Litigation

Is Delaying An Examination Under Oath A Lack of Cooperation In A Homeowner’s Insurance Claim?

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

house_architecture_brick_door_0-scaled In order to recover under a homeowner’s policy, there are many requirements with which you must comply. One common requirement is providing the insurer with requested documentation and undergoing an examination under oath where the insurer can ask questions and gather information relevant to the claim. What happens if a homeowner delays undergoing an examination under oath?

Jesse and Dena McCartney’s house was destroyed in a fire. They filed a claim with Shelter Mutual Insurance, who issued their homeowner’s policy. Their policy required that they cooperate with the insurer, including answering questions under oath and submitting proof of loss. The McCartneys filed a lawsuit against Shelter for refusing to pay them anything.

Shelter filed a summary judgment motion, arguing the McCartneys had not provided the required requested information and had refused to submit to an examination under oath. The McCartneys claimed they had not refused to cooperate with the investigation and had submitted documentation and recorded statements. They also claimed they had only postponed the examination under oath, not refused it. They noted Shelter had requested an examination under oath more than sixty days after the McCartneys submitted their proof of loss, which was after the time by when Shelter was required to pay them or make a settlement offer. The trial court granted Shelter’s summary judgment motion, explaining the McCartneys had voided their policy by not submitting to an examination under oath. The McCartneys filed an appeal.

No Hostile Work Environment Where Employer Took Remedial Actions

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

usps_mcveytown_pa_17051-scaled No one should have to deal with sexual harassment in the workplace. If you are dealing with sexual harassment at work and you report it to your employer, you hope they will act on your report. How do actions taken by your employer affect your ability to recover for sexual harassment in court?

Shelita Tucker worked for UPS in Port Allen, Louisiana for three years. One of the subordinates she managed was Larry McCaleb. Tucker claimed McCaleb sexually harassed her for about two years. His alleged sexual harassment involved inappropriate touching. Soon after the incident with the inappropriate touching, Tucker reported what had happened to the business manager. McCaleb was taken out of service while the investigation was ongoing. The next day, Tucker filed a complaint with the UPS Compliance Line. She subsequently also filed a report with the local police department.

The next week, Tucker was on a scheduled vacation. While she as on vacation, UPS investigated the matter and suspended McCaleb. When McCaleb was allowed to return to work, UPS took corrective action including meeting with McCaleb, counseling him about proper behavior and relevant policies, and prohibiting him from going near Tucker. McCaleb was also convicted of battery and sentenced to 90-days in jail. Tucker reported McCaleb never talked to or touched her again. The one-time McCaleb entered her work area, she reported it and UPS addressed it. Tucker claimed she still felt unsafe at work because McCaleb also worked at the facility. However, she said she was still about to perform her job. She claimed McCaleb would stare at her as she walked in or out of work.

Failure To Investigate Does Not Suspend Time Requirement For Filing Wrongful Death Lawsuit

Published on: September 29, 2023 | By Berniard Law Firm

uranium_radioactive_nuclear_rays-scaled We have all heard the saying “time is of the essence.” This is especially true when you are filing a lawsuit. If you do not comply with the statutory requirements for how long you have to file a lawsuit, a court will be unable to hear your claim. Although certain exceptions apply that extend your timeline for filing a lawsuit, there are strict evidentiary requirements for these exceptions to apply.

Julius Lennie worked for a Company that cleaned pipes in oilfields. The cleaning process allegedly involved the emission of naturally occurring radioactive material. About fifteen years after retiring, Lennie was diagnosed with lung cancer and died shortly thereafter. Four years later, his surviving spouse and children filed a lawsuit against various companies for whom Lennie had cleaned their oilfield pipes. They claimed Lennie had been exposed to harmful levels of radiation, causing his lung cancer and death. They claimed the companies had been aware of the dangers of the radioactive materials but did not warn Lennie about the dangerous or take adequate precautions. The Lennies claimed they were not aware about the radiation exposure until less than a year before they filed their lawsuit, when one of Lennie’s children read about it in the newspaper and they met with an attorney. The Lennies claimed the companies had actively concealed the existence of the naturally occurring radioactive materials.

Because the Lennies filed their lawsuit over a year after Lennie’s death, the defendants filed peremptory exceptions of prescription, claiming they were required to have filed their lawsuit within one year of his death, pursuant to La. C.C. art. 2315.1. The Lennies claimed they did not have any actual or constructive knowledge of their claims until less than a year before they filed the lawsuit, because the companies had concealed it. The trial court granted the defendants’ peremptory exceptions of prescription, finding there was not sufficient evidence the defendants had concealed the existence of the naturally occurring radioactive material such that the Lennies did not have knowledge of their possible claims. The Lennies appealed.

