Accidents

Disability Benefits Center of Car Accident-Based Appeal

Published on: May 24, 2013 | By Berniard Law Firm

After a man was seriously injured in a one-car accident in Lafayette Parish, Louisiana, and rendered disabled to the point that he was no longer able to complete his job, he began to receive short term disability benefits from his employer. After those benefits expired, the man filed a claim for long term disability benefits. However, this claim was denied by the provider. The company’s policy with regard to long term disability benefits expressly prohibits the coverage of losses that are due to illegal acts. In this case, the man involved in the accident was reported to have had a blood alcohol level of 0.15, almost twice the legal limit in Louisiana, at the time of the accident.

Once his claim was denied, the man requested an appeal, claiming that the insurance company could not deny him coverage under the clause regarding illegal acts. The man provided several reasons why his act of driving under the influence should not be included in this clause: the policy did not include a specific “intoxication” provision; driving under the influence did not constitute an illegal act; even if it was an illegal act, the company could not prove that the accident happened because of his intoxication. At the time of the accident, two cars were racing towards him, and he had to swerve to miss them. The man claims that this was the real reason for the accident and that it had nothing to do with his intoxication.

In response to the man’s claims, the policy provider underwent an intensive investigation to determine whether or not it should grant the injured man’s long term disability claims. As part of the investigation, they found that the man’s blood alcohol level would have impaired his reflexes and reaction time at the time of the accident. Furthermore, by this time the man was indicted and given a DUI. Because of the DUI, medical records, and an export report that stated that the intoxication and resulting impairment contributed to the accident, the policy provider once again denied the man’s claims for coverage.

At this time, the man brought his claim against the policy provider to court. The trial court actually sided with the injured man, granting his motion for summary judgment with regard to coverage because it agreed that applying the “illegal acts” clause to the man’s case was unjust. Naturally, the policy provider appealed the case, claiming that the trial court had erred in reaching its decision. Specifically, the policy provider claimed that the trial court had abused its discretion in reaching its decision.

If the policy provider had the authority to interpret the terms of the policy and determine the individual’s eligibility for benefits, then the abuse of discretion standard would be the proper standard to employ. Under the “abuse of discretion” standard, the trial court or any other court reviewing the choices made by the policy provider should uphold the company’s decisions unless the person bringing claim against the company can prove that the company’s decisions were arbitrary. While the man argues that this is not the appropriate standard to use, the appellate court agrees that the policy expressly gave the policy provider the right to make all determinations with regard to eligibility for benefits.

So, now the court must simply decide whether or not this determination to deny the man’s claims was capricious or not. According to relevant case law, under the abuse of discretion standard, as long as the policy provider’s decision was supported by substantial evidence and was neither arbitrary nor capricious, then deference should be given to that decision. After reviewing the evidence, the court agreed that the policy provider interpreted the policy reasonably and that there was substantial evidence for the policy provider to deny the man’s claim. Because of this finding, the appellate court ultimately reversed the trial court’s judgment regarding the policy provider’s denial of coverage and remanded the case back to the trial court for further proceedings.

Accident in Parking Lot Leads to Appeal for Shared Responsibility

Published on: May 12, 2013 | By Berniard Law Firm

A recent case in the Parish of Lafayette, Louisiana, demonstrates conflictive viewpoints and the shifting burden of responsibility that can take place in an automobile accident, much less one taking place in a parking lot. The plaintiff, Ms. Duhon, was driving her 2009 Lincoln MKX in a parking lot on property in Lafayette when a 2006 Toyota Sequoia driven by Ms. Foley entered the parking lot from Ambassador Caffery Parkway and the vehicles collided. The defendant was insured by State Farm Mutual Automobile Insurance Company (State Farm).

Ms. Duhon filed suit against Ms. Foley and her insurer, State Farm, seeking recovery for (1) the out of pocket deductible she paid for repairs to her vehicle; (2) the out of pocket rental expenses she paid; and, (3) the diminution in value of her vehicle as a result of this accident. However, the trial court held a bench trial and ruled in favor of Ms. Foley, finding Ms. Duhon one hundred percent at fault for the incident, eventually leading to an appeal.

