Legal Definitions

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.

Louisiana Court Holds that Medical Records Can Counter Expert Testimony and Bar Summary Judgement

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

medical_consultation_treatment_room-scaled Courts often rely on motions for summary judgments to avoid the costly and time-consuming reality of going to trial and presenting a case in front of a jury. Motions for summary judgment are when one party asks the court to decide the case based on the current facts alleged in their favor. Courts should grant these motions when there are no facts in dispute for the jury to resolve. But how much evidence does a party have to present to survive one of these motions? A case out of New Orleans shows that, in some cases, just having medical records could be enough to deny a motion for summary judgment.

Emmanuel Bridgewater was lounging on a median at the intersection of Washington Avenue and South Dorgenois Street when a Regional Transit Authority (RTA) bus made a left-hand turn off of Toledano street and an immediate right turn onto Washington Avenue. The bus cut the corner too closely and drove onto the median, hitting Bridgewater. As a result of the accident, Bridgewater’s right arm broke, his right leg was injured, and he said that the accident left him permanently disabled. Bridgewater alleged that the bus did not stop after he was hit and instead fled the scene. A bystander who did not witness the accident heard Bridgewater calling for help and called 911 emergency services. An ambulance and New Orleans Police Officer Roger Smith arrived at the scene. Bridgewater alleged that Smith did not question him about the accident before he was taken to the hospital.

Bridgewater filed a lawsuit against the RTA and the City of New Orleans and added the Transit Management of Southeast Louisiana, Inc. (TMSL) as a defendant. Bridgewater accused the defendants of being jointly liable for his injuries and argued that the NOPD officer assigned to the RTA acted to protect the RTA from liability. Bridgewater also asserted that the City was at fault because it failed to place signs in the accident area to warn pedestrians that buses may run onto the median and hit them. The City filed for summary judgment, and the court granted the City’s motion. Next, Bridgewater filed a motion for rehearing, contesting the court’s decision. Then, RTA also filed a motion for summary judgment, and the judge denied Bridgewater’s rehearing and granted RTA’s motion. Bridgewater eventually appealed, and RTA responded, seeking attorney fees and costs against Bridgewater for filing a frivolous claim, which means that the lawsuit lacked any basis.

Persistent Lawyering Stops Insurance Company From “Second Bite at the Apple” in Mississippi Car Wreck

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

bridge_mississippi_river_baton-scaled Nothing is more tragic than the loss of life. However, that loss can be tempered somewhat if insurance is in place that provides some financial compensation. While money cannot substitute for the loss of love and companionship that a spouse gives, it can at least provide some help with the bills and, therefore, one less thing to worry about when grieving. But what happens when the insurance company refuses to pay your claim? The following lawsuit in Tangipahoa, Louisiana, discusses these issues in the context of a car accident, uninsured motorist coverage, and the refusal of State Farm to pay the claim.

As Jerry and his wife Lois Draayer drove down Interstate 55 in Pike County, Mississippi, a motorist struck the couple. Unfortunately, that driver had both crossed the median and lacked sufficient insurance. The underinsured motorist was Russel Allen, and Lois Draayer tragically died from the collision.

Lois’s family brought a lawsuit against Allen, his automobile liability insurer (Progressive Insurance Company), and named their insurer, State Farm, which they claimed provided Lois with UM coverage. The Draayers added State Farm to the suit to ensure financial recovery for Lois’s death.

The Cost of Litigation is in the Court’s Discretion in Louisiana

Published on: March 23, 2023 | By Berniard Law Firm

money_laundering_money_music_0-scaled The lawsuit process can be expensive between investigation, preparation for trial, and the trial itself. This is on top of the emotional rollercoaster of events that have given rise to a lawsuit in the first place. Unfortunately, sometimes a plaintiff may lose at trial and be hit with all the litigation costs for both parties. The following case shows how those costs are within the court’s discretion.

