Insurance Dispute Lawyer Blog

Choice in Pharmacy For a Work-Related Injury Belongs to the Employer

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

pills_medication_tablets_bottle-scaled Getting treatment and medication can be challenging when recovering from an on-the-job injury. If you are injured at work, you may want to pick up prescriptions at the local pharmacy closest to you. While you may have interpreted Louisiana’s Workers’ Compensation statutes to allow for “choice of pharmacy” in the past, the rule is clear. The following case out of the Louisiana Supreme Court shows why the choice in pharmacy for a work-related injury belongs to the employer.

In October 2008, Darvel Burgess sustained an injury while on the job. As a result of that injury, Burgess filled his prescriptions at the pharmacy of his choice. Unfortunately, his employer, the Sewerage & Water Board of New Orleans (S&WB), failed to reimburse him for those prescription costs. Therefore, Burgess filed a Disputed Claim for Compensation against S&WB seeking to recover money for medical bills and an outstanding $13,110.02 for Injured Workers Pharmacy (“IWP”) for prescription medications prescribed by his doctor.

S&WB argued it was not responsible for the outstanding prescription medications bill, according to La. R.S. 23:1142(B) because it notified all injured workers of their pharmacy, Covel Caremark Pharmacy. S&WB stated this was the approved provider for prescription services, and if an employee failed to use this provider, they might not pay for prescriptions. S&WB also notified IWP that it was not an approved pharmacy for workers’ compensation purposes.

Why It’s Important to Dot your I’s and Cross Your T’s When Filing a Default Judgment

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

money_currency_dollars_euros-scaled A considerably large percentage of the United States population holds student loan debt. In addition, most individuals who attend higher education institutions in today’s society graduate with some debt. Phillip Kuzma knows this too well.

Kuzma was sued by the National Collegiate Student Loan Trust (NCSL) for over $30,000 after allegedly defaulting on the loans he took out while a student at the University of New Orleans. After suing Kuzma, the NCSL thought they could get an easy judgment by using a procedural mechanism, a default judgment. Kuzma’s case discussed below shows the need to dot your i’s and cross your t’s when filing a default judgment in a Louisiana Court.

In 2013, the NCSL filed a lawsuit, seeking approximately $30,000 in loans and $5,000 in interest as a result of nonpayment by Kuzma. In addition, the NCSL requested the court to order Kuzma to pay their attorney fees. The NCSL claimed these were the requirements expected of those who defaulted.

If You Approach a Barking Dog and It Bites You, is the Owner Liable for your Injuries?

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

dog_animal_greyhound_983014-scaled While holding the owner responsible for a dog’s behavior is typically the norm, most reasonable people would know not to approach a barking dog in a gated residence. However, Demetrious Frazier found himself at odds with Luke Difulco after being bitten by one of his dogs while performing his work duties at their home. The following lawsuit answers the question; if you approach a barking dog and it bites you, is the owner liable for your injuries?

Frazier was an employee of the City of Alexandria and worked as a meter reader. He visited the Difulco’s home one afternoon to read their residential meter. As he approached the gate, two dogs began barking, followed by Luke Difulcot’s son, Daniel, who came outside to greet Frazier. Although Daniel offered to kennel the dogs for Frazier’s comfort, he entered through the gate without responding, and the ten-year-old black Labrador bit him on the hand.

In contrast to Daniel’s testimony, Frazier claimed that he saw no evidence of a dog when he approached the Difulco’s residence and entered through the gate to check the meter. After entering the gate, he was attacked by a dog, and then a second one approached him. Frazier received workers’ compensation and medical payments from his employer, and he sought additional damages against Luke Difulco through the lawsuit subject of this appeal.

Carefully Review Lawsuit Releases Before Signing, or Suffer the Consequences

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

louisiana_state_coat_arms-scaled While a settlement can be a beneficial way to end a legal dispute, it can have long-lasting implications. If you are considering signing a settlement agreement and release, you must understand the possible effects of entering into such an agreement. A prior settlement agreement and release could result in a dismissal of a future lawsuit you bring against a party on the other side of the settlement agreement. The following lawsuit shows why one should carefully review any settlement agreement before signing. Otherwise, you may suffer harsh consequences.

Steven Richard was involved in a car accident in Concordia Parish, Louisiana. Richard claimed that while driving westbound on U.S. Highway 425, his vehicle was hit by a car Fred Taylor was driving. Richard later sued Taylor, Fred’s Automotive (the shop where Taylor’s vehicle was repaired), and Caitlin Insurance, the insurance company that covered Fred’s Automotive. This article will focus on the claims Richard brought against Taylor, and the next post will focus on the claims Richard brought against Fred’s Automotive and its insurance company.

