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New Orleans Police Officer’s Termination from Traffic Accident Confrontation Upheld

Published on: August 16, 2024 | By Berniard Law Firm

pexels-kindelmedia-7714731-scaled To ensure public trust in law enforcement, local government officials have the power to regulate police officers’ conduct both on and off duty. There are certain lines that police officers should not cross, even in their private lives. The following case shows how the New Orleans Police Department (“NOPD”) can terminate the employment of a long-serving police officer for fighting after a traffic accident and reinforce the high standard they hold their employees to.

Officer Tracy Fulton of the NOPD was waiting at a stop light in his personal vehicle when he was hit from behind by a driver under the alias in court as E.C.. Officer Fulton left his car and began yelling at E.C. and the occupants of his vehicle. When Officer Fulton attempted to open the door of E.C.’s vehicle, E.C. drove off and went to his home. Officer Fulton called the police to report a hit-and-run and followed E.C., who was returning home. Officer Fulton then confronted E.C. again, and the argument eventually became a fight between the two men.

After the two men exchanged blows, they retreated to their vehicles to grab weapons, and the fight ended. After the fight, E.C. had a broken nose, a dislocated jaw, a concussion, and concussion-related symptoms. After an NOPD investigation, Officer Fulton was charged with second-degree battery and was also investigated and eventually fired. Officer Fulton was found not guilty of the battery charge at trial, but the termination was never reversed. Officer Fulton then appealed his termination to the New Orleans Civil Service Commission (“the Commission”).

Smoking Or Radioactive Material? Summary Judgment Reversed Given Factual Disputes On Causation

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

nuclear_power_plant_landscape-scaled Everyone knows someone who has been affected by cancer. Despite being a widespread disease, there is a lot we still do not know about cancer. One area where a lot is still unknown is causation. For example, lung cancer can be caused by a variety of things, including smoking and exposure to radioactive materials. These multiple potential causes can present challenging issues in lawsuits where an individual developed cancer. An medical expert is one possible way to address potential causation issues.

Riley Hickman filed lawsuits against multiple oil and gas companies, claiming he had developed lung cancer from exposure to naturally occurring radioactive material while working to clean oilfield pipes. He claimed naturally occurring radioactive material deposits inside oil pipes and have to be cleaned out, which releases radioactive dust. One of the companies Hickman sued, Shell Oil, filed a summary judgment motion. Shell claimed Hickman could not establish his exposure to naturally occurring radioactive material had caused his lung cancer, in part because Hickman had smoked his entire life. Shell argued Hickman had gotten lung cancer from smoking, not from exposure to naturally occurring radioactive material.

The trial court granted Shell’s summary judgment motion and dismissed Hickman’s claims against Shell. Shell also claimed to have filed a motion to exclude testimony from Hickman’s expert witness, but there was no record of the motion and the court never ruled on it.

Trial Court Errs by Granting an Exception of Prescription to Insurance Company

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

clocks_clock_time_watch-scaled Prescription. Some may relate this term to the medical field and taking pills. But in Louisiana, it has an entirely new meaning. Think of the common phrase “the statute of limitations” many other states use. It’s just like that. A limit is set that blocks claims from being brought after a certain amount of time has passed from the original incident. In this case, the Fifth Circuit Court of Appeal addresses whether an insurance company’s peremptory exception of prescription could be sustained.

On July 21, 2012, Michael Jones rear-ended Carlos Russell (“plaintiff”) while both vehicles were parked, waiting to unload their dump trucks in Belle Chasse, Louisiana. At the time of the incident, Jones was within the scope of employment with Riley & Carroll Properties (“R & C”). Determining the scope of employment is important because an employee can only collect worker’s compensation benefits for any injuries that arise within the scope of employment. After the accident, State National Insurance Company (“SNIC”) paid Carlos Russell $8,738.52 for property damage to his vehicle.

