Louisiana Personal Injury Lawyer Blog

February 13, 2017

Value of Trees at Center of Lawsuit Determining Compensation for Expropriation to Build Highway in Avoyelles Parish

tree-bouleau-1396832-1024x617 Expropriation is the act of the government taking privately owned property and using it for the benefit of the public. Generally, most expropriation cases deal with the construction of public roadways and highways. Where the land is expropriated, the private landowner is generally compensated. In one particular matter involving the expropriation of land to build a highway, valuing the trees on the land became more troublesome than anticipated.

In this Louisiana case, involving the expropriation of two parcels of land located in Avoyelles Parish, the court of appeals conducted an appellate review of the matter twice. After the judgment in the second trial of the matter, the State of Louisiana, through the Department of Transportation and Development (DOTD), appealed the trial court’s judgment which awarded compensation for the value of the land taken for construction of a new highway.

There were two parcels of land that were the subject of dispute. Parcel No. 2-1 and Parcel No. 2-2. The main dispute, among others, was the valuation of the trees on the respective parcels that were expropriated in order to build the new highway. The trial court awarded monetary compensation to the landowners for the presented value of the land taken.

February 12, 2017

Outcome of Edgerly Case Dependent On Qualification and Use of Expert Witnesses

by Berniard Law Firm

ski-sign-1525674-1024x768 When asserting a cause of action or maintaining certain legal defenses in court, parties bear the burden of proving their case. This is done by presenting evidence to the court such as documents and witness testimony. Often, certain issues will require the court to make findings of fact which require scientific expertise or specialized knowledge. Expert witnesses assist the trial court in understanding complex issues of fact that could be determinative to the outcome of a case. A recent decision discusses how a court qualifies experts and utilizes their testimony.

The dispute, in this case, arose when a utility trailer pulled by John Guidry (Mr. Guidry) crossed an electric line owned by Beauregard Electric Cooperative, Inc. (BECi). In October 2013, Mr. Guidry and his colleague, Karen Gorum (Ms. Gorum) left a property in Edgerly, Louisiana, traveling east on Houston River Road with a utility trailer in tow. According to Mr. Guidry, the truck suddenly went in the air and stopped in mid-air. After emerging from the truck, Mr. Guidry, and Ms. Gorum saw an electrical line lying in the roadway. Both Mr. Guidry and Ms. Gorum suffered various injuries in the accident.

Several lawsuits were filed. In the first lawsuit, Mr. Guidry sought damages from BECi and its insurer, Federated Rural Electric, for the injuries he sustained. BECi answered alleging that Mr. Guidry was negligent and contributed to the accident. In the second suit, Ms. Gorum alleged that BECi and Mr. Guidry were both negligent in causing the accident and the injuries she sustained. She also sued Federated. In the third suit, Mr. Guidry and his insurer, State Farm, alleged that BECi was negligent in causing the accident. State Farm sought to recover the amount it paid Mr. Guidry for his property damages pursuant to the automobile policy it issued to him. Mr. Guidry sought to recover the $250 deductible required by State Farm’s policy. BECi moved to consolidate the three cases and all three parties agreed. The three suits were consolidated and tried together.

February 11, 2017

Treating Physician’s Opinions Are Key in Court’s Decision to Grant Workers’ Compensation Benefits

by Berniard Law Firm

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When it comes to work-related injuries, employees should know their rights. Under Louisiana law, employees who suffer from an injury caused by an on-the-job accident are entitled to workers’ compensation benefits. In order to successfully make a claim for those benefits, employees must prove their claimed disability is related to an on-the-job injury. In accordance with their benefits, employees have the right to select one treating physician in a particular field or specialty and the employer is required to pay for all approved necessary expenses. A decision arising out of Calcasieu Parish illustrates just how critical the treating physician’s opinion is in determining whether a claimed disability is work related.

