Legal Definitions

Collateral Source Rule Does Not Preclude Lafayette Parish Accident Victim’s Recovery From Insurer

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

car_racing_crash_accident-scaled If you have ever been involved in an accident, you know it can be challenging to deal with multiple parties. From the other vehicle’s driver to numerous insurance companies, knowing who to contact can often seem impossible. This becomes even more difficult when navigating the workers’ compensation system.

Marcus Slaughter, who worked for Garda, and Ernest Howard, who worked for DABM, collided on a road in Lafayette Parish, Louisiana. Slaughter collided with Howard, suffered injuries, and received medical treatment. DABM’s workers’ compensation insurer paid for Howard’s medical expenses and workers’ compensation benefits while he could not work.

Howard then filed a lawsuit against Slaughter, Garda, and Garda’s auto insurer. Although the trial court awarded Howard lost wages and general damages, the judgment stated that it did not include the medical expenses of over $33,000. The trial court reasoned that DABM’s insurer had already paid these medical expenses, so Howard was not entitled to additional recovery. Howard appealed, arguing the court should have awarded him the medical costs.

Failure to Raise a Right Results in Waiver of Right and Defense in Car Crash Case

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

firefighter_cars_accident_hood-scaled Nobody likes insurance policies or divorce. Both can be extremely messy and full of legal jargon. Megan Daigle experienced this firsthand as her divorced parents’ insurance did not cover everything they hoped for.

In the fall of 2013, Megan Daigle was driving in Morgan City, Louisiana, when she did not stop at a stop sign. This failure to stop resulted in her vehicle, a car her father owns and provides to Megan for her sole use, colliding with a car driven by Monty Rivers. At the time of the accident, Megan was a minor. Megan’s mother had legal custody as her parents were divorced. Megan was insured under an Allstate policy held by her mother and stepfather. Mr. Rivers was injured in the accident and filed lawsuits against Megan, her father, her mother, and all connected insurance companies.

Allstate filed a motion for summary judgment and a partial summary judgment, arguing the policy did not provide coverage because a policyholder did not own Megan’s vehicle, and it was available for Megan’s regular use. The lower court granted this judgment. Rivers appealed the granting of Allstate’s motion arguing that Allstate waived their right to assert a coverage defense and that the allegations found in the pleadings were sufficient to put Allstate on notice of the potential coverage defense. Rivers’ argument was based on the understanding that upon receipt of the pleadings, Allstate had sufficient notice of the facts, which indicated the policy held by Megan’s mother did not provide coverage for Megan.

Is It Constitutional To Suspend Someone’s License For Repeat Arrests for DWI?

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

driving_car_automobile_driver-scaled Everyone knows it is a bad idea to drive under the influence of alcohol. However, even if you are in the unfortunate situation of being arrested for drinking and driving, you still have constitutional rights. Nonetheless, it is important to be aware of the possible penalties you could face, including having your driver’s license suspended. These consequences can become even more severe if you are a repeat offender.

David Carver was arrested multiple times for driving while intoxicated (“DWI”) under La. R.S. 14:98. The first time, he did not receive a conviction as he participated in a diversion program. He pled guilty to the DWI the second time and was placed on probation. Because Carver refused to take the test for intoxication, his driver’s license was suspended. Although Carver attempted to have his license reinstated, the State denied the restatement because he had refused to submit to the chemical test. La. R.S. 32:667 prohibits reinstating someone’s license who refuses to take the chemical test for a second or subsequent arrest, which occurred here.

The State later reinstated his license on the condition that he install an ignition interlock device. Carver filed a motion arguing that certain sections of La. R.S. 32:667 were unconstitutional. The district court held that sections (H)(3) and (I)(1)(a) of La. R.S. 32:667 were unconstitutional because they violated the Due Process Clauses found in the Constitutions of Louisiana and the United States. Specifically, these provisions provided punishments based upon a prior arrest, not on prior illegal conduct that had been proven. The State appealed.

Sincerely or Not: Could You Be Liable for Bringing a Frivolous Appeal?

Published on: May 14, 2023 | By Berniard Law Firm

outback_australia_bush_road-scaled The legal system has neither time nor resources to waste, so courts refrain from entertaining frivolous lawsuits that lack serious or sincere claims. Moreover, in such cases where a court determines that a lawsuit is frivolous, the court will render a judgment against the party who brought the lawsuit and can also order that party to pay damages, including the other party’s attorney fees. For these reasons, it is critical to consult with an excellent attorney before such cases are brought before a court.

