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books-illustations-1489534-768x1024Labor contracts are often tricky and scary because potential employees generally find it difficult to negotiate with employers for terms favorable to them, while employers use standard contracts with terms potential employees don’t understand or aren’t used to seeing, which guarantee the employers a better deal.

The National Labor Relations Act (“NLRA”), whose purpose is to provide protection to employees from unfair labor practices of employers, provides that an employer commits an unfair labor practice when it coerces or prevents employees from engaging in their legal rights, including, but not limited to, the rights of employees to band together in a union or otherwise. A recent case out of the United States Fifth Circuit Court of Appeals (“the Court”) addressed this problem in a labor contract case between a retail gas station and its employee.

Murphy Oil Inc. (“Murphy Oil”) operates retail gas stations in many cities in the United States, but the following dispute takes place at the Calera, Alabama location. Sheila Hobson, upon starting employment with Murphy Oil, was required to sign a binding arbitration agreement—an agreement which prevented herself and other employees working at this location from settling any disputes with management by any means other than arbitration—a process which would require both employee and employer to meet with a professional mediator for all legal claims.

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horse-nose-1575359-1024x681Think before you act. We have all heard this advice. But, thinking before you act can be difficult. Sometimes, emotions and the heat of the moment prompt you to react before you think. A common example of this occurrence is in road rage altercations. It is easy to get upset when you get cut off or a person pulls out in front of you. But the legal ramifications of acting on those emotions can be dire. A recent case out of the First Circuit Court of Appeal for the State of Louisiana illustrates one type of legal consequence that could happen when emotion turns to violence.

It all began in Ascension Parish when Clifford Barr, driving his pickup truck, attempted to make a left turn into a parking lot. Mr. Barr’s left turn was blocked by Ray Schexnayder, who was trying to make a left turn out of the parking lot’s entrance. As Mr. Barr attempt to make the left hand turn into the parking lot, Mr. Schexnayder simultaneously exited the parking lot, turning left as well. Both vehicles narrowly escaped hitting each other. After the near miss, both Mr. Barr and Mr. Schexnayder started exchanging words. This conversation quickly became heated. Mr. Barr, after exchanging words, continued into the parking lot. Mr. Schexnayder followed Mr. Barr into the parking lot. While in the parking lot, Mr. Schexnayder exited his pickup truck, proceeded to Mr. Barr’s vehicle, and then stuck his head through the open window of Mr. Barr’s vehicle. At this point, the facts are unclear. Both Mr. Barr and Mr. Schexnayder claim that the other person threw a punch. Regardless of who punched first, a fight ensued. In the fight, Mr. Barr sustained a nose injury when Mr. Schexnayder bit Mr. Barr on the nose.

Mr. Barr filed a lawsuit against Mr. Schexnayder for damages he sustained in the parking lot altercation. At trial, the trial court awarded damages in the amount of $25,005.00 to Mr. Barr. The trial court found Mr. Barr to be a more credible witness and believed Mr. Barr’s story that Mr. Schexnayder threw the first punch. Mr. Schexnayder, disagreeing with the trial courts determination, appealed its decision.

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shaking-hands-1240911-1024x768Leasing agreements often are complex and lengthy, especially in a commercial context. A common provision contained in most leasing agreements is an indemnity provision. An indemnity provision is a section in a leasing agreement that requires the leasee (the person who leases the property) to take responsibility for certain lawsuits involving the leased property. A recent decision from the Second Circuit Court of Appeal for Louisiana illustrates the power of an indemnity provision.

The case revolves around a leased commercial building located in Bastrop, Louisiana. The building’s owner, Hollis Charles Larche, entered into a leasing agreement with Paul Eikert. Mr. Eikert obtained the lease in order to open up a grocery store. Contained in the lease is a provision that stated that Mr. Larche would be held harmless for any damages or injuries caused by defects on the building’s premises.

A couple of years after entering into the lease agreement, an employee of Mr. Eikert’s grocery store, Deborah Beebe, was injured while on the job. Ms. Beebe sustained her injuries after she slipped on water that came from a leak in the building’s ceiling. Ms. Beebe filed a lawsuit against Mr. Larche claiming that Mr. Larche knew of the leaking ceiling and failed to take appropriate measures to fix the leak. Mr. Larche, citing the indemnity provision contained in the leasing agreement, argued that Mr. Eikert is responsible for any damages resulting from Ms. Beebe’s injury. Mr. Eikert never responded to Mr. Larche’s claim that the indemnity provision allocated responsibility of Ms. Beebe’s injuries to Mr. Eikert. The trial court agreed, granting a default judgment on the issue for Mr. Larche. A default judgment is a judgment that a court can grant if one side in a legal matter fails to take steps to resolve the legal controversy. The default judgment is granted to the side who did take steps to resolve the legal controversy, in this case, Mr. Larche.

