Negligence Claims

Medical Malpractice Lawsuit Tossed Due to Louisiana’s Prescriptive Period

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

hourglass_time_hours_sand-scaled A man is in the hands of a facility tasked with providing sufficient medical care. Instead of meeting this standard of care and due diligence, the facility fails to adjust the man’s diet, and he chokes on solid food that he should not eat, leading to his death. When his parents and children bring multiple complaints of medical malpractice, his children’s claim gets dismissed despite the apparent negligence of the facility. Why did that happen?

Joseph Triggs was this very man. While in the care of the Audubon Health and Rehabilitation Center (“Audubon”), Mr. Triggs choked on solid food and died in January 2013. A medical malpractice claim naming Mr. Triggs as the plaintiff was brought eight months after his death, alleging that the facility’s failure to adjust Mr. Triggs’s diet led to his death. Aubudon did not adjust his diet despite difficulty chewing and swallowing solid food.

As is the process for medical malpractice in Louisiana, the complaint requested that a medical review panel assess the situation. Nearly twenty-two months after Mr. Triggs passed, a request was made to amend the complaint, adding Mr. Triggs’s children as claimants, along with the decedent’s Estate. Finally, over two-and-a-half years after Mr. Triggs died, the medical review panel unanimously decided that Audubon had been negligent in caring for Mr. Triggs, and Mr. Triggs’s children and Estate filed a lawsuit in the trial court on a claim of medical malpractice.

Louisiana Restaurant Evades Liability For Speculative Slip-and-Fall Claim

Published on: March 6, 2023 | By Berniard Law Firm

slip_up_danger_careless-scaled Slip-and-fall cases are prevalent in the restaurant industry. In handling various kinds of food and drink, it makes sense that sometimes, things end up on the floor and can cause a slip hazard for customers. But when a customer falls without a clear cause, how can the court determine who is at fault?

Laurita Guillory sued Barco Enterprises (“Barco”), owner of The Chimes Restaurant, after a fall at their restaurant. Guillory alleged that, when visiting the restaurant, she slipped and fell by the wait station. She claimed that a mysterious substance was spilled on the floor by the restaurant waitstaff, and it caused her fall. With these allegations, Guillory filed a lawsuit under the Merchant Liability Statute.

Based on the assertion that Guillory failed to prove her allegation sufficiently, Barco filed a motion for summary judgment and supported it with several documents and affidavits. These documents included testimony from Guillory that she never saw anything spilled on the floor by the waitstaff and a manager’s affidavit stating that nothing on the floor could have caused a fall. The trial court granted the motion because Guillory failed to show that the restaurant had caused a dangerous condition or knew about a hazardous situation. Guillory appealed the trial court’s decision dismissing her lawsuit.

Where There’s Smoke, There’s a Lawsuit: Determining Liability for a Car Accident Resulting from a Marsh Fire

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

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The phrase, “where there’s smoke, there’s fire,” is often used to describe situations where one thing almost certainly indicates the presence of another. However, establishing a contributing factor to a car accident and liability for negligence does not always follow so direct a relationship.

Shortly before Tropical Storm Lee reached the marshlands of Oak Island just outside of New Orleans in September 2011, an employee of the LPC (“Little Pine”), the entity that owns Oak Island, saw traces of smoke and reported it to the Fire Department (NOFD). NOFD investigated the scene and found a fire, but the area from which the smoke was coming was not accessible to fire crews. The onset of Tropical Storm Lee made it even more difficult for NOFD, which had called in the Louisiana Army National Guard — to reach the source of the smoke. Helicopter water drops were used to treat the fire, but access by boat or other means remained impossible. The fire continued to burn for months under the daily monitoring of NOFD.

On the morning of December 29, 2011, drivers traveling on Interstate 10 past the Oak Island marshlands suddenly encountered thick, dense fog and smoke clouds, resulting in nearly zero visibility. Scott Lowe, a passenger in one of the vehicles traveling on I-10, was involved in a multi-car accident caused by poor visibility conditions. Lowe filed a lawsuit against Little Pine, arguing that it acted negligently by allowing the marsh fire to burn for months after it began, allowing smoke to obstruct visibility along a major roadway, and failing to exercise due care regarding the safety of others. Little Pine filed a motion for summary judgment, arguing that there was no genuine issue of material fact about whether Little Pine was liable for an “unavoidable Act of God/force majeure.” In addition, Little Pine asserted it owed no duty to Lowe to extinguish the marsh fire. The trial court granted Little Pine’s motion for summary judgment, and Lowe appealed.