Louisiana Jury Did Not Err In Apportioning Fault For Car Crash

Published on: September 8, 2023 | By Berniard Law Firm

rim_tire_wheel_round-scaled In the heart of Lafayette Parish, Louisiana, tragedy struck on Interstate 10 as a routine drive turned fatal. Arthur Huguley, behind the wheel of a tractor-trailer for AAA Cooper Transportation, found himself in a situation that would forever alter the lives of those involved. A blown-out tire, a series of events, and a wrongful death lawsuit brought forth by Curley Mouton’s surviving family members set the stage for a courtroom drama that unfolded with unexpected twists. In the end, a jury assigned fault, but the defendants, Huguley, AAA Cooper, and their insurer, were not ready to accept the verdict without a fight. This article explores the intricacies of their appeal, shedding light on the compelling arguments presented and the complexities of apportioning fault in a tragic accident.

Arthur Huguley was driving a tractor-trailer in Lafayette Parish, Louisiana, on Interstate 10 while working for AAA Cooper Transportation (“AAA Cooper”). Huguley heard a bang and worried he might have blown out a tire. While performing a maneuver to see if he had blown out a tire, the tire that had blown out came apart and flew into the air. Curley Mouton was driving in a truck behind Huguley when debris from the tire started flying through the air. The debris hit Mouton’s truck, causing him to hit a guardrail, flip over, and crash. Mouton died in the crash.

Mouton’s surviving spouse and son filed a wrongful death lawsuit against Huguley, AAA Cooper, and their insurer. A jury found in favor of Mouton’s family and assigned 10% fault to Huguley and 90% to AAA Cooper for putting a defective tire on its truck. The defendants appealed, claiming the jury had erred in its ruling.

Expert Witnesses Key To Establishing Damages From Industrial Fire

Published on: September 7, 2023 | By Berniard Law Firm

fire_orange_emergency_burning-scaled In a world where news headlines often feature calamitous industrial disasters, it’s hardly surprising to find legal battles trailing in their wake. The following case involves multiple individuals who filed lawsuits against the owner of a facility in Iberia Parish, Louisiana, that had a large fire.

A fire at a facility owned by Multi-Chem Group caused multiple explosions, which released chemicals. Following the fire and explosions, multiple people filed lawsuits against Multi-Chem and others, alleging they had been exposed to hazardous materials. The multiple lawsuits were consolidated into three groups based on the distance the injured party was located from the fire source. At trial, the parties presented expert testimony about whether the plaintiffs were exposed to hazardous materials from the Multi-Chem fire and if they suffered damages due to the exposure. The trial court held that the plaintiffs had established exposure and awarded damages to the three groups. The damages included medical expenses, general damages, and mental anguish related to the fear of developing cancer. Multi-Chem filed an appeal.

On appeal, Multi-Chem argued the trial court erred in admitting and excluding certain expert testimony. Article 702 of the Louisiana Code of Evidence governs expert testimony. At trial, the trial court evaluated the expert witnesses’ relevant credentials when deciding whether and to what extent to credit the expert witnesses’ testimony. The court also analyzed the underlying data the experts used as the basis for their opinions. Therefore, the appellate court found Multi-Chem’s argument that the trial court erred in which expert testimony it admitted and excluded lacked merit.

Injured Employee Entitled To Select One Physician Of Choice in Workers’ Compensation Claims

Published on: September 4, 2023 | By Berniard Law Firm

workers_construction_worker_work-scaled If you are injured on the job, one of your primary concerns is likely finding competent medical care. Under the Louisiana Workers’ Compensation Act, injured workers can select one physician of any specialty without their employer’s approval. What happens if your employer refuses to pay for your selected physician?

Marvin Ray Scott brought a workers’ compensation claim against his employer, Packaging Corporation of America (“PCA.”) Scott claimed he had lost his hearing because of his work at the Boise Paper Mill in DeRidder, Louisiana. Scott then filed a motion to have an expedited hearing under La. R.S. 23:1121. Scott claimed PCA had not authorized his initial visit to his selected physician. PCA responded, claiming Scott had improperly used summary proceedings because he was not just trying to get approval for his selected physician, but he was also seeking attorney’s fees and penalties. At the hearing, the workers’ compensation judge ruled in favor of Scott and ordered PCA to pay Scott’s relevant medical bills and pay separate penalties and attorney’s fees, totaling $7,000. PCA filed an appeal.

Louisiana Workers’ Compensation Act sets forth rights and remedies for injured workers. Under La. R.S. 23:1121, an employee is permitted to select one physician of any specialty without their employer’s approval. If the employer denies that, the employee is entitled to an expedited proceeding. Under La. R.S. 23:1201(F), the employer can also be required to pay penalties and attorneys’ fees if it does not comply with its statutory obligations to an injured worker.

Doctor Held Not Vicariously Liable For Physical Therapist’s Actions by Louisiana Court

Published on: September 3, 2023 | By Berniard Law Firm

courthouse_311_jarvis_st-scaled When you think about medical malpractice lawsuits, a botched surgery or missed diagnosis are likely the first things that come to mind. The following case involves a less common situation involving purported medical malpractice involving physical therapy post-surgery. It analyzes the relationship between a doctor and a physical therapist and whether a doctor can be vicariously liable for the actions of a physical therapist.

