Random Miscellaneous

Appealing a Court Judgment in Louisiana: Why Decretal Language Matters

Published on: May 23, 2023 | By Berniard Law Firm

hammer_court_justice_book-scaled When 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.

Louisiana Court Settles Insurance Contract Dispute Following Deadly Explosion

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

news_stock_newspaper_glasses-scaled Insurance 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.

Louisiana Court Bars Recovery for NOPD Officer Who Tested Positive for Morphine on the Job

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

2015_ford_police_utility_0-scaled Random 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.

When Coworkers Attack: Negligence Claims for Intentional Workplace Injuries

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

farm_mountain_farm_meadow-scaled An employee injured at work while performing the functions of her job is generally entitled to worker’s compensation. But what about a worker injured on the job by the intentional act of a fellow employee? An action for recovery due to employer negligence could be a better option.

Louisiana worker’s compensation law does not provide coverage for employees injured during an incident unrelated to their workplace activities, for example, an altercation between co-workers arising out of personal issues. R.S. 23:1031E.

Instead, an employer may be liable for negligence if it had reason to believe its employee(s) could be attacked at work but failed to intervene. Posecai v. Wal-Mart Stores, Inc.. Courts will consider whether the employer had information suggesting an incident might occur and, if so, when it was received and what level of detail was available to help determine the appropriate response. See Carr.

Is It Constitutional To Suspend Someone’s License For Repeat Arrests for DWI?

Published on: May 16, 2023 | By Berniard Law Firm

driving_car_automobile_driver-scaled Everyone 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.

Can An Undocumented Worker Receive Workers’ Compensation Benefits?

Published on: May 15, 2023 | By Berniard Law Firm

document_paper_former_war-scaled Navigating receiving workers’ compensation benefits following an on-the-job injury can be difficult. It is even more difficult when you are an undocumented worker. Unfortunately, that is the situation Candido Perdomo, an undocumented worker, found himself in after he was injured when he was pinned underneath a garbage truck when a road collapsed.

Perdomo filed a claim against RKC and its insurer after they reduced his workers’ compensation benefits following his injury. RKC agreed that Perdomo was injured in the scope of his employment. Although they agreed that his average wage was $630 per week at the time of the accident and his compensation was $420 per week, they claimed that he had a weekly earning capacity of $145 per week after the accident, with a compensation rate of $323.33. Therefore, they claimed they had the right to reduce Perdomo’s benefits under La. R.S. 23:1206.

This claim went to trial at the Office of Workers’ Compensation (“OWC”), who agreed with the Defendants that the reduction in Perdomo’s benefits to $323.33 was appropriate. The OWC noted that it was the Defendants’ burden to establish that Perdomo could physically perform a given job and that Perdomo had not met his burden of proof in showing that his injury caused his inability to work. The OWC also said that Perdomo could not rely on the fact he was undocumented as a reason he had not found work. Perdomo appealed.

Sincerely or Not: Could You Be Liable for Bringing a Frivolous Appeal?

Published on: May 14, 2023 | By Berniard Law Firm

outback_australia_bush_road-scaled The legal system has neither time nor resources to waste, so courts refrain from entertaining frivolous lawsuits that lack serious or sincere claims. Moreover, in such cases where a court determines that a lawsuit is frivolous, the court will render a judgment against the party who brought the lawsuit and can also order that party to pay damages, including the other party’s attorney fees. For these reasons, it is critical to consult with an excellent attorney before such cases are brought before a court.

As for Marsha Willis (“Willis”), an unauthorized driver of her mother’s rental car, a Louisiana judge for the First Circuit Court of Appeals determined that although she had absolutely no evidence to support her legal claims, she sincerely believed in the positions she argued and therefore her appeal was not frivolous.

Willis’ mother entered into a rental agreement for a Toyota Corolla with the car rental agency, Enterprise. Shortly after, Willis was driving her mother’s rental car when she crashed into another driver. The other driver sued Willis for damages related to the accident. Then, a claim specialist for Empire Fire and Marine Insurance Company (“Empire”), the insurer for Enterprise, notified Willis that they denied her request for coverage in the accident and litigation with the other driver because she was not listed as an authorized driver on her mother’s rental agreement.