Ms. Duhon asserts the trial court erred in finding her at fault and denying her recovery of the damages she allegedly sustained in the accident. The Court of Appeal, for the Second Circuit of Louisiana, amended the trial court’s decision to a fifty-fifty fault allocation. The Court applies the manifest error standard of review in their findings. Under this standard, the Court of Appeal must meet the following two-part test: (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. After reviewing the record in its entirety, the Court of Appeal found that a reasonable factual basis does not exist for the trial court’s findings and that the trial court’s determination of negligence exclusively on the part of Ms. Duhon was manifest error. Not only did Ms. Foley’s testimony conflict with Ms. Duhon’s, it was also not corroborated by the physical evidence. Even the trial court intimated comparative fault of the drivers when it stated in its oral reasons for judgment that “neither party entered with enough caution to avoid the accident.” Thus, the trial court erred in assessing no fault to Ms. Foley for this accident.

Louisiana Supreme Court Finds Binding Arbitration Clause Fair and Reasonable to the Client

Published on: May 10, 2013 | By Berniard Law Firm

The Louisiana Supreme Court has recently undertaken a case deciding whether arbitration clauses in attorney-client retainer agreements are appropriate. In the past, Louisiana has favored the enforcement of arbitration clauses in written contracts. Arbitration avoids taking a case to trial and is a thrifty and efficient way to conduct the resolution of disputes outside of the courts. During arbitration, each party refers its dispute to an arbitrator, who then imposes a decision that is legally binding for both sides. However, Louisiana law also imposes a fiduciary duty requiring attorneys to act with the utmost fidelity and forthrightness in their dealings with clients and any contractual clause, which may limit the client’s rights against the attorney is subject to the upmost scrutiny.

According to the Louisiana Supreme Court in Hodges v. Reasonover, there is no per se rule against such binding arbitration clauses, provided that they are fair and reasonable to the client. In Hodges v. Reasonover, Jacqueline Hodges, the founder, sole shareholder, and CEO of Med-Data Management, Inc., hired Kirk Reasonover of the law firm of Reasonover & Olinde to sue a company known as MedAssets, Inc. in federal court in Atlanta, Georgia. In the retainer agreement between Hodges and Reasonover there was an arbitration clause, which essentially provided that any dispute shall be submitted to arbitration in New Orleans, Louisiana and that such arbitration shall be submitted to the American Arbitration Association (AAA).

Hodges was ultimately unsuccessful on her suit against MedAssets, Inc., which led her to file suit for legal malpractice against Reasonover. According to the Louisiana Supreme Court, Courts must closely scrutinize attorney-client agreements for signs of unfairness or overreaching by the attorney. Further, Louisiana Rule of Professional Conduct 1.8(h)(1) prohibits a lawyer from “prospectively limiting the lawyer’s liability to a client for malpractice unless the client is independently represented in making the agreement.”

Louisiana Couple Injured in Car Accident Seeks Recovery from Insurance Companies

Published on: May 6, 2013 | By Berniard Law Firm

You have just been involved in a car accident. Someone else was driving, and you bring suit against them and several insurance companies that are involved. But who has the burden of proof to prove how much you should be able to recover from the insurance companies? In Louisiana, that burden is on the plaintiff. The plaintiff, when seeking a declaration of coverage under an insurance policy, has to prove that his or her claims are covered under the policy coverage and also has to establish all essential facts in order to recover.

How would this play out? Well, recently, this exact situation played out in Louisiana. A couple was riding in a car driven by another man. The man driving had rented the car from Houston, Texas, but the case was tried in Louisiana. At some point while driving the couple, the man lost control of the vehicle and ended up flipping the car twice. The couple suffered severe injuries from the accident and then filed suit.

Not only did the plaintiffs (the couple) file suit against the man driving, but they also filed suit against several insurance companies involved. Before actually bringing the case to trial, the couple tried to settle the case with a couple of the insurance companies, and the couple received checks in the full amount of the coverage under those insurance companies. However, it was not clear whether or not this was a full recovery. The plaintiffs also wanted to receive payment from the insurance company from the uninsured/underinsured motorist coverage (UM coverage). During the time the parties were trying to decide if this was a complete settlement or not, the plaintiffs’ attorney went ahead and gave his clients the check. The defendants then filed a motion for summary judgment, stating that UM insurance coverage was not available. After several motions and cross motions, the trial court decided that UM coverage was not available to the plaintiffs and granted the motion of summary judgment in favor of the defendants.

