Louisiana Personal Injury Lawyer Blog

July 19, 2019

Firefighter’s Widow Continues the Fight for Survivors Benefits in Jefferson Parish

No one can ever truly be prepared for the death of a loved one. It can present many unforeseen challenges, especially when complicated by the process of obtaining survivors’ benefits.

After the death of her husband, Jane Butler filed a “disputed claim for compensation” seeking death benefits, as allowed under La. R.S. 23:1231, with the Office of Workers’ Compensation (OWC). La. R.S. 23:1231 provides benefits for any legal dependents of an employee whose death occurs within two years resulting from an injury. Mrs. Butler filed the disputed claim on January 7th, 2013. Her husband Robert Butler, a retired Jefferson Parish firefighter, passed away from a heart attack on May 5th, 2013.

Mrs. Butler contended her husband experienced chest pains and underwent surgery placing a stent in his right coronary artery in July 2004. On September 23rd, 2004, Mr. Butler filed a claim under La. R.S. 33:2581, commonly known as the Heart and Lung Act, for compensation and disability benefits. Mr. Butler continued to receive these benefits up to his death in May 2013. However, Mr. Butler’s original death certificate listed his death as attributable to “unspecified natural causes.” The coroner corrected Mr. Butler’s death certificate to appropriately reflect the cause of death, myocardial infarction, in October 2014.

July 18, 2019

Delivery Gone Wrong: Terrebonne Parish Family Wins Appeal in Maternal Medical Malpractice Claim

by Berniard Law Firm

The birth of a child is something many soon-to-be parents look forward to with both excitement and nervousness. Concern for the health and safety of both mother and child are common, and often, unnecessary. Sadly, this is not always true. In the case of one Terrebonne Parish family, the arrival of a baby girl was accompanied by an unfortunate medical mistake. The family’s medical malpractice claim raised important distinctions in assessing and apportioning damages as it moved into the Louisiana First Circuit Court of Appeal.

Following a high-risk pregnancy, Kimberly Thibodeaux gave birth to her daughter, Gabrielle, on November 20th, 2003. Dr. James Donnell performed the cesarean section that delivered Mrs. Thibodeaux’s fourth child. Complications arose from the c-section, including a severe laceration to Mrs. Thibodeaux’s bladder. Ultimately, Dr. Donnell performed an emergency hysterectomy and placed sutures into Mrs. Thibodeaux’s bladder without consulting a urologist before attempting to repair Mrs. Thibodeaux’s bladder himself. Mrs. Thibodeaux experienced extreme abdominal pain and discomfort following the delivery, eventually necessitating further treatment under the care of urologist Dr. Robert Alexander. Mrs. Thibodeaux’s abdomen was reopened, the sutures removed, stents and a catheter were placed into her bladder in an attempt to regain any functional use. Mrs. Thibodeaux continued her treatment with Dr. Alexander, who determined the damage to Mrs. Thibodeaux’s bladder was permanent in April 2007. Mrs. Thibodeaux continued to suffer from a range of painful symptoms, including frequent urination, leakage, pain during sex and urination, and abdominal spasms.

Mrs. Thibodeaux, along with her husband Todd and on behalf of their daughter, filed a medical malpractice suit against Dr. Donnell. In May 2014, the jury trial returned a verdict in the Thibodeauxs’ favor, finding that Dr. Donnell had breached the applicable standard of care in treating Mrs. Thibodeaux, and that his breach caused her injuries. The jury awarded $60,000 for Mrs. Thibodeaux’s medical expenses but did not award any general damages. Both the Thibodeauxs and Dr. Donnell filed motions challenging the damages award. The trial court denied both motions, and the Thibodeauxs filed an appeal in the First Circuit. After determining both motions were filed in an appropriate manner within the stated deadline, the court concluded the Thibodeauxs had cleared a path for their appeal concerning damages. See La. R.S. 13.850(A).

July 17, 2019

Elayne Hunt Correctional Facility Negligence Leads to Payout for Inmate

by Berniard Law Firm

68-photo-3_26_19-819x1024 Can an inmate be awarded damages from an injury caused by the employees of the correctional facility? According to the 5th Circuit Court of Appeal, the answer is yes. Mr. Miller was an inmate at Elayne Hunt Correctional Facility when an employee of the facility pulled him out of his bunk and threw him on the ground. Miller sued Captain Credit and the State of Louisiana for negligence under state law as well as violations of the 8th amendment under 42 U.S.C. §§ 1331 and 1983. Miller claimed that Captain Credit, as an employee for the state of Louisiana violated his civil rights with his act of negligence and that the federal district court has jurisdiction in this case.

