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eastern-state-penitentiary-1215643-1024x685Unfair 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.  

Mrs. Washington was a licensed practical nurse for the Louisiana State Penitentiary from 2001 to 2011.  Mrs. Washington claimed that she began to suffer racial discrimination in 2008 after she refused to switch from the night shift to the day shift to accommodate a white couple who wanted to work together.  After Mrs. Washington refused to switch shifts, she was disciplined three times and three Employee Violation Reports were created to document the disciplinary action.  Mrs. Washington cited the disciplinary action and reports as evidence of racial discrimination along with instances where her leave requests were denied while others leave request was granted and where her absences from work were over counted.  She also claimed that she was disciplined more harshly than white employees for the same conduct and that she was fired because of her race. In 2011, Mrs. Washington sued multiple defendants including the state of Louisiana, the Department of Public Safety and Corrections, the Louisiana State Penitentiary, and several other state actors for employment discrimination pursuant to Title VII of the Civil Rights Act. Mrs. Washington also sought an injunction to prohibit the penitentiary from firing her.

Following the dismissal of the non-Title VII claims by the United States District Court for the Middle District of Louisiana, the case proceeded for almost two years.  During that two-year period, no pre-trial preparations or discovery occurred. Subsequently, the employment relationship between Mrs. Washington and the penitentiary ended in a manner that was unclear on the record. There being no evidence in support of Mrs. Washington’s claims, the defendants filed a motion for summary judgment.  A human resources manager for the Louisiana Department of Corrections submitted an affidavit with the motion for summary judgment supporting that no discrimination occurred.  As the record was devoid of any other evidence, the District Court granted the summary judgment motion and Mrs. Washington appealed.  

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big-toys-4-big-boys-1435926-1024x744Workers’ 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.

Herbert Marshall, an employee for Courvelle Toyota, injured his back picking up an automobile transmission during work. Mr. Marshall was directed to take a truck with a liftgate, pick up a transmission from a repair shop, and deliver that transmission back to the dealership. He was instructed to take the lift gate truck because the transmission was over four hundred pounds. Mr. Marshall took a standard van instead, claiming that the liftgate was not working on the truck. When Mr. Marshall arrived at the repair shop, he enlisted the help of a repair shop worker to lift the transmission into the van. It was during this lifting where Mr. Marshall felt a “pop” in his back. When he returned to the dealership, Mr. Marshall was helped by another employee to unload the transmission. Mr. Marshall made no mention of his back pain to anyone that day.

Mr. Marshall reported the accident to his boss days after the injury. After reporting the accident, Mr. Marshall saw several doctors and underwent several different treatments. Mr. Marshall also received multiple drug tests. On two drug tests, he tested positive for cocaine. Mr. Marshall claimed that these tests were a false positive and that the test actually picked up his use of lidocaine for his tooth pain. On subsequent tests, Mr. Marshall tested negative to having cocaine in his system. Mr. Marshall requested workers’ compensation benefits from Courvelle Toyota to pay for his medical bills and lost wages. Courvelle Toyota denied those requests citing the fact that Mr. Marshall did not use the lift gate truck as instructed by Courvell Toyota. Mr. Marshall then filed a disputed claim for benefits with the Office of Workers’ Compensation, where he sought wage benefits, medical treatment, penalties, and attorney fees.

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thick-metal-welding-mask-for-protecting-the-eyes-1632419-1024x784Under 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. La. R.S. 23:1226 (2016). While an injured employee is entitled to a vocational rehabilitation counselor, is the employee able to dictate his or her own rules and requirements that the vocational rehabilitation counselor must follow? And if an employee is unhappy with the performance of his or her vocational rehabilitation counselor, then what can he or she do to remove that person?

Ellis Hargrave was injured while working for the Louisiana Department of Transportation and Development (“DOTD”). After the injury, DOTD began providing vocational rehabilitation services to Mr. Hargrave. After juggling multiple vocational rehabilitation counselors, DOTD finally settled on assigning Elier Diaz to Mr. Hargrave. Before their first meeting, Mr. Hargrave’s attorney sent a letter containing ten conditions that Mr. Diaz had to agree to before Mr. Hargrave would allow counseling services. The purpose of these conditions was to make Mr. Diaz put Mr. Hargrave’s interests over the interests of DOTD. Mr. Diaz declined to agree with the ten conditions. Mr. Diaz sent a letter to Mr. Hargrave, explaining that he will uphold the standards of the applicable law but declined to agree to any of the extra standards or conditions demanded. Even though the parties disagreed about the ten conditions, an initial evaluation meeting took place with Mr. Diaz, Mr. Hargrave, and Mr. Hargrave’s attorney. The disagreement over the ten conditions eventually led to litigation. This issue eventually ended up at the Supreme Court of Louisiana where it held that nothing in Louisiana law required that a rehabilitation counselor must agree to certain conditions prior to providing vocational rehabilitation services. Hargrave v. State, 100 So.3d 786, 793 (La. 2012).