As for Marsha Willis (“Willis”), an unauthorized driver of her mother’s rental car, a Louisiana judge for the First Circuit Court of Appeals determined that although she had absolutely no evidence to support her legal claims, she sincerely believed in the positions she argued and therefore her appeal was not frivolous.

Willis’ mother entered into a rental agreement for a Toyota Corolla with the car rental agency, Enterprise. Shortly after, Willis was driving her mother’s rental car when she crashed into another driver. The other driver sued Willis for damages related to the accident. Then, a claim specialist for Empire Fire and Marine Insurance Company (“Empire”), the insurer for Enterprise, notified Willis that they denied her request for coverage in the accident and litigation with the other driver because she was not listed as an authorized driver on her mother’s rental agreement.

Allocating Damages in Wrongful Death Cases: Navigating the High Standard of JNOV Motion

Published on: May 13, 2023 | By Berniard Law Firm

courthouse_court_law_justice_0-1-scaled Allocating damages in a wrongful death case is challenging because putting a price on a life is hard. Therefore, if a family in a wrongful death case feels the jury abused its discretion in calculating that monetary value, then the family can resort to a motion for JNOV to try and correct the decision. However, this is a rigorous standard, and a recent case out of Baton Rouge outlines how a court reviews these motions.

Noha Salama was visiting family in Louisiana from her home in Israel. Her nephew picked her up from the airport in New Orleans, and the two drove down Interstate 10 toward Baton Rouge. The nephew exited the highway at Louisiana Highway 44/Burnside Drive in Gonzales and stopped at the stop sign at the end of the exit ramp. In an attempt to re-enter the interstate, the nephew drove the vehicle across the four-lane highway and failed to stop at the median, which divided the north and southbound lanes. Once the vehicle crossed over the median, it was broadsided by two cars going south. Salama, who was in the front passenger seat, died at the accident scene.

Salama’s husband and five children filed a wrongful death action against her nephew, his insurer, the drivers of the two southbound vehicles, their insurers, and the DOTD. The family settled with all of the defendants except for the DOTD, and their case against the DOTD proceeded to a jury trial. The family alleged the DOTD, which had control over the intersection, was at fault for the accident for treating the Highway 44 exit and entrance ramps as a single intersection rather than two separate intersections.

Experts Testify in Neurosurgery Medical Malpractice Claim

Published on: May 12, 2023 | By Berniard Law Firm

medical_emergency_emergency_ambulance-scaled Medical malpractice claims are brought when a patient is a victim of negligence at the hands of their physician. Due to the nature of this category of claims, stories of medical malpractice are often horror stories showcasing worst-case scenarios. Even further, the most intense medical malpractice claims result in the death of the patient. Understandably, the patient’s family may seek to find responsibility for the death of their loved one. In the following lawsuit, a family fails to show the legal requirements to bring a medical malpractice claim after their family member died during surgery.

The plaintiffs in this lawsuit are the surviving family members of a man who died during brain surgery by the defendant’s physician. The family contends that due to the deceased’s history of cardiac trauma prior to surgery, he should have been evaluated for cardiac fitness before the physician performed the surgery. The trial court found that the expert testimony proffered by three physicians was insufficient to prove that medical malpractice had occurred. The plaintiffs appealed the decision, insisting that the defendant had breached his duty of care by not ordering further cardiac tests.

The plaintiff must establish the elements of a medical malpractice claim to bring the claim successfully. The first element required to be shown is the standard of care at which comparable physicians in Louisiana generally exercise when taking care of their patients. The second required element is that the defendant failed to meet the reasonable care prescribed by the first element or lacked the required knowledge altogether. The third and final element is that the failure to exercise reasonable care caused the plaintiff’s injuries. La. R.S. 9:2794(A).

New Orleans Police Officer Appeals Civil Service Commission Dismissal

Published on: May 11, 2023 | By Berniard Law Firm

police_5-scaled Police 0fficers are public servants responsible to the taxpayers and their profession. When an officer violates the rules of the New Orleans Police Department (NOPD), they are disciplined through penalties. Both state laws and the department policy bind the officer. Officers are given hearings and allowed to plead their case in line with due process considerations. The following civil service case illustrates how appeals work under the Civil Service Commission scheme.

A New Orleans police officer was caught driving a marked squad vehicle while under the influence of alcohol. As a result, he was required to enter the St. Tammany Parish District Attorney’s Pre-Trial Diversion Program. As a result of entering the program, he was deemed to have admitted responsibility for his violations of state law: driving while intoxicated (La. R.S. 14:98) and careless operation of a motor vehicle (La. R.S. 32:58).

