Legal Definitions

Iberia Parish Educator Learns Expensive Lesson in Pro-Se Lawsuit Against Former Attorney

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

school_teacher_pupil_649390-scaled Aleashia Clarkston’s employment with the Iberia Parish School Board was terminated in April 2013 after she was accused of abusing the school’s Leave of Absence policy. She had been on medical leave since September 2012. Clarkston objected to what she believed was a wrongful termination. In addition, she claimed she was denied due process rights as a tenured employee.

The Louisiana Association of Educators (LAE) assigned Ike Funderburk to represent Clarkston in her lawsuit against the school board. Fast forward a year and two months—Funderburk no longer works for LAE and informed Clarkston that he no longer represented her. A second LAE attorney was assigned to her case, and she soon learned that nothing had ever been filed against the school board and that her claim had not been established until April 2014.

Frustrated, Clarkston filed a lawsuit representing herself—as a pro se plaintiff—against Funderburk for failing to file her wrongful termination lawsuit. Funderburk then responded with an answer accompanied by a motion to set a security bond for his litigation costs. He sought $10,000—a price he thought reasonable for the three expert witnesses he would have to obtain to establish the legal standard of care, offer an opinion on teacher tenure law and wrongful discharge, and evaluate Clarkston’s loss of earnings.

Baton Rouge Car Dealer Escapes Vicarious Liability Claim in Accident Involving Motorcyclist

Published on: February 28, 2023 | By Berniard Law Firm

crash_test_collision_60_2-scaled It’s a common scenario: a potential buyer visits a car lot, finds a vehicle he’d like to test drive, and heads out onto the road with the salesperson in the passenger seat. What happens, though, if an accident occurs during the test drive? Suppose the potential buyer loses control of the vehicle while driving — who is responsible for injuries and property damage that result?

On October 27, 2007, Ronald Branstetter was riding his motorcycle on Airline Highway in Baton Rouge when he was allegedly forced off the highway. Branstetter states that defendants Beal and Rives were test-driving a 1988 Ford Bronco when Beal lost control of the truck. To avoid a collision, Branstetter swerved off of the highway, causing him to suffer injuries. Branstetter brought a lawsuit against Beal and Rives to recover damages from his injuries, alleging that the injuries were caused by Beal’s and Rives’s negligence. Branstetter also named Millenium Auto Sales (“Millenium”) as a defendant in the case, alleging that Millenium owned the Ford Bronco and that the company employed Rives, giving rise to a vicarious liability claim.

Under Louisiana law, employers are generally responsible for the damage caused by their employees, but only if the employee is acting within the course and scope of his employment. La. C.C. art. 2320. A “servant,” or employee, is considered to be a person under the control of another employed to perform services. On the other hand, a non-servant agent may contribute to the employer’s business but is not under the employer’s control. In determining if there is a master-servant relationship, courts often look to factors including compensation, the status of the employee, performance of a specific mission, the intensity of the relationship, control, the role of the employer in exercising control, and the direct benefit to the company. See Cason v. Saniford, 148 So. 3d 8 (La. Ct. App. 2014).

Monroe Car Accident Shows Importance of Proper Strategy in the Trial Court

Published on: February 27, 2023 | By Berniard Law Firm

intersection-scaled Lawsuits resulting from car accidents can raise many difficult questions. Determining the precise events that led to an accident can be complicated and require courts to make close calls about witnesses’ credibility. Furthermore, parties may question whether they are entitled to certain damages if they prevail in their lawsuit. These questions arose in a lawsuit involving a car accident in Monroe, Louisiana.

On January 4, 2015, Bernice Amos and her daughter were driving Amos’s car on Ruffin Drive. They were involved in an accident with Dorothy Taylor, who was driving her car on Highway 165, which crossed Ruffin Drive at an intersection regulated by a traffic signal. Amos claimed that Taylor entered the intersection while the traffic light was red, and Taylor alleged that Amos had the red light. A sheriff’s deputy who happened to be nearby reported that he was uncertain whether Taylor or Amos had the right-of-way when the collision occurred. Given this uncertainty, the police officer who responded to the scene could not determine who was at fault and did not issue a citation. Amos and her daughter suffered severe personal injuries to their backs, necks, and shoulders due to the accident.

After a bench trial, the trial court ruled that Taylor was 100% at fault for the accident because she entered the intersection against a red traffic signal. The trial court, therefore, awarded Amos damages for medical expenses, general damages, and attorney’s fees. Taylor appealed to Louisiana’s Second Circuit Court of Appeal based on two issues: whether the trial court correctly allocated fault and whether the trial court adequately awarded Amos’ attorney’s fees.

Injured Driver Wins Favorable Jury Verdict and Still Appeals in Ouachita Parish Car Accident Case

Published on: February 26, 2023 | By Berniard Law Firm

no_passing_zone_sign-scaled Car accidents are unfortunate but commonplace occurrences in modern life. The resulting lawsuits can involve complicated arguments over the allocation of fault between the drivers involved and the appropriate amount of damages awarded by the Court. Such questions arose in a lawsuit involving a car accident in Ouachita Parish, Louisiana.

In November 2013, Terany Goldsby drove her niece to a U.S. Navy recruitment office on Perryville Highway 554. The highway is a two-lane road with “no passing” lane markings at the point that Goldsby pulled up behind a Louisiana Department of Transportation and Development (“DOTD”) dump truck that was stopped in her lane. The truck was being driven by David Blocker, a DOTD employee. Goldsby waited for the truck to advance, but the truck backed up, colliding with Goldsby’s vehicle. This collision crushed Goldsby’s car’s front end, injuring Goldsby.

The DOTD truck was stopped on the highway because Blocker had overshot the pothole he and two other DOTD employees were sent to patch; Blocker reversed the truck to better position it relative to the pothole. Blocker admitted that neither of the other DOTD employees presented “spotted” for Blocker before he reversed the truck, as is required by the DOTD. The police officer who responded to the accident cited Blocker as “at fault.” Blocker’s manager also reprimanded him for not following the DOTD truck reversing the policy.

Class Action for Data Breach Fails in Louisiana Due to Lack of Actual Damages

Published on: February 25, 2023 | By Berniard Law Firm

mature_auto_tires_spare-scaled As more and more aspects of our lives are conducted online, data breaches have become an increasingly troubling prospect. If you have been involved in a data breach, you have likely worried about potential adverse effects and the possibility that you could become a victim of identity theft. However, the mere fact that a person’s information is compromised in a data breach does not necessarily mean victory in a lawsuit for damages.

Walter Bradix worked for Advance Auto Parts (“Advance”), which informed him by mail in March of 2016 that employee information held by Advance, including his own, had been inadvertently disclosed to a third party. This included personal information such as names, social security numbers, and salary details. Advance provided affected employees with identity protection services for two years and advised them to be vigilant for any signs of identity theft.

Subsequently, Bradix noticed two unidentified inquiries in his credit report. He also experienced anxiety over the data breach due to his fear of identity theft. Bradix filed a class action lawsuit in Louisiana state court against Advance on behalf of himself and “similarly situated employees” whose information was affected by the breach. He claimed that Advance negligently allowed the information to be stolen, was grossly negligent in handling the information, violated its fiduciary duties, and invaded employees’ privacy.

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