Sarah Reynolds was involved in a head-on collision with a passenger bus while driving her car in Slidell, Louisiana. Both vehicles were operating at the posted speed limit of 70 miles per hour. Reynolds was traveling the wrong way on a westbound overpass on Interstate 10. When authorities reached the scene, Reynolds was found unconscious and unrestrained. Reynolds blood tests revealed a blood alcohol content of .082gm% and a presence of Xanax and marijuana. Reynolds died a few hours after the accident due to the multiple traumatic injuries sustained.

Reynolds’ son, mother, son’s father, and estate filed a lawsuit against the Department of Transportation and Development (DOTD). They alleged Reynolds had been misdirected onto the wrong side of the roadway due to DOTD’s negligence. DOTD subsequently filed a motion for summary judgment, arguing the plaintiffs could neither establish negligence nor causation.

Louisiana Jury Awards No Damages Because of Preexisting Injuries, Can an Appeals Court Fix the Ruling?

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

courthouse_alabama_building_226689-scaled Everyone wants to emerge victorious after their day in court, but occasionally the jury will refuse to award the judgment you deserve. When a person loses their case at trial, they can appeal it to a higher court. The appeal process allows for a narrow reconsideration of a case to assure that the lower court got to the correct answer; if the appeals court finds that the lower court did not get the correct answer, they can amend the lower court’s judgment, including the calculation of damages.

Preexisting medical conditions aggravated by an accident do not preclude an injured party from recovering damages and medical expenses from the person who hit them. Ms. Kimberly Guidry has such preexisting medical conditions and was involved in an accident that aggravated those preexisting medical conditions. At trial in the 15th Juridical District, the jury found awarded no damages, no medical expenses, and no lost wages to Kimberly.

Kimberly had presented medical expert testimony that showed her injuries were aggravated by the accident, but the jury awarded her nothing. With this denial, Kimberly appealed to the Third Circuit Court of appeals. She claimed the jury committed “manifest error” in their findings and that the trial court had committed a “legal error” in failing to grant her a new trial due to this adverse ruling. Kimberly’s case helps answer the question; “If a Louisiana Jury awards no damages because of preexisting injuries, can an appeals court fix the ruling?”

Trial Court Judgment Amended in Baton Rouge Workplace Incident, Shows Importance of Diligent Lawyering

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

hammer_court_judge_justice-scaled Court cases are contentious, polarizing atmospheres between the parties. Stubbornness is ripe, and the opposing parties are staunchly in, unsurprisingly, opposition. However, sometimes even opposing parties can agree. Any party can take issue with a court’s judgment, and sometimes ALL parties can take issue with a court’s decision–even if these issues are different. But when multiple parties raise various errors in a trial court judgment, how can the higher courts resolve such allegations of error?

In 2001, a workplace incident occurred between the plaintiff, Bradley W. Smith, and the defendant, then-coworker Paul Babin. Smith alleged that while the two parties were in the parking lot at their workplace, Babin intentionally hit Smith with his vehicle. In his 2002 lawsuit, Smith claimed that Babin was liable for Smith’s damages and later amended the lawsuit to include Shelter Mutual Insurance Company (Shelter) as Babin’s liability insurer.

In late 2014, a trial court heard Smith’s lawsuit on liability, causation, and damages and then heard Babin’s crossclaims. At the beginning of the trial, the parties entered a pretrial stipulation that determined Smith’s past medical expenses caused by Babin’s act totaled $338,556.27, for which both Shelter and Babin would get worker’s compensation credit.

Ville Platte Hospital Found Not Liable for Ant Bites on ICU Patient

Published on: March 20, 2023 | By Berniard Law Firm

ant_dod_pomonkey_2015-scaled Hospital admission can often be a terrifying experience, but even more so is an ICU admission. Your life is literally in the hands of hospital doctors and nurses. But what happens if you sustain injuries unrelated to your original illness or injury while in the ICU? A recent patient at Mercy Regional Medical Center in Ville Platte, Louisiana, was left with no legal recourse after sustaining multiple ant bites during her ICU stay.

