Insurance Dispute Lawyer Blog

Louisiana Court excludes coverage for a woman severely injured by an elderly caregiver’s negligent loading of her wheelchair.

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

wheelchair_pattern_black_background_23-scaled Most adults fear the day that they will need to rely on the care of another to function. Unfortunately, the rampant negligence and mistreatment only exasperate this fear throughout the nursing home and hospice industry. Small mistakes by caregivers are normal and almost expected, yet, Shirley Marzell faced severe injuries after her caregivers improperly secured her to a wheelchair lift.

Marzell was a resident at Charlyn Rehabilitation Center in Tallulah, Louisiana, at the time of her accident. In 2010, Marzell was loaded onto a wheelchair lift for the lift van operated by Charlyn. During this process, Marzell and her wheelchair rolled off the platform. This mistake caused Marzell to strike her head on the pavement, causing severe injuries. This case reached the Second Circuit Court of Appeals after Marzell and her daughters appealed the summary judgment ruling of the trial court.

During the trial, the Marzells argued that Charlyn’s insurance carrier should pay for Shirley’s injuries. The insurance policy held by Charlyn, however, included an automobile exclusion. This provision shielded the insurance company from liability whenever Charlyn owned or operated an automobile. Operation was defined to include “loading and unloading”. The summary judgment ruling made by the trial court hinged on whether or not “loading or unloading” encompassed the loading of human cargo. The trial court held that it did, dismissing the case in favor of Charlyn and their insurance company.

What kind of Evidence is Needed to Prove Future Medical Benefits in a Medical Malpractice Lawsuit?

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

medical_instruments_examination_424729-scaled After a medical malpractice-induced injury, patients may need significant awards of damages to cover the expenses of a resulting disability. A case in Shreveport shows how to present substantial evidence of an ongoing need for care. It also helps answer the question; What kind of Evidence is Needed to Prove Future Medical Benefits in a Medical Malpractice Lawsuit?

In 2007, Dr. Anil Nanda operated on Barbara Wise to address weakness in her right shoulder. Unfortunately, during the surgery, Dr. Nanda accidentally made a small tear in the membrane covering the spinal cord. Although Dr. Nanda attempted to seal the tear, Barbara experienced ongoing post-surgical weakness in her upper and lower extremities. When Wise and her husband brought up her symptoms to Dr. Nanda at follow-up appointments, he told them that these complications were normal and would eventually go away. However, when the weakness persisted, Dr. Nanda ordered an MRI, which showed a spinal fluid leak putting pressure on Wise’s spinal cord. Although Dr. Nanda corrected the tear in a second surgery, Wise continued to suffer severe weakness in her extremities that required aggressive rehabilitation.

Wise filed a medical malpractice lawsuit against Dr. Nanda and Louisiana State University Health Sciences Center to recover the costs incurred due to her condition. She was awarded $1,355,740 for medical expenses and benefits between the injury and verdict, 2) $1,054,776 for future medical expenses 3) $517,000 for lost wages, and $250,000 for pain and suffering. LSU appealed the award of costs between the injury and verdict and lost wages.

When Can a Client Sue Their Former Lawyer?

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

statue_romagnosi_courthouse_rome-scaled
Negligent lawyers can get themselves into hot water by retaining confidential client documents. Often, this violation of professional responsibility will result in a malpractice suit.

The more egregious behavior, the more intensely the lawyer may find themselves being litigated against. For example, in the following appeal, a lawyer is sued from all angles as his former firm and his former client sue him to regain client files retained post-employment.

Thomas Glynn Blazier was fired from his job as an associate at a law firm in Lake Charles. The firm sued Blazier for damages, during which it became aware Blazier had kept confidential files, including those relating to client Elaine Marshall. When Marshall learned of Blazier’s actions, she intervened as both an individual and as the Estate to which the files related and fought to regain possession of the files. Blazier motioned against this intervention to no avail.

Can a Litigant Exclude Evidence in a Car Accident Lawsuit?

