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adult-ambulance-care-263210-1024x802Often, in litigation – as in life generally – timing is everything. Courts and legislatures set certain time periods for each step in a legal proceeding to establish fairness and to impose reasonable order on the disposition of the case. Occasionally, these deadlines can be ambiguous or open to various interpretations. Louisiana’s Second Circuit Court of Appeal considered such a situation in a medical malpractice case.

In 2011, Francis Grayson was admitted as a patient at Northeast Louisiana Kidney Specialists in Monroe, Louisiana. After contracting an infection from a catheter used for his treatment, he underwent surgery that left him a quadriplegic. A medical review panel requested by Grayson found that his doctors and the medical facility adequately met the standard of care in his kidney treatments and surgery. In February 2015, Grayson initiated a lawsuit for medical malpractice against his physicians and the facility. The following month, the defendants filed a motion for summary judgment on the basis of the medical board’s decision. A hearing was set for August 17. On August 7, ten days prior to the scheduled hearing, Grayson served the defendants with a memorandum opposing summary judgment. The memorandum was accompanied by an affidavit from a medical expert who would testify on Grayson’s behalf about the medical errors that led to his initial infection. Grayson filed the motion with the court on August 10, seven days prior to the scheduled hearing. The defendants then argued that Grayson’s opposition memorandum and affidavit were invalid because they were filed with the court less than eight days before the hearing, as required by the district court rules. The trial court eventually granted the summary judgment in favor of the defendants and dismissed Grayson’s claims.

In 2015, when Grayson’s original petition was filed, Louisiana district court rules required that memoranda opposing summary judgment must be served on the opposing parties at least eight days prior to the hearing. La. Dist. Ct. R 9.9. The defendants, citing a number of cases, argued that the courts had routinely interpreted that the memoranda must also be filed with the court within that same eight-day period. However the Second Circuit noted that in each of the cases relied on by the defendants, the documents in opposition to summary judgment was either filed within an extremely short time—one even being minutes before the hearing—or had some other defect. The Second Circuit focused on the fact that Grayson had properly served the defendants with the memorandum and affidavit within the required time; that the motion was not filed with the court until some days later was not controlling. Therefore, the Court reversed the trial court’s granting of summary judgment in favor of the defendants and remanded the case for further proceedings.  

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image-for-post-50-from-email-5-22-19We often hear that insurance companies are stingy and heartless. Though some descriptions of insurance companies are exaggerated, it is nevertheless true that insurance companies are judicious in paying out claims. In some cases, an insurance company will attempt to avoid payment at almost any cost.  

Shawn Verges, a special education teacher at Fannie C. Williams Charter School in New Orleans, Louisiana, suffered injuries when she was repeatedly slapped and pushed to the floor by one of her students during class. Following the incident, Verges sent a text message to the school principal’s administrative assistant describing the attack and requesting an accident report. Verges made several more requests for an accident report, but the school never created one. Within a week, Verges began to experience back, head, and neck pain, at which point she sought compensation from her employer’s workers’ compensation insurance carrier, AmTrust North America. AmTrust denied her claim on the basis that the school did not file an accident report or report the incident to AmTrust.

Verges then filed a disputed claim form against AmTrust. The trial court determined that Verges was entitled to workers’ compensation benefits because the evidence showed that she suffered an injury while in the course and scope of her employment. AmTrust appealed, arguing that Verges fabricated the incident, pointing to the fact that that Verges returned to work after the alleged injury to bolster their argument. 

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adult-bed-care-1498927-683x1024In personal injury cases, the plaintiff can only successfully prove the defendant’s negligence if a legal duty of care exists. Where there is no duty of care as a matter of law, a trial court can dismiss the lawsuit by summary judgment. So, when a defendant files a petition for summary judgment claiming that no duty exists, he is saying that even if all of the facts alleged by the plaintiff are true, there still is no duty of care owed by the defendant to the plaintiff. 

For several years in the late 1960s and early 1970s, Huey Chustz worked as an electrician’s helper at the Alma Plantation, a sugar mill in Point Coupee Parish, Louisiana. Chustz would routinely become covered in asbestos dust while working at the mill. He would return home in the evenings where his wife, Elizabeth Sutherland, would launder his clothing, a process which sent the dust into the air. In 2012, Sutherland was diagnosed with malignant pleural mesothelioma. 