While the long litigation process over one issue ended, another one soon began. Mr. Hargrave filed another claim with the Workers’ Compensation Judge (“WCJ”) asking the WCJ to remove Mr. Diaz as vocational rehabilitation counselor because Mr. Diaz violated Louisiana law. At trial, Mr. Hargrave asserted that Mr. Diaz violated Louisiana law when he met with DOTD without allowing Mr. Hargrave or his counsel to attend and that Mr. Diaz violated Louisiana law when he stated that Mr. Hargrave and his attorney agreed to the meeting. The WCJ disagreed, holding that Mr. Diaz did not violate Louisiana law. Mr. Hargrave appealed.

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concrete-tiles-1140575-575x1024Be 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.

Darrell Wiltz is the sole owner of Wallace Wiltz Concrete, Inc. He worked as both the manager of the business and as one of the laborers for the company. On October 21, 2009, Mr. Wiltz was lifting a tool used in the concrete finishing business when he allegedly injured his lower back. He filed a claim with LUBA, the workers’ compensation insurance provider for Wallace Wiltz Concrete. Initially, LUBA only paid for some of Mr. Wiltz’s medical treatment and did not pay any wage benefits. But after Mr. Wiltz inquired with LUBA why all of his medical treatment and wage benefits were not being paid, LUBA sent an adjuster to record a statement from Mr. Wiltz. In the statement to the adjuster, Mr. Wiltz admitted to previously having one minor back injury. He also denied being in any vehicle accidents. Based on these statements, LUBA began approving all the medical treatment benefits and started paying Mr. Wiltz total temporary disability benefits.

On April 6, 2010, LUBA performed a claim index search on Mr. Wiltz which revealed that Mr. Wiltz had been involved in at least two vehicle accidents. LUBA then obtained Mr. Wiltz medical records which indicated that Mr. Wiltz had undergone at least three MRI’s of his lower back due to complaints of pain. The medical records also indicated that Mr. Wiltz had various disc issues such as bulges or herniations in his lower back and one medical provider diagnosed him with lumbar disc disease.

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public-train-1439534-768x1024We all know that each U.S. citizen is entitled to certain rights contained within the Constitution.  For example, the right to bear arms, the right to free speech, and the right to practice any form of religion.  But what about rights that were not explicitly stated within the Constitution, like the right to privacy or the right to marry.  Courts have long grappled with these “non-explicit rights” and whether those rights are protected under the Constitution.  Recently, the Fifth Circuit Court of Appeals faced a question over a “non-explicit right.”  Does an individual have the right to enter a public, government owned, building, and, if so, then what procedure is required to deny that right?

This controversy began when Carol Vincent became hostile during a visit to the bank. After threatening to kill a city councilman and the mayor of the City of Sulphur, Louisiana, city officials issued a no-trespass order against Mr. Vincent. The order prohibited Mr. Vincent from entering certain public official buildings, to prevent Mr. Vincent from coming into contact with whom he threatened to kill. Eventually, city officials dropped the order. A disgruntled Mr. Vincent sued, claiming that the city officials violated his constitutional rights.

The city officials asserted that they had qualified immunity.  Qualified immunity protects government officials performing their duties from civil liability when their conduct does not violate a constitutional right, by prohibiting individuals from suing government officials over the performance of their duties.  To disprove qualified immunity, the plaintiff must show whether a constitutional right was violated and whether the allegedly violated right was “clearly established.” McClendon v. City of Columbia, 305 F.3d 314, 322-23 (5th Cir. 2002).  In determining whether a right is “clearly established,” courts look at whether a reasonable government official would be aware of the right.  The plaintiff has the burden of showing that the government official is not entitled to qualified immunity. Wyatt v. Fletcher, 718 F.3d 496, 502 (5th Cir. 2013).