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

law_justice_court_judge-scaled Imagine being on a jury – everything you hear has gone through a process of admittance to be used as evidence during the trial. What the jury is told often plays a role in what the jury thinks of the parties and how it assigns blame amongst them. The following lawsuit explores what happens when a defendant challenges the admittance of a piece of evidence it believes unfairly swayed the jury against it. It also helps answer the question; can a litigant exclude evidence in a car accident lawsuit?

Elsie Boudreaux and her mother, Thelma Bizette, passed away due to a car accident in Addis, Louisiana. The surviving family members brought a lawsuit against the Louisiana State Department of Transportation and Development (DOTD). A jury found the accident to be 60% the fault of Boudreaux and 40% the fault of the DOTD.

The DOTD appealed the trial court’s ruling, alleging it erred in denying their motion to exclude evidence of how the department collected crash reports at the accident site. They claimed evidence on crash report procedures was irrelevant to how the accident occurred. They also claimed they were unduly prejudiced because the evidence misled the jury.

How Does a Pre-Existing Injury affect your Workers’ Compensation Claim?

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

car_taxi_cab_cab_0-scaled When people are injured at work, they expect to be compensated for an extended period. However, worker’s compensation can be hard to recover. So how does a pre-existing injury affect your workers’ compensation claim? The following lawsuit from Metairie, Louisiana, helps answer this question.

Sharon Mangiaracina suffered a work-related injury to her shoulder and thumb when she fell from an allegedly defective chair while working for Avis Budget Group, Inc. (“Avis”). Mangiaracina claimed the shoulder injury already existed but was worsened after the accident. The fall led to surgery on the injured shoulder. Due to the pre-existing nature of the shoulder injury, Avis and its insurer, CNA, refused to pay for the surgery. As a result, Mangiaracina’s health insurance paid for most of her medical bills, and she sustained some out-of-pocket expenses. She filed a claim for compensation for medical and indemnity benefits from Avis and CNA.

The worker’s compensation judge found Mangiaracina suffered from a pre-existing injury that was worsened by the work-related injury for which she deserved compensation. Accordingly, the judge awarded Mangiaracina weekly temporary total disability benefits. Avis was also ordered to pay for all medical and travel expenses from the sustained injuries. Therefore, a pre-existing injury did not affect Mangiaracina’s workers’ compensation claim in this case.

A “Stay” of a Federal Suit May Have Far-Reaching Impacts for Prescription Purposes

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

clock_time_time_indicating_19-scaled Personal injury cases can often drag out for years in a confusing manner. This is especially true when there are disagreements about the proper venue and subject matter jurisdiction. A recent appeal discussed below tackles the challenges of dismissal of actions due to a lack of jurisdiction and the timing requirement of prescription.

This case arose out of a car accident in 2010 in Tangipahoa Parish. Plaintiffs initially filed in federal district court to recover damages for personal injuries, claiming the federal court had jurisdiction due to the diversity of citizenship between plaintiffs and defendants. Ms. Crowe, the defendant, had moved to dismiss due to her claim that she was a Louisiana resident at the time and, thus, diversity of citizenship did not exist. In 2011, the federal court denied Crowe’s motion.

However, in 2012 a different federal district court dismissed the plaintiff’s complaint due to lack of jurisdiction. In the current lawsuit, heard in state court, the defendant argued the case was prescribed on its face because it was filed over two years after the accident, and no defendant was served with process within the applicable period. Eventually, this issue was decided in a pre-trial proceeding, and then evidence regarding prescription was excluded from the trial. The trial court found for the plaintiffs, and the defendants motioned for a new trial based on the claim the court erred in denying the exception of prescription.

When do you Need your Doctor’s Testimony to Win your Workplace Injury Lawsuit?

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

doctor_dentist_dental_clinic-scaled When injured on the job, your doctor knows best until you get a second opinion. While your primary care doctor may advise you to recover instead of resume working right away, if you get a second opinion that finds you capable of working, that second opinion can trump your primary care doctor’s opinion.

In the Louisiana civil service world, an employee cannot refuse to go to work if they have not presented a viable reason for their inability to work. If a civil servant refuses to work, they could be terminated. While our court system sympathizes with people injured on the job, if one doctor says you can work, you need to present testimony from a doctor that you cannot work at the pre-termination hearing or risk losing your job. The following lawsuit out of New Orleans helps answer this question; when do you need your doctor’s testimony to win your workplace injury lawsuit?

