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69-Email-03-03-19-1024x512Zoning issues can seemingly arise out of nowhere and affect the way you choose to use your property. It is important to stay up to date with local zoning ordinances and have a good lawyer to guide you with upcoming projects or changes that may be affected. It is equally important to also be aware of what happens when zoning changes do affect, and even cancel, these projects. The Fifth Circuit Court of Appeal for the State of Louisiana addressed this issue when a Terrytown, Louisiana property was rezoned by the Jefferson Parish Council on December 12, 2007.

The Berrys purchased two adjoining parcels of property in 1998 and 2000, consisting of over four acres of land located in the Elmwood Subdivision and on Behrman Highway along the west bank of Jefferson Parish. This property was zoned as a Multiple Use Corridor District (“MUCD”), allowing for diverse commercial use of the land. On October 13, 2006, the Berrys and Volunteers of America, Inc. (the “VOA”) entered a purchase agreement to develop the property into a high-density, multi-level housing facility for the elderly. While the VOA made preparations for the project, the Jefferson Parish Council executed a zoning and land use area study that covered 23.67 acres, including the property owned by the Berrys.

The VOA project came to a halt due to a moratorium, an order of postponement, on the issuance of building permits for the area within the study, as required by the Parish Code. When the study came to an end, the VOA project ended as well; the study concluded with the Parish Council changing the zoning of the front portion of the Berry property from MUCD to C-1 (Neighborhood Commercial District), and the rest of the property zoned as R-1A (Single-Family Residential). Though the zoning changes were consistent with the Parish’s 2003 Comprehensive Land Use Plan, they were inconsistent with the VOA project.

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61-Email-03-03-19-1024x680The loss of loved ones is never easy, especially when they are taken away in sudden, unexpected ways. Though there is no dollar value that can replace human beings, monetary damages are a form of recovery in cases of wrongful death. Sometimes the steps to that recovery can be difficult, especially when insurance is involved. This issue was explored in a wrongful death action brought to the Twenty-Ninth Judicial District Court in St. Charles Parish.

On May 26, 2013, a head-on collision with another vehicle killed Esther Centeno and her unborn fetus. On behalf of Esther’s minor daughter, Laylonie Polanco, Carlos Polanco—Laylonie’s father—filed a wrongful action against the driver of the other vehicle in the collision: Jennifer Englade. The action was also brought against Ms. Englade’s insurer, National Automotive Insurance Company (“National”).

National filed a motion for summary judgment, a motion for judgment as a matter of law when there is no genuine issue of material fact. La. C.C.P. art. 966 (2017). In the motion, National argued that Ms. Englade was not covered by National at the time of the accident because her automobile insurance policy was canceled on March 30, 2013, due to failure to pay for a premium. In support of the motion, National provided a declarations page of Ms. Englade’s policy, the notice of cancellation, and affidavits of “Preparation of Cancellation Notice” and “Mailing” dated March 18, 2013. The trial court granted the motion for summary judgment and Mr. Polanco appealed.

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40-post-photo-1024x683Do you ever wonder what happens if you get into an accident in a company vehicle when on your lunch break? Whether it is using the company car to pick up food or a quick stop at the mall to grab a birthday gift, most of us have had the thought cross our minds. A recent State of Louisiana First Circuit Court of Appeal (“the Court”) case dealt with this very issue.

Melvin Sharp and his work supervisor drove to a bank to cash their paychecks on their lunch break in Prairieville, Louisiana. Sharp and his supervisor were both employees of Ellis Electric Company (“Ellis Electric”) and used a company-owned truck to run the errand. In the bank parking lot, another vehicle hit Sharp and his supervisor in the company-owned truck. Sharp was not driving the truck at the time, his manager was.

Sharp brought a lawsuit against his co-passenger and work supervisor, as well as Ellis Electric and their liability insurance provider, United Fire, seeking compensation for injuries from the car accident. Ellis Electric and United Fire’s attorneys motioned for summary judgment, stating Sharp was in the course and scope of his employment, and accordingly, he could only receive workers’ compensation. Ellis Electric further stated it was company policy to allow workers to use company vehicles on their breaks for personal errands. Sharp countered, stating he was not in the course and scope of his employment because he was not driving the company vehicle, his manager was, and that he was entitled to seek additional damages.

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39-post-photo-1024x683Most customers do not expect to be hurt by store merchandise when they go shopping. Yet, each year dozens of individuals are injured due to “falling merchandise.” The following Louisiana First Circuit Court of Appeal (“the Court”) case is a perfect example of what happens when an individual seeks legal action for being injured by a store’s falling merchandise.

Darry Hughes and his co-worker sought to purchase a plastic storage bin from Home Depot for their East Baton Rouge office. Inside the store, Hughes was injured when he removed a plastic bin from a shelf using both hands and was unable to stop another bin behind it from falling onto his face. Hughes brought a lawsuit against Home Depot U.S.A. (“Home Depot”) for the injuries he sustained from the alleged incident on the grounds that the bin was unstably stored.