When the case went to trial, a jury found that the employee acted with negligence and therefore awarded Mr. Miller damages. Captain Credit moved to alter the judgment under Fed. R. Civ. P. 56(e), arguing that Miller failed to prove a causal relationship between his shoulder injury and the negligent act. The district court denied their motion and they appealed the Fifth Circuit.

Federal Rule 59(e) gives the district court the authority to alter or amend a judgment when they have committed a “manifest error of law or fact”, and the appellate court reviews for an abuse of discretion. See Schiller v. Physicians Res. Grp., 342 F.3d 563,567 (5th Cir. 2003). For this type of appeal, the district court’s decision and the decision-making process need only be reasonable for the decision to be affirmed.

July 16, 2019

Man Doesn’t Have To Pay Back Alleged Disability Overpayments Without Proof

by Berniard Law Firm

64-photo-3_26_19-1024x684 If you believe you are eligible for retirement, disability, or other benefits from the Social Security Administration (“SSA”), it is imperative that you understand how prior events, including those that may have led to overpayment of prior benefits, can affect your ability to collect these benefits.

In 2010, Johnson applied for retirement insurance benefits with the SSA. He was then advised that he had been overpaid disability insurance benefits from 1974 to 1976 and that any retirement insurance benefits would be withheld until the $4,535.90 prior overpayment amount was satisfied. Johnson requested a hearing before an administrative law judge and testified that he didn’t receive disability benefits in 1976, 1977, or 1978. He did receive disability benefits in 1970, but those benefits were discontinued in 1974 or 1975 after advising the SSA that he had returned to work. He also specified that he didn’t recall getting a notice of overpayment and demanded that they provide proof of the alleged overpayments. The administrative law judge ruled against Johnson and ruled that he was liable for the full amount. Johnson requested a review of the decision but was denied by the Appeals Council.

Three years later, Johnson filed an action in the district court seeking a review of the decision made by the administrative law judge. The SSA moved for summary judgment, and the magistrate judge issued a Report and Recommendation and recommended that the matter be remanded to the Commissioner of the SSA for a determination supported by substantial evidence regarding the overpayment allegedly made to Johnson. The district court adopted the Report and Recommendation and ordered the case to be remanded. They further specified to Johnson that they were affirming the decision that Johnson received overpayments, but reversing the determination concerning the amount of overpaid benefits, and remanding for a determination of benefits owed with supporting evidence.

July 15, 2019

Injured Seaman Recovers Damages Despite Failure to Report Previous Injury to Employer

by Berniard Law Firm

63-photo-3_26_19-1024x683 There are unique laws governing benefits and remedies for injured seamen. It is important to know the specific laws and defenses applicable to claims as an injured seaman.

Mr. Bourdreaux hurt his body including his back while working for Transocean and they paid for his living and medical expenses as required when a seaman gets injured on the job, as well as an allowance for food, for five years. BX sued them for additional money and also sought increased damages for the mismanagement of past benefits. He also sued for other claims under the Jones Act. See Pub. L. No. 66-261, 41 Stat. 988 (1920).

During discovery, Transocean found that BX failed to notify the company of past back problems in the medical questionnaire he was given prior to his employment. As a result, they filed a partial summary judgment on the claim for more money relying on the McCorpen defense, which allows a company to avoid paying a claim if previous medical problems were not disclosed. See McCorpen v. Cent. Gulf S.S. Corp., 396 F.2d 547, 549 (5th Cir. 1968). The district court agreed and granted summary judgment on those claims. Transocean also filed for summary judgment on the negligence and unseaworthiness claim, but the motion was denied by the district court. Furthermore, Transocean filed a counterclaim against Bourdreaux seeking to recover the payments; however, the parties settled prior to the Court’s ruling on that issue.

July 14, 2019

How can an Employer use the Courts to Deny a Family Medical Leave Act Claim?

by Berniard Law Firm

paper-family-1186206-1024x676 Summary judgment is a legal standard many courts use when there are not enough facts in dispute to even proceed with a lawsuit. When applicable, this is a good strategy for a defense attorney to use because it purges claims that have no merit, saving time and money. The Fifth Circuit Court of Appeal demonstrated this principle within the context of an employment discrimination lawsuit. The following case demonstrates how an employer can use the Courts to deny a Family Medical Leave Act Claim.

