Contractor Problems

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!

Maurice Work-Related Accident Requires Complex Insurance Interpretation

Published on: March 22, 2013 | By Berniard Law Firm

When an accident occurs, there is usually a fight over whose insurance company will pay for the damages. The issue becomes even messier when the driver responsible for the wreck appears to be working under different employers. This was the issue in a recently decided case by the Louisiana Court of Appeal for the Third Circuit, which involved a wreck in Maurice.

In that case, Broussard v. Progressive Security Ins. Co., et. al., a dump truck hauling material to a construction site struck another vehicle in an intersection. The passengers of that vehicle filed a lawsuit against the driver, the subcontractor for which the driver worked, the general contractor who had hired the subcontractor and the insurance companies for both the subcontractor and the general contractor. The issue before the court was which insurance company would be held liable for damages: the subcontractor’s or the general contractor’s.

The court focused primarily on the language of the policy held by the general contractor. Under that policy, a “non-owned auto” could be covered under certain conditions. A “non-owned auto” was described as a vehicle not actually owned by the company, but were vehicles leased, hired or rented to be used in connection with the business. Thus, the question became whether the dump truck driver had been hired by the general contractor and whether or not the truck he was driving was hired or rented by the general contractor.

After analyzing the facts, the court found that, although the employee was hired by the general contractor, there was no evidence that the truck itself was hired or rented. Therefore, the subcontractor’s insurance still covered the truck and would be liable for the plaintiff’s damages.

Insurance issues like this are complex, especially in the business context. Depending on the policy, certain vehicles may be covered and others may not depending on certain circumstances. The determination of which insurance applies could mean hundreds of thousands of dollars for that insurance company, and hundreds or thousands of dollars in increased premiums for the policy holder. For this reason, it is important that companies and individuals know and understand their insurance policies.

Additionally, companies must be aware of who they hire. As was touched on in the above case, employees who cause an accident while operating within the scope of their employment can place their employer in the liability hot seat. Insurance in this context will play a critical role. For example, if an employee is drunk while driving his delivery route and causes an accident, the employer and the employer’s insurance will likely be responsible for damages.

For businesses, this means hiring a questionable driver can put the company at risk of increased expenses from lawsuits and the danger of being dropped from its insurance. For individuals injured by these negligent drivers, this structure allows them to obtain the compensation they need to cover medical expenses, pain and suffering, and lost wages. Then, hopefully, the individual can achieve a full recovery.

When an accident occurs, the last thing people want to deal with is interpreting convoluted insurance policies. Yet, these documents are of vital importance when determining who will pay for accident damages. A competent attorney can walk you through the documents and help create a legal strategy that protects your best interests.

Supreme Court Required to Rule on Discrepancies in Results of Louisiana Code

Published on: February 14, 2013 | By Berniard Law Firm

Kevin and Corliss Stenson, Et Al. v. City of Oberlin and Meyer, Meyer, LaCroix and Hixson, Inc. is a very interesting and very important case to come out of the Parish of Allen. The case resulted in divergent opinions between the trial and appelate courts of the Allen Parish, ultimately requiring the Supreme Court to settle the matter. The Supreme Court accepted the case on a Writ of Certiorari, not just to resolve the conflicting results of the trial and appelate courts, but to “resolve a split in the circuits as to whether Louisiana Code of Civil Procedure article 1153, the so called ‘relation back’ doctrine, controls the Fuseliers (the plaintiff in the present case) intervening action or whether Louisiana Code of Civil Procedure 1067, providing the time limitation exception for incidental demands, governs.” The results of this Supreme Court decision will significantly impact future jurisprudence by setting a controlling precedent not just for the Allen Parish, but statewide in decision involving a choice between these two statutes. Before the Louisiana Supreme Court granted Certiorari in this matter, the Second, Third, Fourth and Fifth Circuits confronted similar situations requiring a decision between which of these two statutes to apply.

In the present case the residents of the City of Oberlin brought claims for “property damage and personal injury caused by sewerage overflow” against the City of Oberlin. They later decided to join Meyer, Meyer, LaCroix and Hixson (MMLH) as defendants. For present purposes, the important events to note in the procedural history of this case are the filings of a Second Supplemental Petition for recognition of class status on March 11, 2005, and the service of this petition on the defendant MMLH on March 17, 2005.