Home Depot motioned the trial court for summary judgment, claiming that Hughes could not prove he did not cause the bin to fall upon himself and that he lacked evidence to show Home Depot was negligent or caused the injury he received. To show their purported innocence, Home Depot called in a twelve-year employee of the company, who testified that in all of his time there he had never heard of or seen an incident report where a product had fallen from a shelf.

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33-post-photo-1024x683Rain and a slick, tiled entryway are typically a bad combination. A recent Louisiana slip and fall case involved this exact scenario.

It had been steadily raining all day, and Allen Court Apartments resident James King left the building at night to go get dinner. Approximately a half hour later, King slipped and fell on the entryway of his apartment building, breaking his leg. King subsequently filed a lawsuit against the apartment building, the building’s insurance company, and the property managers for damages due to his injury.

Denying liability for King’s injury, the defendants motioned for summary judgment on the grounds that there was no defect in the apartment building King could point to and that he lacked causal connection between the defect and his injuries. The trial court granted the summary judgment motion stating that there was no genuine issue of material fact. King’s lawsuit was dismissed with prejudice, meaning the case was permanently over and King couldn’t bring it back into court. King appealed the trial court’s decision.

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ear-1419038-905x1024This afternoon a lawsuit was filed by the Berniard Law Firm and Martzell, Bickford and Centola Law firm on behalf of Yuri M. Johnson against the 3M Company in the United States District Court for the Eastern District of Louisiana. The Plaintiff, Yuri M. Johnson, is a US Army combat veteran. During his time with the Army, he was stationed at Jackson Barracks located at New Orleans, Louisiana. Yuri was deployed overseas in Iraq in 2005, deployed to Camp Shelby in Mississippi in 2007 and also was deployed to a base in Michigan, in 2009. Yuri alleges that while serving with the army he was supplied defective dual-ended Combat Arms™ earplugs to protect his hearing.

Unfortunately, the earplugs supplied to Yuri during his time with the army were the same earplugs that were the subject of a whistleblower lawsuit that alleged the earplugs contained a dangerous design defect. The whistleblower lawsuit went on to allege that when the earplug is used the way it is supposed to be used it can become loose in the ear canal which leads to a failure to provide hearing protection. As a result of that whistleblower lawsuit, the Defendant 3M agreed to pay $9.1 million to resolve allegations that it supplied the United States with defective dual-ended Combat Arms™ Earplugs. See United States of America ex rel. Moldex-Metric, Inc. v. 3M Company;

As a result of using these earplugs during combat and training, Mr. Johnson alleges that he continues to suffer daily from tinnitus, hearing loss, and other damages. According to the allegations of the lawsuit, 3M employees were aware of the defects as early as 2000, several years before 3M/Aearo became the exclusive provider of the earplugs to the military. The lawsuit goes on to state, that despite this knowledge, in 2003, Aearo submitted a bid in response to the military’s Request for Proposal to supply large quantities of these defective earplugs and entered into a contract pursuant to which it became the exclusive supplier of earplugs to the military.

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In May of 2016, a groundbreaking whistleblower lawsuit was filed against the 3M company. In this lawsuit filed in the United States District Court for the District of South Carolina, the Plaintiff alleged that the Defendant 3m sold defective earplugs (hearing protection) to the United States government for more than a decade. The lawsuit alleged that not only were these defective earplugs sold to the government but the allegations in the lawsuit were that 3M knew of the defect during the time they were sold. The earplugs were sold the United States government for use by the armed services from 2003 to 2015.

The lawsuit went on to claim that the earplugs were standard issued dual-ended Combat Arms™ brand that was issued to branches of the military service during times of combat. Due to the defect, the lawsuit alleged that it could have caused significant hearing loss to thousands of soldiers during the relevant time period. If a member of the armed services has hearing loss that they contracted during their time while serving the country the United States ultimately is on the hook for their medical cost related to the hearing loss. Therefore, the lawsuit alleged that these earplugs could end up costing the United States government through the Veterans Affairs medical treatment system millions or even billions of dollars for treatment related to hearing loss and tinnitus. The allegations of this lawsuit were absolutely shocking and justice must be sought for these claims.

On July 25, 2018, 3M settled with the United States for the claims made in the whistleblower lawsuit. 3M did not admit any of the allegations made in that lawsuit, but they did agree to pay over nine million dollars to end the litigation. The Justice Department of the United States put out a press release after the settlement stating that they are committed to using the False Claims Act to protect the taxpayer dollars from waste, fraud, and abuse. The Berniard Law Firm applauds the Justice Department in the prosecution of all whistleblower claims.

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empty-hall-2-1545642-1-1024x607For a plaintiff to prove a negligence case, he or she must prove, among other things, that the defendant owed a legal duty to the plaintiff. See La. C.C. art. 2315 (2016). Often, this element of negligence is overlooked and taken for granted which can lead to dismissal of the plaintiff’s case. A recent Louisiana Court of Appeal case out of the Third Circuit illustrates the importance of proving duty in a negligence case.

