Insurance Dispute Lawyer Blog

How the Louisiana Code of Civil Procedure Article 971, The “anti-SLAPP” Statute Used in Court

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

bear_wildpark_poing_play Rights, even those granted under federal and state constitutions, are not without limitations. As Yaroslav Lozovyy (“Lozovyy”), a former research assistant at Louisiana State University (“LSU”), discovered in an appeal of his lawsuit against an interim director, Richard L. Kurtz (“Kurtz”), and a vice chancellor, Thomas R. Klei (“Klei”), courts take allegations of making false statements seriously. The following case shows how the Louisiana Code of Civil Procedure Article 971, The “anti-SLAPP” Statute is used in Court.

While most statements are protected under the United States Constitution’s First Amendment Freedom of Speech Clause, courts have since deemed certain limited categories of speech unprotectable such as (but not limited to) fighting words, incitement, and obscenity. In addition, defamation, which is the communication of a false statement that harms the reputation of another, is another category of speech that is not protected under the U.S. Constitution nor Louisiana state law.

After being employed for over ten years as a research assistant on an annual contract-term basis at LSU’s J. Bennett Johnston Sr. Center for Advanced Microstructures & Devices (“CAMD”) in 2012, Lozovyy’s contract was not renewed, and his employment ended. Lozovyy subsequently emailed a fellow research collaborator, Peter Dowben (“Dowben”), a physics and astronomy professor at the University of Nebraska-Lincoln, stating that he heard a rumor that he was fired because he stole research data and Kurtz was therefore forced to fire him.

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.

Insurance Provider Fails to Cancel Customer’s Coverage after NonPayment, Must Pay Damages

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

accident_car_accident_car-scaled Complex insurance issues can add more hassle to the damage from a car accident. What happens if you’re in an automobile accident after failing to pay your insurance premium? Can you still get coverage for your claims? The following case out of Baton Rouge shows why insurance companies must follow proper procedure and offer evidence of cancellation or suffer consequences.

On July 27, 2010, Beverly Smith and Darlene Shelmire were involved in a vehicle collision in Baton Rouge when Shelmire entered an intersection without yielding. Smith sustained injuries due to the accident and filed a claim against Shelmire and her insurer, Gramercy Insurance Company. The insurance company asked the court for summary judgment, claiming that Shelmire did not have insurance coverage at the time of the accident due to the cancellation of her policy for nonpayment. The court held a hearing on the motion and denied it.

The legal entity representing Gramercy Insurance Company, GoAuto, filed a new motion for summary judgment, asserting the same claim that Shelmire’s policy had been canceled before the accident. The trial court again denied this motion. In a bench trial, GoAuto filed a motion for involuntary dismissal, which the court denied. During the trial, the court heard evidence that Shelmire had paid her insurance premium on the afternoon of the accident and reported the accident a few hours later. GoAuto paid Shelmire for the damage to her vehicle the next day, despite their claim at trial that her insurance policy had been canceled by that point. Therefore, the trial ordered GoAuto to pay $15,000 in damages to Smith. GoAuto appealed this judgment.

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.