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entering-arkansas-1215127-1024x671Workers’ compensation provides an avenue for workers injured on the job to receive the compensation a worker deserves. But what happens when a resident of one state is injured while working for a company in another state? A recent case out of the Second Circuit Court of Appeal for Louisiana addressed this issue when a Monroe, Louisiana worker, working for an Arkansas company, was injured in Mississippi.

Levi Williams was injured in Mississippi while driving a truck for Morris Transportation, Inc. (“Morris Transportation”), an Arkansas company. After the accident, Mr. Williams applied for and was granted, workers’ compensation benefits in Arkansas. Those benefits went away after Morris Transportation released Mr. Williams from work. Subsequently, Mr. Williams sought workers’ compensation benefits in Louisiana. Morris Transportation contested Mr. Williams’s request and the matter went before a Workers’ Compensation Judge (“WCJ”). At a hearing, the WCJ ruled in favor of Mr. Williams, holding that Mr. Williams was entitled to Louisiana workers’ compensation benefits. Under Louisiana law, an injured employee is entitled to workers’ compensation when injured while working outside the state if the employment contract is made in Louisiana. La. R.S. 23:1035.1 (2016). The WCJ found that the contract, in this case, was made in Louisiana and therefore, Mr. Williams was entitled to Louisiana workers’ compensation benefits. Morris Transportation, disagreeing with the WCJ’s assessment, appealed the decision.

On appeal, the Second Circuit Court of Appeal examined whether the employment contract between Mr. Williams occurred in Louisiana. Both Mr. Williams and Morris Transportation dispute the facts surrounding the formation of the employment contract According to Mr. Williams, he previously worked for Morris Transportation, but left to work for another employer. A little while after Mr. Williams left Morris Transportation, he called Morris Transportation and was told by an employee that he could come back and work for his former employer. Mr. Williams claimed that during this call he was told by by Morris Transportation that he could “come back.” Mr. Williams testified that the day after the phone call he drove, signed a driver qualification form, and began to working. Morris Transportation, conversely, argued that the phone conversation between Mr. Williams and itself did not form a contract. It claimed that the phone conversation could not constitute an employment contract because Mr. Williams had not gone through the employment process required before Morris Transportation hires an employee.

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winter-road-1347950-1024x768We all make mistakes, and, if lucky, are presented with the opportunity to fix them. The same principle can be said for an error in a money damage determination. When a party to a lawsuit believes that the jury or trial court erred in its damage award decision, the party has the ability to appeal. A recent court case out of the Second Circuit Court of Appeal for Louisiana discusses the requirements that are needed to overturn a money damage determination.

The case involves a car accident involving Holly Swayze. Ms. Swayze suffered multiple injuries from the accident and accumulated a sizable amount of medical bills. As a result of the injuries and medical bills, Ms. Swayze filed a lawsuit. At trial, Ms. Swayze testified that prior to the accident she lived without physical limitations. But after the accident, she started experiencing neck and back pain. To alleviate her pain, Ms. Swayze tried self-help and physical therapy, but those treatments only mitigated, not solved, her pain problem. This attempt to alleviate her pain cost Ms. Swayze $12,700.04 in medical bills.

Ms. Swayze’s primary physician, Dr. Coleman, also testified at trial. Dr. Coleman testified that he had been treating Ms. Swayze for ten to twelve years and had no records of her complaining about neck and back pain. He also recalled that Ms. Swayze complained of numbness in her right arm after the accident. Dr. Coleman also testified that Ms. Swayze did suffer from a genetic bone disease and that Ms. Swayze took medication for this condition. Dr. Coleman further explained that those who suffer from this condition normally do not experience any symptoms until they endure an aggravating injury.