Houma Residents Injured by Termite Treatment Shut Out of Court for Failure to Offer Qualified Expert Witnesses

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

termite_tracks_tree_damage Expert testimony is one tool litigants can use to prove their arguments in a court of law. Expert witnesses are highly credible individuals with advanced knowledge in a particular field in a lawsuit. The testimony of experts is meant to assist the court in understanding the evidence in matters of fact. But not just anyone claiming to be an expert can testify on behalf of a litigant. As homeowners Blake and Courtney Freeman learned in a painful way, the testimony of six expert witnesses they offered was denied admissibility because it failed to meet Louisiana’s standards for expert testimony evidence.

The Freeman family purchased a home in Houma, Louisiana, which at the time contained prior termite damage previously treated by Fon’s Pest Management. In 2010, the Freemans began renovating their kitchen and discovered additional termite damage in the kitchen cabinets. As a result, Fon’s Pest Management again treated the Freemans’ home on two separate occasions by drilling holes in the floor, injecting termiticide into the soil beneath the floor, and using spot treatments of termiticide around the house. The spot treatment chemical contained fipronil, a colorless, odorless neurotoxin. Following Fon’s Pest Management’s treatments, the Freemans began to experience health problems that they believed were caused by the termiticide used in their home. As a result, the Freemans moved out of their house and filed an action against Fon’s Pest Management for damages due to injuries caused by the exposure to fipronil.

In support of their theory of recovery, the Freemans relied on the expert testimony of three toxicologists, an engineer, an industrial hygienist, and a professional counselor. Fon’s Pest Management filed motions in limine, arguing that none of the expert’s testimony should be admitted into evidence because they failed to meet the required legal standard for experts. A motion in limine is filed by a party who seeks to have the court limit or prevent certain evidence from being presented by the opposing party at trial. These motions, usually filed before the commencement of a trial, are handled outside of the jury’s hearing. The trial court granted Fon’s Pest Management’s motions to exclude the Freemans’ expert testimony and subsequently granted Fon’s Pest Management’s motion for summary judgment.

Baton Rouge Car Dealer Escapes Vicarious Liability Claim in Accident Involving Motorcyclist

Published on: February 28, 2023 | By Berniard Law Firm

crash_test_collision_60_2-scaled It’s a common scenario: a potential buyer visits a car lot, finds a vehicle he’d like to test drive, and heads out onto the road with the salesperson in the passenger seat. What happens, though, if an accident occurs during the test drive? Suppose the potential buyer loses control of the vehicle while driving — who is responsible for injuries and property damage that result?

On October 27, 2007, Ronald Branstetter was riding his motorcycle on Airline Highway in Baton Rouge when he was allegedly forced off the highway. Branstetter states that defendants Beal and Rives were test-driving a 1988 Ford Bronco when Beal lost control of the truck. To avoid a collision, Branstetter swerved off of the highway, causing him to suffer injuries. Branstetter brought a lawsuit against Beal and Rives to recover damages from his injuries, alleging that the injuries were caused by Beal’s and Rives’s negligence. Branstetter also named Millenium Auto Sales (“Millenium”) as a defendant in the case, alleging that Millenium owned the Ford Bronco and that the company employed Rives, giving rise to a vicarious liability claim.

Under Louisiana law, employers are generally responsible for the damage caused by their employees, but only if the employee is acting within the course and scope of his employment. La. C.C. art. 2320. A “servant,” or employee, is considered to be a person under the control of another employed to perform services. On the other hand, a non-servant agent may contribute to the employer’s business but is not under the employer’s control. In determining if there is a master-servant relationship, courts often look to factors including compensation, the status of the employee, performance of a specific mission, the intensity of the relationship, control, the role of the employer in exercising control, and the direct benefit to the company. See Cason v. Saniford, 148 So. 3d 8 (La. Ct. App. 2014).

Louisiana Court Holds that Bicycles are Not “Motorized Vehicles” Under Louisiana Law Following Ponchatoula Collision

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

motorcyle_bicyle_old_fazl_0-scaled Sometimes words that we think have clear meanings become less than clear when used in the law. For instance, if a state statute prohibits cars from driving on park grounds, we would naturally conclude that a regular passenger vehicle is forbidden from entering the park. However, what about a toy car? Would a toy car be banned as well? It would be ridiculous to think that the legislature intended to forbid toy cars and passenger vehicles from park property. In some cases, courts are called upon to apply statutes to situations that, based on the plain language of the law, are not entirely clear. On the other hand, in cases where the rule is clearly written, Louisiana courts favor a direct application of the law.

William Foster, Jr. was riding his bicycle westbound on Pine Street in Ponchatoula, Louisiana, when he was struck by a Toyota Sequoia driven by Carol Kinchen. At the hospital, Foster was treated for the injuries he sustained in the collision. The hospital staff also did blood work and found that Foster had a blood alcohol content of 0.084% at the time of the accident. Foster filed a lawsuit seeking to recover for personal injuries against Kinchen, arguing that the accident was caused by Kinchen’s negligence.