On July 20, 2006 Silton and Robin Fuselier filed a petition to intervene as plaintiffs. To intervene means to “become a party to a legal prceding begun by others in order to protect an alleged interest in the subject matter of the proceeding.” The Fuseliers claimed that they too had been damaged by the sewerage overflow.

Happy Mardi Gras!

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

As a Louisiana law firm, our practice takes great pride and enjoyment from Fat Tuesday and all of the history that follows. For all of our readers in the New Orleans area, have a safe and happy holiday.

Postings will resume shortly. In the meantime, laissez les bon temps rouler!

Vehicle Defect Leads to Redhibition Claim in Louisiana

Published on: December 27, 2012 | By Berniard Law Firm

Redhibition is defined as “the nullification of sale because of a defect in the article sold of such nature as to make it totally or virtually unusable or as to have prevented the purchase if known to the buyer.” An automobile redhibition case involves some hidden defect in the car that, if the purchaser would have known about it, would make it likely that the purchaser would not have bought it. For example, the fact that the car does not run at all, would likely be a reason that a purchaser would not want to buy the car. A defect such as this would allow the buyer to get their money back for the sale or, at least, a reduction in the purchase price.

The theories stated above apply to used vehicles as well as new ones. In 2007, a couple bought a car from Ford that, although was used, was certified to be in good condition. However, shortly after the purchase the couple noticed significant water leaks in the vehicle. At first, they thought the moon roof was just left open. Gradually, they realized that that was not the case.

In fact, the leaks got so bad that the couple was forced to put towels on the seat, put a plastic bag over the driver’s legs, and vacuum the water out of the car frequently. Finally, the mildew odor got so bad that they had to get a replacement vehicle. After several attempts at repairs, the couple was informed that the leaks could not be fixed. They hired an attorney and brought the suit for redhibition in the Pineville City Court.

In order to have a claim against Ford, the couple needed to prove that the defect existed at the time of manufacture, and did not develop later. As the car manufacturer, Ford is presumed to have knowledge of the defects of the products that it manufactures. In this case, Ford attempted to argue that the leaking problems were likely caused by poor maintenance and a failure to clean out the drainage tubes in the vehicle. However, the court scoffed at this argument and pointed out that the couple had the entire front end of the car removed, cleaned, repaired, and put back on. Nonetheless, the leaking continued.

The couple pointed out that the Technical Service Bulletin, a publication that describes defects in vehicles and how maintenance personnel can handle them, stated that water leaks in that type of vehicle could occur due to a roof-opening panel. This bulletin explained that there were serious manufacturing flaws in the moon roof drainage system in some of the Ford vehicles, the couple’s vehicle included. Ford argued that this bulletin did not assume that their particular vehicle had problems. However, the court took the bulletin into significant consideration.

Lastly, Ford argued that if there were a manufacturing problem, then the previous owners would have noticed the problem and reported it. The previous owner made no such complaint. However, since Ford had no documentation or direct proof that the previous owners were not having problems, the court disregarded this argument as well.

The court found that the couple met the qualifications for proving that the defect was caused by manufacture and not by any fault of their own. Had they known about the defects, they likely would not have purchased the vehicle. Therefore, the court awarded the purchase price of the vehicle and other fees to the couple.

Manufacturing defects are not always easy to detect. It is important that you make a thorough inspection of your vehicle and report any defects. You should not have to pay for a defective product.

Difficulty in Setting Aside Insurance Release Forms and Settlements

Published on: November 19, 2012 | By Berniard Law Firm

Settlements are an important part of the legal process. They save time, money, allow the parties to negotiate their own terms, and, above all, they keep the parties from having to go to court to litigate their claims. In the case of settling with insurance companies, the companies like to avoid court because it not only costs them time and money, but also may negatively affect their reputation in the community. As such, it is common practice for an injured person to sign a release form after they receive settlement money. This release form bars the person injured from any future claims against the insurance company. Both parties usually end up happy in this situation because the person who was injured gets some compensation and the insurance company avoids the negative effects of going to court.

What happens if an injured person settles and signs a release form before they realize how badly they are injured? For example, perhaps an individual thinks they only bruised their ribs, but actually suffered from more long term effects such as kidney injuries. In that case, the injuries are likely to be much more expensive than both parties originally anticipated. Then, the injured individual does not have enough money to cover medical expenses and the insurance company gets out of paying for the extra expenses.

