Term Definitions

Subrogation Rights Upheld: Insurer’s Claim Prevails Despite Settlement

Published on: September 26, 2024 | By Berniard Law Firm

pexels-kindelmedia-7688374-1-scaled In the realm of insurance claims and legal disputes, the concept of subrogation often plays a crucial role. Subrogation allows an insurer, after paying a claim to its insured, to step into the insured’s shoes and seek reimbursement from the party responsible for the loss. But what happens when the insured settles their claim directly with the at-fault party? Does the insurer lose its right to subrogation? A recent Louisiana Court of Appeals case, Louisiana Farm Bureau Casualty Insurance Company v. David Scott Burkett, et al., sheds light on this issue.

The Accident and the Claim:

The case stemmed from a car accident where Katherine Burkett, insured by Shelter Mutual Insurance Company, collided with Jessica Hall, insured by Louisiana Farm Bureau Casualty Insurance Company. Farm Bureau paid Hall $5,000 for medical expenses under her policy and became subrogated to her claim for that amount.

Insurance Coverage Turns On Distinction Between Flood Damage And Mechanical Issue

Published on: September 6, 2023 | By Berniard Law Firm

dsc05934_0-scaled Dealing with the aftermath of a flood is never fun. This is especially true when the flood damages one of your vehicles. This is the situation Michael Jacobs found himself in after one of his cars was damaged in a flood. After a long fight with his insurance company, he eventually prevailed and was awarded damages.

Jacobs owned multiple vehicles that GEICO insured. His parish in North Louisiana was affected by heavy flooding. When the flooding started, Jacobs and his brother tried to move the vehicles from his house to higher ground but were unable to remove them before the floodwaters rose, so they could not drive up to the house. Jacobs waded through the floodwater to retrieve one of the vehicles, a 2001 Honda Accord. In the days following the flood, the Honda kept overheating. Jacobs claimed this had only occurred after the flood.

Jacobs submitted a claim to GEICO for the damage to the vehicle. The insurance inspector did not identify any flood-related problems and determined the upper radiator hose had blown out. Another mechanic gave Jacobs an opinion and concluded there were issues with his spark plugs. GEICO ultimately denied Jacobs’ claim because it had suffered a mechanical failure that was not flood-related. Jacobs filed a lawsuit against GEICO, alleging his Honda had been damaged from the flooding. At trial, the court ruled the Honda had suffered water damage and awarded vehicle property damages and attorney fees. GEICO filed an appeal.

A Life-Altering Car Accident Ignites a Legal Feud

Published on: August 21, 2023 | By Berniard Law Firm

war_worlds_movie_car-scaled Imagine, for a moment, living a life of normalcy, the humdrum of day-to-day routines, a steady job, a peaceful existence. Suddenly, an unexpected accident shakes your world, thrusting you into the tumultuous tides of legal proceedings. This is the daunting reality Patricia and Calvin Henderson found themselves in, initiating a monumental case against Amy Lashouto and her insurer, State Farm Mutual Automobile Insurance Company (State Farm).

In a startling sequence of events, Patricia and Calvin Henderson found themselves in a legal confrontation against Lashouto. The case revolves around Patricia’s car accident, where a motor vehicle driven by Lashouto rear-ended her. Following the accident, the Hendersons filed a lawsuit against Lashouto, her insurer, and State Farm, contending that they were insured under a policy that could compensate them for their losses. State Farm, however, countered this claim, maintaining that the policy did not provide uninsured/underinsured motorist (UM) coverage for the accident.

After Lashouto and her insurer settled their case with the Hendersons, the couple found themselves embroiled in a legal dispute with State Farm. The latter moved for summary judgment, arguing that Calvin Henderson had validly rejected UM coverage on the policy. Despite the Hendersons’ absence from the hearing, the trial court sided with State Farm, dismissing the UM coverage claims.

How do Conditions on Payments in Louisiana Workers’ Compensation Work?

Published on: August 20, 2023 | By Berniard Law Firm

supreme_court_building_washington_3_5-scaled Louisiana’s Workers’ Compensation fund exists to pay employees injured at work. Payment can be used for medical care and lost wages. When parties sign a settlement agreement on payment terms, an employee may assume payment is imminent. In a recent case from Rapides Parish, an employee discovered some conditions in a settlement may delay payment.