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downtown-salt-lake-city-2-1446473-683x1024Buying a home is a complex and stressful process. Not only must a homebuyer make sure he or she has the required funds to purchase the home, but must also thoroughly check that the home is in good condition. Generally, determining the condition of a home is relatively easy. Under the law, a home-seller is obligated to disclose certain defects. Failure to do so can result in a lawsuit. A recent case from the United States Fifth Circuit Court of Appeals illustrates the legal repercussions that can befall a home-seller when he or she withholds certain deficiencies in the condition of the home.

The case centers around a home purchased in Bossier City, Louisiana. The home-purchaser, Britney N. Jones bought a foreclosed house from Wells Fargo Bank (“Wells Fargo”). After purchasing the house, Ms. Jones discovered that it contained mold. The mold was discovered after an environmental assessment of the property. The assessment was undertaken because Ms. Jones’s children had developed respiratory and other health issues.

After discovering that the home she purchased contained mold, Ms. Jones brought a lawsuit against Wells Fargo alleging claims of redhibition and fraud. In Louisiana, a seller warrants a buyer against redhibitory defects. For a defect to be considered redhibitory it must render the thing useless or diminish its value in such a way that it could be presumed that the buyer would have not bought it or would have bought it at a much lower price. La. C.C. art. 2520 (2016). Defects that a buyer either knew of or that were apparent are excluded from the warranty of redhibition. When a defect is concealed within a home’s structure it is considered unapparent. See Amend v. McCabe, 664 So. 2d 1183 (La. 1995).

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container-barge-1238820-1024x321The fate of a claim brought under the Longshore and Harbor Workers’ Compensation Act (“LHWCA”) is often determined based upon the weight the Administrative Law Judge (“ALJ”) gives certain evidence. But how should the ALJ weigh conflicting evidence from different sources? This question was recently addressed by the United States Fifth Circuit Court of Appeals in Petron Industries Inc. v. Courville.

Ryan Courville suffered injuries to his thoracic spine while lifting equipment aboard a barge. Because of how Mr. Courville sustained his injury, he was eligible for compensation under the LHWCA. Soon after the injury, Mr. Courville sought medical treatment from multiple different doctors in an effort to alleviate the pain caused by his spinal injury. His initial treating physician recommended physical therapy but did not think surgery was necessary at the time. Mr. Courville, because of his continued pain, sought a second opinion. Mr. Courville’s second physician recommended more physical therapy and prescription medication. Still experiencing pain, Mr. Courville sought a third opinion. Mr. Courville’s third physician, a pain management specialist, tried additional physical therapy, which proved equally unsuccessful. Mr. Courville was then referred back to his second physician who ultimately recommended surgery.

Under the LHWCA, “[o]nce an employee establishes that his injury was work-related, he is entitled to all reasonable and necessary medical expenses related to that injury.” Amerada Hess Corp. v. Director, 543 F.3d 755, 761 (5th Cir. 2008) (citing 33 U.S.C.A. § 907 (2015)). Mr. Courville asked for Petron Industries and American Home Insurance’s (collectively, “the Petitioners”) to pay for the surgery pursuant to the LHWCA. Disagreeing that surgery was necessary, the Petitioners sought additional medical opinions. The Petitioners’ first physician opined that it was “more likely than not” that surgery would be needed. The Petitioners’ second physician stated that surgery would not be needed and that Mr. Courville could return to a “medium duty” job.

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tenis-1571373-1920x1440-1024x768When bringing a personal injury lawsuit a plaintiff must prove that the defendant in the lawsuit caused the injury. Often, when an injury involves two parties, the question of who caused the injury has a relatively straightforward answer. However, problems arise when the circumstances surrounding the injury involve multiple parties. A recent case out of the Louisiana First Circuit Court of Appeal illustrates the complexity of proving who caused an injury when multiple parties are involved.

Plaintiff William Bourg, an employee of Shamrock Management LLC (“Shamrock”), a Houma, Louisiana company, was injured while helping move an aluminum generator cover. The cover, which weighed 2800 pounds, was delivered to Shamrock’s shop by Cajun Cutters, Inc (“Cajun Cutters”). Mr. Bourg and a Cajun Cutter’s employee, Russell Felio, attempted to move the generator cover into Shamrock’s shop. To facilitate the delivery of the generator cover, Mr. Felio decided to use a large forklift that he was unauthorized to use. While using the forklift, Mr. Felio accidentally flipped the generator cover on its side, which fell on Mr. Bourg’s left foot, crushing it. The injury required Mr. Bourg to undergo two surgeries.