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old-abandon-farm-house-1408741-1024x768A good lawyer must be on top of his or her case. Not only must a lawyer know the facts of the case and the applicable law, but the lawyer must also meet certain deadlines and procedure requirements by the court. While little activity on a case might mean it has gone stale, no activity at all can mean abandonment, which is exactly what happened to one plaintiff in Jefferson Parish.

George Segerstrom brought a personal injury claim against police officer Desmond Julian and the City of New Orleans. Mr. Segerstrom alleged that Officer Julian crashed into him with a police car. Three years after Mr. Segerstrom’s filing of the case, the City of New Orleans filed a motion asking the trial court to consider the case abandoned and dismiss the action. The trial court agreed with the City of New Orleans, finding the case abandoned and dismissing it.

Abandonment occurs when there is inactivity in a case for three or more years. La. C.C.P. art. 561. If a lawsuit is considered by abandoned, then the trial court must dismiss the case. Abandonment is automatic and a side cannot “breathe new life into the [case]” once the case is abandoned. Clark v. State Farm Mut. Auto. Ins. Co., 785 So.2d 779, 784, 789 (La. 2001). Acceptable ways to ensure that a case stays active is by filing motions, going through discovery (the information gathering part of a trial), and other formal trial procedures.

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no-fine-print-1419142-1024x768One 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.

Recently, a Louisiana Court of Appeal ruled on a case involving a dispute regarding the scope of a subrogation waiver in an insurance policy between Offshore Energy Services, Inc. (“OES”) and Liberty Mutual. In this case, a man named Anthony Beslin was injured while working as an employee for OES. OES had a contract with Liberty Mutual where Liberty Mutual agreed to pay workers’ compensation benefits to any injured OES employee. The contract also contained a subrogation waiver where Liberty Mutual agreed to waive its right of subrogation against “[a]ll persons or organizations that are parties to a contract that requires you to obtain this agreement . . . . ” Based on the insurance contract with OES, Liberty Mutual paid workers’ compensation benefits to Mr. Beslin.

At the time of the accident, OES provided services to Anadarko Petroleum Co. (“Anadarko”) on an oil rig. Based on the contract between OES and Anadarko, OES had to provide workers compensation insurance to its employees and also agree that its insurer (Liberty Mutual) waive its right of subrogation against Anadarko and its Indemnitees (someone who is secure from the legal responsibilities of his or her action). One such indemnitee, Grey Wolf Drilling Co, L.P. (“Grey Wolf”), owned the rig on which Mr. Beslin was injured. It was alleged that a Grey Wolf’s employee’s negligence caused Mr. Beslin’s injuries. In addition to seeking workers’ compensation, Mr. Beslin filed suit against Anadarko, Grey Wolf, and the allegedly negligent employee seeking compensation. Liberty Mutual then intervened, asserting a subrogation claim against Grey Wolf for the workers’ compensation benefits it paid Mr. Beslin.

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porquet-guardiola-1239750-683x1024Inherent 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.

This case involved a dispute between engineering consultants Chalmers, Collins & Alwell, Inc. (“Chalmers”) and their insurer, Certain Underwriters at Lloyd’s (“Underwriters”), over whether Underwriters owed Chalmers a duty to defend against an underlying lawsuit. The underlying lawsuit involved a contract Chalmers had entered into with Haland Operating Services, LLC (“Haland”) to work on the drilling of a well. As outlined in the contract, the well at issue was being dug in tricky conditions which required the use of specialized equipment. While the well was being dug, problems arose. The drill rig that Chalmers recommended Haland use was not able to handle the difficult drilling conditions and resulted in damage to the equipment as well as Haland’s interests in the well. Haland then terminated the contract with Chalmers and hired another engineering firm to complete the well. In response, Chalmers pursued an action in arbitration against Haland. Haland then brought their own claims against Chalmers in arbitration. Chalmers then demanded that Underwriters defend it against Haland’s claims. However, Underwriters declined to defend, resulting in the instant dispute. The Lafayette Parish District Court found in favor of Underwriters, finding that Haland’s claims were not covered by Chalmers’ CGL policy, and so Underwriters had no duty to defend. Chalmers’ appealed.

