Articles Posted in Legal Definitions

child_stones_bank_out-scaledDivorce, though unpleasant in the short term, allows families to rearrange their relationship to better serve the interests of all parties. One primary consideration in any divorce is the children. The children’s health, safety, and well-being becomes a key concern for both the families and the courts when a family enters into a divorce. When parents get divorced, the court determines who assumes the tutorship of the child. The parent who is awarded this tutorship assumes all of the rights and responsibilities of raising the child, including the right to file a lawsuit in the child’s name. 

A person entrusted with the tutorship of a child can bring lawsuits in that child’s name that best serve the child’s interests. For an example, look to the case of Felisha Myers, mother of Brittany, who brought a lawsuit in Brittany’s name against the father of Brittany, Ricky Klump. Myers and Brittany alleged that Klump had injured Brittany on a road trip by repeatedly punching Brittany. The Fifteenth Judicial District Court entered a default judgment against Klump, awarding Brittany financial compensation for her pain and suffering and past and future medical bills. 

Klump appealed the default judgment to the Third Circuit Court of Appeals, alleging that Myer did not have the right to file the suit in Brittany’s name. Klump argued the record of the trial court did not have the necessary documentation to prove that Myer has the tutorship of Brittany, therefore, Myer could not file the lawsuit in Brittany’s name.

courthouse_court_law_justice-scaledAll relevant evidence in a case should be produced at trial. However, the evidence included in a complete record can be subjective. Thus, the parties to a lawsuit should rely on the court’s definition of what a complete medical record consists of. 

Christina Dauzat (Dauzat) was involved in a car accident where she was rear-ended by Erin Wright (Wright). Dauzat filed a lawsuit, and a bench trial was held, which favored Dauzat and awarded damages of $17,741.51, with interest. Wright, State Farm, and Dauzat appealed the ruling.

At the beginning of the bench trial, Dauzat’s counsel introduced authorized exhibits: Exhibit D-1-6, which consisted of medical records from various hospitals. At trial, Dauzat introduced medical records and bills she believed were essential to the case, which was agreed upon at the pretrial conference. These records were classified as Exhibit P-4. State Farm had agreed to the authenticity of the bills. Therefore, the records, Exhibit P-4, were admitted into evidence. State Farm complained that Dauzat’s medical records did not contain the entire certified copies; consequently, they wanted to introduce full copies of Dauzat’s medical records. State Farm claimed Dauzat had personal bias as to which records she included.

bookcase_law_firm_attorney_1-scaledIn some cases, mistakes in following procedure can harm a plaintiff’s cause of action even if the case otherwise may be successful on the merits. For example, legal malpractice cases in Louisiana must be filed within one year from when the plaintiff knew or should have known that malpractice had occurred. A recent case out of the Parish of East Baton Rouge has outlined when a plaintiff is considered to have some notice of legal malpractice. 

Satterfield & Pontikes (S&P) was a general contractor for the construction of the Lawrence D. Crocker Elementary School in New Orleans, known as the Croker project. The Recovery School District (RSD) owned the property, and Jacobs Project Management Company/CSRS Consortium (Jacobs) acted as the project manager. Norman Chenevert and Chenevert Architects, LLC (Chenevert) and Julien Engineering & Consulting, Inc. (Julien), the sub-consultant structural engineers, created the plans and specifications for the project. In addition, S&P met with Murphy J. Foster, III, a partner at the Breazeale Sachse & Wilson (BSW) law firm, to represent them regarding a previous project S&P worked as a general contractor for. One of the other BSW partners, Steven Loeb, has represented Chenevert previously and had been representing them in connection with the Crocker Project. 

Professional ethics rules required BSW to advise S&P and Chenevert on the potential for conflict and to receive a written waiver from both clients. The Chief Financial Officer of S&P, Laura Pontikes, signed the waiver. In contrast, Chenevert terminated its client-lawyer relationship with Leob, and its file regarding the Crocker Project was returned to the company. 

hammer_court_justice_book-scaledWhen you receive a final judgment from the trial court, you focus on the case’s outcome. However, if you want to appeal that judgment, it is essential to understand what language is needed in the final judgment to appeal it. If this language is not included, you might be in a situation similar to Marvin Beaulieu, whose appeal was dismissed.

