Insurance Dispute Lawyer Blog

Harvey Man Denied Damages For Truck Falling On Foot, Importance of Proof in Lawsuits

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

feet_tangerm_c3_bcnde-scaled If part of a car falls on you at a vehicle yard, you should be able to recover damages for your injuries from the yard owner. However, if you do not provide sufficient evidence, you will likely be unable to recover for your injuries.

While Rico Lee was a customer at a Pull-A-Part vehicle yard in Harvey, Louisiana, he was injured when the rear of a pickup propped up on rims fell on his foot. He filed a lawsuit against Pull-A-Part and their insurer, claiming he was injured when the pick-up truck in Pull-A-Part’s control and control fell on his foot, injuring him. At trial, the jury found Pull-A-Part was not negligent. Lee appealed.

On appeal, Lee argued the jury erred in finding in favor of Pull-A-Part, and the trial court erred by not instructing the jury about res ispa loquitor. Res ispa loquitor is a legal doctrine that allows a court to find negligence by the mere fact that the accident occurred by using circumstantial (not direct) evidence. See Cangelosi v. Our Lady of the Lake Reg’l Med. Ctr. Here, La. C.C. art. 2317.1 required Lee to show the truck was in Pull-A-Part’s custody or control; it had a defect that resulted in an unreasonable risk of harm, Pull-A-Part knew or should have known about this unreasonable risk, and the defect caused his injury.

How To Determine Personal and Subject Matter Jurisdiction in Car Accident Lawsuit

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

district_court_h_c3-scaled If you’ve been involved in a car accident and are considering filing a lawsuit, it’s essential to be aware of one crucial aspect often overlooked – the appropriate court venue. Venue refers to the location where a lawsuit is filed, and getting it right is crucial for the court to have jurisdiction, granting it the legal authority to issue judgments in the case.

Cea Tillis was involved in a car accident on Frenchmen Street. He filed a lawsuit against the driver of the other vehicle involved in the accident, Jamal McNeil, and his insurance company (the defendants) in the Second Parish Court for the Parish of Jefferson. Tillis asserted Jefferson Parish was the proper venue under La. C.C.P art. 74, which allows a lawsuit to be brought in the location where the accident occurred or where the damages were sustained.

McNeil countered Jefferson Parish was not the proper court because the accident occurred outside the court’s jurisdiction, and Tillis did not live in the applicable area. The defendants argued the court did not have personal or subject matter jurisdiction and could not enter a judgment in the case. The Second Parish Court eventually transferred the case to the First Parish Court. The First Parish Court ruled in favor of the defendants, finding there was no personal or subject matter jurisdiction. The court then dismissed Tillis’ lawsuit, and he appealed.

Terminated Employee Not Entitled to Additional Unpaid Wages

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

worker_inspects_construction-scaled Getting terminated from a job is always a stressful situation. You are likely concerned about how you are going to make ends meet. This is even more true if you believe your former employer has not paid you all the wages you are entitled to.

Rick Calamia worked for Core Lab for under a year. He was terminated from his job. He claimed he was owed various unpaid wages, which Core Lab denied. Calamia filed a lawsuit against Core Lab under La. R.S. 23:631 for his purportedly unpaid wages and associated penalties, fees, and costs. Calamia claimed he was owed $1,808.16 for 73.8 hours of work, consisting of 7 hours of time entry pay, 16 hours of holiday pay, 49 hours of PTO, and 3.34 hours of Extended Illness Break hours, as well as 90 days of penalty wages.

Core Lab argued Calamia had been paid everything to which he was entitled. One of the witnesses at trial was Cerly Watson, Core Lab’s payroll manager. She testified about the payroll procedure at Core Lab, including the two-week lag between when an employee submits a timecard and when it is reconciled on a pay statement. She testified about Calamia’s pay statements that were at issue in the lawsuit and explained how the discrepancies were later reconciled. At trial, the court ruled in favor of Core Lab and found Calamia was not entitled to additional wages. Calamia appealed.

What Constitutes a Violation of a Prisoner’s Constitutional Rights?

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

prison_jail_cell_cell_0-scaled Prisoners, like all individuals, retain their constitutional rights even while incarcerated. However, proving a violation of these rights within the prison system can be challenging, as demonstrated in the following case. This case considers what a prisoner must show to succeed in a lawsuit against a prison supervisor alleging a constitutional violation.