New Orleans Police Officer Appeals Civil Service Commission Dismissal

Published on: May 11, 2023 | By Berniard Law Firm

police_5-scaled Police 0fficers are public servants responsible to the taxpayers and their profession. When an officer violates the rules of the New Orleans Police Department (NOPD), they are disciplined through penalties. Both state laws and the department policy bind the officer. Officers are given hearings and allowed to plead their case in line with due process considerations. The following civil service case illustrates how appeals work under the Civil Service Commission scheme.

A New Orleans police officer was caught driving a marked squad vehicle while under the influence of alcohol. As a result, he was required to enter the St. Tammany Parish District Attorney’s Pre-Trial Diversion Program. As a result of entering the program, he was deemed to have admitted responsibility for his violations of state law: driving while intoxicated (La. R.S. 14:98) and careless operation of a motor vehicle (La. R.S. 32:58).

Following his entry into diversion, the NOPD started an investigation of the Officer’s actions and violations of NOPD regulations. As a result, the Department Superintendent recommended various sanctions, including a suspension and letters of reprimand. The Officer appealed the decision, which was countered by a motion for summary judgment by the NOPD. The Officer had admitted guilt by entering the diversion program, giving the NOPD a strong claim for summary judgment. The Commission held a hearing for the appeal, which the Officer failed to appear at. The Commission, therefore, dismissed the appeal in favor of the NOPD. The Officer filed for a rehearing which was denied. He then appealed the denial for a rehearing.

Louisiana First Circuit Says Settlement Not Enforceable Based on Email Communications

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

email_letter_postal_codes-scaled Parties in conflict often prefer out-of-court dispute resolution. Although these agreements made outside the courtroom are appealing, they come with their slew of issues and may require a courtroom to enforce an out-of-court solution. When a deal outside the courtroom requires a court to intervene, how does that court decide whether to enforce the settlement agreement? And in the era of virtual communication and remote dispute resolution, how can a court decide when virtually made agreements are enforceable and binding on the parties?

The present case emerged out of a lumber dispute. In short, the defendants wrongfully cut down trees on the plaintiffs’ land. The plaintiffs filed a lawsuit against the numerous defendants for this wrongful timber cutting and the resulting property damage, penalties, interest, costs, and attorney fees. Some defendants also brought crossclaims against each other following the plaintiffs’ complaints.

The trial court conducted a conference where the parties discussed a potential settlement. Ultimately, the parties drafted an agreement in which one defendant, J.R. Logging, would pay the plaintiffs $20,000. In turn, the plaintiff’s claims against J.R. Logging and the other defendant, Fair Hills Farms, would be dismissed along with the crossclaims between defendants.

Mistake, Medical Malpractice, or Misunderstanding Risk?

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

medicine_pacemaker_surgery_hospital-scaled While much maligned in the popular consciousness, medical malpractice lawsuits serve a vital function in protecting patients’ rights when accessing healthcare. In Louisiana, a successful medical malpractice lawsuit must show the physician being sued had a standard of care for their patient, the physician violated this standard of care, and there was a connection between this violation and the injury suffered by the patient. See La. R.S. 9:2794(A). Though there are several reasons why a medical procedure may go wrong, proving it was the result of a violation of a standard of care can be difficult at best.

In March 2007, Alsie Thomas underwent surgery to install a pacemaker in his heart. Dr. Sergio Barrios conducted the surgery. While usually, the pacemaker is installed with three leads placed in the right atrium, right ventricle, and coronary sinus behind the heart. Dr. Barrios instead inserted the first lead in the opposite direction into the left ventricle and the second lead into the aorta instead of the right atrium, with the third lead being installed correctly. After the leads were installed, Dr. Barrios conducted several tests and determined that while there were some abnormal readings, the procedure appeared successful. Subsequent evaluations at the hospital also indicated the pacemaker had been positioned correctly.

However, five days after the surgery, Alsie suffered a stroke, which was diagnosed as a lack of blood flow due to an obstruction of a blood vessel. Throughout the rest of March and through April, Alsie continued to suffer from bouts of heart issues, but subsequent X-rays and scans showed the pacemaker appeared to be placed in the correct location.