Linda Searile was admitted to Mercy Regional Medical Center (Mercy Regional) in September 2011 after falling and hitting her head. After her condition deteriorated, she was moved to the ICU. Two days later, a nurse discovered ants on Ms. Searile’s arm and in her bed. The nurse removed the ants and gave Ms. Searile medication for pain and itching. Ms. Searile was discharged from Mercy Regional a few days later.

Ms. Searile filed a lawsuit against Mercy Regional, asserting the hospital knew or should have known of the ant infestation and should have taken reasonable steps to eliminate the bugs. Mercy Regional filed a motion for summary judgment stating that Ms. Searile could not show that the hospital was negligent in any manner and that the lawsuit should be dismissed entirely. The Thirteenth Judicial District Court for the Parish of Evangeline agreed with Mercy Regional and dismissed the case. Ms. Searile appealed to the Louisiana Third Circuit Court of Appeal.

Court Deadlines Are Important, Especially in Federal Court

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

clock_time_dead_broken-scaled Before taking on one of the nation’s largest, leading automotive manufacturing companies, it is essential to consult an excellent attorney with knowledge of the Federal Court system. The importance of following the deadlines set by the Court in that system cannot be understated. Unfortunately, the lesson of how critical it is to follow court deadlines came to bear a harsh reality for the children of two deceased car accident victims in the following case.

Sandra, Carnel, Darnell, Gregory, and Lashawn Joseph (collectively “the Josephs”) sued GM after the car their parents, George and Jeanette Joseph, were passengers in caught fire and crashed into the guardrail, causing their parents’ fatal injuries. In trying to gather evidence to support their claims against GM at the District Court, the Josephs sought expert testimony. Still, they failed to identify expert witnesses or produce expert reports before the District Court’s scheduled deadline passed. Therefore, the District Court denied the Josephs’ motion to reschedule the deadlines based on their failure to show good cause for not meeting the deadline.

The Josephs did not object to this denial, and GM moved for summary judgment. The summary judgment argued that because Josephs had no experts to prove their claims, they had no case to go forward with. The Josephs attempted to admit expert testimony to challenge GM’s motion. However, the District Court neither allowed the testimony because the Josephs missed the previously scheduled deadlines nor allowed the Josephs extra time for discovery. As a result, the District Court ruled in favor of GM on the motion for summary judgment. The Josephs subsequently appealed to the Fifth Circuit.

New Orleans Car Accident with Out of State Insurance Policy, Which State’s Laws Apply to the Lawsuit?

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

detour_confusion_sign_direction-scaled
Automobile insurance claims are complex enough, as it is unlikely that all parties involved will immediately agree on a settlement amount. These claims become even more convoluted when there are questions as to what state law should apply or when the insured isn’t fully aware of what his policy entails. Unfortunately, this is precisely what happened when a man was involved in an accident in New Orleans.

Jones was involved in a motor vehicle accident in Orleans Parish, and the other driver, insured by Allstate, was found to be at fault. Jones settled with Allstate and then attempted to recover under his own uninsured/underinsured motorist claim from GEICO. GEICO denied his claim stating that Jones was in direct violation of his Georgia-issued policy and statutory law when he failed to obtain GEICO’s approval before settling with and releasing Allstate.

Jones then brought a claim against GEICO, where he, in part, filed a motion for summary judgment seeking a judicial determination that Louisiana law applied, not Georgia’s. The Civil District Court of Orleans Parish granted Jones’ partial summary judgment claim and found that Louisiana law applied. GEICO then appealed the Trial Court’s ruling to the Louisiana Fourth Circuit Court of Appeal, where the issue focused on whether the Trial Court correctly granted Jones’ motion for partial summary judgment.

Three-Year Rule Applies to Worker’s Compensation Claims for Necessary Treatment

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

time_clock_defect_showing-scaled Timing is an important part of claiming worker’s compensation in Louisiana. Louisiana R.S. 23:1209(C) requires that:

The employee files an initial claim or makes other suitable arrangements within one year of the injury; and
The employee makes any subsequent claims no more than three years after the last payment of medical benefits.