When this case was brought to the appellate court, the court analyzed the case de novo (or as if the trial court had not already tried the case) and decided to affirm the trial court’s ruling. Why did they affirm the trial court’s ruling? This is primarily because the plaintiff has the burden of proving what he or she is owed under the insurance policy, and the plaintiffs in this case could not prove that they should be able to recover under UM coverage.

The reason that the plaintiffs could not prove that they should be able to recover under UM coverage is because of the plain language of the insurance coverage policy. Normally, summary judgment should only be granted if there is no reasonable interpretation of the policy, supported by evidence and the facts of the case, that would support granting coverage. This seems like a pretty lenient standard for the plaintiffs, but it still requires that the plaintiffs prove that there is a reasonable interpretation of the policy that does allow them to recover in the manner that they are seeking. And in this case there was not.

In the language of the policy, several clear definitions were given, and as long as the policy wording is clear, then the agreement has to be enforced as it is written. In this case, the policy language stated that in order to recover under UM coverage, the vehicle cannot be available for regular use. However, in this case, the rented vehicle was clearly available for regular use during the rental period, and the vehicle, therefore, could not be classified as underinsured. So the plaintiffs were not entitled to recover any more than they already had.

If you have been involved in a car accident, you want to make sure that you claim and recover the proper amount that is available to you under the various insurance policies involved in the case.

The Carefully Worded Insurance Policy: Making Sure Your Coverage Matches Your Expectations

Published on: May 2, 2013 | By Berniard Law Firm

Do you drive an automobile insured through an employer? How well do you know the policy? It’s possible that you aren’t covered as well as you think.

The petitioners of Broussard v. Progressive Sec. Ins. Co. were merely seeking coverage compensation after a seemingly simple traffic accident in Maurice, Louisiana. They ended up in court and dealt with costly appeals over whether or not the driver of the other automobile, a dump truck, was insured by the business who hired him for this particular haul. The driver, who owned the dump truck, was a contractor, and thus not an employee. As a result, he was screened out of much of the hiring company’s insurance policies, thus potentially inhibiting the petitioners’ attempt to recover.

The major questions regarding the insurance coverage were over the definition of a “hired” auto and the definition of a “nonowned auto,” in light of the specific policy at hand. While it may seem at first glance that the dump truck had to qualify under one of these categories, the court found there was a genuine issue of material fact as to whether the company had “hired” the truck or “hired” the services of the driver. This distinction is important because specifically hiring the truck would result in coverage under this insurance policy, whereas hiring the full services of a driver would not result in coverage for the truck. The court considered invoice tickets engaging the driver’s company generally, and not a specific vehicle, to be a relevant factor in deciding this issue.

The When and How of Waiving Uninsured Motorist Coverage

Published on: April 30, 2013 | By Berniard Law Firm

Uninsured motorist (UM) coverage protects drivers from individuals not carrying sufficient insurance. The importance of such coverage makes waiving it a somewhat complicated procedure, designed to make sure the driver truly does not want it. A case in Abbeville, Louisiana, illustrates the complexities of when corporations waive UM coverage on company automobiles.

Plaintiff James Bergeron sued to recover damages after being rearended in the vehicle provided by his employer, Murphy Oil. All defendants were dismissed from the suit except Liberty Mutual, which contended it didn’t include uninsured motorist coverage in the policy it issued to Murphy Oil.

In Louisiana, uninsured motorist coverage is provided by a specific statute, La.R.S. 22:1295. Court decisions have recognized the importance of UM insurance as a matter of public policy, to the extent that the coverage is implied as an amendment to any automobile liability policy (even policies not expressly providing for it).

High/Low Agreement Proves Fatal to Plaintiff’s Cause of Action

Published on: April 28, 2013 | By Berniard Law Firm

Settling with an insurance company out of court is commonplace in the legal world. However, entering into a “High/Low” agreement prior to trial can come back to hurt a plaintiff and should be carefully worded and considered before executed. The cost of this kind of failure is exemplified in Soileau v. Smith True Value and Rental.