Michelle Calderone was an employee of TARC in Hammond, Louisiana. While she was employed, Calderone was involved in a car accident where she was initially diagnosed with a chip fracture to her ankle. Nine days after the accident, she returned to work. About a month later, Calderone was further diagnosed with a crack in her sternum and was instructed to remain on bed rest. TARC’s CEO, Kathleen Abels, gave Calderone permission to work from home. A month later, Calderone proposed splitting up her time equally at home and at work, and Abels agreed. Calderone submitted a doctor’s note allowing her to work the split schedule, which specified no lifting, climbing, or travel and warned of the injury’s existence for 6 months or more. After the split schedule began, Abels gave Calderone a document that characterized her split schedule as temporary and only in effect until March 31, 2012. She did not sign the document, but she submitted a written response opposing some aspects of the document, such as her disability characterization, the revocation of the split schedule, and the failure to inform her of FMLA rights. Abels denied Calderone request.

After Calderone’s doctor gave the release, Calderone returned to a full-time schedule. Calderone did not request any leave thereafter or object to resuming her split schedule. Seven months after returning to a full-time schedule, Calderone resigned stating that she cannot successfully complete her duties under Abels’ management but failed to mention any issues regarding her leave, injuries from the car accident, or timing of her return to work from those injuries.

July 13, 2019

When is a Final Court Judgment Not Final in Louisiana?

by Berniard Law Firm

to-sign-a-contract-2-1236630-1-1024x683 Final judgments are usually final. However, not all civil judgments are actually final. In a legal malpractice lawsuit, the plaintiff can attempt to seek relief from a final judgment. However, this remedy is only available under a narrow set of circumstances where the losing party may request the court to reopen an otherwise final judgment.

Ms. Narissa Bradford hired certain attorneys (collectively as “GHW”) to represent her in an Italian civil suit. After the suit was unsuccessful, Bradford sued GHW alleging legal malpractice during the course of their representation. The Eastern District Court of Louisiana granted GHW’s motion for summary judgment. A motion for summary judgment asks the district court to decide a case prior to it going to trial if no material facts are in dispute La. C.C.P. art. 966. Bradford’s claims were dismissed with prejudice, meaning she was prohibited from suing under the same claims in the future. On May 15, 2015, Bradford filed a Fed. R. Civ. P. 60(b) motion seeking relief from an earlier judgment, but the district court denied the motion. Bradford, disagreeing with the district court’s ruling, timely appealed.

The district court has the discretion to grant or deny relief under FRCP 60(b) and will only be reversed for abuse of discretion. Bradford argued that the district court abused its discretion by denying her relief on the grounds of newly discovered evidence, fraud, and other reason that justifies relief. Fed. R. Civ. P. 60(b)(2)-(3), (6) On the ground of newly discovered evidence, Bradford must show that she exercised due diligence in obtaining the information at the time of trial and that evidence is controlling enough to have clearly produced a different result if presented before the original judgment. Johnson Waste Materials v. Marshall, 611 F.2d 593, 597 (5th Cir. 1980). Hesling v. CSX Transp., Inc., 396 F.3d 632, 639 (5th Cir. 2005). The Fifth Circuit affirmed the district court’s granting of summary judgment, holding that the district court did not abuse its discretion on three grounds.

July 12, 2019

Insurance Company Refuses Liability in Hit & Run Due to Straw Purchase

by Berniard Law Firm

car-breakdown-1444955-1024x683 Comedian Chris Rock once famously opined that insurance should be renamed, “In-case-of.” You pay for insurance every month “in case of” some unfortunate circumstance occurring. Well, you better have access to an excellent attorney “in case of’ the other driver not having the insurance, or even the car, in his name. This is what happened to Wanda Kahl. When the insurance company disputed its obligation to pay for her injuries, Ms. Kahl was subject to a protracted legal battle in court.

Ms. Kahl was driving down Jane Ave in New Iberia one summer day in 2012 when she was rear-ended by a hit-and-run driver. She filed a lawsuit against the vehicle’s owner and his insurer. The registered owner, Tricky Chevalier, later testified in a deposition that the vehicle in question was ostensibly a “straw purchase.” That is to say, Chevalier had purchased, registered, and insured the vehicle in his name but all for the benefit of his cousin, one Joseph Pete. Mr. Pete operated the vehicle, and also paid the insurance premiums, while Chevalier remained owner in name only. After this deposition, Safeway Insurance moved for summary judgment. A summary judgment motion requests that the court rule for the movant without a trial because the evidence presented thus far shows “no genuine dispute of material fact.” La. C.C.P. art. 966. Safeway claimed Chevalier’s admission constituted a material misrepresentation of fact, without which he would not have received coverage. Since the coverage was procured by misrepresentation, Safeway argued that the contract for coverage was not valid, so they were not responsible for payment.