In Louisiana, a general release will not necessarily bar recovery for aspects of the claim that the release was not intended to cover. However, most releases are very broad in that they cover any existing injuries and injuries that may occur because of the accident in the future. Louisiana law only allows settlements to be set aside if there was an error when the settlement was signed. Two major mistakes could set aside a settlement: 1) the injured party was mistaken as to what he or she was signing even if there was no fraud involved, or 2) the injured party did not fully understand the nature of the rights being released or that they did not intend to release certain rights. A settlement can also be set aside if there is fraud or misrepresentation involved.

Louisiana Civil Code Article 1953 defines fraud as “. . . misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss of inconvenience to the other. Fraud may also result from silence or inaction.” In order to determine if there is fraud involving a release, which is also a contract, the court will only look to the document itself to determine if fraud is evident. Evidence of fraud in this situation could include any intentionally incorrect statement of material fact, such as stating items that are not covered by the insurance company when those items are actually covered.

A recent case gives an excellent example of a settlement with an insurance company. In that case, an individual fell off a tractor and injured himself. Two insurance companies provided compensation for injuries relating to his fall. Once each insurance company provided compensation, they each had the injured party sign a release form to keep him from filing claims against them in the future should the injuries be worse than originally anticipated.

The injured individual did have complications with his injuries and tried to get the settlements set aside so that he could get more money based on the coverage, but because he signed the release forms and there was no evidence of fraud, the court would not set aside the settlement agreements. The court stated that the injured individual knew exactly what he was releasing and there was no mistake in the settlement. The insurance companies both provided clear statements of what they did and did not cover and provided compensation for the things they did cover. The release statements specifically said that the injured party could not sue again for the same fall even if the injuries got worse, so he could not file claims again.

One lesson to take away from this example is that it might be helpful to find out the extent of your injuries before you enter into any settlements or sign any release forms.

Court Explains the Requirements of a Settlement Agreement

Published on: October 23, 2012 | By Berniard Law Firm

Recently, in the State of Louisiana Court of Appeal for the Third Circuit, a case was decided that effectively laid out the requirements of a settlement agreement. These requirements are especially important because many cases are settled before they get to court. In fact, settlement is often preferable because it saves a significant amount of time, money, and it allows the parties to reach a compromise that they not only come up with themselves, but that is also acceptable to both parties. That way, the parties share the benefits instead of there being a clear-cut loser and clear-cut winner as is usually the situation should a case go to trial.

In this case, an individual was seeking to enforce a settlement agreement with an insurance company regarding a life insurance policy. The life insurance policy involved three beneficiaries; however, it was unclear as to when the money should go to each beneficiary. There may have been a contingent beneficiary. That is, the policy was set up so that if one of the beneficiaries had passed away prior to the money dispersion, then it would go to a different beneficiary. However, the insurance company was unsure of this stipulation, so they did not give out any money at all.

As a result of all of this confusion, one of the beneficiaries entered into negotiations with the insurance company in order to get at least some money out of the life insurance policy. Louisiana Civil Code, Article 3071, defines compromise as “a contract whereby the parties, through concession made by one or more of them, settle a dispute or an uncertainty concerning an obligation or other legal relationship.” Therefore, the parties in this case sought to compromise regarding the payment of the insurance policy.

In addition to defining compromise, the Court also points out that the settlement agreement must be in writing and signed by both parties as required by Louisiana Civil Code Article 3072. In this case, there was an oral agreement, but when the parties attempted to put the terms in writing, there was still dispute regarding the agreeability of quite a few of the terms of the settlement. They created drafts and sent them back and forth, but nothing was ever finalized by way of a signature from either party. The Court recognizes that there are no other cases where a settlement was validated even though neither party signed the final settlement agreement.

The Court also goes on to explain that contracts, which are the basis of a compromise, require that there be a “meeting of the minds.” That is, both parties should completely understand and agree to the terms in the contract. The contract embodies the intention of both parties and if the intention of both sides is not fully included in the settlement, then that settlement cannot be valid. In this case, both sides described other terms that were either not included in the agreement or that appeared, but they did not approve of their inclusion in the settlement. The Court notes that there was no “acceptance and acquiescent from both parties” in this case.

