Legal Definitions

Terminated Plaquemines Parish Employee Denied Attorney’s Fees After Successful Appeal for Job Reinstatement

Published on: February 22, 2023 | By Berniard Law Firm

accountant_accounting_adviser_1238598-scaled Getting fired from a job can be devastating for anyone, and getting fired from a job unjustly is even worse. You may believe that if you are wrongfully terminated, you are entitled to all the costs, including attorney’s fees, that you incur in any legal action you take against your employer. However, the law is not always based on our notions of what is fair, as one resident of Plaquemines Parish learned in her efforts to get her job back.

Loukisha Daisy began working as the Chief Internal Auditor at the Plaquemines Parish Government (“PPG”) on June 2, 2014. In hiring her, PPG attached a condition to Daisy’s employment contract that she must complete all the courses required to become a Certified Public Accountant (CPA) and pass the CPA exam by the end of her first year of employment.

In mid-June 2015, PPG informed Daisy that it was considering terminating her employment. PPG suspended Daisy and held a predetermination hearing on June 25, 2015. At the hearing, Daisy presented evidence supporting her continued employment. PPG nevertheless terminated Daisy’s employment on June 30, 2015. In the termination letter, PPG stated that Daisy did not obtain her CPA license as required in her employment contract, claimed that Daisy did not perform her work duties by her job description, and alleged that Daisy submitted a fraudulent letter concerning her CPA license as evidence in the predetermination hearing.

Alexandria, Louisiana Last Will and Testament Invalidated for Failure to Follow Formalities

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

stamp_rubber_stamp_stamped-scaled Losing a loved one is an obviously devastating experience. Possessions left to the surviving family members cannot take the grief away but can prohibit an entire upheaval for the survivors. It is critical that an excellent attorney drafts the will and handles the probate process for the sake of those survivors.

An Alexandria, Louisiana, widow was out of luck after family members filed a lawsuit claiming that her late husband’s will was null and defective. In 1996, Elmoses Ivey executed his last will and testament, which left all his property to his wife, Lois Ivey. After Mr. Ivey died in 2016, Mrs. Ivey probated the will and obtained a judgment of possession. However, Mr. Ivey’s children from a prior marriage filed a lawsuit to contest the validity of their father’s will. The children argued that the attestation clause at the end of the will did meet the necessary legal requirements and was, therefore, invalid. An attestation clause is a section at the end of the will stating that all the legal requirements in executing the will have been met. The Ninth Judicial District Court for the Parish of Rapides agreed and declared the will invalid. Mrs. Ivey appealed to the Louisiana Third Circuit Court of Appeal.

Louisiana law requires a notarial testament’s attestation clause to be in writing and dated. The testator (person making the will) must sign the will at the end and on each separate page. The testator must declare in the notary’s presence and two witnesses that the instrument is his will. Finally, the notary and witnesses must include a written declaration that both the first two requirements have been met. See La. C.C. art 1577. While there is a presumption in favor of validity generally, will execution formalities must be strictly followed, or the will is invalid. See Successions of Toney, 226 So.3d 397 (La. 2017). The Louisiana Supreme Court further opined that any earlier cases which treated deviations from testamentary form requirements with leniency would no longer apply.

Driver Injured in Truck Accident in Caddo Parish Raises Credibility Concerns

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

car_damage_auto_exterior-scaled Car accident cases often involve conflicting stories from each person involved, as no one generally wants to admit fault. When these cases get brought to court, the court must decide which party is telling the truth. The following case examines how a court determines the credibility of two individuals involved in a motor vehicle accident in Caddo Parish.

Larry Fuller alleged that he sustained multiple injuries and property damage when Leman Bissell’s Chevy hit his Ford truck. Fuller contended that he exited the parking lot of the Country Market store on Hearne Avenue and pulled into the right-hand lane, where his truck unexpectedly stalled, leaving him stranded. Fuller also claimed that he gestured to other drivers who were able to swerve around him. However, Bissell’s vehicle pulled up quickly and ran into the driver’s door of Fuller’s truck. Fuller further alleged that the accident injured his lower back and caused radiating pain down one leg, forcing him to undergo two months of treatment with a neurologist and several sessions with a physical therapist. Bissell’s insurer, State Farm, asserted that Bissell did not have time to avoid hitting Fuller and was faced with a sudden emergency as Fuller’s vehicle lurched into traffic. The following case was on appeal from the Louisiana First Judicial District Court for the Parish of Caddo and was heard by the Louisiana Second Circuit Court of Appeal.

