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paper-family-1186206-1024x676Summary 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.

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to-sign-a-contract-2-1236630-1-1024x683Final 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.

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car-breakdown-1444955-1024x683Comedian 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.

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utility-truck-1239978-1024x446Property 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.

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school-yard-1550938-1024x682When 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.

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pills-1183584-1024x768When someone decides to have surgery, they do not typically anticipate a lawsuit arising out of that surgery. Typically, a headache is not a common side effect of getting a new joint implanted into a toe, but when issues of joinder and diversity jurisdiction complicate a lawsuit, a headache is what the patient gets. Unfortunately, that’s exactly what happened to a patient in eastern Louisiana. Kale Flagg had an unsuccessful toe-joint replacement surgery and filed a lawsuit in state court asserting medical malpractice claims against Dr. Denise Elliot and a product defect claim against both Stryker Corp. and Memometal Inc. USA.

When no plaintiff is a citizen from any state which a defendant is a citizen, jurisdiction issues may arise. If that condition is met, a lawsuit filed in state court may be removed to federal court. See 28 U.S.C. § 1332(a)(1). As out-of-state defendants, Stryker and Memometal removed the case to federal court. However, Mr. Flagg and Dr. Elliot are both citizens of Louisiana. Here, the District Court held that Mr. Flagg failed to exhaust all of his administrative remedies against Dr. Elliot, and therefore, naming Dr. Elliot as a defendant in the case was improper. Once Dr. Elliot was dismissed from the case by the District Court, diversity jurisdiction existed and the case could be heard in federal court.

Mr. Flagg appealed the judgment of the District Court dismissing the doctor from the case. The Court of Appeals affirmed the District Court’s decision. In determining that the doctor was improperly joined to the case, the court looked at whether Mr. Flagg would be able to recover against the doctor in state court.

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heavy-duty-1192390-1024x681Grease is often used to make foods easy to remove from pans and baking sheets. It creates a slippery, smooth surface that allows most foods to slide right out of the pan. Unfortunately, when grease meets a wood floor, humans walking over can slide around as well. Sharon Tomlinson found this out the hard way as a waitress led her to a table in a Daisy Dukes restaurant in May of 2011. It is believed that airborne grease particles settled on the floor, causing Mrs. Tomlinson to fall and injure her knee when she stepped off of a commercial rug and onto the allegedly greasy floor.

Mrs. Tomlinson filed a lawsuit in 2012 against Daisy Dukes and their insurer, Landmark (“Defendants”), for the slip and fall accident. She also filed a spoliation claim alleging the restaurant failed to preserve relevant evidence, such as security camera footage. Denying liability, Daisy Dukes and Landmark moved for summary judgment on both claims, arguing that Mrs. Tomlinson could not produce evidence showing anything was on the floor that contributed to her accident. Louisiana state law puts the burden of proving three different factors, including this one, on the plaintiff (Mrs. Tomlinson). La. R.S. 9:2800.6. Thus, Defendants argued, there were no genuine issues of material fact, and they were entitled to summary judgment as a matter of law. The trial court agreed and found Mrs. Tomlinson did not meet her burden of proof. The trial court also granted summary judgment against Mrs. Tomlinson on her spoliation claim for the same reasons.

Summary judgment is appropriate when there is no issue of material fact from which a jury could find for the non-moving party. See Bilbe v. Foster, 176 So.3d 542 (La. Ct. App. 2015). Here, that means Defendants had to show there were no issues of material fact that could lead a jury to conclude Defendants were liable for the slip and fall injuries. Even without direct evidence, a plaintiff may satisfy their burden of proof with circumstantial evidence as long as it excludes every reasonable alternative cause for the accident, but the trial court found Mrs. Tomlinson could show neither direct or circumstantial evidence. The appellate court did not agree and reversed that decision.

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retro-clock-1422611-1024x919Generally, citizens are not held to criminal standards that do not yet exist. When a citizen takes action, he or she is held to the criminal standards in place at the time of the act. To retroactively apply criminal laws is impermissible because that application tends to violate principles of fairness and due process.