Mary Ortega sustained an injury while employed by Cantu Services. Ortega filed a Disputed Claim for Compensation, and the parties entered a settlement agreement. The parties settled for $120,000. $56,049 of the total was allocated to a Medicare set-aside agreement (MSA) to cover future medical expenses related to the work injury. The MSA was filed with the Centers for Medicare and Medicaid Services (CMS) for approval. The parties agreed that if CMS did not approve the full amount in the MSA, the employer would adjust the amount paid in monetary benefits, so Ortega would still receive $120,000. Several months after signing the agreement, Ortega had not received any payments. She filed a motion to enforce the settlement agreement plus a request for fees and penalties before the Office of Workers’ Compensation.

The Workers’ Compensation Judge (WCJ) denied Ortega’s request because payment under the settlement agreement was conditioned on first getting approval from the MSA. Pending approval suspended the statutory requirement of payment within thirty days. Ortega appealed to the Louisiana Third Circuit Court of Appeal.

Louisiana Court Finds Hospital Director Void of Liability in Medical Malpractice Suit Involving His Staff

Published on: August 18, 2023 | By Berniard Law Firm

paramedics_doll_hospital_medical_0-scaled A visit to the hospital is a stressful and anxious time for patients and family members. Most people, however, assume that their doctors are competent and will administer the proper standard of care. This was not the case for Richard Smallwood.

Smallwood fell at his home and sustained bilateral patella tendon ruptures. He was admitted to the Ochsner-Baptist Hospital for surgery to repair the ruptures in his tendon. After a complicated postoperative course, Smallwood was discharged to another Oschner unit. After some time in the nursing unit, Smallwood died. The autopsy revealed that he had suffered a pulmonary embolism, a secondary result of his deep vein thrombosis (DVT). Since Smallwood had been in “generally good health” before the surgery, his sudden death was shocking. The petition for this case alleged that Smallwood was not given the appropriate prophylactic anti-coagulant medication in violation of the standard of care.

Since pulmonary embolisms are a common secondary result of DVT, Dorothy Pennington alleged a medical malpractice claim against the doctors and nurses in charge of Smallwood’s care. This included Dr. Todd, Dr. Hawawini, Dr. Jones, Dr. Ulfers, and the Ochsner Clinic Foundation. After moving for a directed verdict, the trial court found that all parties except Dr. Hawawini were liable for medical malpractice. Since Dr. Hawawini acted as the Hospital Director at the time of Smallwood’s death, it was challenging to show that Dr. Hawawini had breached a standard of care. This case centered around whether Pennington had properly established the standard of care and breach with respect to Dr. Hawawini.

Final Judgment Required For Appellate Court To Consider Merits Of Case

Published on: August 9, 2023 | By Berniard Law Firm

district_court_input_court-scaled Words matter, especially when it comes to trial court orders. Without the proper language, a judgment is not an appealable, valid final judgment, so an appellate court cannot consider the merits of an appeal.

McKinley Taylor filed a lawsuit against Cajun Constructors, his former employer. He claimed Cajun Constructors owed him unpaid wages for his work as a carpenter. He claimed they had decided upon a daily per diem rate during his first week on the job. The trial court issued an untitled document, which appeared to be written reasons for a ruling, not a final judgment. The trial court found Taylor was not paid the agreed-upon per diem. The trial court also awarded Taylor penalty wages and attorneys fees under La. R.S. 23:632 because Cajun Constructors’ failure to pay him the per diem was not in good faith. Cajun Constructor appealed.

Cajun Constructors was ordered to show why its appeal should not be dismissed because there was no valid final judgment. In its response, Cajun Constructor acknowledged the trial court’s ruling did not contain the required language “ordered, adjudged and decreed.” See GBB Props. Two, LLC v. Stirling Props. LLC. Additionally, there was not a separate document from the trial court other than the written reasons for its ruling, as contemplated under La. C.C.P. art. 1918. Therefore, Cajun Contractors agreed the trial court’s ruling did not appear to be a final appealable judgment. The trial court also had not yet determined the amount of attorney fees to award to Taylor. Despite agreeing the trial court’s document was not an appealable valid judgment, Cajun Constructors explained it had filed the appeal to preserve its right to appeal. Cajun Constructors then requested the appellate court dismiss the appeal without prejudice and send the case back to the trial court to enter a valid, appealable final judgment.

The Consequences of Ignoring Court Notices in Louisiana

Published on: August 5, 2023 | By Berniard Law Firm

prison_prison_window_window-1-scaled If you receive notice of a court hearing, you must pay attention to it. The following case shows the potential adverse consequences if you ignore a court hearing notice. These can include a warrant being issued for your arrest or having your lawsuit dismissed. However, the case also unveils a glimmer of hope for those entangled in such legal dilemmas, offering a glimpse into the avenues available to those who believe justice has been denied.