Kyle Smith Hauenstein was imprisoned at Rapides Parish Detention Center -1 (“RPDC-1”). He filed a lawsuit against the Rapides Parish Sheriff, William Hilton, and the Assistant Warden, Pat Ashley. He alleged Hilton and Ashley violated 42 U.S.C. § 1983 by delaying providing him adequate medical treatment after his right foot developed an infection. He claimed they were “deliberately indifferent” to his serious medical needs.

Sheriff Hilton filed a summary judgment motion, arguing qualified immunity prohibited the Section 1983 claims from being brought against him in his individual capacity. The trial court denied Sheriff Hilton’s summary judgment motion, finding qualified immunity did not prohibit Hauenstein from bringing the Section 1983 claims against Hilton in his individual capacity. Hilton appealed.

Duck Dynasty Prevails In Beverage Dispute Because of Ambiguous Contractual Term

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

ducks_duck_duckling_bird-scaled Even celebrities must deal with the often mundane task of negotiating and signing contracts. Although it can be tempting to sign a contract without reading it in depth or consulting with a lawyer, this case illustrates the importance of understanding every term and condition of a contract because of the complexities that can arise if there are ambiguous terms.

Duck Commander Inc. is owned by the Robertson family, who starred in the reality TV show Duck Dynasty. Initially, they made and sold duck calls and other related equipment. However, they ventured into the beverage industry partly because one of the family members, Si Robertson, liked iced tea. Subsequently, Chinook USA (a company that manufactures bottles and sells ready-to-drink beverages) and Duck Commander entered into a Licensing Agreement where Chinook would distribute Duck Commander branded iced tea.

After Duck Commander signed the agreement with Chinook, Duck Commander signed two other contracts involving beverage sales. The first contract was with Go-Time Energy, where Go-Time Energy had the three-year exclusive right to manufacture, license, and sell Duck Commander-branded energy shots. Duck Commander also agreed with Checkered Flag to sell Duck Commander-branded vitamin water.

Double Recovery in Helicopter Injury Case?

Published on: July 24, 2023 | By Berniard Law Firm

helicopter_adac_rescue_helicopter-scaled If you do a favor for your boss outside of work and are injured, can you still sue for workers’ compensation benefits? This is a complex question dependent on the facts of a case. Workers’ compensation is only available for injuries suffered during employment. If the court finds that the favor was outside the scope of employment, an injured employee may only recover tort damages. In the following case, the appellate court reversed a finding of workers’ compensation in favor of tort liability. In this case, the injured worker fought against a reduction of award to offset the workers’ compensation benefits already paid to the plaintiff.

LaFayette truck driver Tommie Hebert was employed by Industrial Helicopters, Inc. as a commercial fuel transporter for nearly 30 years. Industrial Helicopters primarily served as an aerial herbicide application company. The owner of Industrial Helicopters also owned Game Management, Inc. Game Management leased hunting land and operated deer tracking and capturing surveys. His boss’s son asked Herbert to work as a deer netter on a Game Management helicopter survey. During the survey, Herbert fell from the helicopter to the ground and was seriously injured. The status of workers’ compensation became muddled because of the dual businesses.

Hebert was originally granted workers’ compensation benefits because he was found to be within the scope of his job at Industrial Helicopters when he fell. On appeal, Hebert was conversely found to be outside the scope of employment during the deer netting. Industrial Helicopters was only liable for tort damages based on this finding. Hebert additionally motioned for his court costs to be paid by the defendant.

Patient’s Early Post-Operative Dismissal Causes Medical Expert Dilemma

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

aircraft_carrier_infirmary_hospital-scaled Medical malpractice claims are not always limited to instances during treatment or surgery and may, as one young patient argued, include failures that occur afterward or post-operatively.

Justin Thomas, an eighteen-year-old, aspiring armed serviceman, underwent a right shoulder arthroscopy at Lafayette Surgicare to repair his repeated rotator cuff dislocations. The surgery was considered an outpatient procedure that Thomas’s surgeon, Dr. Otis Drew (Dr. Drew), performed beginning just before 9:00 AM on July 1, 2013, and completed around 11:00 AM the same day. Before and after the surgery, Thomas was given significant anesthesia and medication. By 1:50 PM that afternoon, Thomas was discharged into the care of his parents. Less than six hours later, after Thomas’s mom gave him a prescribed dose of oxycodone, he fell unconscious and was unresponsive to Narcan, so an ambulance arrived at Thomas’ parents’ home taking him back to the hospital, where he lay in a coma for five days. As a result, Thomas experienced brain damage and lost the use of the left side of his body.