Kinchen filed a motion for summary judgment, arguing that, according to Louisiana Revised Statutes 9:2798.4, she was free from liability because Foster was intoxicated when the accident occurred. The trial court dismissed the lawsuit, and Foster appealed to Louisiana’s First Circuit Court of Appeal. He argued that the trial court’s decision was improper because the statute relied upon by Kinchen concerned the operation of “motor vehicles” while under the influence of alcohol, yet, Foster was riding a bicycle at the time of the accident.

Court Clarifies Use of Differential Diagnosis in Louisiana Medical Malpractice Case

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

building_hospital_enschede_931283-scaled Does a physician’s use of differential diagnosis raise a medical malpractice issue in Louisiana? That question is at the center of a recent medical malpractice case out of Lake Charles. The Louisiana Third Circuit Court of Appeal addresses liability attached to a method of clinical diagnosis known as a differential diagnosis.

On February 23, 2011, after experiencing two seizure-like episodes, Ms. Judith LeBlanc was seen in the emergency room of CHRISTUS Health Southwestern Louisiana (St. Patrick’s Hospital) by her primary care physician Dr. Lewis. Ms. LeBlanc was being treated for a jaw infection and scheduled for a tooth extraction the next day. Dr. Lewis ordered several tests over the next few days to rule out multiple potential underlying conditions. Although Dr. Lewis made a differential diagnosis that included sepsis as a possibility, Ms. LeBlanc was not treated for sepsis because she displayed no signs of it. Two days after her discharge, Ms. LeBlanc developed seizure activity and cardiopulmonary arrest and eventually passed.

A medical malpractice lawsuit was filed by Leblanc’s family. As part of the lawsuit, a Medical Review Panel met and found that neither St. Patrick’s nor Dr. Lewis breached the standard of care. St. Patrick’s and Dr. Lewis relied upon the Medical Review Panel’s findings in filing motions for summary judgment to dismiss the lawsuit. The Fourteenth Judicial District Court for the Parish of Calcasieu granted those summary judgment motions and Leblanc appealed.

Understanding the Direct Action Statute and Insurance Disputes

Published on: July 1, 2014 | By Berniard Law Firm

Louisiana has a Direct Action Statute that allows injured third parties to sue an insurance company directly when the insurance company’s insured causes an injury. For example, if you are involved an automobile accident where you are not at fault, you can sue the at-fault driver’s insurance company directly instead of suing the at-fault driver themselves. The Direct Action Statute is beneficial because it gives injured third parties access to the entity that will actually pay compensation for the injuries. It can be especially helpful where the insured fails to file a claim with their insurance company themselves. However, the injured third-party’s ability to sue the insurance company directly is limited by the insurance contract between the insurance company and the insured.

Despite the fact that the insurance contract is between the insurance company and the insured, an injured third party must still comply with most of the terms of the contract. This overarching rule applies specifically to whether the policy covers the insured and whether the policy covers a particular event. The insurance company will ask: Did this person have coverage when this accident happened? and Does this policy cover this type of event? For example, in insurance contracts limited to specific times, the insurance company will not cover a claim that occurred outside the time frame of the contract, regardless of who brings the claim. In a related example, automobile coverage that is limited to only certain vehicles will cover only those vehicles, regardless of who brings the claim. That is, the injured third party can have no greater rights than the insured would have had if he or she brought the complain themselves.

In a United States Fifth Circuit Court of Appeals case, the court determined that specific requirements of the contract also extend to injured third parties. That case involved a “claims-made-and-reported” policy. That type of policy not only requires that a claim arise within the policy period, but also that the insured (or another party under the Direct Action Statute) had to have reported the claim within the policy period. This type of notice requirement helps insurance companies avoid claims that are reported years after they happen; instead, this policy requires notice within a certain amount of time.

Uninsured Motorist Coverage: What Are Your Rights?

Published on: November 9, 2013 | By Berniard Law Firm

When you signed up for automobile insurance, you might have noticed that many states now require automobile insurance agencies to include some sort of uninsured motorist (“UM”) clause in your insurance agreement. Oftentimes, the only way to get out of including this in your coverage, and therefore having to pay a higher premium, is by explicitly rejecting this additional coverage. How exactly do you reject this additional coverage, though? While this might seem like an easy question, most states, including the state of Louisiana, require very specific requirements to be met in order for rejection of UM coverage to be proper.

In the State of Louisiana, that is exactly the case: In order to get out of paying a higher premium for this uninsured motorist coverage, the insured has to explicitly reject that coverage. And the state of Louisiana has many rules with regard to how to properly complete this task.

In order for an uninsured motorist rejection to be considered proper, Louisiana courts have found six tasks that must be completed by the insured. In Duncan v. U.S.A.A Ins. Co., 06-0363 (La. 11/29/06), 950 So. 2d 544, the court outlines these six tasks as follows:

1) initialing the selection or rejection of coverage chosen;
2) if limits lower than the policy limits are chosen (available in options 2 and 4), then filling in the amount of coverage selected for each person and each accident;
3) printing the name of the named insured or legal representative;
4) signing the name of the named insured or legal representative;
5) filling in the policy number; and
6) filling in the date.