Beaulieu had a membership at the Autocrat Social and Pleasure Club. His membership was terminated. After his membership was terminated, Beaulieu filed a lawsuit arguing that he suffered from a loss of reputation, fellowship, opportunity, business opportunities, emotional distress, and embarrassment as a result of his membership termination. The trial court issued a temporary restraining order valid for six days. In response, Autocrat Social and Pleasure Club filed papers arguing that there had been insufficient service and there was no cause or right of action in the lawsuit and moved to dissolve the lawsuit. 

The trial court held a hearing, where it determined that Beaulieu was not entitled to damages and denied his request for an injunction. Beauliue appealed the denial of his request for an injunction under La. C.C.P. art. 3601

news_stock_newspaper_glasses-scaledInsurance claims can be tricky, especially when multiple parties and contracts are involved. What happens, for example, when one insurance company claims they are not responsible for payment after a catastrophic event resulting in lost lives? The following Terrebonne Parish case follows this exact scenario. 

 An explosion at the Transco facility in Gibson, Louisiana, resulted in the death of four individuals, including two employees of Danos and Curole Marine Contractors, LLC (hereinafter referred to as  “Danos”) and two employees of Furmanite America, Inc. (hereinafter referred to as “Furmanite”). The Danos employees were working under a request-for-service order issued by Transco under a General Service Agreement, and the Furmanite employees were working as a subcontractor to Danos under a request-for-service order under a Master Service Contract. Following the explosion, many lawsuits, including this one, were filed against Transco, Danos, and Furmanite.

Transco then filed a third-party demand against The Gray Insurance Company (hereinafter referred to as “Gray”), maintaining that Gray must defend and indemnify Transco under a provision in an insurance contract issued to Danos for which Transco was named additionally insured under the General Service Agreement. Gray then filed multiple objections to Transco’s claim based on prematurity. The 32nd Judicial District Court for the Parish of Terrebonne then dismissed Transco’s claims. An appeal to the Louisiana First Circuit Court of Appeal by Transco followed.

2015_ford_police_utility_0-scaledRandom drug testing is common practice for certain jobs. What remedy does a police officer have when he takes a morphine pill for pain and is randomly selected for a drug test the following day when he comes into work?

Officer Mario Cole was randomly chosen to undergo a standard drug screening for his job at the New Orleans Police Department (NOPD). When he took the test, he tested positive for morphine. As a result, Cole was suspended pending investigation by the NOPD. Sergeant Lesia Latham Mims interviewed Cole and his fiancée as part of her investigation. Cole claimed he injured himself while lifting weights the day before. His fiancée gave him one of her prescription pills for his pain. Cole alleged he believed it was a regular pain reliever. The department next conducted a pre-disciplinary hearing. At the hearing, it was decided Cole’s employment would be terminated for violating NOPD rules against drug use. Cole appealed. 

On his appeal, Cole argued the decision to terminate his employment was an abuse of discretion because: 1) the board found him to be under the influence of morphine when he came to work, 2) the board found there was a relationship between the violation and his ability to operate as a public servant, and 3) his termination was found to be the proper course of action for his offense.

accident_mini_morris_red-scaledSimple driving accidents happen every day due to lapses in inattention. The results of these lapses can have devastating consequences. Whose is at fault in an accident when both parties were less than perfect in assessments of dangers on the road? The subsequent lawsuit from Louisiana shows how a court will determine how much fault each party bears for an accident and adjust damages based on that outcome.

In 2014, Stephan August was out making a delivery for Domino’s Pizza in his own 2010 Toyota Corolla. He was heading West on Louisiana Highway 1040 in Tangipahoa Parish when Lee Kebreanne drove behind him in her 2001 Toyota Camry. According to  Lee, August was varying his speed, giving her the impression that he did not know where he was going. As a result, Lee decided to pass him in the eastbound lane. Unfortunately, as she was in the eastbound lane, August also pulled into the eastbound, and the two drivers collided.  Lee’s car flipped three times and ultimately landed upside down, and August hit his head on the driver’s side door. 