Although the settlement agreement can be included in more than one document, it is apparent that there was no such agreement. It based this conclusion on the testimony of both parties, lack of signature on the settlement agreement, and other communications between the parties at the negotiation stages in this case (such as letters between the attorneys that expressed displeasure with terms in the agreement). Therefore, the Court concluded that a settlement agreement did not actually exist and that it could not enforce a settlement agreement that does not actually exist.

Obtaining settlement agreements can be somewhat complicated because they involve getting both sides to agree to many different terms. However, they are very valuable because they allow the parties to avoid trial and get their conflicts resolved quickly. The Berniard Law Firm is always interested in solving our clients’ problems quickly and effectively.

Insurance Complications in Wrongful Death Suit

Published on: October 17, 2012 | By Berniard Law Firm

Wrongful death cases get very complicated when they involve insurance companies and employers. In a recent case, an individual was killed in the scope of his employment with Dunham-Price, Inc. He was driving a concrete truck at the time. The individual’s family brought a wrongful death case against the Department of Transportation and Development (DOTD). This case went to trial and awarded the individual’s wife and children $700,000 in damages, based on the finding that 50% of the fault was attributed to the DOTD and 50% of the fault was attributed to the individual driving the concrete truck.

This case seems like a classic wrongful death suit. However, it also involved two insurance companies, so it gets a little more complicated than it would first appear. There are two overreaching concepts in this case. The first is the third-party defendant and the second is appeals for partial judgments.

In most cases, there are two parties-one plaintiff and one defendant. However, the defendant also has the ability to call in parties who may be liable to the defendant should the court rule in the plaintiff’s favor. Insurance companies are usually privy to this type of liability. That is, if the defendant is found to be liable, then they have an insurance company that is supposed to cover them for that type of situation. In this case, DOTD called in two insurance companies: Liberty Mutual Insurance Company and Valley Forge Insurance Company (VFIC).

Third party defendants differ from a second defendant in that where there are two defendants, they could both be separately liable for the accident. For example, if there is a three-car pile-up and two cars hit one car at virtually the same time, then they could be both called into court. In a third-party defendant case, the third party should help compensate the defendant even though they were not liable for, or even remotely involved in, the accident itself.

The other concept that this case illustrates is appeals for partial judgment. In this case, VFIC stated that although they prove insurance for DOTD, the policy did not cover for the type of accident that the concrete driver experienced. Therefore, they sought a summary judgment to dismiss the claim against them. Summary judgment occurs when there are no material disputes of fact and one party is therefore entitled to have the decision run in their favor. This type of motion allows the court to throw out cases where there is a clear winner and bringing the case in full would be a waste of the court’s time. VFIC’s argument was that if the policy did not cover the accident then they cannot owe DOTD anything, as a result, they could not be involved as a third-party defendant.

The Court agreed with VFIC and granted the request for summary judgment. DOTD then proceeded with the rest of the case involving the family of the deceased. At trial, as mentioned, DOTD lost and was ordered to pay damages. Therefore, DOTD appealed the judgment and sought to also appeal the summary judgment that the Court granted for VFIC.

However, there is a time limitation in which a party is allowed to appeal. In Louisiana, parties have sixty days to appeal or seek a new trial after a final judgment. In the course of the other portion of the trial, DOTD’s sixty days had run, and although they were still in trial with other parties, the issue with VFIC was complete. Because VFIC was removed from the case previously, the grant of summary judgment constituted a partial final judgment and the sixty days to appeal started to run when the notice of judgment was served. Therefore, DOTD could appeal the rest of the case, but could not appeal the summary judgment granted to VFIC because its time limit had expired.

There were many procedural intricacies involved in this case. These intricacies require competent legal representation to navigate.

On Call Employee Not Acting Within Employment During Accident

Published on: October 11, 2012 | By Berniard Law Firm

Respondeat superior or, more simply, vicarious liability is a principle by which an employer can be found liable for the actions of its employees. It allows plaintiffs injured by people who are at work to collect money for their injuries from the often deeper pockets of the enterprise itself. However, an employer is not exposed to liability for activities of its employees that are not included in the course and the scope of their employment. The risks associated with doing business are placed upon those seeking to do business. In the case of Migliore v. Gill, a doctor was found not to be engaged in the course and scope of his employment during a period of “on call” time.

