Legal Definitions

City Cannot Claim Immunity For Hurricane Damage When Alleged Misconduct Predated Hurricane

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

storm_damage_oak_tree-scaled Hurricanes can result in significant property damage, including flooding with contaminated water. When faced with such a situation, homeowners may wonder if they have a viable lawsuit against the responsible parties, such as the company responsible for the contaminants or the city involved in managing the wastewater system. The following case sheds light on the legal considerations surrounding property damage caused by contaminated floodwater and the potential liability of the responsible entities.

Ronald and Virginia Colson owned property in Pineville, Louisiana, that was damaged by Hurricane Gustav. They claimed their property was flooded with water contaminated with contaminates from Colfax Treating Company’s wood-treating facility. As a result, they claimed they were evicted from their home.

Colfax had a permit to dispose of materials in Pineville’s wastewater system. The Colsons filed a lawsuit against Colfax and the City of Pineville. The Colsons claimed the City of Pineville did not timely activate pumps for evacuating waste and stormwater, failed to properly maintain or inspect these pumps, and improperly allowed Colfax to dispose of the contaminates at above-legal limits.

Unclaimed Vacation: Resigning from Your Job with Unused Day

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

vacation_beach_maldives_657311-scaled We all cherish the idea of collecting vacation days, envisioning the blissful trips we’ll take in the future. But what if you find yourself resigning from your job with a surplus of accrued vacation days that you haven’t had the chance to use?

David Bodenheimer had worked for Carrollton Pest Control and Termite Company (“Carrolton”) for twenty-three years when he signed to resign. He accrued 1.25 vacation days per month. When he resigned from Carrollton, Bodenheimer claimed he still had twelve accrued vacation days for that year and 6.25 days from the prior year, totaling 18.25 of accrued, unused vacation days. Upon his resignation, Carrollton only paid Bodenheimer for 3.25 of the 6.25 days he had accrued in the prior year. When his written demands for payment for his additional accrued vacation days proved futile, Bodenheimer filed a lawsuit against Carrollton for his unpaid vacation under La. R.S. 23:631 and 23:632.

At trial, the only witnesses were Bodenheimer and the owner of Carrollton. Other evidence included Carrollton’s policy manual and Bodenheimer’s payroll record. Carrollton and its owner claimed employees such as Bodenheimer had to use all of their fifteen vacation days in a given calendar year. If not, they would lose the vacation days in the next calendar year. The trial court ruled in favor of Carrollton, finding Bodenheimer had read and understood the applicable policy regarding using vacation days. Bodenheimer subsequently appealed.

Pre-Trial Notice Did Not Waive Party’s Right to Jury Trial

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

courthouse_court_law_justice_0-scaled If you are involved with a lawsuit, you probably imagine your day in court involving a jury listening to the evidence and rendering a decision. After all, the US Constitution protects our right to a trial by jury. But what happens if the court issues a notice scheduling your trial to be heard in front of a judge instead of a jury?

Leigh Ann Schell and McGready Richeson (“Plaintiffs”) filed a lawsuit against Kuchler Polk Weiner LLC (“Kuchler”). Kuchler filed an answer and included a jury demand. Kuchler also paid the applicable filing fee. The trial court then held a pre-trial conference where it selected a trial date. At the conference, both parties’ attorneys and the trial judge signed a pre-trial notice that included the trial date for a trial to be held in front of a judge.

Later, Kuchler’s attorneys noticed the alleged error of setting the trial before a judge, not a jury. Kuchler filed a Motion to Continue, arguing it had not waived its right to a jury trial and had not authorized its attorneys to waive that right on its behalf. As evidence, Kuchler introduced an affidavit from its managing partner and authorized representative stating Kuchler had never authorized anyone to waive its right to a trial by jury. The trial court denied the motion, and Kuchler appealed.

Discharged Firefighter Entitled to Penalties and Fees for Unpaid Wages

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

firefighter_extinguish_fire_484541-scaled If you’ve ever left a job in the middle of a pay period, you might have had to wait to receive your final check. But what if you were fired, reinstated, fired, reinstated, and fired again? Payment of wages gets a bit more confusing.

