Louisiana Personal Injury Lawyer Blog
It is no secret that lawsuits are expensive creatures. It is perhaps baffling then that a party would retain an attorney, file a lawsuit, and maintain that lawsuit for over thirteen years without sufficiently actively pursuing that lawsuit. Yet, that is exactly what happened in a recent case out of Livingston Parish. And as the case explains, such inactivity within a case subjects the lawsuit to dismissal for abandonment. Money and time wasted for all parties involved.
In 2001, R.L. Hall and Associates, Inc. (“R.L. Hall”) filed a lawsuit against Brunt Construction, Inc. (“Brunt”) and Fidelity Deposit Company of Maryland (“Fidelity”) over a lien arising out of a construction contract. The next action on record does not occur until 2005 when R.L. Hall filed a motion to compel discovery. Then, in 2007, R.L. Hall filed the first motion to set a scheduling conference. After the 2007 telephone conference between the parties, nothing else appeared in the record until the plaintiff filed a second motion to set a conference in December of 2010. After the court established discovery deadlines following the 2010 conference, nothing appeared in the record again until the plaintiff filed a third motion to set a conference on June 4, 2014. During 2011 however, counsel for R.L. Hall did send letters to lawyers for the defendants in an attempt to schedule depositions. The informal correspondence, however, was not filed and does not appear in the court record. The defendants then filed a motion to dismiss R.L. Hall’s claim because there were no steps taken to further the action in over three years. The Judicial District Court for the Parish of Livingston dismissed the matter as abandoned.
R.L. Hall appealed the dismissal to the Louisiana First Circuit Court of Appeal. Pursuant to La. C.C.P. art. 561 an action “is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years[.]” Upon the passage of three years without any steps taken in the case, the case is automatically dismissed without the need for a court order. To maintain a case, a party needs only to take some step within three years of the last action toward the prosecution or defense of the action and the step must be in the proceeding and on the record. See Clark v. State Farm Mutual Automobile Insurance Corporation, 785 So.2d 779 (La. 2001). Attempting to schedule a deposition through informal correspondence without a filed formal notice of deposition does not constitute a “step” which would interrupt the abandonment clock.
During litigation, a party may attempt to claim some form of privilege as an avenue not to produce certain evidence. There are various types of privileges that may be asserted. One that is familiar to many is attorney-client privilege. One that is not as familiar is work-product privilege. Work-product privilege is claimed in civil cases and is used to keep materials that are created in anticipation of litigation from being discovered by opposing counsel. However, to assert work-product privilege the party claiming it must be an adverse party in the lawsuit. A non-party is not entitled to work-product privilege, as Louisiana State recently learned when the Louisiana Second Circuit Court of Appeal affirmed that work-product privilege can only be claimed by an adverse party.
Unfair treatment at work can, unfortunately, be a common occurrence. While always annoying, the treatment can sometimes rise to such an egregious level that an employee feels justified in filing a lawsuit against the employer; especially if the aggrieved employee feels that there are racially motivated variances in treatment. As with all cases, however, the evidence is the key that unlocks the door to a successful lawsuit. For Rosie Washington, a former employee of the Louisiana State Penitentiary, an employment discrimination case devoid of evidence kept her victory behind locked doors. 
Workers’ compensation pays for an employee’s medical expenses and lost wages when an employee is injured on the job. But what happens when an employee is injured while performing his or her job in a manner not approved of by the employer? Recently, a Court of Appeal for the State of Louisiana addressed this issue in a case involving a man from St. Landry Parish.
Under Louisiana law, an employee who is injured while on the job is entitled to “vocational rehabilitation services” (services that help an individual overcome his or her own physical or mental disability in order for that individual to return to work) provided by a vocational rehabilitation counselor. 
Be it alleged abuses in the welfare system or lying on their tax return, individuals abusing the system has been a hot button issue for the past couple of years. But what happens when someone gets caught? How does the law handle the people who abuse the system? Recently, a Louisiana Court of Appeal held that concealing previous injuries resulted in a forfeiture of workers’ compensation benefits (insurance that pays wages and medical costs for an injury occurring while at work) and the payment of restitution (compensation ordered by the court for restoration of money to its rightful owner) for a Saint Martinville concrete finishing business owner.
We all know that each U.S. citizen is entitled to certain rights contained within the Constitution.
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One of the least know parts of a personal injury suit occurs after trial or settlement. It’s called subrogation. Subrogation is the reimbursement of third parties for payments made relating to an accident. Many times, a subrogation claim is made by the injured’s own vehicle insurance provider or by the injured’s own medical insurance provider. Embedded in many insurance contracts is a “subrogation waiver.” As the name suggests, a subrogation waiver in an insurance contract provides that one party agrees to waive its subrogation rights against another party in the event of a loss. Typically, this waiver takes the form of insurers agreeing to forego its ability to seek payment from third parties who may be responsible for losses the insurer had to pay to its insured. In a workers’ compensation context, such waivers would prevent an insurer from seeking compensation from a party who may have been responsible for an employee becoming injured. Absent such waiver, an insurer would have the ability to seek compensation for what it paid in benefits from the party responsible for the work injury.
Inherent in most insurance contracts is an insurer’s duty to defend its insured against certain lawsuits. Part of this duty requires the insurer to pay for all legal costs and other fees related to a particular lawsuit. In a commercial general liability (“CGL”) context, business owners often rely on an insurer’s duty to defend in order to avoid paying significant legal fees for defending actions which would ultimately be covered by a CGL policy. As one might expect, whether this duty to defend exists depends on whether the loss alleged in a lawsuit is within the scope of the policy’s coverage. As a recent Louisiana Appellate Court illustrates, it is very important that insureds understand the language of their CGL policies so as to know when a duty to defend exists.