At the first trial, the District Court found several inconsistencies in Fuller’s testimony, including the number of accidents he had been involved in before the accident with Bissell, his history of drawing disability, and the number of times his Ford engine had stalled. However, the District Court also found no inconsistencies in Bissell’s testimony. Therefore, the District Court rejected Fuller’s claims and granted State Farm’s motion for involuntary dismissal. Fuller subsequently appealed this decision to the Court of Appeal.

Confusion Involving Uninsured/Underinsured Motorist Policy Leaves Woman in Caddo Parish Without Coverage

Published on: February 17, 2023 | By Berniard Law Firm

padlock_grating_insurance_security-scaled Before purchasing motor vehicle insurance, it is vital to fully understand what the policies will cover. For instance, some policies may not cover your medical bills if you were involved in a single-vehicle accident. Understanding what is covered and what is not may help you avoid legal action in the future.

Randy and Brenda Mills, husband, and wife, purchased separate uninsured/underinsured motorist (“UM”) coverage from State Farm on three of their vehicles: a Kawasaki motorcycle, a GMC Envoy, and a Chevy pickup. The policies on each of the three vehicles also included liability coverage. However, the UM and liability insurance policies for the motorcycle were in Randy’s name only, while the UM and liability insurance policies for the other two vehicles included Randy’s and Brenda’s names.

One morning, Randy was driving the motorcycle with Brenda as a passenger when he lost control, went off the road, and entered a ditch. Brenda alleged that she suffered severe injuries and was hospitalized for three days. She claimed that, as a result of these injuries, her medical bills exceed $42,545. She also claimed lost wages, loss of employment benefits, emotional damages, and loss of enjoyment of life. State Farm then paid Brenda the $50,000 policy limit owed under the liability policy purchased by Randy on the motorcycle. However, State Farm declined to pay her for any of the UM benefits under the three separate policies.

Unfair Trade Practices in Louisiana and Home Foreclosure

Published on: July 23, 2014 | By Berniard Law Firm

Like many states, Louisiana has an unfair trade practices act. In Louisiana, it is known as the Louisiana Unfair Trade Practices and Consumer Protection Law. Just as the name implies, this law is meant to protect consumers from the unfair, misleading, or fraudulent acts of those provide services, goods, and financing. Any contract or agreement entered into in violation of this law is void. However, the Louisiana Unfair Trade Practices and Consumer Protection Law (“Law”) has a serious limitation; it does not apply to a financial institution that is federally insured, including most banks and lending institutions.

The Law’s limitation means that an average mortgage arrangement from a large or national financial institution will not be affected by the protection that the Law affords. The United States Court of Appeals for the Fifth Circuit provides an example of this exception in a recent decision. In that case, a woman arranged for a home mortgage through Bank of America. Bank of America then assigned the mortgage to Wells Fargo. Both of these companies are large financial institutions that are federally insured.

When the woman defaulted on her mortgage, Wells Fargo sought to foreclose on her home. She applied for assistance from a federal government program called Home Affordable Modification Program (“HAMP”) during the foreclosure process. HAMP is designed to help modify mortgages for those who are in foreclosure proceedings so that they can keep their homes and pay a more affordable monthly payment. While the woman’s HAMP application was pending, the foreclosure proceeding was supposed to be put on hold. However, despite this application, her home was sold at a foreclosure sale before she received word back from HAMP to determine whether he application had been approved. She also claimed that she did not receive notice of the sale. Essentially, she argued that her home was sold out from under her without her knowledge.

She attempted to sue both Bank of America and Wells Fargo. She argued that Bank of America should not have allowed Wells Fargo to purchase the mortgage. She also argued that the foreclosure proceedings violated the Louisiana Unfair Trade Practices and Consumer Protection Law. However, the state court determined that even if they did violate the Law, the Law did not apply to them because of the financial institutions exception.

After a loss in state court, the woman appealed the case to the federal district court. However, the district court pointed out that it cannot sit as a court of appeals for state-exclusive actions. That means that the federal district court cannot hear a case where the only arguments are based on state law. Instead, a district court can only hear a case where there is some sort of federal jurisdiction based on either federal law or involves parties from different states, unless Congress has authorized the district court to act otherwise. Nonetheless, where a case questions the procedures of the state court, instead of applying substantive state law, then the federal court could hear the case. For example, if the woman argued that he procedure violated her constitutional rights, then the district court would likely be able to hear the case. This concept is known as the Rooker-Feldman doctrine. As the court explains, “Reduced to its essence, the Rooker-Feldman doctrine holds that inferior federal courts do not have the power to modify or reverse state court judgments except where authorized by Congress.”