In 2010, Lauryn Ruebush (Ms. Ruebush), a nurse, was injured on the job at The Care Center of Dequincy (the care center) nursing home when she intervened in a scuffle between two patients. During the incident, Ms. Ruebush was struck with an aluminum walker and after the injury, she experienced pain and discoloration in her left hand and wrist. She consulted an orthopedic surgeon who treated the injury with an injection and nerve block; all to no avail.

February 10, 2017

Workers’ Compensation Judge’s Fact-Based Decision Given Deference on Appeal

by Berniard Law Firm

baker-1551731-778x1024 After a workplace injury, navigating the benefits provided by workers’ compensation can be a complicated process. Workers’ compensation judges’ decisions are rarely overturned when their rulings are largely fact-based. A recent lawsuit out of Ouachita Parish demonstrates the importance of finding a good lawyer who can ensure that you secure all entitled benefits and can navigate through the legal system when issues arise.

Gay Lowery worked for Jena Nursing & Rehabilitation in 2012 when she was injured while repositioning a patient. Thereafter, Lowery received workers’ compensation benefits until the workers’ compensation insurer, Technology Insurance Company, denied her request for a cervical fusion. In accordance with Louisiana law, Lowery sought a determination on the coverage of her cervical fusion from the medical director. La. R.S. 23:1203.1. The director denied her request for surgery, claiming Lowery did not fulfill the required indications for cervical fusion under state law. Indicators include proof in the form of documentation of medical problems, imaging studies, and psychological evaluations.

Lowery challenged the medical director’s decision in workers’ compensation court. Her employer and the insurer were ordered to provide the surgery because the medical director wrongly concluded that Lowery failed to meet any of the required indicators. The workers’ compensation judge (WCJ) found that Lowery fulfilled all of the necessary indicators by showing that they were met through her testimony or medical evidence. The defendants appealed the decision asserting that there was no clear and convincing evidence the medical director’s decision was not in accordance with the guidelines.

February 9, 2017

Witness’s Testimony Credibility Dependant on Lower Court’s Decision

by Berniard Law Firm

tie-3-1239530-768x1024 Witnesses often play a critical role in the outcome of a lawsuit, which is why opposing parties often try to discredit witnesses that may be harmful to their argument. In a recent case where a plaintiff attempted to discredit a witness for the defense, the opinion of the judge who actually heard the witness testimony reigned supreme.

Billy Carrier was injured in a work-related accident during his employment with the city of Eunice, Louisiana. Initially, the city paid Carrier workers’ compensation benefits, but disputes between Carrier and the city regarding the benefits arose. In 2010, those disputes were brought before a court. Tiffany Harrington, the vocational rehabilitation counselor assigned to Carrier, was called as a witness in the proceeding. Harrington’s testimony was used to establish Carrier’s wage earning capacity by detailing job availability. The city used this evidence to support its effort to reduce or eliminate Carrier’s weekly benefits.

The workers’ compensation judge (WCJ) felt that it was premature to make a ruling based on Harrington’s testimony which only included a transcript and timeline of events. The WCJ delayed the ruling until Carrier received proper vocational rehabilitation which took into account his skills, mental abilities, and physical capabilities. The city attempted to appeal this decision, but its attempts were denied because medical evidence did not support the city’s contention that Carrier could find employment. Instead, the WCJ ordered Harrington to schedule a face to face meeting with a vocational rehabilitation counselor to determine what type of work, if any, Carrier could perform.

February 8, 2017

Dispute Over Rights to Hunting Grounds Highlights Importance of Understanding Reservations in Deeds

by Berniard Law Firm

rifle-scope-1-1576601-1024x683 When purchasing property, buyers should be aware of rights reserved by others in the deed. Certain reservations of rights made by an original owner can continue to haunt a parcel of property through successive conveyances and multiple owners. In Louisiana, the language in a deed can create a personal servitude, a charge or burden on a piece of property for the benefit of another person. Personal servitudes are not automatically extinguished at death and may be inheritable by descendants of the beneficiary. For example, a seller may reserve hunting rights for his or her family on the newly purchased property for generations. Needless to say, disputes often arise regarding the breadth and depth of such reservations. When interpreted by a court, the intent of the original parties in negotiating the reservation is key, as shown by a recent decision of the Louisiana Third Circuit Court of Appeal.