While the Court in Duncan did not explicitly deal with the timing of these tasks, a couple years later, the Court in Gray v. American National Propery & Cas. Co., 07-1670 (La. 2/26/08), 977 So. 2d 839, discussed the requisite timing in which the above tasks need to be completed. According to the Court in Gray, all six of these tasks have to be completed before the UM selection form is signed by the insured. The Court also went on to say that the completion of these tasks has to be done in a manner showing that the insured’s signature signifies that he or she agrees with all of the information that is contained in the insurance form. While the Court said that the tasks have to be completed before the UM selection form is signed by the insured, that was not the most important part of the Court’s findings. Rather, the most important part of the Court’s holding was that the insured’s signature needs to signify agreement with all that is contained in the form.

In the recent case decided by the Louisiana Supreme Court, Edward Morrison v. U.S.A.A Casualty Ins. Co., No. 2012-CC-2334, the Court really focused on the fact that the most important part of the timing of the UM selection form is that the insured’s signature is affirming agreement to all the clauses contained therein. This case primarily deals with task #1 listed above which requires that an individual properly initial the selection or rejection of coverage chosen in order for UM rejection to be considered proper.

In this case, the insured’s representative clearly meant to reject UM coverage but accidentally did not initial the line that stated such in the agreement form. When the insurer received the form, he or she noticed that the form was incomplete and sent it back to the insured’s representative. At that time, the representative initialed the proper line rejecting UM coverage and returned the form to the insurer. This clearly showed that the insured agreed with all of the clauses and various information contained in the form. Furthermore, all of this was completed before the relevant accident, so the court held the UM rejection valid.

Uninsured/Underinsured Motorist (UM) Coverage Limitations in the State of Louisiana

Published on: November 6, 2013 | By Berniard Law Firm

In a previous blog post, we discussed how exactly uninsured/underinsured motorist (UM) benefits can be rejected in Louisiana. While that post went through some of the legal technicalities involved in rejecting UM coverage, it did not discuss in depth some of the scenarios in which coverage might be rejected and how the court might actually rule despite those legal technicalities.

This blog post will focus on specific cases and scenarios in which, despite not following every legally prescribed requirement under Louisiana law, the court has decided that coverage was actually properly rejected or limited. Some of these examples involve just a word or two out of place, others involve completely leaving off pertinent information. But all of the below examples make it clear that the parties’ intents are more important that perfectly following the letter of the law.

The first example deals with a case involving an automobile accident. In that case, the individual driving the car involved in the accident was driving one of his employer’s vehicles. So the question was whether or not the employer’s insurance company, General Insurance Company of America (GICA), had properly produced a valid and enforceable uninsured/underinsured motorist rejection form, as required by the commissioner of insurance. Whether or not this UM rejection form had been properly completed would mean the difference between $100,000.00 and $1,000,000.00 available under the policy. GICA contended that it had filled the form out properly and that coverage should be $100,000.00, and the individual driving the car claimed the opposite and that coverage should be in the amount of $1,000,000.00.

In that case, the plaintiff argued that the form did not fulfill all requirements as specified by Louisiana statute for proper uninsured/underinsured motorist rejection. Specifically, the form that was signed had an improper title. Despite the fact that the form did not have the exact proper title, the court decided that the form was still valid and enforceable, and therefore, UM rejection was properly executed. The governing factor in the case was whether or not GICA’s intent was clear from the UM rejection form. Because the intent was clear, despite the improper title, rejection was still proper.

Another example from the Louisiana court system involved a UM rejection form that not only had the title wrong, but also had several other deviations. Despite these errors, the uninsured/underinsured motorist rejection was still deemed proper because the form was clear about the limitation of the coverage. From the form, it was obvious that the party meant to limit UM motorist coverage.

Yet another case dealt with a form that was missing the insurance company name and policy number. Both of those pieces of information are technically required by law in order for the UM rejection to be valid. However, the court in that case ruled that such omissions will not invalidate an otherwise valid form when it is clear that the intent was to reject UM coverage. The technical errors had little weight on the court’s decision because the overall intent of the parties was clearly stated in the signed document.

In a Louisiana Supreme Court case, a form did not properly contain the printed name of the legal representative of the corporate insured. However, once again, despite this technical error, the Court determined that the uninsured/underinsured motorist rejection form would not be considered invalid because of that small error because the overall intent of the parties was clear from the form.

From these examples, it is clear that the courts will not always strictly apply the stated law and that sometimes the overall intent of the parties is more important and carries more weight in determining the validity of a UM rejection form.