Ms. Kahl appealed Safeway’s summary judgment motion and countered with a summary judgment motion of her own, asserting that the law clearly states the accident must be covered. She relied on La. R.S.32:900(F)(1) to show that Safeway is obliged to pay. Safeway argued that the statute does not apply to the policy in question since this policy is an “automobile policy,” and not a “motor vehicle policy.” Safeway contended that to be a “motor vehicle policy,” the policy must be certified in accordance with La. R.S.32:898, and there no proof of this. Therefore, the policy in question is an automobile policy and not a motor vehicle policy. The trial court agreed, granting Safeway’s motion and denying Ms. Kahl’s.

July 11, 2019

Vernon Parish Utility Worker Will Have his Day in Court, Dismissal Reversed

by Berniard Law Firm

utility-truck-1239978-1024x446 Property owners have a duty to keep their property safe against unreasonable risks of harm to those who are invited onto the premises. However, if a potential risk is “reasonable” is a matter of debate. If the hazard in question is obscured, the owner may be liable. But if the hazard is glaringly obvious, it may be the fault of the injured party. The discourse as to what constitutes “open and obvious” is at the heart of this case.

Virgil McCoy was a Cleco employee doing some routine maintenance on an electrical meter in Rosepine Apartments I when fate struck. In an effort to access the meter, McCoy had to walk a narrow path behind a row of overgrown bushes and stand precariously close to an uncovered water meter just to begin the repairs. As he worked, his left foot slid backward and he fell into the hole where the water meter sat. McCoy, and his employer Cleco, filed a lawsuit against Rosepine Seniors Apartments Partnership, their insurers, the property managers, and even the Town of Rosepine, for liability for McCoy’s injuries (collectively called “Defendants”).

The Defendants countered by claiming the hazard the meter presented was “open and obvious,” and McCoy should have been aware of the danger. They moved to have the case dismissed by filing a motion for summary judgment. Summary judgment is when the court decides for one party without a full trial. When the court examines all the information submitted for trial up to that point, e.g. the complaint, the defendant’s answer, items procured in discovery, affidavits, depositions, etc., and finds there is no genuine dispute of fact between the parties, summary judgment is entered. La. C.C.P. art. 966. The one who bears the burden of proving there is no dispute is not so clear-cut. One thing to note is that the party filing the summary judgment motion does not need to show all the elements of the other party’s case are insufficiently proven, but only that one or two elements cannot be met with the evidence presented. The burden then shifts to the other party to show those elements can be met. According to Defendants, McCoy’s complaint failed to meet one particular element of La. C.C. art. 2317.1: whether the hazard presented an unreasonable risk of harm. The Defendants succeeded in their motion, and the trial court dismissed the case via summary judgment.

July 10, 2019

Louisiana Court of Appeals Reverses Dismissal of Instructor’s Retaliation Claim Against Tangipahoa School Board

by Berniard Law Firm

school-yard-1550938-1024x682 When someone reports misconduct, they might expect the wrongdoer to be reprimanded. They don’t generally expect to be punished themselves. That’s why Ronald Bias at Amite High School was not happy when he was retaliated against after reporting a colleague’s misconduct.

Mr. Bias was a senior Marine Corps instructor for the Tangipahoa Parish School Board’s junior ROTC program. When he overheard that fellow ROTC instructor Carl Foster was misusing funds to pay for a non-ROTC cross-country team trip in September 2009, he promptly reported it to the school’s principal. The principal approved the funding anyway. Mr. Bias reported a second misappropriation of funds in April 2010, which also had the principal’s stamp of approval.

During the same time period, Mr. Bias claimed that his colleague, Mr. Foster, though subordinate to Bias, worked with the principal, Michael Stant, to undermine Bias in his ability to perform his job duties. Together, they harassed and spread rumors about him in retaliation for his reporting of misappropriation. After Bias reported the second misappropriation of funds, he alleges that the two men convinced the Marine Corps to transfer him to another high school an hour away. He claimed this would have a negative impact on his career and place a strain on his family, so he decided to retire from the Marine Corps.