Litigation

New Orleans police officer’s disciplinary violation is reversed

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

fbi_police_ford_interceptor-scaled Police officers are trained to enforce the law and are obligated to follow the law. However, when a police officer violates the rules of policing, the officer has a right to written notice and then the right to an appeal if he feels the punishment is unfair. The following case out of New Orleans shows how a police officer’s appeal of disciplinary action can overturn the department’s actions.

Officer Jones (Jones) and Officer Smith were sent to Canal Street due to a disruption at a bar. The officers were notified that Ms. Dana Earles broke another patron’s sunglasses while under the influence. The officers arrested Ms. Earles. While in the police vehicle, Ms. Earles recounted an unidentified officer had raped her at an unspecified time. The officers informed their superior of the arrest and Ms. Earles’s allegation.

An investigation was launched against Jones by the New Orleans Police Department (NOPD) and the Public Integrity Bureau (PIB) for his failure to abide by Rule 4, Performance of Duty clause of the Civil Service Commission (CSC). Jones was later reprimanded. Jones petitioned the reprimand.

Louisiana Court holds that tutors are not considered a “parent” entitled to bring a claim for loss of consortium

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

child_musical_instruments_1065633-scaled Car accidents are extremely traumatic events that can impact the lives of anyone involved. The legal issues arising after a car accident can be complex and affect everyone involved. For example, what are the rights of a tutor when bringing claims on behalf of the children they are responsible for? Will they be considered “parents” under the law and be allowed to bring a claim for loss of consortium? The following case out of Baton Rouge discusses those issues in relation to a car accident.

Geneva Marie Fils, an infant at the time, suffered severe personal injuries after being in a car accident. After the accident, Geneva’s maternal aunt and tutor, Calverna Reed, filed a lawsuit related to the car accident. In it, she sought damages on behalf of herself and Geneva for their loss of consortium. A loss of consortium claim is brought when someone has been deprived of their family relationship benefits (ex: love and affection) due to injuries caused by the defendant.

The trial court dismissed Reed’s claim for loss of consortium. Afterward, the First Circuit Court of Appeals took the case to determine whether Reed’s loss of consortium claim could stand, considering that she was not a parent or guardian of Fils at the time of the accident.

What If You’re Unable to Pay a Bond Required by Law?

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

hospital_corridor_operating_room-scaled Filing a medical malpractice lawsuit in Louisiana requires the plaintiff to pay a bond before the medical review panel is conducted. But what do you do when you cannot pay the bond? Is there a way to still proceed with your case? The following medical malpractice lawsuit out of Jefferson Parish shows that if you are granted pauper status under La. C.C.P. art. 5181, you could be relieved of the bond requirement.

Delores and Elvorn Tate filed a medical malpractice lawsuit against Ochsner Clinic Foundation for personal injuries and other damages. The Tates alleged the negligent placement of an IV into Delores’s left hand during her hospitalization at Ochsner Hospital caused her injuries. Following the submission of Tate’s lawsuit, Ochsner filed a motion for the Tates to post a bond for all the costs of the medical review panel.

Louisiana law requires those filing a medical malpractice lawsuit to post a cash or surety bond. The amount of the bond must be approved by the court. After the lawsuit, the bond will be forfeited to the defendant’s healthcare provider for reimbursement of the costs of the medical review panel if the Defendant wins. However, if the defendant is found liable, they will be required to reimburse the claimant an amount equal to the bond. La. R.S. 40:1299.47(I)(2)(c).

Fax Filing A Lawsuit, Make Sure You Follow the Rules Precisely

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

office_fax_phone_1645312-scaled After a workplace accident, an employee may be flustered, but it is essential that the employee promptly becomes knowledgeable about court requirements and deadlines. If a claim is not filed within an allocated timeline, the claimant may be barred from bringing the claim forward. The following case out of Jefferson Parish shows why, if you’re fax filing a lawsuit, you must follow the rules precisely.

On January 9, 2014, Mr. Palazola fell from a raised platform while in the course and scope of his maintenance job. About a year later, on January 6, 2015, he filed a facsimile petition for damages with the 24th Judicial District Court for Jefferson Parish. On January 23, 2015, the clerk’s office received a copy of Mr. Palazola’s petition with formatting differences from the previously filed facsimile petition.