Jean McKeogh underwent a total shoulder arthroplasty, which Dr. Michael O’Brien performed. Following the surgery, Dr. O’Brien saw McKeogh for office visits at a Tulane University clinic. Part of McKeogh’s follow-up care involved physical therapy, which was located in the same building as Dr. O’Brien’s offices. McKeogh went to physical therapy but subsequently told Dr. O’Brien she thought she had been injured during it. A CT scan showed she had fractured her elbow. McKeough then had a frozen shoulder and had to have a second surgery.

As a result of the injury and alleged negligence, McKeough requested a medical review panel. In her complaint, she claimed Dr. O’Brien had not used reasonable care with respect to his post-surgery care for her, including with respect to the physical therapy he prescribed. The medical review panel determined Robin Silverman, the physical therapist, had not satisfied the applicable standard of care. However, the medical review panel found there was no evidence to support a finding that Dr. Brien and Tulane had not met the applicable standard of care.

What Is An Occupational Disease Under The Louisiana Workers’ Compensation Act?

Published on: August 31, 2023 | By Berniard Law Firm

green_mold_harmful_mold If you have experienced symptoms from working in a moldy work environment, you might think you are entitled to recover from your employer. However, navigating the Workers’ Compensation system can be challenging partly because of the distinct and often complicated vocabulary in the statutes. This case involves defining an occupational disease under the Louisiana Workers’ Compensation Act.

Angela Lyle worked in the payroll department at Brock Services. Her office was in a trailer in Norco, Louisiana, at the Valero plant. Lyle claimed she saw mold throughout the trailer that increased over the two years she worked at the site. She suffered from fatigue, burning eyes, sores, and other symptoms. After suffering a nosebleed, she underwent a medical evaluation. Testing confirmed mold was present in the office, so Lyle’s trailer was replaced. Once the trailer was replaced, some of Lyle’s symptoms went away, but others persisted, and new symptoms emerged.

She resigned and was diagnosed with sarcoidosis in her lungs and lymph nodes. She then filed a claim with the Workers’ Compensation, claiming she had suffered an occupational disease and was entitled to damages. The workers’ compensation judge denied her claim as neither her mold exposure nor the development of sarcoidosis qualified as an occupational disease or accident under the Louisiana Workers’ Compensation Act. Brock filed a summary judgment motion, arguing Lyle could not establish sarcoidosis was an occupational disease. The workers’ compensation judge granted Brock’s summary judgment motion, finding Lyle’s sarcoidosis was not an “occupational disease. Lyle appealed, arguing the workers’ compensation judge ignored the definition of an “occupational disease” under the Louisiana Workers’ Compensation Act.

Contra Non Valentem Inapplicable To Lawsuit From Lung Cancer Death

Published on: August 30, 2023 | By Berniard Law Firm

nuclear_waste_radioactive_trash-scaled Even in cases involving tragic factual situations, strict procedural requirements must be followed to prevail on your claim. This case involves the time limits in which you must file a lawsuit and the principle of contra non valentem, which is a rule that the time limit in which someone has to file a lawsuit does not start if the other person was hiding information that would allow them to bring their claim.

This case involves the tragic death of a husband and father, Julius Lennie. Tuboscope employed him for over thirty years. Various oil companies hired Tuboscope to clean and refurbish pipes and tubes used in the oilfield. The clean process involved the emission of a naturally occurring radioactive material. In 2010, after retiring, Lennie was diagnosed with lung cancer and died shortly thereafter. Almost four years later, his spouse and children filed a lawsuit against various companies that had hired Tuboscope.

His surviving family claimed Lennie had been exposed to dangerous levels of radiation while working, which caused his cancer and death. They alleged the companies knew naturally occurring radioactive materials were dangerous but had not warned Lennie or taken appropriate corrective actions. The Lennies argued they had filed the lawsuit after reading an article about radiation exposure in pipe yards, so they were not on notice of their claims until September 2013.

Understanding Statutory Employer Immunity in Workers’ Compensation Cases in Louisiana

Published on: August 29, 2023 | By Berniard Law Firm

ladder_step_ladder_passage-scaled Statutory employer immunity is critical in determining liability and compensation for workplace injuries in workers’ compensation. The following case is an example where the court had to decide whether the defendant was entitled to statutory employer immunity under the dual contract theory provided for in La.R.S. 23:1061(A)(2). We will examine the facts of the case, the arguments presented by both parties and the court’s decision. We will also examine the legal framework surrounding statutory employer immunity and its impact on workers’ compensation cases.

The case involves Patrick Cummins, a worker hired by a subcontractor to perform its contract with R.A.H. Homes and Construction, LLC (“R.A.H.”), the defendant. The homeowners had contracted R.A.H. to construct a single-family home, including the installation of an attic HVAC system. Cummins became seriously injured when the attic access ladder malfunctioned, and he fell while performing the work required under R.A.H.’s contract with the homeowners.

Cummins sued several defendants, including R.A.H., in tort, alleging that R.A.H. was directly responsible for the improper installation of the attic ladder that led to the accident. In response, R.A.H. asserted an affirmative defense of statutory employer immunity under La.R.S. 23:1061(A)(2), claiming that a statutory relationship existed through the two-contract theory.