In terms of the incident, Dr. Javed Gill may have made an error while driving. As a result of this alleged error, or at least the resulting accident, Mr. George Migliore was injured. Regardless of who was actually at fault during that accident, which is a matter for another day, the accident happened. The issue at hand in the decision made by the Fifth Circuit Court of Appeal was whether or not Dr. Gill’s employer, Oschner Clinic Foundation, was in any way responsible for Dr. Gill’s conduct. Dr. Gill was not on an errand involving his work at the time of the accident. He was on call at the time of the accident. This meant that Dr. Gill was required to wear a beeper and report to Oschner within thirty minutes of receiving a call during this period. He was not performing activities for which he was employed. He was not driving in the location of the accident for any purposes besides his own. The trial court found, and the appellate court agreed, that Dr. Gill was outside both the course and scope of his employment. The appellate court stated that it might have found differently if Dr. Gill had been summoned by Oschner and was on his way to work at the time of the accident.

Having vicarious liability attach to the conduct of on call employees would be potentially disastrous for the types of companies that utilize an on call system. A company would be placed in the position of having either to have the employee come into the office or pay them to stay home thereby limiting the risk that their conduct would cause an accident. Having liability attach only when the employee’s activity is within both the course and scope of his or her employment is a much more narrow standard that seems to follow with such cases. When, however, are employee actions within the scope and course of an employee’s employment?

The Louisiana Supreme Court has determined that the “course” of a person’s employment refers to place and the “scope” of a person’s employment refers to the activities that a person is performing. In Orgeron v. McDonald, 639 So.2d 224 at 226 (La. 1994), the court stated that “an employee’s conduct is within the scope of his employment ‘if the conduct is of the kind he is employed to perform, occurs substantially within the authorized limits of time and space, and is activated at least in part by a purpose to serve the employer.'” Because of this, and because of the effects it would have on public policy, “on call” employees are not considered to be within the scope of their employment for purposes of vicarious liability.

The Appeals Process and Receiving a New Trial

Published on: August 27, 2012 | By Berniard Law Firm

The legal system is not perfect; courts will make the occasional error. However, in our system, we have many different levels in order to help ensure that if there are errors, the next court in the process will work to correct it. One of the ways that a court can correct an error is to grant a new trial. A motion must be made to the court by one of the parties to signify that they would like to have a new trial. In many cases, the same judge will hear the motion and decide whether to grant a new trial. Sometimes the Court of Appeals will review the motion and send the case back down to the lower court for a “re-do.”

A new trial can only be granted for serious legal errors. These errors can be based on the judge or jury, depending on the type of trial. An obviously incorrect result based on the evidence presented would be a strong candidate as a case for a new trial. Often, new trials will be granted when the jury makes a determination that is completely contrary to the facts that were presented.1
The Court of Appeals for the Fifth Circuit considered a motion for a new trial in February this year. The case involved a group of three victims who were in a car accident with a company car, where the company car hit the victim’s vehicle. The three individuals were treated for injuries relating to the accident. The defendant’s liability was proven at a separate hearing, but the damages to be awarded was left up to the jury.

The jury awarded damages significantly lower than expected. Both sides presented experts to testify regarding the severity of the injuries and the treatments that the victims had to endure. The victim’s personal physicians testified and the defendant’s expert countered their testimony. The defendant’s expert pointed out that the procedures given to the victims were actually not credible treatments in the state of Louisiana and therefore unnecessary.

The Court of Appeals for the Fifth Circuit determined that the reason that the jury awarded damages that were so low was because the jury found the defendant’s expert to be more credible and awarded damages accordingly. The court decided that although the damages were very low if the jury would have believed the plaintiff’s experts, they did match the statements of the defendant’s expert.

In Louisiana, the jury is given great deference and their decisions can only be altered if there is an obvious flaw in their outcome. When deciding whether or not to grant a new trial, the court can consider whether the jury gave one expert too much credit. However, because of the need to balance between the deference granted to the jury and the ability to evaluate an expert, the court is only allowed to overrule the jury in extreme cases where the expert was not credible at all.

The court gives an example of such an occasion where they can overrule rule the jury’s decision. In their example, the defense flew in an from another state and he had a reputation for the testimony that he had provided, which was meant to refute the opposing party’s testimony as well. They granted a new trial because of this unwarranted grant of credibility to this individual. In this case, however, the court did not find any of these circumstances and determined that the jury could have reasonably believed the defendant’s expert testimony.

There are many checks built into our court system and new trial is one that can be used in some occasions. Having the right attorney can help preserve this opportunity and move your case forward.