In this case, the woman complained that the proceedings in the state court were incorrect; therefore, she was not just asking the district court to review the state court decision. As a result, the district court had the authority to review the case. Despite that fact, the woman failed to state a claim because both Bank of America and Wells Fargo are federally insured financial institutions that are not subject to the Louisiana Unfair Trade Practices and Consumer Protection Law. That meant that the Court of Appeals had to affirm the lower court, and the woman failed in her efforts to appeal.

It may have been possible to assert other arguments based on federal law, but the woman failed to do so. In fact, there were several arguments that the woman waived because she failed to timely assert them. In an appeal, if you do not assert every argument that you have in your opening brief, then you effectively lose the ability to use that argument at any point in the rest of the appeal. In this case, this may have been crucial to the woman’s case because she failed on the arguments that she presented originally (the state law claims). That point highlights the importance of competent attorneys who can argue effectively for you. Continue reading

Careful Review of Home Insurance Policy Crucial

Published on: July 14, 2014 | By Berniard Law Firm

It is extremely important to review your home insurance policy to determine what types of damages the policy will actually cover, especially in areas prone to suffer from hurricane damages. Under Louisiana law, the insured individual is required to first prove that the insurance policy covers the cause of the claim. For example, if the policy only covers certain types of causes of damage, such as wind and hail, then the insured must prove that the damage was in fact caused by either wind or hail. Once the insured has done this, then the insurance company can argue that the incident is not covered by the policy. Therefore, it is extremely important that the insured take the time to determine the cause of the damage in order to prove that the policy covers their claim.

A case arising from Lake Charles, Louisiana illustrates this point. In this case, a homeowner suffered roof damage that they believed was caused by Hurricane Ike around September 13, 2008. Four shingles were missing and the insured claimed that this resulted in leakage in several rooms of the home. However, State Farm, the homeowner’s insurance company, determined that the leakage was not caused by Hurricane Ike and reclassified the claim as a “non-hurricane” claim.

State Farm, using several experts, determined that the leakage resulted from normal wear and tear on the roof, and therefore the homeowner’s insurance policy did not cover the leakage damage. Instead, State Farm concluded that only the four missing shingles were the result of wind and that they were the only damages that State Farm should reimburse to the insured; State Farm did not reimburse the insured for the damages caused by the leakage, but just the replacement value of the four damaged or missing shingles. The total damages that State Farm paid were under $500.00.

The insured had damages that were estimated at $9,385.00 by one expert and $204,717.78 by another expert. However, while these experts estimated what the cost of the leakage damage and repairing the roof would be, neither expert determined the actual cause of the damages. One of the insured’s experts thought that the wind had lifted the house’s flat roofing, which allowed water to enter the home. However, the expert could not explain why the nails on the flat roofing were still in place if the wind had lifted it. The State Farm expert, on the other hand, determined that the wind damage only included those four damaged or missing shingles and the leakage was actually caused by normal wear and tear. The State Farm expert concluded that there was “no evidence of roof damage that would be caused by severe weather . . . . The roofs, both asbestos shingle and built up roofs and all associated flashings are past their life cycle and are in need of replacement.”

The insured’s policy did not cover “poor workmanship; wear, tear, deterioration, or latent defect; settling, cracking, or expansion of walls, roofs, or ceilings; or leakage of water from air conditioning systems, household appliances, or plumbing.” Since the State Farm expert determined that the cause of the damage was from normal wear and tear, there was no way that the insured could satisfy the requirement to prove that the policy covered his claim. As such, the court granted State Farm summary judgment.

The court will grant summary judgment where one party cannot meet their required burden as a matter of law at trial. Summary judgment allows the court to avoid costly trials where there is one clear winner before the trial even begins. In this case, where the insured had no evidence that all of the damage he was claiming was caused by an occurrence included in the insurance policy, the court determined that summary judgment was appropriate. If the insured had employed experts that specifically testified as to the cause of the leakage damage, then the court may have allowed the case to proceed to trial. Further, the insured could have made a more diligent effort to report leakage as it occurred, which would help prevent the damage from spreading in the long run.

