Litigation

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

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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.

Louisiana Employment Discrimination Case Fails Due to Summary Judgment

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

building_hospital_enschede_928636-scaled People may be fired for a variety of reasons. Often a dismissed employee feels the termination was unjust or racially based. Bringing a lawsuit under Title VII of the Civil Rights Act of 1964 is difficult. A plaintiff must present evidence for a prima facie case of discrimination to survive summary judgment. The following case out of Baton Rouge, Louisiana, demonstrates the difficulty of doing so.

David Williams, an African-American man, worked for Franciscan Missionaries of Our Lady Health Systems, Inc., before being terminated in November 2012. Williams felt the firing was unfair and that he had claims to bring against the hospital. Williams’ lawsuit asserted racial discrimination and retaliation claims under Title VII and U.S.C. § 1981. 42 U.S.C. § 1981. The Federal District Court granted summary judgment for Our Lady Health on both claims. That ruling caused Williams’s case to be dismissed, so he appealed the ruling to the United States Court of Appeals for the Fifth Circuit.

On appeal, the court must examine the district court’s granting of summary judgment and if the non-moving party has met their prima facie burden. Summary judgment is appropriate when there are no disputes of material fact, and the movant is entitled to judgment in their favor as a matter of law.

What is Wrongful Termination Back Pay and Exceptional Pay in Louisiana Civil Service Matter?

Published on: March 15, 2023 | By Berniard Law Firm

calculator_calculation_insurance_1044172-scaled If you were wrongfully terminated from a civil service position within your local government, you might be eligible to receive some compensation for your trouble. For example, say you are placed on suspension and are on track to be terminated. However, you later appeal that decision, and your suspension and termination are lifted. As a result, you may be allowed to reclaim back pay and exceptional pay for the time you were prohibited from working. The following case out of Plaquemines parish discusses the issues of back pay and exceptional pay and how they apply within a court proceeding.

Loukisha A. Daisy applied for the position of Chief Internal Auditor at the Plaquemines Parish Government (PPG). Daisy was accepted on the condition that she complete all required courses and possess a CPA within one year of her hire date. Daisy worked for PPG for one year but did not obtain her CPA certification within that timeline. PPG moved to terminate her employment for this failure as well as two other non-critical mistakes on her part. Daisy was suspended until she had a predetermination hearing. After the suspension, Daisy was terminated.

Daisy appealed her termination to the Plaquemines Parish Civil Service Commission. The Commission reinstated her to her previous position but failed to award all of the back pay she sought in her initial appeal. Therefore, she appealed the Commission’s decision to the Louisiana Fourth Circuit court of appeals.

Louisiana Appellate Court Affirms Dismissal of Age and Disability Discrimination Claims

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

school_book_know_read-scaled If you feel you have been wrongfully terminated, you might think it is sufficient to file a lawsuit accusing your former employer of violating the law. However, merely making legal accusations is insufficient. To survive a motion to dismiss, you must include sufficient factual details to support your claims against your former employer. The case shown below demonstrates these principles.

Melissa Durham worked as a science teacher at Gonzalez Medically School. After she had worked there for about six months, the principal recommended firing Durham because of her unsatisfactory teaching performance, inability to manage her classroom, and repeated disregard for school policies. The Ascension Parish School Board superintendent agreed and fired Durham.

Durham filed a complaint with the Equal Employment Opportunity Commission (“EEOC”) asserting that the school board discriminated against her because of her age and mental disability and failed to reasonably accommodate her concerning the purportedly extremely disruptive and violent students. The EEOC gave Durham notice of a right to sue.

When a Defendant is Dismissed Before the Trial, Can Another Defendant Appeal the Decision?

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

motorcycle_motorcycle_689316-scaled When finding yourself as a defendant in a lawsuit, you will want to limit your liability as much as possible. Your liability could be altered when a co-defendant is found to be at fault for the injuries to a certain extent. However, when one defendant is dismissed before the trial begins, can another defendant seeking to split the fault appeal the decision? A case arising out of St. Charles Parish aims to answer this question.

Devyn Allen, the defendant, was driving westbound on U.S. Highway 90 when he moved from the westbound lane into the center turn lane. When riding his motorcycle, the plaintiff, Tobias Dixon, hit the back of Allen’s car. Dixon was thrown from his motorcycle upon impact and landed on the pavement. While still on the pavement, Dixon alleged that Patrick Jackson, the co-defendant, ran Dixon over in his pickup truck. Dixon then sued Allen; Progressive Insurance Company, Allen’s insurer; Jackson; Command Construction Industries, Jackson’s employer; the Gray Insurance Company, Command’s insurer; Louisiana Pizza Group (LPG), Allen’s employer; and Tudor Insurance Company, LPG’s insurer.