The dispute, in this case, involved two adjoining parcels of property in Avoyelles Parish, Louisiana. One parcel was owned by Kirby Roy Jr. and his wife Marjorie. Kirby Roy, III and his wife Sheila owned the other. In 1980, the couples sold their parcels to Douglas and Ralph J. Bordelon, reserving any and all hunting rights on the property described in the deeds. After a foreclosure proceeding, Nelson A. Bordelon, Wayne L. Gremillion, and Richard Tassin purchased the property in 1991. The three purchasers partitioned the property among themselves.

During the various conveyances, the Roy family continued to hunt on the property much to the dismay of the new owners. The new owners questioned whether the Roys retained their reservation of hunting rights after the 1991 purchase. Mr. Gremillion filed a criminal trespass complaint with the Avoyelles Parish Sheriff’s’ Department, reporting Mr. Roy III for hunting on the property without permission.

February 7, 2017

Marksville Automobile Accident Lawsuit Lost Because Plaintiffs Failed to Name Proper Defendant

by Berniard Law Firm

time-1223809-1024x681 Failing to name all potentially liable parties in a lawsuit in a timely manner could result in the loss of the right to add those parties to the lawsuit at all. A case out of Avoyelles Parish, Louisiana illustrates the importance of finding a good lawyer after an automobile accident to ensure that all potentially liable parties are named before it is too late.

Alexis Hunt, Genae Hunt, and Jakalyn Hunt (the Hunts) were involved in an automobile accident on June 21, 2012, with a city-owned vehicle. On May 9, 2013, the Hunts filed a lawsuit against Louisiana Municipal Risk Management Agency (LMRMA), who acted as an insurance agency for the city. The Hunts did not list the city as a defendant in this matter, which prompted the LMRMA to file for an exception of no cause of action. This action allows a defendant to object to a plaintiff’s lawsuit when they feel there is no valid legal claim. In response, the Hunts filed a supplemental and amending petition to add the city as an additional defendant on July 26, 2013, but the city responded with an exception of prescription. This exception allows the dismissal of a lawsuit, without actually hearing the merits of the case, because the time during which the lawsuit should have been brought lapsed and the plaintiff’s right to bring the case expired.

The incident occurred on June 21, 2012, but the Hunts did not list the city as a defendant until July 26, 2013. Under Louisiana law, the plaintiff has a one year prescriptive period after the incident to bring a claim. LA. C.C. art. 3492 . Because the Hunts filed after the one-year period, the issue, in this case, became whether the Hunts’ initial suit against the LMRMA could also be considered a suit against the city. The court used criteria to determine whether this amendment to change the identity of the party sued could relate back to the date of the filing of the original petition. If it could relate back, the charges would apply to the newly identified party.

February 6, 2017

Louisiana Workers’ Compensation Case Shows Importance of Understanding Rights and Benefits

by Berniard Law Firm

backache-1620045-1024x709 If you have been injured in a work accident, it’s important to know that limitations and restrictions are often placed on your rights under workers’ compensation packages. Speaking to a good lawyer before undergoing any non-emergency treatment is crucial to ensuring that you will be reimbursed for your expenses. A case arising out of Lafayette, Louisiana illustrates the importance of this point.

In this case, Brett Bourque (Mr. Bourque) sustained a work-related injury during his employment as a truck driver with Transit Mix in 1998. A few years after the accident, two doctors agreed on surgery as a course of treatment for Mr. Bourque’s continued back pain from the injury. They requested approval from his employer, Transit Mix, to pay for the necessary medical procedures. A third doctor, who reviewed the proposed treatment at the request of Transit Mix, recommended that Transit Mix not give consent to pay for the treatment.