In May 2016, a medical review board determined that despite Thomas’s injury, the medical staff, including Dr. Drew, met the required standard of care. Nevertheless, three months later, Thomas filed a lawsuit against Dr. Drew, the anesthesiologist, Lafayette Surgicare, Lafayette Surgery Center, and The Regions Health System of Acadiana. His complaint alleged that he was released too early post-operatively and prescribed extensive anesthesia and heavy narcotic medication that induced him into a coma. In response, Dr. Drew filed a summary judgment motion that the trial court, Fifteenth Judicial District Court Parish of Lafayette, granted, dismissing Thomas’s claims. Thomas appealed to Louisiana’s Third Circuit Court of Appeals (Third Circuit), arguing that the trial court erred in finding that his expert affidavit was inadmissible and did not create a genuine issue of material fact.

What amount of force is allowed when restraining an inmate?

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

prison_robben_island_south-scaled The burden of proof lies heavily on claimants to establish the elements of the claim they bring forward. Failing to do so can result in the dismissal of the charge. In the case of George Preston, a prisoner in a Louisiana jail, his complaint against Lieutenant Hicks and four state correctional officers for excessive use of force highlights the importance of meeting the requirements to substantiate a claim. Analyzing the alleged violation of Preston’s Eighth Amendment rights, the court carefully considered the evidence and ultimately decided to dismiss some claims while allowing others to proceed.

George Preston, a prisoner in a Louisiana jail, filed a complaint against Lieutenant Hicks and four state correctional officers for excessive use of force, violating his Eighth Amendment rights. The incident occurred when an officer opened an inmate’s cell. When the door opened, Preston rushed in and allegedly tried to hit the prisoner. The Sergeant on duty called for help from Lieutenant Bowie, Lieutenant Hicks, Sergeant Dauzat, and Sergeant Augustine. The officers then worked together to restrain Preston.

Preston claimed Lieutenant Hicks knocked him to the floor and elbowed him repeatedly in his face. While on the floor, Sergeant Augustine pinned his left arm behind him while Lieutenant Hicks pulled and twisted his right arm. Preston alleged Hick’s actions caused his shoulder to dislocate. Preston claimed he only entered the cell as a joke and that the officer retaliated excessively.

Fifth Circuit Court of Appeal Rules on Reasonableness of Forum Selection Clause

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

detail_forum_romanum_rome-scaled Most of us get into contracts, not fully understanding all the ins and outs of what we are signing. Similarly, the multiple provisions that can slither their way into contracts can include things like forum selection clauses which can be easily overlooked. But when a lawsuit erupts, can you argue a provision isn’t applicable? The United States Court of Appeals for the Fifth Circuit addresses this question in the following case.

Al Copeland Investments, L.L.C. owned a food manufacturing facility in Louisiana. In October and December of 2015, there was some property damage to the facility, and they submitted a reimbursement claim under an insurance policy. Their insurance was held with First Specialty Insurance Corporation (“First Specialty”). They denied this claim, and AI Copeland sued in the Eastern District of Louisiana, believing they were entitled to recover from the costs and damages of the property. First Specialty asked the court to dismiss the case because the policies forum selection clause requires litigation in New York State court, not Louisiana.

A forum selection clause is a section in a contract that states how all disputes must be litigated in a specific court in a jurisdiction that the parties agreed to.

The Impact of Timeliness in the Legal Field

Published on: July 20, 2023 | By Berniard Law Firm

time_clock_movement_motion-1-scaled Timing. We all know it’s important, but how important is it in the legal field? Properly filing documents, adhering to deadlines, and raising legal issues within specific timeframes can significantly impact the outcome of a case. In the following case, the Fifth Circuit Court of Appeal looks to the issue of timeliness in the legal field and whether the cause of actions has matured enough to be “ripe” for judicial determination.

Bayou Orthotic and Prosthetics Center, L.L.C. (“Bayou”) owned and operated a medical business that provides medical prostheses and relative equipment. In 2016, Leroy Davis needed an above-the-knee prosthetic from a prior accident, which Bayou provided. Morris Bart was representing Davis for his injuries and asked Bayou for medical treatment, providing that he would protect Bayou’s medical charges for around $29,000. Bayou treated Davis for almost ten years, racking up expenses to around $126,000.

Bart never paid, and Bayou sued. Bart filed an exception of prematurity because the commitment to pay Bayou depended on a suspensive condition – if the payment to Bart of settlement proceeds. This did not happen. Bayou disagreed and believed the agreement was based on a term, not a suspensive condition, and therefore, the payment from Bart had to have been paid within a reasonable period.