Jackson, Command Construction, and the Gray Insurance Company then filed a motion for summary judgment, which asks the court to decide based on the arguments filed in favor of the filing party. Jackson argued that there was no evidence that he hit Dixon while lying on the pavement. The trial court agreed with Jackson and granted the motion. Following the decision, LPG appealed the decision arguing that there was a genuine issue of fact as to whether Jackson hit Dixon and that Jackson should also be held liable for Dixon’s injuries.

Can the Louisiana Department of Transportation Be Found Liable for a Car Accident?

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

transportation_vehicle_road_879026-scaled Driving poses undeniable risks. However, travelers may need to consider how unsafe a barrier curb may be in certain situations. When is the state liable for these conditions? A case from the St. John Baptist parish considered how the state department of development and transportation was at fault for construction risks that contributed to an accident.

One afternoon, James Harris drove along the Airline Highway in Louisiana with his wife and their two grandchildren. As Harris traveled southbound, another northbound driver, Marilyn (MB), began driving erratically. MB’s car eventually drifted into the opposite side of traffic after crossing over a barrier curb on the highway. Harris moved onto the right-hand shoulder of the road to avoid MB. Unfortunately, despite his efforts to prevent a collision, MB’s vehicle crashed into Harris’, and he injured his left leg, foot, and hip. Ultimately, Harris’ left leg was amputated eight inches below the knee, and MB died from the accident.

Harris sued the Louisiana Department of Transportation and Development (DOTD) for failing to have a jersey curb that would have prevented MB’s car from drifting into the opposite side of traffic. In addition, he sued Progressive Security Insurance Company, MB, MB’s insurance provider. The trial court found the DOTD to be 90% at fault and Ms. MB to be 10% at fault for the accident, and the jury ultimately awarded Harris $5,000,000 in general damages and $1,000,000 for loss of enjoyment of life. On appeal, the DOTD argued that the trial court abused its discretion in finding the DOTD liable and in the number of damages awarded to Harris.

What is the “Substantial Factor Test” in Louisiana Asbestos and Mesothelioma Litigation?

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

bauer_elementary_asbestos_2-scaled Risks are involved with many jobs. While employees may take risks at work, knowingly or unknowingly, one does not usually expect to put their family at risk while on the job. Jimmy Williams Sr found himself in this situation when his exposure to asbestos at work impacted his wife’s health through her handling his work clothes.

Myra Williams died at fifty-nine after being diagnosed with incurable mesothelioma, an aggressive and deadly form of cancer. She endured a difficult and painful battle with the disease until her death. Myra’s husband, Jimmy Williams, worked for the Placid Oil Facility in Natchitoches, Louisiana, and was constantly exposed to asbestos fibers. Unfortunately, he unknowingly brought the dangerous fibers home on his clothing that was handled and washed by Myra.

Jimmy Williams Sr filed a lawsuit for the death of his wife. This lawsuit was against several defendants, including Placid Oil Company and Ingersoll-Rand Company. The lawsuit alleged that products being used at Placid Oil Company were produced by Ingersoll-Rand and were the cause of the asbestos exposure that impacted Jimmy’s clothing. The courts in this lawsuit used the “substantial factor test” to determine whether Myra’s claims could be related to the exposure caused by the handling of her husband’s clothes. So what is this “substantial factor test” and how does it work? The following helps answer that question.

Are You Required to Plead the Word “Conspiracy” in Louisiana For Solidary Liability?

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

law_books_legal_books-scaled In Louisiana, a conspiracy is a combination of two or more persons to do something unlawful, either as a means or as an ultimate end. Once a conspiracy has been established, an act done by one in the furtherance of the unlawful act is, by law, the act of all others involved in the conspiracy.

If proven, a conspiracy can allow for solidary liability among all of the co-conspirators for the damage caused. Solidary liability means that each responsible party is independently liable for the entire obligation, responsibility, or debt to the party who was harmed by any one of them. Everett Curole’ lawsuit after an assault and battery at his home, shows the power of the legal system to hold parties accountable for their nefarious acts.

In the early morning of December 31, 2002, Bonnie Delcambre, Quinn Delcambre, Glenn Gadrow, Tricia Menard, Rory Delcambre, Lori Toups, and Rayford Champagne arrived at the at the home of Everett and Charlene Curole. Bonnie kicked in the front door and everyone else followed her into the home. Bonnie woke Mrs. Carole to confront her and Rory, Quinn, and Glenn severely beat Mr. Carole. During the beating, the others punched holes in the walls. The assailants then fled the scene,, and Mrs. Curole called 911.