Louisiana law requires employers to supply employees with medical care and services, including nonemergency care. However, the law says that nonemergency care is limited to a cost of $750 unless the employer and employee mutually agree to a higher price for the care. La. R.S. 23:1142. Any due payments over the $750 limit become the responsibility of the employee.

February 5, 2017

Left-Turning Motorists Involved In Accidents Must Overcome Presumption of Negligence

by Berniard Law Firm

sign-no-left-turn-1473790-633x1024 If you are involved in a motor vehicle accident while making a left turn, you are presumed to be negligent because of the dangerous nature of the turn. You will have to overcome this presumption of negligence even if you think the accident is not your fault. See Baker v. State Farm Mut. Auto. Ins. Co., 162 So.3d 405 (La. Ct. App. 2015).

On October 26th, 2012, at 8:00 p.m., Latoya Leonard was driving west in Caddo Parish, Louisiana. She stopped at a traffic light at an intersection and other vehicles stopped behind her. James Lee was approaching the same intersection from the opposite direction. Leonard saw Lee’s truck from several car lengths away as it began to approach her. When the light first changed, Leonard delayed her turn as drivers behind her honked their horns. She turned left and the left portion of Lee’s front bumper collided with the back passenger side door of Leonard’s car.

The police officer who took the report of the accident gave his testimony via deposition. In his deposition, he said that his report was based solely on what he was told by the parties because he did not witness the accident and did not talk to any impartial witnesses. Lee told the officer that Leonard turned left and crossed into the westernmost southbound lane as both were beginning to turn south. Based upon what the drivers reported, the officer placed the point of impact at the westernmost, outside lane. The officer concluded that Lee was not at fault in the accident but also said that both parties should have yielded.

February 4, 2017

Why Was A Richwood High School Resource Officer Denied Permanent Total Disability Benefits?

by Berniard Law Firm

accessibility-1538227-1024x768 An employee is entitled to worker’s compensation benefits if he or she suffers an injury by accident during the course of his or her employment. Although worker’s compensation law has been liberally construed in favor of the injured employee, it is not an unlimited source of benefits for individuals unable to work. For example, in Royals v. Richwood, a Richwood, Louisiana resident named Donna Sue Royals attempted to appeal a judgment made by a Workers’ Compensation Judge (WCJ) who rejected her claim for permanent total disability (PTD) benefits. However, the Court of Appeal determined that the judgment was proper and denied Royals’ appeal.

During the 2002-2003 school year, Royals was hired by the Town of Richwood to work as a resource officer at Richwood High School. In September 2002, Royals twisted her knee while getting out of her patrol car during a routine perimeter check of the school. The next day, she exacerbated the injury when she “misstepped” in the police station restroom. As a result of this injury, Royals was advised by her family physician to seek treatment and in November 2002, she began seeing an orthopedic surgeon, Dr. Douglas Brown. In December 2002, Dr. Brown performed arthroscopic surgery that allowed Royals to return to work as a dispatcher in January 2003. However, she continued to experience pain from the injury and in January 2005 she received a complete knee replacement, which was also performed by Dr. Brown. In May 2005, Dr. Brown released Royals to return to modified work and within three months she was issued a medical release allowing her to return to her original job position. Despite receiving a release, Royals never returned to her previous position.

In her claim, Royals alleged that the WCJ had made a mistake by refusing to award her permanent and total disability benefits. Royals further argued that her lengthy list of medical issues all flowed from this single work-related accident. In response, the Town of Richwood argued that Royals’s medical problems were not the result of her knee injury. Further, the Town of Richwood argued that Royals’s history demonstrated that although she had the ability to return to work and effectively perform her job, she choose not to. As evidence, they offered the fact that Royals cared for her sick mother and continued to drive through 2011. While the Town of Richwood argued that Royals’s sedentary lifestyle contributed to her medical issues, Royals argued that her lifestyle was a result of the injury she received on the job.