The defendants, IMC Consulting, Landry Construction, and Cali & LaPlace Engineers, responded by filing an exception of prescription because Mr. Palazola’s facsimile did not meet the requirements outlined in La. R.S. 13:850. According to Louisiana Revised Statute 13:850, facsimile transmission provides that:

FMLA Retaliation and Title VII Hostile Work Environment Claims Fail on Lack of Evidence

Published on: April 7, 2023 | By Berniard Law Firm

building_hospital_within_931281-scaled Some consider the workplace as their second home. It is a place where one can thrive intellectually and network simultaneously. However, when a workplace becomes hostile or sexually charged, it can make an employee’s life unbearable. Therefore, to bring a successful claim against FMLA and a hostile workplace, a plaintiff must prove all elements under FMLA and show proof the hostile environment affected their well-being.

Amy Smith (Smith) worked for Touro Infirmary (Touro) from 2008 to 2014 as a respiratory therapist. Smith claimed during her employment, her direct supervisor Larry Anderson (Anderson), sexually harassed her and created a sexually charged workplace. According to Smith, the female respiratory therapists who participated in Anderson’s advances were favored over those who did not comply.

Smith took medical leave under the Family Medical Leave Act (FMLA) while pregnant and was later terminated. Smith alleged her termination was due to her noncompliance with Anderson’s sexual advances. She claimed this because she believed she abided by Touro’s leave policy of reporting while gone and provided additional medical documentation when needed. In addition, Smith filed a discrimination claim with the Equal Employment Opportunity Commission (EEOC) and referenced her discriminatory workplace. The district court dismissed Smith’s case on summary judgment, and she appealed.

Damages Awarded by Jury “Shocked the Conscience,” Louisiana Appellate Court Increases Award by $18,500

Published on: April 5, 2023 | By Berniard Law Firm

money_pay_money_making_0-scaled Although a car accident may result in minor damage to your vehicle, it can cause greater damage to your life. By seeking medical treatments and altering your lifestyle due to accident-related injuries, you deserve to be adequately compensated. The following lawsuit, out of Jefferson Parish, Louisiana, shows how courts deal with damage awards and the request to increase the same.

Gregory Nichols rear-ended Sheila Joseph’s vehicle in 2012. This accident caused Joseph’s pre-existing arthritic spine condition to worsen. As a result, she had to undergo sixteen months of conservative care to manage the pain. A frequent runner before the accident, it also limited her participation in activities she previously enjoyed, such as running 5K races.

Joseph then filed a lawsuit against Nichols, and in 2015, it went to a jury trial. Joseph moved for both a directed verdict related to liability and special damages. The court granted her motion in part, ruling that Nichols was 100% at fault. As to the special damages, the trial court took it under advisement. The jury ultimately awarded Joseph the full amount of her medical expenses ($20,118) as well as general damages ($10,500), specifically $10,000 for pain and suffering and $500 for loss of enjoyment of life.

Choice in Pharmacy For a Work-Related Injury Belongs to the Employer

Published on: April 4, 2023 | By Berniard Law Firm

pills_medication_tablets_bottle-scaled Getting treatment and medication can be challenging when recovering from an on-the-job injury. If you are injured at work, you may want to pick up prescriptions at the local pharmacy closest to you. While you may have interpreted Louisiana’s Workers’ Compensation statutes to allow for “choice of pharmacy” in the past, the rule is clear. The following case out of the Louisiana Supreme Court shows why the choice in pharmacy for a work-related injury belongs to the employer.

In October 2008, Darvel Burgess sustained an injury while on the job. As a result of that injury, Burgess filled his prescriptions at the pharmacy of his choice. Unfortunately, his employer, the Sewerage & Water Board of New Orleans (S&WB), failed to reimburse him for those prescription costs. Therefore, Burgess filed a Disputed Claim for Compensation against S&WB seeking to recover money for medical bills and an outstanding $13,110.02 for Injured Workers Pharmacy (“IWP”) for prescription medications prescribed by his doctor.