Based on her diagnosis, Sutherland filed a claim for damages against Alma Plantation. She died in 2013, after which her children were substituted as Plaintiffs. Alma filed a motion for summary judgment, arguing that it did not owe Sutherland a duty because her injuries were not foreseeable. The trial court granted Alma’s motion for summary judgment, which the Plaintiffs appealed the Louisiana’s Fourth Circuit Court of Appeal.

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action-business-cargo-2449454-1024x683Christmas is usually a busy time for families, especially those traveling to visit loved ones. For many businesses it is also a time for increased sales and higher profits. For this reason, it is common for companies to set strict targets and deadlines for employees to meet in order to capitalize on the opportunity. Such deadlines, however, can be dangerous if they push employees beyond their capacities for safety.

On the night of December 25, 2008, Tammy Westbrook, an employee of Western Star Transportation, was driving a truck carrying plants belonging to Nurserymen, Inc. on Interstate 10 near Laplace, Louisiana. Westbrook collided with a GMC Yukon, the impact of which caused the GMC to strike the rear of a Lincoln sedan. The occupants of the vehicles suffered major injuries and a fatality. At the time of the accident, Westbrook had been driving for 33 the prior 36 hours. 

The victims of the accident filed a lawsuit for personal injuries and wrongful death against Westbrook, Westerm Star, and Nurserymen. After the jury concluded that Westbrook was not within the scope of a master-servant relationship with Nurserymen at the time of the accident, the trial court entered judgment in favor of the plaintiffs and awarded damages against Westbrook and Western Star. The plaintiffs appealed the judgment to Louisiana’s Fourth Circuit Court of Appeals.

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image-for-post-26-1024x791What’s wrong, Lassie? Did Timmy fall down the well in Red River Parish? No? It was John Cantu who fell in the well, because of someone’s negligence? Let’s let Louisiana’s Second Circuit Court of Appeal figure this one out.

John Cantu, a truck driver, made a delivery to a well site owned by Encana Oil & Gas and operated by Schlumberger in Red River Parish. Cantu had to climb up a short stairway to a Schlumberger trailer in order to have the delivery receipt signed. While attempting to climb up the staircase, he fell down a hole and injured himself. Cantu claimed the hole represented an unreasonable risk of harm and that Schlumberger had neglected to fix the hole. On October 2, 2013, after filing a lawsuit, Cantu settled with Schlumberger out of court; Cantu agreed to release Schlumberger from all liability following the accident in exchange for a cash settlement of $375,000. Following this settlement — which is also known as a compromise — Cantu and Schlumberger jointly filed a final motion to dismiss the case on October 24, 2013.

However, one day earlier, on October 23, 2013, Cantu had filed a supplement and amended petition in which he named Encana as a defendant. In his amended petition, Cantu alleged that Encana allowed a dangerous condition to exist at their drill/work site. On February 26, 2014 Encana sought dismissal on the theory that the trial court no longer had jurisdiction over the case because the filed order for dismissal by Cantu and Schlumberger had the effect of a final judgment; such a final judgment was not subject to alteration by the trial court. Encana cited the October 24 motion to dismiss as evidence that the case had been settled between Cantu and Schlumberger and had been dismissed by those parties. The trial court agreed with Encana and dismissed Cantu’s amended petition. Cantu then appealed this decision to the Second Circuit.

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blur-car-drive-451590-1024x665Have you ever been in an accident where you were found at fault, but you know in your heart it wasn’t your fault? In this case, the trial court granted summary judgment in favor of the defendants because the plaintiffs failed to provide evidence that the driver of the car, in which they were passengers,  was not at fault for the accident. The issue addressed by the Louisiana Court of Appeal in this case was the appropriate time for summary judgment.

A motion for summary judgment may only be granted when there is no genuine issue of material fact, and it is used to avoid the cost of a full-scale trial. Johnson v. Evan Hall Sugar Co-op, Inc, 836 So.2d 484 (La. Ct. App. 2002). Moreover, a motion for summary judgment is properly granted only when the pleadings, depositions, answers to interrogatories, and admissions on file, show that there is no genuine issue of material fact and that the mover (i.e., the party moving for summary judgment) is entitled to judgment as a matter of law. La. C.C.P. art. 966(B)(2).