Rita and Summer Brown were arrested for outstanding warrants from their failure to appear at a judgment debtor rule hearing. After their arrest, they filed lawsuits against the Terrebonne Parish Sheriff’s Office, Sheriff Jerry Larpenter, and an unnamed insurance company, seeking damages for false arrest. The claims against the Terrebonne Parish Sheriff’s Office were dismissed. The lawsuit against Larpenter went to trial. The court ruled in favor of Larpenter. The Browns then appealed.

The Browns argued they had never been served the notice for the judgment debtor rule court hearing, so they were unaware they were required to appear in court. They also claimed they were unaware of the subsequent warrants for their arrest after they failed to appear at the hearing.

Fifth Circuit Court of Appeal Rules on Reasonableness of Forum Selection Clause

Published on: July 21, 2023 | By Berniard Law Firm

detail_forum_romanum_rome-scaled Most of us get into contracts, not fully understanding all the ins and outs of what we are signing. Similarly, the multiple provisions that can slither their way into contracts can include things like forum selection clauses which can be easily overlooked. But when a lawsuit erupts, can you argue a provision isn’t applicable? The United States Court of Appeals for the Fifth Circuit addresses this question in the following case.

Al Copeland Investments, L.L.C. owned a food manufacturing facility in Louisiana. In October and December of 2015, there was some property damage to the facility, and they submitted a reimbursement claim under an insurance policy. Their insurance was held with First Specialty Insurance Corporation (“First Specialty”). They denied this claim, and AI Copeland sued in the Eastern District of Louisiana, believing they were entitled to recover from the costs and damages of the property. First Specialty asked the court to dismiss the case because the policies forum selection clause requires litigation in New York State court, not Louisiana.

A forum selection clause is a section in a contract that states how all disputes must be litigated in a specific court in a jurisdiction that the parties agreed to.

Summary Judgment for Malicious Prosecution Improper Without Adequate Discovery

Published on: July 1, 2023 | By Berniard Law Firm

abstract_accountant_architecture_1238932-scaled Sufficient evidence is required to prevail in any lawsuit. Generally, each side obtains additional evidence through the discovery process. However, what happens if a court grants a summary judgment motion for one party before the other party has time to complete adequate discovery? The following case helps answer this question.

Shannon James Suarez supposedly threw a Twinkie box at Jerry W. Peloquin II. Peloquin claimed Suarez had previously been stalking him for months and battered him. Lori Smith also claimed Suarez had stalked her. Suarez was subsequently arrested and charged with stalking under La. R.S. 14:40.2(A).

The investigator, Bill Pousson, went to Suarez’s workplace to talk to him about the charges. Suarez claims Pousson spoke to him, told him he could make his problems disappear, and encouraged him to plead guilty, even though he knew Suarez had an attorney. Suarez then filed a lawsuit against Pousson and John DeRosier, the district attorney (the “Defendants”), claiming malicious prosecution and misconduct related to the District Attorney’s Office’s investigation.

Seeking Liability for Water Damage: A Case Study on Responsibility and Legal Remedies

Published on: June 2, 2023 | By Berniard Law Firm

valves_sprinkler_water_pipe-scaled Mardi Gras, a time of joyous celebration, took an unexpected turn for a store near a French Quarter hotel when a sprinkler head malfunctioned, resulting in significant water damage. Despite the storeowner’s insurance covering the damages, a lawsuit ensued to determine the hotel’s liability for the losses incurred. This case highlights the complexities of determining responsibility and legal remedies in property damage cases, emphasizing the importance of seeking legal counsel to navigate such situations effectively.

Hotel Management of New Orleans (“HMNO”) owned and operated the French Market Inn. A sprinkler head located in the hotel was triggered during Mardi Gras, which caused a water leak and flooding in the store two floors below. The storeowner claimed water leaked into its store for approximately two hours. During that time, HMNO did not try to turn off the sprinkler but instead waited for the fire department to turn off the sprinkler. This caused damage to the store.

State Farm insured the storeowner and paid the storeowner approximately $41k under its policy. State Farm then filed a lawsuit against HMNO and its insurer, Companion Property, and Casualty Insurance Company, seeking repayment of the $41k it paid to the storeowner under its policy. The trial court found in favor of State Farm and ordered HMNO and Companion to pay the stipulated damages of $41k. HMNO and Companion appealed, arguing that the trial court erred in finding that HMNO knew or should have known the sprinkler was defective, HMNO employees were negligent, and denying HMNO’s motion for involuntary dismissal.