Exactly one year later, on July 21, 2013, Russell filed a personal injury claim against R & C, Jones, and SNIC. Later, Russell amended the lawsuit to include his own insurance company and Ernest Riley, the trucking company’s owner, as defendants. It was found later in 2017 that Scottsdale Insurance Company carried general liability insurance coverage for Jones, Riley, and R & C. That meant that Russell could also add Scottsdale as another defendant to the claim.

Law Firm Not Liable in Legal Malpractice Lawsuit Despite Conflict of Interest

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

bookcase_law_firm_attorney_1-scaled In some cases, mistakes in following procedure can harm a plaintiff’s cause of action even if the case otherwise may be successful on the merits. For example, legal malpractice cases in Louisiana must be filed within one year from when the plaintiff knew or should have known that malpractice had occurred. A recent case out of the Parish of East Baton Rouge has outlined when a plaintiff is considered to have some notice of legal malpractice.

Satterfield & Pontikes (S&P) was a general contractor for the construction of the Lawrence D. Crocker Elementary School in New Orleans, known as the Croker project. The Recovery School District (RSD) owned the property, and Jacobs Project Management Company/CSRS Consortium (Jacobs) acted as the project manager. Norman Chenevert and Chenevert Architects, LLC (Chenevert) and Julien Engineering & Consulting, Inc. (Julien), the sub-consultant structural engineers, created the plans and specifications for the project. In addition, S&P met with Murphy J. Foster, III, a partner at the Breazeale Sachse & Wilson (BSW) law firm, to represent them regarding a previous project S&P worked as a general contractor for. One of the other BSW partners, Steven Loeb, has represented Chenevert previously and had been representing them in connection with the Crocker Project.

Professional ethics rules required BSW to advise S&P and Chenevert on the potential for conflict and to receive a written waiver from both clients. The Chief Financial Officer of S&P, Laura Pontikes, signed the waiver. In contrast, Chenevert terminated its client-lawyer relationship with Leob, and its file regarding the Crocker Project was returned to the company.

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.

A Warning Cone and a Wet Floor, Who Wins in a Slip and Fall Lawsuit?

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

caution_cone_orange_traffic-scaled We have all seen warning cones and signs in front of a wet floor at a business. But what happens when you fall in front of the warning cone? Can the company still be held accountable for your injuries? The subsequent lawsuit, Kenner, Louisiana, shows how courts review slip and fall lawsuits on wet floors with warning signs in plain sight.

Marion Bertaut was a patron of the Golden Corral Restaurant, where she allegedly slipped in a puddle of water and sustained injuries. She filed a lawsuit against the restaurant, seeking damages for her fall and injuries.

Corral filed a motion for summary judgment, arguing Bertaut could not prove there was an unreasonable risk of harm at the restaurant. Under Louisiana law, wet or slick floors marked by warning signage are not unreasonably dangerous. La. R.S. 9:2800.6. Corral provided a surveillance video showing a yellow warning cone placed in the area, and Bertaut passed it multiple times.

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.

Alexandria, Louisiana Last Will and Testament Invalidated for Failure to Follow Formalities

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

stamp_rubber_stamp_stamped-scaled Losing a loved one is an obviously devastating experience. Possessions left to the surviving family members cannot take the grief away but can prohibit an entire upheaval for the survivors. It is critical that an excellent attorney drafts the will and handles the probate process for the sake of those survivors.

An Alexandria, Louisiana, widow was out of luck after family members filed a lawsuit claiming that her late husband’s will was null and defective. In 1996, Elmoses Ivey executed his last will and testament, which left all his property to his wife, Lois Ivey. After Mr. Ivey died in 2016, Mrs. Ivey probated the will and obtained a judgment of possession. However, Mr. Ivey’s children from a prior marriage filed a lawsuit to contest the validity of their father’s will. The children argued that the attestation clause at the end of the will did meet the necessary legal requirements and was, therefore, invalid. An attestation clause is a section at the end of the will stating that all the legal requirements in executing the will have been met. The Ninth Judicial District Court for the Parish of Rapides agreed and declared the will invalid. Mrs. Ivey appealed to the Louisiana Third Circuit Court of Appeal.