Kerry West was injured on the job while a classified employee with twenty-five years of experience working for the Sewerage and Water Board of New Orleans (S&WB). Although West’s primary care physician ordered him to recover and not return to work, S&WB sent West to get a second opinion. This second opinion found West was capable of “light duty.” Accordingly, s&WB assigned West to a light-duty position for the duration of his recovery, but West followed the advice of his primary care physician and did not return to work.

When Does the Date of Disability Start for a Workers’ Compensation Claim?

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

disabled_parking_space_parking-scaled When you are injured on the job, it’s not always your employer’s or fellow employee’s fault. If you are injured while working by a third party, there are rules to follow when settling your claims. Following those guidelines is important because if you don’t, you may alter the workers’ compensation benefits owed to you.

Below is a story of one worker’s workplace injury and his path to physical and financial recovery. This case shows the importance of getting authorization from your workers’ compensation carrier before settling with third parties. It also helps answers the question; When does the date of disability start for a workers’ compensation claim?

While driving at work in early August 2012, Clyde Tolley was injured in a car accident. He continued to work until he was fired. Tolley then moved to Florida, where his injuries worsened. Tolley consulted a Florida doctor who recommended seeing an orthopedic specialist. Unfortunately, Tolley waited a year before engaging with the specialist.

Can I Recover under the Jones Act if Rough Seas Cause a Back Injury

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

giant_wave_rough_sea-scaled Large waves and rough seas make boat travel a harrowing experience. But what happens if you are at work and fall out of bed during those stormy seas? Is the captain or company you work for liable under the Jones Act? The following case out of Louisiana helps answer the question; can I recover under the Jones Act if rough seas cause my back injury?

Richard Bosarge sued Cheramie Marine LLC (“Cheramie”) under the Jones Act after he allegedly suffered injuries aboard one of its utility vessels. See 46 U.S.C. § 30101. Before starting work, he had to complete a physical. During the physical, Bosarge responded he did not have any prior back pain or injuries, even though he had previously received medical care for his back pain. Nonetheless, Cheramie hired Bosarge to work as a relief captain.

Bosarge claimed he was injured due to the captain’s decision to travel through rough seas. He alleged the captain’s path caused him to come out of bed and get slammed down. Cheramie argued the waves were not that big, and Bosarge had not reported having an accident. The jury found Bosarge had not suffered an accident. Further, the jury also found Bosarge misrepresented or concealed facts during his pre-employment physical.

Can a State Fire Marshall be liable for Inspector Negligence in a Wrongful Death Lawsuit in Louisiana?

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

us_navy_040501_n_14 People rely on public services daily, from fire departments to police officers. But what happens if a public entity is responsible for an injury? Can they be held liable for negligence? A recent case out of Grand Isle, Louisiana, shows how public entities can be shielded from liability for negligent conduct in some circumstances. It also helps answer the question; Can a state fire marshall be liable for inspector negligence in a wrongful death lawsuit in Louisiana?

In 2012 a fire in the Willow Creek Apartments in Grand Isle, Louisiana, killed two occupants, Belle Christin Brandl, and Timothy Joseph Foret. Brandl’s three children filed a wrongful death lawsuit against the apartment’s owners, Steven Caruso and Willow Creek, L.L.C., their insurers, and the State of Louisiana through the Department of Public Safety and Corrections, Office of the State Fire Marshal (SFM) and its inspector. The plaintiffs argued Marchiafava as an inspector, failed to properly look into reports of fire hazards that caused the fire, failed to notify the building owners of any hazard and resolve the hazard, and falsified reports regarding his inspection of the Willow Creek building. SFM and the inspector denied the allegations arguing the inspector did investigate an unverified public complaint at the building, which revealed no serious life hazards. Further, the residents of the building did not have any further complaints of hazards.

SFM and the inspector filed an exception of no cause of action on the grounds SFM and the inspector did not owe a legal obligation, otherwise known as a duty, to the plaintiffs. The trial judge granted the exception. Then SFM and the inspector filed a motion to dismiss the complaint, which was granted, and the plaintiffs filed an appeal.