Taylor filed an exception of res judicata. Under La. R.S. 13:4231, a claim can be dismissed when there was a final and valid prior judgment involving the same parties and the cause(s) of action in the second suit existed at the time of the first judgment and arose out of the same occurrence as the first action. Taylor argued that the lawsuit against him should be dismissed under the doctrine of res judicata because Richard had previously signed a release with him. Taylor introduced into evidence a document titled “Release of All Claims” that Richard had previously signed. The trial court dismissed the claim against Taylor, holding the res judicata applied. Richard appealed, arguing that the trial court erred in finding that res judicata applied.

Evidence of Knowledge Required to Prevail in Louisiana Slip-and-Fall Lawsuits

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

dollar_general_store_in-scaled If you slip and fall over an item that has fallen at a store, you might think that you will be able to recover for your injuries in a lawsuit against the store. However, it is not enough to simply show that you slipped and fell. Instead, you must show that the store knew about or created the condition that caused you to slip and fall. Because Lilly Edwards could not show this, the court dismissed her lawsuit against a Baton Rouge, Louisiana, Dollar General store.

While shopping at a Dollar General store in Baton Rouge, Louisiana, Edwards tripped on a box that she later described as a poster board. She claimed this poster board fell into the aisle where she was shopping. Edwards claimed she tripped on it as she went around the corner, which caused her to fall and injure her knee. After this fall, Edwards sued the Dollar General store. Dollar General filed a motion for summary judgment, which the trial court granted. The trial court held that Edwards could not prove that Dollar General had known about the hazardous condition that resulted in her fall. Without this knowledge, Dollar General could not be found liable. Edwards then appealed the trial court’s grant of summary judgment to the Louisiana First Circuit Court of Appeal.

Summary judgment is appropriate when the evidence shows no genuine issues of material fact. See La. C.C.P. art 966(B)(2). Under Louisiana law, a store owner such as Dollar General owes a duty to people who come to shop there to exercise reasonable care to ensure its floors are kept in a reasonably safe condition and that the store has no hazardous conditions. See La. R.S. 9:2800.6. Here, Edwards had the burden of proving: (1) the poster board that she tripped over was an unreasonable risk of harm; (2) Dollar General had either created or had knowledge of the poster board on the floor; and (3) Dollar General did not exercise a reasonable standard of care.

Who is Liable for Injuries for a Slip and Fall on a Public Sidewalk?

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

foggy_sidewalk_morning_fog-scaled Premises liability is an active area of personal injury law, and accidents occurring on public property are no exception. The question often arises, who is liable for a slip and fall on a public sidewalk? In this case, the Louisiana Third Circuit Court of Appeal was asked to determine the premises liability of the town of Lake Arthur for a fall occurring on a public sidewalk built and maintained by this public entity.

On July 11, 2014, Robin Rogers Richard fell while walking along a sidewalk in Lake Arthur. The portion of the sidewalk where her fall occurred was a driveway that allowed maintenance vehicles to access a public park, with a sloping transition on either side running perpendicular to the street. This portion of the sidewalk was completed in September 2013 by John Anderson Concrete Finishes, Inc. (Anderson), under the direction of Robert Bertrand, the major of Lake Arthur.

Ms. Richard filed a motion for summary judgment on the liability issue, arguing the slope of the transition area did not meet certain state and national requirements and was, therefore, defective per se. However, at her deposition, she indicated that her last step before her fall was on a flat portion of the new sidewalk, not the sloped portion. In response, Lake Arthur, Anderson, and its insurer, Seneca Specialty Insurance Co, filed motions for summary judgment alleging statutory immunity from liability and they were not liable because the condition of the sidewalk was open and obvious.

Probationary Employees Beware: Employer Takes Issue with Louisiana Workers’ Compensation Judge Decision on Appeal

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

workers_road_workers_site-scaled Employment law disputes are very fact-specific inquiries. Judges, especially workers’ compensation judges, are typically well-equipped to handle these cases. But when a judge mishandles the facts or misinterprets the law having an excellent attorney in your corner helps in the appeal process. For the Sewerage & Water Board of New Orleans (“SWBNO”), the appeal detailed below involves several issues that SWBNO argues were in error based on the workers’ compensation judge’s decision.

To provide important background information, this case involved a former employee, Catherine Johnson (“Johnson”), who was hired by SWBNO in April 2013 as a probationary employee, meaning she was not considered a full-time employee during the six months after she started the job. However, while Johnson was still in this designated probationary period, she was injured on the job during her employment with SWBNO. About a month before Johnson’s probationary period was set to end, SWBNO held a pre-termination hearing that determined Johnson displayed a poor work performance unrelated to her injury, which caused her employment to be terminated.