S&WB argued it was not responsible for the outstanding prescription medications bill, according to La. R.S. 23:1142(B) because it notified all injured workers of their pharmacy, Covel Caremark Pharmacy. S&WB stated this was the approved provider for prescription services, and if an employee failed to use this provider, they might not pay for prescriptions. S&WB also notified IWP that it was not an approved pharmacy for workers’ compensation purposes.

Why It’s Important to Dot your I’s and Cross Your T’s When Filing a Default Judgment

Published on: April 3, 2023 | By Berniard Law Firm

money_currency_dollars_euros-scaled A considerably large percentage of the United States population holds student loan debt. In addition, most individuals who attend higher education institutions in today’s society graduate with some debt. Phillip Kuzma knows this too well.

Kuzma was sued by the National Collegiate Student Loan Trust (NCSL) for over $30,000 after allegedly defaulting on the loans he took out while a student at the University of New Orleans. After suing Kuzma, the NCSL thought they could get an easy judgment by using a procedural mechanism, a default judgment. Kuzma’s case discussed below shows the need to dot your i’s and cross your t’s when filing a default judgment in a Louisiana Court.

In 2013, the NCSL filed a lawsuit, seeking approximately $30,000 in loans and $5,000 in interest as a result of nonpayment by Kuzma. In addition, the NCSL requested the court to order Kuzma to pay their attorney fees. The NCSL claimed these were the requirements expected of those who defaulted.

If You Approach a Barking Dog and It Bites You, is the Owner Liable for your Injuries?

Published on: April 2, 2023 | By Berniard Law Firm

dog_animal_greyhound_983014-scaled While holding the owner responsible for a dog’s behavior is typically the norm, most reasonable people would know not to approach a barking dog in a gated residence. However, Demetrious Frazier found himself at odds with Luke Difulco after being bitten by one of his dogs while performing his work duties at their home. The following lawsuit answers the question; if you approach a barking dog and it bites you, is the owner liable for your injuries?

Frazier was an employee of the City of Alexandria and worked as a meter reader. He visited the Difulco’s home one afternoon to read their residential meter. As he approached the gate, two dogs began barking, followed by Luke Difulcot’s son, Daniel, who came outside to greet Frazier. Although Daniel offered to kennel the dogs for Frazier’s comfort, he entered through the gate without responding, and the ten-year-old black Labrador bit him on the hand.

In contrast to Daniel’s testimony, Frazier claimed that he saw no evidence of a dog when he approached the Difulco’s residence and entered through the gate to check the meter. After entering the gate, he was attacked by a dog, and then a second one approached him. Frazier received workers’ compensation and medical payments from his employer, and he sought additional damages against Luke Difulco through the lawsuit subject of this appeal.

Carefully Review Lawsuit Releases Before Signing, or Suffer the Consequences

Published on: April 1, 2023 | By Berniard Law Firm

louisiana_state_coat_arms-scaled While a settlement can be a beneficial way to end a legal dispute, it can have long-lasting implications. If you are considering signing a settlement agreement and release, you must understand the possible effects of entering into such an agreement. A prior settlement agreement and release could result in a dismissal of a future lawsuit you bring against a party on the other side of the settlement agreement. The following lawsuit shows why one should carefully review any settlement agreement before signing. Otherwise, you may suffer harsh consequences.

Steven Richard was involved in a car accident in Concordia Parish, Louisiana. Richard claimed that while driving westbound on U.S. Highway 425, his vehicle was hit by a car Fred Taylor was driving. Richard later sued Taylor, Fred’s Automotive (the shop where Taylor’s vehicle was repaired), and Caitlin Insurance, the insurance company that covered Fred’s Automotive. This article will focus on the claims Richard brought against Taylor, and the next post will focus on the claims Richard brought against Fred’s Automotive and its insurance company.

Taylor filed an exception of res judicata. Under La. R.S. 13:4231, a claim can be dismissed when there was a final and valid prior judgment involving the same parties and the cause(s) of action in the second suit existed at the time of the first judgment and arose out of the same occurrence as the first action. Taylor argued that the lawsuit against him should be dismissed under the doctrine of res judicata because Richard had previously signed a release with him. Taylor introduced into evidence a document titled “Release of All Claims” that Richard had previously signed. The trial court dismissed the claim against Taylor, holding the res judicata applied. Richard appealed, arguing that the trial court erred in finding that res judicata applied.