This case illustrates several very important points for the average homeowner. First, you should carefully read your policy so that you know what type of damage is covered. Second, if necessary, you may need to acquire experts that can explain what caused the damage to your home. Lastly, report damages immediately so that you can avoid costly repairs later on. Continue reading

District Courts Have Broad Discretion When Ordering IRS Debt Payments

Published on: July 9, 2014 | By Berniard Law Firm

In an appeal filed in the United States Court of Appeals for the Fifth Circuit, from the Western District of Louisiana, the Court affirmed a district court verdict ruling in favor for the IRS. The Plaintiff, S.P. Lewis was ordered to pay monthly installments to the government to pay for taxes withheld from employee’s wages while S.P Davis and three other people were equal owners of the Winward Institute, Winward Heath Care Center, and Mynex. These three entities provide medical services to Louisiana patients. In 1997, these owners became aware that the companies were not paying enough federal payroll taxes. The owners asked the vice president of finance, Samuel Stevens, to negotiate with the IRS but the debt was never corrected.

In 2002, The IRS caught up with the companies and issued assessments against the owners for unpaid payroll taxes. Davis paid what he felt was his portion of the debt and then filed for a refund with the IRS. His claim was denied. In District Court, the government won the argument that the owners and Stevens were responsible people who had the opportunity to cure the dabt long ago. Because the owners and Stevens all had knowledge of the debt, and the opportunity to address the situation prior to suit, the owners and Stevers were considered equally responsible.

The government typically garnishes debtor’s wages in this situation. However, if the person in debt recieves income not exempt from taxes, the district court may order the person in debt to make payments instead of garnishing wages. When the Court established monthly payments against all counter-defendants, only Davis refused to pay. Davis did not want to pay the amount per month ordered by the government. Davis argued that the government was making him pay far too much each month. He argued the government was determining the monthly amount on a period in time when Davis had a much higher income. Davis also argued that the court had not properly considered his personal circumstances including the costs associated with earning his self-employment income.

Understanding the Direct Action Statute and Insurance Disputes

Published on: July 1, 2014 | By Berniard Law Firm

Louisiana has a Direct Action Statute that allows injured third parties to sue an insurance company directly when the insurance company’s insured causes an injury. For example, if you are involved an automobile accident where you are not at fault, you can sue the at-fault driver’s insurance company directly instead of suing the at-fault driver themselves. The Direct Action Statute is beneficial because it gives injured third parties access to the entity that will actually pay compensation for the injuries. It can be especially helpful where the insured fails to file a claim with their insurance company themselves. However, the injured third-party’s ability to sue the insurance company directly is limited by the insurance contract between the insurance company and the insured.

Despite the fact that the insurance contract is between the insurance company and the insured, an injured third party must still comply with most of the terms of the contract. This overarching rule applies specifically to whether the policy covers the insured and whether the policy covers a particular event. The insurance company will ask: Did this person have coverage when this accident happened? and Does this policy cover this type of event? For example, in insurance contracts limited to specific times, the insurance company will not cover a claim that occurred outside the time frame of the contract, regardless of who brings the claim. In a related example, automobile coverage that is limited to only certain vehicles will cover only those vehicles, regardless of who brings the claim. That is, the injured third party can have no greater rights than the insured would have had if he or she brought the complain themselves.

In a United States Fifth Circuit Court of Appeals case, the court determined that specific requirements of the contract also extend to injured third parties. That case involved a “claims-made-and-reported” policy. That type of policy not only requires that a claim arise within the policy period, but also that the insured (or another party under the Direct Action Statute) had to have reported the claim within the policy period. This type of notice requirement helps insurance companies avoid claims that are reported years after they happen; instead, this policy requires notice within a certain amount of time.

Uninsured Motorist Coverage: What Are Your Rights?

Published on: November 9, 2013 | By Berniard Law Firm

When you signed up for automobile insurance, you might have noticed that many states now require automobile insurance agencies to include some sort of uninsured motorist (“UM”) clause in your insurance agreement. Oftentimes, the only way to get out of including this in your coverage, and therefore having to pay a higher premium, is by explicitly rejecting this additional coverage. How exactly do you reject this additional coverage, though? While this might seem like an easy question, most states, including the state of Louisiana, require very specific requirements to be met in order for rejection of UM coverage to be proper.

In the State of Louisiana, that is exactly the case: In order to get out of paying a higher premium for this uninsured motorist coverage, the insured has to explicitly reject that coverage. And the state of Louisiana has many rules with regard to how to properly complete this task.

In order for an uninsured motorist rejection to be considered proper, Louisiana courts have found six tasks that must be completed by the insured. In Duncan v. U.S.A.A Ins. Co., 06-0363 (La. 11/29/06), 950 So. 2d 544, the court outlines these six tasks as follows:

1) initialing the selection or rejection of coverage chosen;
2) if limits lower than the policy limits are chosen (available in options 2 and 4), then filling in the amount of coverage selected for each person and each accident;
3) printing the name of the named insured or legal representative;
4) signing the name of the named insured or legal representative;
5) filling in the policy number; and
6) filling in the date.