Johnson subsequently filed a disputed claim for compensation against SWBNO with the Office of Workers’ Compensation that included a request regarding penalties for failure to timely reimburse mileage expenses, among other payments for wages and benefits. SWBNO denied the claims, and a hearing ensued before the workers’ compensation judge.

Injured by Stocking Cart in Grocery Aisle, Whose Fault is it?

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

shopping_cart_shopping_supermarket_1-scaled Everyone can picture a grocery store on a busy day. The aisles are congested, and workers are hurrying to replace products on the sales floor. There may be stocking carts blocking walkways. Who is responsible if a shopper trips over a worker’s cart and injures herself? What about if the worker and the shopper knew the cart was there?

This scenario is exactly what happened to Donna Massery, a shopper when she tripped over a vegetable cart at a Rouses Market in New Orleans. She had arrived at Rouses and was searching for ginger when she approached Produce Manager, Jose Villa, to ask for directions. Villa was restocking produce that was on a cart. The cart was approximately 5 to 6 feet wide and 3 feet tall, with a long bed spanning the length. The middle section of Villa’s cart was empty, though boxes were stacked on both the left and right sides.

Ms. Massery reached for the ginger upon Mr. Villa’s direction, turned to walk away, and fell over the cart. She sustained soft tissue damage from catching herself with her hands and hitting her shin and knee on the cart. There was a factual dispute over the length and substance of Ms. Massery and Mr. Villa’s conversation. Mr. Villa contends that he alerted her to the hazard and directed her to move away. Ms. Massery claims it was a shorter conversation limited to the subject of her ginger inquiry.

Can a Louisiana Court Impose a Default Judgment for Failure to Obey Pretrial Orders?

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

stations_cross_jesus_pilate In a bizarre turn of events, an attempt to get unpaid wages from a Terrebonne Parish video store owner turned violent and led to the appeal discussed below. The appeal delved into the standards that Louisiana courts consider when it comes to repeated violations of their pretrial orders. The case below answers the question; Can a Louisiana court impose a default judgment for failure to obey pretrial orders?

Ronald Guste, the grandfather of a Tiger Audio employee, confronted Earl Lirette, the owner of Tiger Audio, about wages owed to Mr. Guste’s grandson. Mr. Lirette lept around the counter and knocked Mr. Guste to the ground, causing injuries to his back and hip that would require treatment and surgery.

Mr. and Mrs. Guste brought a lawsuit against both Tiger Audio and Mr. Lirette for damages from the injury, including loss of consortium for Mrs. Guste. At trial, the Gustes moved for penalties against the defendants, noting that neither Tiger Audio nor Mr. Lirette had complied with mandatory pretrial deadlines. The trial court denied the defendants’ counterargument of lack of notice and found in favor of penalizing the defendants. These penalties included the refusal to allow them to call any witnesses or present any defenses, thereby executing a default trial in which the defendants were to lose automatically. The court found in favor of the plaintiffs and awarded them upwards of $350,000. The defendants’ motion for a new trial was denied, and this appeal followed.

Your Short Term Wheelchair May Be Subject To a Hidden Defect Warranty

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

wheelchair_pattern_black_background_4 Recovering from an automobile collision is already a difficult journey. Sometimes physical recovery does not occur in a straight line, and intermediate accidents can complicate the process. This was especially true for Alexandria resident Mr. Maricle.

During his recovery from injuries due to a car crash, Mr. Maricle sustained further injuries due to a defective wheelchair supplied by Axis. Maricle filed a lawsuit in 2013 against Axis. In 2014, a trial court denied Axis’s motion for summary judgment; Axis appealed this denial and the Court of Appeals affirmed the trial court’s order. Significantly, the Court of Appeals held that the only issue left was determining whether Axis failed to inspect the wheelchair. Based on that holding, the trial court denied the Plaintiffs’ summary judgment motion and granted Axis’ summary judgment because there were no visible defects prior to the wheelchair’s delivery to Maricle.

Maricle presented numerous issues on appeal. The first issue was that La.Civ.Code art. 2317.1, used by the trial court to grant summary judgment, does not apply because that provision is only for owners or custodians of the defective item. Liability as an owner or custodian requires proof “that the thing was in the defendant’s custody and control.” Davis v. Am. Legion Hosp. Instead, Marcile argued that La.Civ.Code arts. 2696-97, which applies to lessors of an item and specifies a warranty that attaches to the lease, should apply because Axis was strictly liable as the lessor of the wheelchair.