In Alexandria, a firefighter named Kendall Dixon was terminated after a breath alcohol test in 2014. He spent the next several years defending his allegedly wrongful dismissal. Through separate litigation, he was also fighting for unpaid wages and fees. Both issues went through multiple stages of review to determine what sort of relief Dixon was entitled to receive.

Complicating Issue #2 – the question of compensation – was determining how Dixon would be paid for the time periods he would have been working (but for the allegedly wrongful termination) and for those he did work while his employment status yo-yoed.

Hurricane Katrina Victim Finds Favor in the Louisiana Courts

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

hurricane_katrina_flooding_180538-scaled Hurricanes do not discriminate. Regardless of age, wealth, gender, health, or race, hurricanes are merciless to all they come in contact with. Such was the case for Ms. Taylor, who experienced the wrath of Hurricane Katrina in 2005.

Ms. Taylor had been in the care of Touro Infirmary when Hurricane Katrina struck the state of Louisiana in 2005. Taylor was 82 and had undergone radiation therapy for her lung cancer three days before Hurricane Katrina’s landfall. After radiation, Taylor complained of nausea and vomiting. Staff diagnosed her with hematemesis, nausea, vomiting, dehydration, digoxin toxicity, COPD, and lung cancer.

When Hurricane Katrina struck, the City of New Orleans experienced severe infrastructure damage, expansive power outages, and a lack of clean water. Touro also experienced generator failure, causing the building to become unbearably hot. After 72 hours, it evacuated its patients to UT Southwestern Hospital in Dallas, TX. When the patients arrived, medical staff struggled to care for them because pieces of their medical charts were missing.

Can a Witness to an Accident Seek Damages in Court?

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

airplane_airplane_cruising_897048-scaled Have you ever witnessed an accident? The experience can be overwhelming, leaving lasting, often overlooked emotional scars. Such consequences raise an essential question; can a witness to an accident seek damages in court? The subsequent lawsuit helps answer that question. The journey of the litigants through the intricate legal landscape reveals their unwavering determination to find solace for the emotional anguish they endured as witnesses to the tragic events.

The story begins on a fateful day when Briana Davis and her boyfriend, Reginald Hilliard, Jr., embarked on an aerial tour of the City of New Orleans. Unfortunately, the flight ended tragically as the plane, piloted by James Biondo, crashed into Lake Pontchartrain, resulting in the death of Reginald Hilliard, Jr. In the aftermath, Dorothy Jarvis, Tukeya Jarvis, and Thomas Hilliard (Jarvis and Hillard), relatives of the deceased, arrived at the crash scene and witnessed the recovery operations.

In their lawsuit, Jarvis and Hillard claimed that James Biondo’s negligence, specifically his failure to properly inspect, operate, pilot, navigate, and prevent the airplane crash, was the direct cause of the tragedy. Furthermore, they sought bystander damages under Louisiana C.C. art. 2315.6, asserting they suffered severe mental anguish and emotional distress due to witnessing the crash and its aftermath.

Spousal Transfers of Property: Fraudulent or Legal?

Published on: June 19, 2023 | By Berniard Law Firm

court_justice_interior_architecture-scaled The separation of property between spouses is a legally recognized process, allowing them to transfer assets. However, what happens when this separation is done with fraudulent intent? In the case of Kathryn and Paul Holland, creditors accused the couple of fraudulently dividing their assets to avoid payment. The creditors filed a motion to intervene in the divorce proceedings, alleging that the Hollands knew about pending civil lawsuits against them. Despite their objections, the trial court granted the motion filed by Ms. Holland, prompting the creditors to appeal the decision. The following post summarizes the appeal.

DeRamus and David Hodge filed a sexual battery lawsuit against Paul Holland, who was married to Kathryn Holland. Hodge died before the matter was settled. The trial court awarded one hundred thousand dollars in damages to DeRamus and the Estate of David Hodge. Before the lawsuit’s completion, Holland pled guilty to sexual battery in a different lawsuit and was sentenced to twenty-two years in prison. Mr. and Mrs. Holland separated during this time and sought to divide their assets with a separation of property agreement. Ms. Holland filed for divorce based on Mr. Holland’s felony conviction. Her petition was granted.