While the Court in Duncan did not explicitly deal with the timing of these tasks, a couple years later, the Court in Gray v. American National Propery & Cas. Co., 07-1670 (La. 2/26/08), 977 So. 2d 839, discussed the requisite timing in which the above tasks need to be completed. According to the Court in Gray, all six of these tasks have to be completed before the UM selection form is signed by the insured. The Court also went on to say that the completion of these tasks has to be done in a manner showing that the insured’s signature signifies that he or she agrees with all of the information that is contained in the insurance form. While the Court said that the tasks have to be completed before the UM selection form is signed by the insured, that was not the most important part of the Court’s findings. Rather, the most important part of the Court’s holding was that the insured’s signature needs to signify agreement with all that is contained in the form.

In the recent case decided by the Louisiana Supreme Court, Edward Morrison v. U.S.A.A Casualty Ins. Co., No. 2012-CC-2334, the Court really focused on the fact that the most important part of the timing of the UM selection form is that the insured’s signature is affirming agreement to all the clauses contained therein. This case primarily deals with task #1 listed above which requires that an individual properly initial the selection or rejection of coverage chosen in order for UM rejection to be considered proper.

In this case, the insured’s representative clearly meant to reject UM coverage but accidentally did not initial the line that stated such in the agreement form. When the insurer received the form, he or she noticed that the form was incomplete and sent it back to the insured’s representative. At that time, the representative initialed the proper line rejecting UM coverage and returned the form to the insurer. This clearly showed that the insured agreed with all of the clauses and various information contained in the form. Furthermore, all of this was completed before the relevant accident, so the court held the UM rejection valid.

Uninsured/Underinsured Motorist (UM) Coverage Limitations in the State of Louisiana

Published on: November 6, 2013 | By Berniard Law Firm

In a previous blog post, we discussed how exactly uninsured/underinsured motorist (UM) benefits can be rejected in Louisiana. While that post went through some of the legal technicalities involved in rejecting UM coverage, it did not discuss in depth some of the scenarios in which coverage might be rejected and how the court might actually rule despite those legal technicalities.

This blog post will focus on specific cases and scenarios in which, despite not following every legally prescribed requirement under Louisiana law, the court has decided that coverage was actually properly rejected or limited. Some of these examples involve just a word or two out of place, others involve completely leaving off pertinent information. But all of the below examples make it clear that the parties’ intents are more important that perfectly following the letter of the law.

The first example deals with a case involving an automobile accident. In that case, the individual driving the car involved in the accident was driving one of his employer’s vehicles. So the question was whether or not the employer’s insurance company, General Insurance Company of America (GICA), had properly produced a valid and enforceable uninsured/underinsured motorist rejection form, as required by the commissioner of insurance. Whether or not this UM rejection form had been properly completed would mean the difference between $100,000.00 and $1,000,000.00 available under the policy. GICA contended that it had filled the form out properly and that coverage should be $100,000.00, and the individual driving the car claimed the opposite and that coverage should be in the amount of $1,000,000.00.

In that case, the plaintiff argued that the form did not fulfill all requirements as specified by Louisiana statute for proper uninsured/underinsured motorist rejection. Specifically, the form that was signed had an improper title. Despite the fact that the form did not have the exact proper title, the court decided that the form was still valid and enforceable, and therefore, UM rejection was properly executed. The governing factor in the case was whether or not GICA’s intent was clear from the UM rejection form. Because the intent was clear, despite the improper title, rejection was still proper.

Another example from the Louisiana court system involved a UM rejection form that not only had the title wrong, but also had several other deviations. Despite these errors, the uninsured/underinsured motorist rejection was still deemed proper because the form was clear about the limitation of the coverage. From the form, it was obvious that the party meant to limit UM motorist coverage.

Yet another case dealt with a form that was missing the insurance company name and policy number. Both of those pieces of information are technically required by law in order for the UM rejection to be valid. However, the court in that case ruled that such omissions will not invalidate an otherwise valid form when it is clear that the intent was to reject UM coverage. The technical errors had little weight on the court’s decision because the overall intent of the parties was clearly stated in the signed document.

In a Louisiana Supreme Court case, a form did not properly contain the printed name of the legal representative of the corporate insured. However, once again, despite this technical error, the Court determined that the uninsured/underinsured motorist rejection form would not be considered invalid because of that small error because the overall intent of the parties was clear from the form.

From these examples, it is clear that the courts will not always strictly apply the stated law and that sometimes the overall intent of the parties is more important and carries more weight in determining the validity of a UM rejection form.