August filed a lawsuit against Lee and her insurance companies, GoAuto and Progressive. A trial occurred where the District Court determined that Lee was 100% at fault and awarded August a total of $14,389.05 in damages. Lee appealed the decision citing that the court was wrong about her fault being 100% and that $12,500 in general damages were excessive.  

car_racing_crash_accident-scaledIf you have ever been involved in an accident, you know it can be challenging to deal with multiple parties. From the other vehicle’s driver to numerous insurance companies, knowing who to contact can often seem impossible. This becomes even more difficult when navigating the workers’ compensation system. 

Marcus Slaughter, who worked for Garda, and Ernest Howard, who worked for DABM, collided on a road in Lafayette Parish, Louisiana. Slaughter collided with Howard, suffered injuries, and received medical treatment. DABM’s workers’ compensation insurer paid for Howard’s medical expenses and workers’ compensation benefits while he could not work.

 Howard then filed a lawsuit against Slaughter, Garda, and Garda’s auto insurer.  Although the trial court awarded Howard lost wages and general damages, the judgment stated that it did not include the medical expenses of over $33,000. The trial court reasoned that DABM’s insurer had already paid these medical expenses, so Howard was not entitled to additional recovery. Howard appealed, arguing the court should have awarded him the medical costs. 

firefighter_cars_accident_hood-scaledNobody likes insurance policies or divorce. Both can be extremely messy and full of legal jargon. Megan Daigle experienced this firsthand as her divorced parents’ insurance did not cover everything they hoped for. 

In the fall of 2013, Megan Daigle was driving in Morgan City, Louisiana, when she did not stop at a stop sign. This failure to stop resulted in her vehicle, a car her father owns and provides to Megan for her sole use, colliding with a car driven by Monty Rivers. At the time of the accident, Megan was a minor. Megan’s mother had legal custody as her parents were divorced. Megan was insured under an Allstate policy held by her mother and stepfather.  Mr. Rivers was injured in the accident and filed lawsuits against Megan, her father, her mother, and all connected insurance companies. 

Allstate filed a motion for summary judgment and a partial summary judgment, arguing the policy did not provide coverage because a policyholder did not own Megan’s vehicle, and it was available for Megan’s regular use. The lower court granted this judgment. Rivers appealed the granting of Allstate’s motion arguing that Allstate waived their right to assert a coverage defense and that the allegations found in the pleadings were sufficient to put Allstate on notice of the potential coverage defense. Rivers’ argument was based on the understanding that upon receipt of the pleadings, Allstate had sufficient notice of the facts, which indicated the policy held by Megan’s mother did not provide coverage for Megan.

driving_car_automobile_driver-scaledEveryone knows it is a bad idea to drive under the influence of alcohol. However, even if you are in the unfortunate situation of being arrested for drinking and driving, you still have constitutional rights. Nonetheless, it is important to be aware of the possible penalties you could face, including having your driver’s license suspended. These consequences can become even more severe if you are a repeat offender. 

David Carver was arrested multiple times for driving while intoxicated (“DWI”) under La. R.S. 14:98. The first time, he did not receive a conviction as he participated in a diversion program. He pled guilty to the DWI the second time and was placed on probation. Because Carver refused to take the test for intoxication, his driver’s license was suspended. Although Carver attempted to have his license reinstated, the State denied the restatement because he had refused to submit to the chemical test.  La. R.S. 32:667 prohibits reinstating someone’s license who refuses to take the chemical test for a second or subsequent arrest, which occurred here. 

The State later reinstated his license on the condition that he install an ignition interlock device. Carver filed a motion arguing that certain sections of La. R.S. 32:667 were unconstitutional. The district court held that sections (H)(3) and (I)(1)(a) of La. R.S. 32:667 were unconstitutional because they violated the Due Process Clauses found in the Constitutions of Louisiana and the United States.  Specifically, these provisions provided punishments based upon a prior arrest, not on prior illegal conduct that had been proven. The State appealed. 

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