The creditors filed a Motion to Intervene in the divorce proceedings in which they alleged the Hollands knew of the civil lawsuits against them and sold their assets to avoid payment. Ms. Holland filed a motion arguing there was no cause of action. The trial court granted her motion, which prompted an appeal from the creditors.

Can Uninsured/Underinsured Motorist Coverage be Applied To a Temporary Substitute Vehicle?

Published on: June 18, 2023 | By Berniard Law Firm

crash_test_collision_60_1-scaled One of the joys of adulthood is figuring out insurance coverage for your vehicles. Selecting the right coverage can be incredibly challenging when you own a small business because there are unclear lines between personal and company vehicles. This can be especially challenging if an accident occurs when driving a different vehicle than you usually drive. Can your insurance policy cover you when driving a different vehicle because your regular vehicle is out of commission and needs repairs? The subsequent lawsuit helps answer this question.

Gerald Arceneaux owned Gerald’s Towing. Axis Plus Insurance sold him an insurance policy for the garage that included uninsured/underinsured motorist coverage. On the first day, the policy was in effect, Arceneaux got in a car accident in his Ford F250 while driving home from work. He claimed he was “on call” when the accident occurred, and his truck included tools and equipment sufficient to respond to service requests made to his towing company. He said he drove the Ford F250 when the accident occurred because the Ford F450 that Gerald’s Towing owned needed to be repaired.

Axis filed a summary judgment motion, arguing the insurance policy did not provide uninsured/underinsured motorist coverage to Arceneaux for the claim under La. R.S.22:1295. Axis argued they didn’t cover the accident because it was Arcenaux’s personal vehicle, and he was not on call for Gerald’s Towing. The trial court granted Axis’s summary judgment motion. Arceneaux appealed.

Can a parent recover when their child is injured on a school field trip?

Published on: June 17, 2023 | By Berniard Law Firm

school_school_bus_bus-scaled School field trips are supposed to be fun. However, after an unfortunate incident, Darius Baheth’s experience was less than idyllic. Can a parent recover when their child is injured on a school field trip? The following lawsuit, out of Lafayette, Louisiana, answers that question.

When Darius was thirteen years old, he was allegedly injured while attending a school field trip to a movie theater in Lafayette, Louisiana. Darius had an Individualized Education Plan (“IEP”) because he had autism. While the teachers and students were leaving the bus to go across the street to the movie theater, Darius started running around. Some teachers placed restraints on him to prevent him from hurting himself or others. He then received medication and was able to participate in the field trip.

His mother, Dorothy Baheth, filed a lawsuit against the Lafayette Parish School Board for the injuries Darius purportedly suffered on the field trip. She argued the injuries happened when the teachers placed restraining gear on Darius. She also claimed the teachers did not timely administer Darius’ medication.

Grilling for a Cause: The Importance of Safety and Liability in Fundraising Events

Published on: June 16, 2023 | By Berniard Law Firm

meat_barbecue_grill-scaled When preparing for a fundraiser, you understandably have lots on your mind. You have to coordinate food, RSVPs, and plan the event. However, if you are using something potentially dangerous, such as a propane barbecue, you also need to ensure you take reasonable steps to inspect it for any potential defects. Otherwise, you could be liable for injuries you or others suffer.

John Palir III was a pastor at Topsy United Pentecostal Church. A week before the church’s barbecue fundraiser, he and a deacon at the church were trying to light the barbecue pit on a barbecue trailer the church owned. When the deacon pressed the pilot button, Palir lit it with a lighter wand. That resulted in a ball of fire that blew Palir out of the trailer, where he hit the deacon’s grandson, who was standing nearby at the time of the explosion. Palir filed a lawsuit against the church and its insurer, GuideOne Insurance Company.

At trial, Palir moved to exclude any instruction to the jury about him being liable for the explosion. The trial court allowed the church to present evidence of Palir’s negligence but not about whether Palir knew or should have known the barbecue trailer was defective or hazardous under La. C.C. art. 2317.1. At trial, the jury held Palir was 50% at fault, and the church was also 50% at fault. The jury also found the barbecue trailer was in the Church’s custody, it presented an unreasonable risk of harm to Palir, and the church knew or should have known about its defect. Palir appealed, arguing the jury erred in assigning him 50% of the fault.