In November 2007, plaintiff Mary Solieau sustained serious injuries when a John Deere front-end loader detached from a John Deere tractor and shattered her leg while she was supervising the cleaning out of canals for the Town of Mamou. The tractor was rented from Smith’s Hardward, insured by Defendant Hartford Insurance Company.

Before proceeding to trial, Solieau entered into a “high/low” agreement with Hartford, capping Hartford’s liability at its policy limit of $2,500,000 and further releasing the Smiths of any personal obligation. At trial, Solieau moved to dismiss the Smiths, which led to Hartford filing for a directed verdict based on the language of its policy, which obligated Hartford to pay only those sums that its insured becomes legally obligated to pay. The trial court denied the motion.

Lafayette Summary Judgment Case Highlights Insurance Company Practices

Published on: April 21, 2013 | By Berniard Law Firm

Summary judgment is a mechanism used when one party clearly deserves to win the case based on either issues of fact or law. That is, the parties agree to facts and those facts point to a clear winner of the case when the correct laws are applied. Summary judgment helps cases move quickly through the judicial process because an actual trial is not necessary. However, where there are issues of factual disputes or the evidence is unclear, summary judgment cannot be used to conclude the case.

Often, both sides will move for summary judgment because any grant of summary judgment will conclude the case and avoid a full trial. A case appealed from Lafayette, Louisiana, explains when summary judgment is appropriate. The court explains that the burden of proof is on the party moving for summary judgment. However, that burden adjusts depending on who would be the party needing to prove the burden at actual trial. As a general notion, the burden is usually on the party who is claiming the error. For example, if you are injured in a car accident, then you must prove that the other party was at fault in order to recover. If the mover would not have had the burden at trial, then the threshold to grant summary judgment is much lower. Instead of proving that there is no way the other side could win, the party without the burden could prove that the other party does not have enough facts, evidence, or there is some other fatal flaw with their argument.

In that case, the plaintiff was in a car accident that caused him serious back injuries. His back injuries resulted in surgery and completely inhibited his ability to work. In fact, the plaintiff was a lawyer who previously had his own law practice, but the law practice closed after his accident because he could not continue due to his injuries. The lawyer had two disability policies that covered him should he become disabled and unable to continue working. These polices both had partial options that would award partial benefits if the individual could continue working, but not at full capacity. Since the lawyer had to quit his law practice, he argued that he should be awarded full disability payments.

Both sides argued for summary judgment. The lawyer argued for summary judgment based on the notion that he should be paid the full amount of disability and his payments should have occurred much sooner than they did. The insurance company, on the other hand, argued that summary judgment for their side was appropriate because the lawyer did not deserve full disability and they could not have given payments any sooner because the lawyer did not furnish them with all of the information they needed to begin making payments.

The disability payments depended a great deal on past income. The payments were adjusted to portions of income depending on whether the individual was awarded full or partial disability. As such, the insurance carriers required the lawyer to submit previous tax returns as proof of income. The insurance company requested the plaintiff’s 1999 tax return, but did not receive it until 2005. Instead, the plaintiff furnished the insurance company with his tax returns from 1997 and 1998. Since the accident occurred in 1998 and the payments were to be based on the previous year’s earnings, the plaintiff assumed that the insurance company would want previous year’s tax returns.

While the insurance company was waiting on the 1999 tax return, the insurance company made two payments to the plaintiff. However, the insurance company alleges that they did not pay in full because they did not have the 1999 tax return. The court noticed this inconsistency. The court explained that the plaintiff was obviously entitled to some benefit since the insurance company paid him, but the question was whether the payments were correct and timely. Since the facts did not line up with the testimony, the court determined that neither side should be awarded summary judgment. Accordingly, the case will go to trial and the court will determine the case on the merits, instead of just as a matter of law.

Summary judgment is a valuable tool when used properly. It avoids the time and money involved in a complete trial and allows the winning party to obtain the same result that they likely would have at trial. It functions as a legal short cut. The Berniard Law firm can help determine if your case is appropriate for summary judgment. In addition, we can also take your case to trial if needed.