In one case out of East Baton Rouge, Louisiana, the issue was whether the Sledge Jeansonne Louisiana Insurance Fraud Prevention Act (“Sledge Act”) and the Louisiana Unfair Trade Practice and Consumer Protection Act (“LUTPA”) could be applied retroactively to a defendant’s misconduct occurring before the statutes were effective.

The State of Louisiana argues that the principles of fairness and due process would not be violated here because Sledge does not target the underlying conduct but instead is triggered by the entering of a guilty plea. Further, the State argues that civil penalties sought under LUTPA were similarly permissible.

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supply-vessel-1449728-1-698x1024Contracts between parties working toward a common goal can sometimes result in detail-oriented litigation when something goes wrong. When those parties need to subcontract with a third party, the responsibility for that third party if something goes wrong can be a point of contention.

In the Western District of Louisiana, a lawsuit and appeal revolved around whether the defendant-appellant, W & T Offshore Incorporated (W&T), or the defendant-appellee, Triton Diving Services (Triton), was responsible for injuries sustained by the plaintiff, Jakarta Grogan. W&T contends that Triton is liable because the injury occurred on Triton’s vessel. Triton disputes all liability and contends that W&T must pay for Mr. Grogan’s injuries, due to the contractual relationship between them.

W&T operates a pipeline in the Gulf of Mexico and hired Triton to participate in a recommissioning project. Triton was to be responsible for flushing the pipeline for impurities and was able to do so by using a dive support vessel called the Achiever. The two parties signed a Master Services Contract that allowed Triton operational control of the vessel but granted overall operational control to W&T. During the flushing process, Triton detected potentially unsafe levels of hydrogen sulfide being released. Due to this hazard, Triton consulted with W&T engineer, Alan Greig, about how to proceed. Mr. Greig recommended they hire a third party to help resolve the issue, and they brought Tiger Safety onto the project. W&T representatives, including Mr. Greig himself, made the necessary arrangements with Tiger Safety. The Plaintiff, Mr. Grogan, was one of Tiger Safety’s personnel that boarded the Achiever in order to resolve the hydrogen sulfide issue. Mr. Grogan acted under the direction of W&T’s on-site representative and provided necessary information gathered to said representative. The problem was resolved, and Tiger Safety’s personnel had been discharged. During the departure from the Achiever, Mr. Grogan fell. He subsequently sued both W&T and Triton for the injuries he sustained. W&T and Triton filed cross-claims against one another, and each defendant claimed indemnification. Simply, each defendant claimed that they could not be held liable for Mr. Grogan’s injuries because the other defendant had contracted to release them from any potential claims. The contract between the parties held that Triton indemnified W&T from personal injury claims brought by members of the ‘contractor group’. The term ‘contractor group’ was meant to refer to the Contractor, its parent company, affiliated companies, and all respective officers, employees, and invitees on the work sites. The district court held in favor of Triton and found that, based on all relevant facts, Mr. Grogan was W&T’s invitee. W&T appealed the ruling.

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Constr-hats-768x1024Dot your i’s and cross your t’s. We’ve heard it since kindergarten. Yet, sometimes it is easy to forget the basics when a case seems to be open-and-shut.

In 2003, Mr. JL, an East Baton Rouge employee of Landis Construction Company (“Landis”), was injured on the job. Landis’ insurance carrier, (“Gray”), paid workers’ compensation and medical benefits to the employee. Landis and Gray asked the Office of Workers’ Compensation Administration (“Board”) to reimburse the payments made to Mr. JL but the Board denied the request. Six years later, Landis and Gray entered a Consent Judgment with the Board. Later, in 2013, Landis and Gray filed a Petition to Enforce Consent Judgment to enforce the 2009 Consent Judgment. One year later, in 2014, Landis and Gray filed a Motion to Enforce Consent Judgment.

The trial court held for Landis and Gray, awarding $28,095.60 in April of 2017. The Board appealed.

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