Louisiana law requires a notarial testament’s attestation clause to be in writing and dated. The testator (person making the will) must sign the will at the end and on each separate page. The testator must declare in the notary’s presence and two witnesses that the instrument is his will. Finally, the notary and witnesses must include a written declaration that both the first two requirements have been met. See La. C.C. art 1577. While there is a presumption in favor of validity generally, will execution formalities must be strictly followed, or the will is invalid. See Successions of Toney, 226 So.3d 397 (La. 2017). The Louisiana Supreme Court further opined that any earlier cases which treated deviations from testamentary form requirements with leniency would no longer apply.

When an Insured Can Seek Statutory Damages from an Insurer

Published on: July 3, 2011 | By Berniard Law Firm

Many coastal Louisiana homeowners were affected by Hurricane Katrina. Too many of those affected are still dealing with the stressful experience of rebuilding their homes, communities, and lives. When natural disaster strikes, the importance of good, quality homeowners insurance becomes starkly evident, and can provide much needed relief for homeowners. Unfortunately, insurance companies do not always make the recovery of benefits easy on the afflicted homeowner. The insurance claims process can be overwhelming, and may be complicated by the often necessary instigation of litigation. Homeowners carrying insurance need to be aware that in some instances the actions of their insurance provider in hindering their expedient recovery can compel a court to award additional compensation to the homeowner.
Louisiana revised statute §22:1892 * governs the recovery of additional damages against an insurance provider. Under §22:1892, an insurance provider who fails to make a payment on a claim within 30 days of settlement or written agreement to pay could be subject to sanctions if the court finds that failure to disburse payment is “arbitrary, capricious, or without probable cause.” If an insurer fails to make a timely payment as per the statute, the court may “subject the insurer to a penalty, in addition to the amount of the loss, of fifty percent damages on the amount found to be due from the insurer to the insured, or one thousand dollars, whichever is greater.” This penalty, if awarded, is either paid out to the insured, or to a designated employee of the insured.

The Fifth Circuit Court of Appeals case French v. Allstate Indemnity Co., addresses §22:1892. Allstate appealed the lower court’s ruling that it was liable under §22:1892 for failing to timely pay an undisputed portion of a wind damage claim made by the French’s. Allstate did not attempt to argue that they did not owe the French’s some amount under the statute, but rather they argued that the penalty amount awarded to the French’s was incorrectly calculated using an outdated version of § 22:1892. The lower court “calculated penalties on the Plaintiff’s entire wind-damage claim, without discounting any amounts Allstate had timely paid.” The court in French held that the lower court incorrectly calculated the statutory penalty to Allstate by failing to subtract a portion of the claim which Allstate timely paid from the penalty calculation. The court reduced the French’s award by $2,500.

It is important to note that had Allstate simply argued that they should not be penalized under the statute they would almost certainly have been unsuccessful. In Louisiana Bag Co. v. Audubon Indemnity Co., the Louisiana Supreme Court ruled that mere failure to pay within the statutory time limit constitutes behavior that is “arbitrary, capricious, and without probable cause,” and the statutory penalty applies. In other words, simply failing to make a timely payment as required by the statute, and nothing more, is sufficient reason for a court to subject an insurer to penalties.

The calculation of damages to be paid out by insurance companies is an often complicated process. Understanding and knowledge of any additional statutory awards that may be available to a homeowner in need can make all the difference. If you or a loved one has been affected by Hurricane Katrina you need an experienced law firm to help you navigate negotiations with your insurance company and to represent you in court should it be necessary.

*Prior to 2009, § 22:1892 was designated § 22:658, and is cited in French v. Allstate Indemnity Co. as § 22:658.