Louisiana. Plaintiffs filed two lawsuits for the injuries sustained in the car accident; one against the defendant and one against the defendant’s insurance company. The plaintiffs claimed that the defendant was intoxicated at the time of the crash and requested punitive or exemplary damages pursuant to La. C.C. art. 2315.4, which allows recovery for additional damages if the defendant is intoxicated. The trial court order dismissed the Plaintiffs’ claims for punitive or exemplary damages against the insurance company because the insurance contract absolved the company of responsibility for the additional damages. The trial court held that Plaintiff (father) was 5% at fault and the defendant was 95% at fault, and it awarded the Plaintiffs with a total sum of $206,755.80. The defendant appealed the judgment. 

The defendant argued that the Plaintiffs should have been assigned a higher percentage of comparative fault. In deciding comparative fault, the judge or jury must consider each party’s wrongful actions and the scope of the causal relationship between the conduct and the damages claimed. Townes v. Liberty Mut. Ins. Co., 41 So.3d 520, 529 (La. Ct. App. 2010) (citing Watson v. State Farm Fire & Cas. Ins. Co., 469 So.2d 967, 974 (La. 1985)). According to Townes, the court must look at: “(1) whether the conduct resulted from inadvertence or involved an awareness of the danger; (2) how great a risk was created by the conduct; (3) the significance of what was sought by the conduct; (4) the capacities of the actor, whether superior or inferior; and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought.”

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pexels-photo-1028742Sometimes, car accidents happen. Someone speeds, gets distracted, or makes a mistake that causes an accident. Crashes can be unexpected. No one gets to decide what time of day it happens, where it happens, or who gets injured. Instead, you have to take the whole situation as it is. 

Jay Schwartzberg (“Plaintiff”) was a 23-year-old law student on April 25, 2013 when the driver of an armored van failed to yield to Schwartzberg’s vehicle and caused a collision in East Baton Rouge, Louisiana. Prior to the accident, Schwartzberg suffered from a bulging of the C3-C4 and C6-C7 intervertebral discs and chronic neck pain. In the lawsuit, he argued that the collision on April 25, 2013 exacerbated these previous injuries. Schwartzberg filed against the defendants seeking damages for his neck injury due to the collision. The trial court awarded Schwartzberg $49,999.99 worth of damages, plus legal fees. 

Miller Guillory and his employer, Garda CL Southeast, Inc. (collectively “Defendants”) appealed the trial court’s award for two reasons. First, the Defendants argued that the trial court erred in finding that the collision caused an aggravation to the Plaintiff’s pre-existing neck injury. Second, the defendants argue that the trial court erred in the amount of damages awarded because the court relied on Schwartzberg’s expert witness that was contradictory to the medical records and other evidence admitted at trial. 

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