Attorney Jeffrey Berniard makes New Orleans Magazine top lawyers list

Published on: April 4, 2013 | By Berniard Law Firm

Licensed attorneys in New Orleans were asked which attorney they would recommend to residents in the New Orleans area. Attorney Jeffrey Berniard, of the New Orleans-based Berniard Law Firm, LLC, was named one of the best mass litigation and class action attorneys in New Orleans in the November 2012 issue of the magazine. Propelled into success by holding insurance companies accountable in the wake of Hurricane Katrina, Berniard has built the Berniard Law Firm into one of the premiere personal injury law practices in not only New Orleans, but the entire state of Louisiana. Since Hurricane Katrina, Berniard Law Firm has focused on insurance disputes and class action litigation.

Jeffrey Berniard has been involved in several high-profile cases, solidifying his expertise in complex high risk litigation. He worked on the highly publicized Deep Water Horizon oil rig case in the Gulf Coast, representing a very large group of individuals affected by the sinking oil rig. In 2008, Berniard Law Firm secured a $35 million dollar settlement for a class of 70,000 members seeking bad faith penalties for tardy payments by a Louisiana insurance company in the wake of Hurricane Katrina and Hurricane Rita. In 2009, the Berniard Law Firm participated in five class actions against insurance companies and corporations. In the process of these major claims, the firm also helped many residents of the Gulf Coast with their personal injury concerns, insurance claims and business disputes.

– What is Mass Tort Litigation? –

What is a Class Action? Who is the “Class?”

Published on: March 28, 2013 | By Berniard Law Firm

In Jane Doe v. Southern Gyms, LLC arising out of Baton Rouge, Louisiana, a class action suit was filed involving a local branch of the national gym, Anytime Fitness, was accused of taking pictures of 250-300 women changing in a locker room. The plaintiffs filed on behalf of all women who’d used the gym during the time period and the class was certified to proceed to trial.

To understand what “the class was certified” means, it is important to understand what a class action suit is the reasons why we allow class actions in the first place. Class action suits are a useful tool in litigation in that it can bring together large numbers of substantially similar or identical claims into a single proceeding. This contributes to judicial efficiency as often times the type of cases litigated as class actions can have as many as thousands of plaintiffs. Assuming each of these cases was large enough to be worth bringing to court individually, there would be substantial amounts of duplicated effort by each party. However, the real value of class actions is in allowing cases that normally would be too small to litigate individually to have their day in court. If a case involves a real injustice to thousands of people, but the actual per person damages is relatively small it would be too costly to vindicate their claims.

In this case, the class proposed was:

all females who physically entered the women’s restroom/locker room/ changing room at Anytime Fitness, 200 Government Street, Baton Rouge, LA 70802 from November 1, 2009, through and including April 5 2010.

The rules that govern class actions require that several hurdles be met before a class can be certified (allowed) to proceed: there must be enough members that litigating separately is impractical; the questions of law and facts in the case common to the parties; the class representative’s claims must be typical of the claims of the class; they are able to protect the interests of the entire class, and finally the class must be able to be adequately defined so the court can be satisfied that the suit will end the dispute.

This case is noteworthy because the actual size of the class is fairly small. The gym operator admitted to videotaping on only 10-15 occasions. While any number of women may have been victims during these periods, the class itself was certified for any woman using the gym during a nearly 6 month period. There is no rule that states the minimum number of plaintiffs required for a class action, but the appeals court did not give a rousing endorsement for the “numerosity” (size) of the class in this case, they merely deferred to the trial court judgment on the matter. What was particularly noteworthy was the court weighed concerns beyond just the actual numbers of women involved. An additional factor was evidence that the gym allowed members from around the country to use it and thus the plaintiffs might not all have been locals which would have substantially increased the burden to litigate separately. Had all the women been locals, it is possible the court would have required “joinder” or just combining separate cases rather than allowing a representative in a class action suit.

Most people have been involved in a class action suit and may not have even been aware of it. Generally, each member of the class is required to be notified to give them the opportunity to opt-out of (or into) the class. This will typically be done via a postcard by mail. Thousands of these cards are thrown away without being read yearly but they can entitle plaintiffs to small to moderate cash settlements without ever setting foot in a courtroom, as you are being represented by the person bringing the suit!