In this case, Lachona Charles, Tranika Charles, and Qu’Von Charles (collectively “the Charles”) were passengers in Latrica Robinson’s (“Ms. Robinson”) car, when she entered the center lane of traffic through a gap between cars, colliding with John Guidry (“Mr. Guidry”). Mr. Guidry was making a delivery for Cintas Corporation (“Cintas”). The police were called, and Ms. Robinson was found to be at fault for failing to yield, although she was not issued a citation. See La. R.S. 32:123. The Charles family filed a lawsuit against Cintas for personal injuries sustained during the accident. Cintas moved for summary judgment providing that Ms. Robinson was at fault, regardless of whose version of events was accepted, because she failed to yield when entering the center lane. In support of its motion for summary judgment, Cintas submitted the deposition of the on-scene officer, excerpts from Mr. Guidry’s and Ms. Robinson’s depositions, and an aerial image of the intersection where the accident occurred. In response to the Cintas motion for summary judgment, the Charles family faxed their opposition memorandum, using essentially the same evidence Cintas used in their motion.

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animal-bark-black-wallpaper-2238-1024x683Imagine you sign a lease at a complex that does not allow pets, but then you walk outside your home and are attacked by a dog. Who is liable? The owner of the animal, the landlord for not preventing the animal from being on the premises, or both? In most states, Louisiana no exception, dog owners are strictly liable for injuries to persons and property caused by their animal. La. C.C. art. 2321. Strict liability means that the owner of the animal is liable for damages caused by the animal regardless of if the owner knew of the dog’s vicious propensity or not. To prove landlord liability, as in the current case, the plaintiff must show that the landlord had actual knowledge of the dog’s vicious propensity to make a successful claim for damages caused by a tenant’s dog against a landlord. Compagno v. Monson, 580 So.2d 962 (La. Ct. App. 1991).

In this case, Ms. Coburn was attacked by a dog owned by Ms. Dixon when they were both living in a complex where Mr. Bernard was the landlord. Ms. Coburn sued Mr. Bernard alleging that he failed to warn of the dangerous propensities of the dog and failed to eliminate the danger of the dog. The trial court granted summary judgment in favor of Mr. Bernard because he provided an affidavit that he did not allow dogs on the premises pursuant to the lease agreements and was unaware of the violent propensity of the animal.

On appeal, Ms. Coburn argued that Mr. Bernard should have reasonably known that Ms. Dixon had a vicious dog on the premises, as he owned and ran a restaurant that many cops in town frequented. Thus, he should have been aware that the police had been called to the premises on numerous occasions because the dog was barking or roaming loose.

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builders-building-construction-159306-1024x683The Louisiana statutory employer defense grants statutory employers the exclusive remedy protections of the Louisiana Workers’ Compensation Act. La. R.S. 23:1061. To become a statutory employer, a principal must enter into a written contract with a contractor for work to be performed in furtherance of the principal’s “trade, business, or occupation.” La. R.S. 23:1061 Moreover, where the principal pays compensation, it is entitled to indemnification from the contractor. La. R.S. 9:2780.1. Once an employer shows that they are a statutory employer under the law, they are entitled to immunity for tort liability that occurred in the course of the agreement with a contractor. The Louisiana Court of Appeal addressed the issue of whether a statute enacted in 2010 negates the statutory employer defense when a construction contract contains an indemnification clause or a hold harmless clause without paying for any of the cost of insurance. La. R.S. 9:2780.1.

In 2013, Christopher Michael Blanks (“Mr. Blanks”), was an employee of Wastewater Specialties, Inc. (“Wastewater”), the contractor, when he and some co-workers were assigned to perform repairs to a broiler at Entergy Gulf States Louisiana, LLC (“Entergy”), the statutory employer. Entergy issued a permit indicating the work area was safe for entry; however, they allegedly failed to inform Mr. Blanks and his co-workers of an unprotected open hole in a confined space where Mr. Blanks was working. Unfortunately, Mr. Blanks unknowingly stepped into the hole, causing him to fall approximately thirty (30) feet to the ground. He sustained serious injuries, and subsequently sued Entergy and its insurance.

Prior to the commencement of work at the Entergy facility, Wastewater and Entergy entered into an agreement that Entergy would be indemnified for personal injury claims brought by Wastewater employees. The trial court granted summary judgment on the grounds that the contract between Wastewater and Entergy was invalid and unenforceable because it provided an indemnity clause irrespective of fault. Additionally, the court noted Wastewater did not recover the cost of any insurance required under the contract.