Mr. Bourg sued both Cajun Cutters and Mr. Felio for his foot injury. In a personal injury lawsuit, the jury is required to determine who is at fault for the plaintiff’s injury and allocate a percentage of fault onto each party member, including the plaintiff. In Mr. Bourg’s case, the jury decided that Mr. Bourg and Shamrock were 90% at fault for the accident and that Cajun Cutters and Mr. Felio were 10% at fault. Mr. Bourg filed a motion for a judgment notwithstanding the verdict (“JNOV”). A JNOV is a procedural device where the trial court may correct a jury verdict by modifying the jury’s findings of fault or damages, or both. La. C.C.P. art. 1811 (2016). The trial court granted the JNOV and reallocated fault 50% to Bourg and Shamrock and 50% to Cajun Cutters and Mr. Felio. Cajun Cutters and Mr. Felio appealed the trial court’s decision.

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scaffolding-1518087-1024x768What happens to Workers’ Compensation Benefits once a claimant is awarded benefits and employment is terminated after the fact? Is the employee still entitled to the awarded benefits? In general, an employee must be injured within the course of employment to qualify for benefits. Supplemental Earnings Benefits (“SEBs”) are paid when the injured worker has reached maximum medical improvement but is not capable of earning 90% of pre-accident wages. This case explains what happens when an employee is fired after being awarded SEBs.

Kenneth Andrews worked as a journeyman for Thrasher Construction, Inc. (“Thrasher”). On January 7, 2013, Mr. Andrews fell off a scaffold after some boards flipped up and injured his wrist, arm, shoulder, knees, and back. On October 15, 2013, Mr. Andrews filed a disputed claim for compensation against Thrasher and SeaBright Insurance Company (“SeaBright”). On the same day that Mr. Andrews completed his required medical exam, Thrasher filed a notice of suspension and terminated his workers’ compensation benefits. Pursuant to La. R.S. 23:1201.1(K)(8)(a)(vii), Mr. Andrews filed a motion for expedited summary proceedings to lift the suspension of his benefits, alleging that Thrasher arbitrarily and capriciously terminated his benefits.

On January 12, 2015, the case proceeded to trial. The Workers’ Compensation Judge (“WCJ”) rendered judgment in favor of Mr. Andrews and awarded him SEBs. The WCJ also ordered that a Functional Capacity Evaluation (“FCE”) be performed for Mr. Andrews. Thrasher and SeaBright appealed the WCJ’s judgment to the Louisiana First Circuit Court of Appeal, alleging that the WCJ improperly awarded Mr. Andrews SEBs without the claimant first making a prima facie showing of entitlement.

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bad-weather-1398005-1024x683What happens if an insurer fails to pay a claim on time to the insured? In Louisiana, an insurer could be subject to a penalty for failing to pay. This case out of Ascension Parish demonstrates how an insurer can be guilty of bad faith when their actions are arbitrary, capricious or without probable cause.

On October 6, 2010, Mr. Beau Schexnaildre was involved in a motor vehicle accident caused by the negligence of Mr. Nathan Spicer. On March 14, 2012, Mr. Schexnaildre sought recovery under a policy of uninsured/underinsured motorist coverage (“UM”) issued to him by State Farm Mutual Automobile Insurance Company (“State Farm”). Mr. Schexnaildre provided State Farm with copies of the accident report, medical reports, medical bills and Mr. Spicer’s insurance policy. Mr. Schexnaildre’s attorney received a $25,000 check in the mail from State Farm on April 16, 2012, 33 days after State Farm received the demand.

Mr. Schexnaildre filed a lawsuit against State Farm claiming it failed to tender benefits under the UM policy within 30 days of receipt of satisfactory proof of loss and that such failure was arbitrary, capricious and without probable cause. State Farm filed a motion for summary judgment arguing that Mr. Schexnaildre did not provide sufficient proof of loss under La. R.S. 22:1892 because the UM demand did not show that Mr. Spicer was uninsured and only included some medical bills. A motion for summary judgment will be granted if the pleadings, depositions, answers, and admissions, show that there is no genuine issue as to material fact. State Farm also asserted that the claim was timely paid under the statute because the payment was mailed within 30 days of receiving the UM demand. In opposition to the motion, Mr. Schexnaildre argued the statute requires that payment must be received by the insured within 30 days.

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