The case centers around the suicide of Lelia Shelvin while in Lafayette Parish County Sheriff custody. Sheriff Mike Neustrom arrested Ms. Shelvin for aggravated battery with a dangerous weapon. Sheriff Neustrom then took Ms. Shelvin to Lafayette Parish Correctional Center. While at the center, Ms. Shelvin committed suicide. Ms. Shelvin’s estate filed a lawsuit against Sheriff Neustrom, alleging that Sheriff Neustrom was at fault for Ms. Shelvin’s suicide.

At trial, Sheriff Neustrom filed a motion for summary judgment, arguing that he had no duty to Ms. Shelvin because her suicide was a “sudden and completely unpredictable event.” A motion for summary judgment asks the court to decide a case before going to trial, so long as all material facts are agreed upon by the parties. The trial court granted Sheriff Neustrom’s motion for summary judgment, ruling in favor of Sheriff Neustrom. Ms. Shelvin’s estate, disagreeing with the trial court, appealed the decision.

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hieroglyph-1226853-715x1024The death of a loved one is always an emotionally difficult time. But the loved one’s death also creates many obligations and legal requirements that the deceased successors must accomplish. Often, these processes can be complex and may lead to litigation, especially when money is involved. A recent court case out of the Third Circuit Court of Appeal for Louisiana illustrates these problems.

The case surrounds the life insurance policy of Triston Knoll. Mr. Knoll obtained a life insurance agreement and named his then-wife, Tina Knoll, and their minor child, Andree Knoll, as the primary beneficiaries (the individuals who would receive the payment made upon the death of Mr. Knoll pursuant to the life insurance agreement). The life insurance agreement was designed to pay Andree two-thirds and Ms. Knoll one-third of the total life insurance policy amount. Years after Mr. Knoll obtained the life insurance policy, Ms. Knoll and himself filed and were granted, a divorce. Mr. Knoll passed two years after the divorce.

Upon the death of Mr. Knoll, Ms. Knoll and Andree were supposed to receive the insurance policy payment because both were still both named primary beneficiaries. Andree’s biological mother, Andrienne Theriot, contested the insurance policy payment, arguing that prior to Mr. Knoll’s death he intended to name Ms. Theriot as a beneficiary and therefore Ms. Theriot was entitled to some of the life insurance proceeds. This controversy was brought before a federal district court where the court ruled that Ms. Knoll and Andree were entitled to all of the proceeds from the life insurance policy. While fighting the litigation in federal district court, Ms. Knoll and Andree entered into an agreement where Andree would receive the all of the life insurance proceeds and that those proceeds would be placed in a trust. However, after their success in the federal district court, Ms. Knoll argued that she did not intend to give up her right to some of the life insurance proceeds. Ms. Knoll then decided to file a claim in Louisiana district court.

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vacancy-1232656-1024x768Ever feel like you have been wrongfully brought to court? If so, then what legal remedies do you have at your disposal? In Louisiana, the law provides a person who has wrongly been brought to court with a tort cause of action called abuse of process. A recent Fifth Circuit Louisiana Court of Appeal decision highlights some of the procedural and legal requirements for this lesser known tort.

The alleged “frivolous” lawsuit centers around an eviction lawsuit. Allicen and Kenneth Caluda filed an eviction lawsuit against Fifth Business, LLC (“Fifth Business”). In the lawsuit, the Caludas also added No Drama, LLC (“No Drama”) as a defendant. Nearly seven years after the eviction lawsuit, No Drama filed an abuse of process lawsuit. To prove an abuse of process claim, No Drama needed to prove 1) the Caludas sued No Drama for an improper purpose and 2) the Caludas engaged in improper conduct during the prosecution of the action. See Goldstein v. Serio, 496 So. 2d 412, 415 (La. Ct. App. 1986). No Drama alleged the Caludas improperly filed suit in order to hold the company financially liable for the couple’s lease dispute with Fifth Avenue. It also claimed that the cost of defending the lawsuit, after informing the couple of its independent status, forced it to halt operations. The Caludas’ countered, arguing that No Drama was prescribed from bringing the abuse of process claim because it failed to file the claim within the appropriate time period required by Louisiana law which, for an abuse of process claim, is one year. The trial court agreed with the Caludas, dismissing No Drama’s lawsuit. No Drama appealed the trial court’s ruling.

On appeal, No Drama argued that the prescription period never commenced because the underlying eviction case needed to be decided prior to it bringing the abuse of process lawsuit. No Drama also argued the prescription period was suspended because Caludas was committing a “continuous tort.” A continuous tort is an ongoing unlawful course of conduct that results in uninterrupted injury to the plaintiff. Crump v. Sabine River Auth., 737 So.2d 720, 728 (La. 1999). No Drama alleged the Caludas, by maintaining a wrongful lawsuit and causing ongoing financial injury, committed a continuous tort and therefore, the prescription period was suspended or tolled as a result.

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