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adult-city-democracy-2422395-1024x679Parties are entitled to immediately appeal during litigation as long as a decision has been properly designated as the final judgment. However, the Louisiana First Circuit of Appeal (“the Court“) also has a policy against multiple appeals and piecemeal litigation. So, how does a system balance the right of parties to immediately appeal while considering the workload of the court? The following case discusses this issue regarding the appellate jurisdiction (the legal authority of a court to decide on a particular case).

The claimant, Timothy Stewart (“Stewart”) was injured in the course and scope of his employment of the Bogalusa Police Department on July 9, 2013. The City of Bogalusa paid Stewart workers’ compensation medical and temporary total disability benefits. On March 17, 2015, Stewart filed a lawsuit seeking compensation for permanent total disability, as well as statutory penalties and attorney’s fees for the late payment of temporary total disability benefits. The City of Bogalusa timely denied Stewart’s claims and filed a motion for partial summary judgment regarding the permanent disability issue. The workers’ compensation judge (“WCJ”) granted this motion and dismissed Stewart’s claim for permanent total disability on August 4, 2015. Stewart then filed a motion for devolutive appeal (in which the appellate courts can determine on some issues while the trial court continues on separate issues) and requested that the August 4, 2015 judgment be made final and appealable pursuant to La. C.C.P. art. 1915(B). On September 4, 2015, the WCJ granted Stewart’s request and designated the August 4, 2015 judgment as final and appealable.

The court has a duty to decide whether the court has appellate jurisdiction to review the partial summary judgment, because the designation of WCJ is not determinative of the court’s jurisdiction. Stewart argues that the appellate process should not be delayed. The Appellate Court found that the WCJ did not provide a reason as to the determination of a final judgment, so it must re-evaluate the designation before hearing an appeal. The Appellate Court should consider two factors: (1) the goal of the Workers’ Compensation Act as achieving speedy resolution of injured workers’ claims, and (2) allowing piecemeal appeal causes delay and inefficiency. Marquez v. Jack Ussery Construction, 965 So. 2d 400 (La. Ct. App. 2007). The immediate appeal is justified if it can speed up the adjudicative process. Partial judgment should not prolong and complicate the process. 

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black-and-white-blood-pressure-blood-pressure-monitor-208556-1024x768When a loved one dies or suffers severe injuries from negligent medical care, the first thing a family wants is justice for that mistreatment. When a mother knows her son’s medical history is not conducive to a certain treatment, she may believe that malpractice is apparent. These lawsuits have a number of procedures meant to protect the profession, however. A lawsuit can be dismissed by summary judgment when there is no genuine issue as to a material fact. La. C.C.P. art. 966(B)(2). When the defendant requests summary judgment, she may win the summary judgment if the adverse party’s claim lacks factual support for the elements essential to the claim.

Breton Trotter, a 21-year-old, was transported to Baton Rouge General Medical Center (“BRGMC”) emergency room on November 5, 2011. On November 7, 2011, Dr. Zuckerman found that Mr. Trotter had no pulse and expired. In October 2012, Breton Trotter’s mother, Terrain Trotter, filed a medical malpractice claim with the Louisiana Patient’s Compensation Fund Oversight Board and requested a review by a medical review panel. On April 30, 2014, the panel issued an unanimous opinion that no medical malpractice exists. On August 28, 2014, Ms. Trotter filed a medical malpractice lawsuit in the 19th Judicial District Court against Dr. Zuckerman. After he timely filed an answer, Dr. Zuckerman filed a motion for summary judgment on the ground that Ms. Trotter had failed to obtain a medical expert to support her claims. The trial court granted summary judgment in favor of Dr. Zuckerman. Ms. Trotter appealed to the Louisiana First Circuit Court of Appeal (“the Court“) arguing that her familiarity with her son’s medical requirements made her fully capable of meeting the burden of proof.

All plaintiffs must establish three elements to file a medical malpractice lawsuit: (1) the standard of care applicable to the doctor; (2) a violation by the doctor of that standard of care; and (3) a causal connection between the doctor’s alleged negligence and the plaintiff’s injuries. La. R.S. 9:2794(A). Generally, expert testimony is required to establish the applicable standard of care and whether the standard was breached, unless the negligence is so obvious that an average person can infer a breach without the guidance of an expert. Samara v. Rau, 977 So.2d 880 (La. 2008)

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