Under Louisiana law, the obligation of an insurer to defend its insured is broader than its obligation to indemnify (obligation of the insurance company to pay for any injuries caused by its insured) its insured, which means that an insurer may have to defend its insured against lawsuits even though the policy would ultimately end up not covering the loss. Am. Home Assurance Co. v. Czarniecki, 230 So.2d 253, 259 (La. 1969). Determining whether an insured is owed a duty to defend requires looking at the allegations made by the third party. An insurer is obligated to defend a lawsuit against its insured unless the allegations are “unambiguously” excluded from coverage. However, even though some allegations by a third party may be clearly excluded from coverage under a policy, a duty to defend may still exist if “at least a single allegation” would not clearly be excluded. Duhon v. Nitrogen Pumping & Coiled Tubing Specialists, Inc., 611 So.2d 158, 161 (La. Ct. App. 1992). The factual allegations of a third party, rather than conclusory allegations, are what courts look at in making a determination whether an insurer must defend the insured.

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coke-1483373-1024x768When are you on the job? While seemingly a simple question, many personal injury cases revolve around the issue of whether an individual was acting within the scope of his or her employment. The ramifications of the answer to this question determine whether a business is on the hook for its employee’s negligence. Recently, a Louisiana Court of Appeal (“the Court”) addressed this question when determining whether a Coca-Cola Bottling Company United, Inc. (“Coca-Cola”) employee was working for the company at the time of an accident.

It all began when Ralph McFarland, a salaried employee for Coca-Cola, rear-ended a vehicle belonging to Darius Jack. Prior to the accident, Mr. McFarland had just finished meeting with his final Coca-Cola client for the day and was on his way home from work. At the time of the accident, Mr. McFarland wore a Coca-Cola polo shirt and was in possession of his Coca-Cola cell phone and laptop. Mr. Jack sued both Mr. McFarland and Coca-Cola. At trial, Mr. Jack insisted that Coca-Cola was vicariously liable for Mr. McFarland’s actions. Vicarious liability attributes the actions of a company’s employee onto the company itself. It is normally found when an employee’s action is closely connected to his or her employment duties. See LeBrane v. Lewis, 292 So.2d 216, 218 (La.1974). Courts usually consider many factors when determining vicarious liability like the payment of wages by the employer, the employer’s power of control over the employee, and the time, place, and purpose of the act in relation to service of the employer. See Orgeron on Behalf of Orgeron v. McDonald, 639 So.2d 224, 227 (La. 1994); see also Reed v. House of Décor, Inc., 468 So.2d 1159, 1161 (La. 1985).

Mr. Jack, in arguing that Coca-Cola was vicariously liable, emphasized that Coca-Cola paid for Mr. McFarland’s mileage, that Mr. McFarland met with a Coca-Cola client prior to the accident, and that Mr. McFarland wore a Coca-Cola polo shirt at the time of the accident. Coca-Cola argued against vicarious liability. It pointed out that Mr. McFarland was on his way home from work and that Mr. McFarland did not do any further work after leaving his final Coca-Cola client’s place of business. Coca-Cola also pointed to a statement made by Mr. McFarland where he said that he made a personal stop at a gas station after finishing his last appointment and that while it is possible that he could be called back to office before its closing at five o’clock he could count on one hand the number of times where that happened. Coca-Cola also emphasizes that Mr. McFarland’s typical work day was over by half past three. The trial court held that Mr. McFarland was not working within the scope of his employment with Coca-Cola at the time of the accident and that Coca-Cola was not vicariously liable for Mr. McFarland’s actions.

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willow-1385791-1024x766The National Flood Insurance Program, or NFIP, was Congress’ approach to providing flood coverage at affordable rates. Generally, through the program homeowners can buy a Standard Flood Insurance Policy, or SFIP, from the Federal Emergency Management Agency, or from private insurers. According to the Court of Appeals for the Fifth Circuit, the SFIP outlines the conditions and requirements under which federal funds may be distributed to eligible policyholders. See Marseilles Homeowners Condo. Ass’n, Icn. v. Fidelity Nat’l Ins. Co., 542 F.3d 1053, 1054 (5th Cir. 2008). It is these requirements, or rather not following them to the letter, that sometimes stop homeowners from receiving their coverage.

Ron and Patricia Ferraro own a house at 133 Somerset Road, in Laplace, Louisiana. They had an SFIP from Liberty Mutual. Unfortunately, Hurricane Isaac in 2012 caused extensive damage to their home; nonetheless, their insurance policy with Liberty Mutual was in effect.

The Ferraros filed a claim for benefits, and Liberty Mutual sent an independent adjuster. The adjuster recommended a payment of $103,826 and prepared a proof-of-loss form in this amount. The Ferraros signed and submitted this form along with a signed proof-of-loss form. Important to their case, they also included a handwritten note stating that they would send supplements later. Liberty Mutual paid the full amount of $103,826.

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