Following his entry into diversion, the NOPD started an investigation of the Officer’s actions and violations of NOPD regulations. As a result, the Department Superintendent recommended various sanctions, including a suspension and letters of reprimand. The Officer appealed the decision, which was countered by a motion for summary judgment by the NOPD. The Officer had admitted guilt by entering the diversion program, giving the NOPD a strong claim for summary judgment. The Commission held a hearing for the appeal, which the Officer failed to appear at. The Commission, therefore, dismissed the appeal in favor of the NOPD. The Officer filed for a rehearing which was denied. He then appealed the denial for a rehearing.

What is Res Ipsa Loquitor?

Published on: May 10, 2023 | By Berniard Law Firm

chair_garden_green_hedge-scaled Personal injury lawsuits can be complicated, especially when they involve injuries sustained while shopping. Mary Mason found herself in this situation at a Burlington store in Lafayette, Louisiana, when a chair collapsed as she sat on it, causing her to fall and sustain injuries. Despite suing Burlington and claiming negligence, her case was dismissed due to a lack of evidence. This case highlights the importance of having experienced legal counsel to guide you through the lawsuit process. It also answers the question, what is Res Ipsa Loquitor?

Mrs. Mason and her husband visited the Burlington store in Lafayette on Ambassador Caffery Parkway. While Mrs. Mason waited in the car, her husband entered the store. After waiting for some time, Mrs. Mason entered the store to find her husband. As she walked by a chair display, she decided to test out one of the chairs on the platform. Unfortunately, as Mrs. Mason sat down, the chair collapsed, and she fell and hit the platform. She was on the phone with her husband at the time.

A store manager and Mr. Mason entered the area where Mrs. Mason fell. They determined Mrs. Mason’s fall was due to no screws in the chair’s back legs. The store manager removed the faulty chair, so the Masons took photos of it. Mrs. Mason also signed an incident report before leaving the store.

Louisiana First Circuit Says Settlement Not Enforceable Based on Email Communications

Published on: May 9, 2023 | By Berniard Law Firm

email_letter_postal_codes-scaled Parties in conflict often prefer out-of-court dispute resolution. Although these agreements made outside the courtroom are appealing, they come with their slew of issues and may require a courtroom to enforce an out-of-court solution. When a deal outside the courtroom requires a court to intervene, how does that court decide whether to enforce the settlement agreement? And in the era of virtual communication and remote dispute resolution, how can a court decide when virtually made agreements are enforceable and binding on the parties?

The present case emerged out of a lumber dispute. In short, the defendants wrongfully cut down trees on the plaintiffs’ land. The plaintiffs filed a lawsuit against the numerous defendants for this wrongful timber cutting and the resulting property damage, penalties, interest, costs, and attorney fees. Some defendants also brought crossclaims against each other following the plaintiffs’ complaints.

The trial court conducted a conference where the parties discussed a potential settlement. Ultimately, the parties drafted an agreement in which one defendant, J.R. Logging, would pay the plaintiffs $20,000. In turn, the plaintiff’s claims against J.R. Logging and the other defendant, Fair Hills Farms, would be dismissed along with the crossclaims between defendants.

Mistake, Medical Malpractice, or Misunderstanding Risk?

Published on: May 8, 2023 | By Berniard Law Firm

medicine_pacemaker_surgery_hospital-scaled While much maligned in the popular consciousness, medical malpractice lawsuits serve a vital function in protecting patients’ rights when accessing healthcare. In Louisiana, a successful medical malpractice lawsuit must show the physician being sued had a standard of care for their patient, the physician violated this standard of care, and there was a connection between this violation and the injury suffered by the patient. See La. R.S. 9:2794(A). Though there are several reasons why a medical procedure may go wrong, proving it was the result of a violation of a standard of care can be difficult at best.

In March 2007, Alsie Thomas underwent surgery to install a pacemaker in his heart. Dr. Sergio Barrios conducted the surgery. While usually, the pacemaker is installed with three leads placed in the right atrium, right ventricle, and coronary sinus behind the heart. Dr. Barrios instead inserted the first lead in the opposite direction into the left ventricle and the second lead into the aorta instead of the right atrium, with the third lead being installed correctly. After the leads were installed, Dr. Barrios conducted several tests and determined that while there were some abnormal readings, the procedure appeared successful. Subsequent evaluations at the hospital also indicated the pacemaker had been positioned correctly.

However, five days after the surgery, Alsie suffered a stroke, which was diagnosed as a lack of blood flow due to an obstruction of a blood vessel. Throughout the rest of March and through April, Alsie continued to suffer from bouts of heart issues, but subsequent X-rays and scans showed the pacemaker appeared to be placed in the correct location.