Insurance Dispute Lawyer Blog

Who Is Covered By A Settlement Agreement Release?

Published on: October 23, 2023 | By Berniard Law Firm

writing_write_person_paperwork-scaled A settlement agreement can be an efficient way of resolving a claim and receiving compensation without a lengthy trial process. However, it is essential to understand what a settlement agreement does and does not cover to avoid surprises down the road if you later try to bring related lawsuits against other parties.

Kerry Maggio was injured in a car accident when he was hit by a vehicle driven by James Parker, who worked for Sandwich Kings. Brenda Parker owned the vehicle, which was insured by the Louisiana Farm Bureau. Maggio filed a lawsuit against James Parker, Sandwich Kings, and their insurers.

Maggio signed a settlement agreement and release of all claims with Brenda Parker and the Louisiana Farm Bureau. Neither James Parker nor Sandwich Kings was specifically mentioned in the release. Sandwich Kings and its insurer filed a summary judgment motion, arguing Maggio’s release applied to them because it released “all other persons” who were or might be liable for his injuries from the accident.

Hospital Not Liable For Negligent Transportation During Hurricane Katrina

Published on: October 22, 2023 | By Berniard Law Firm

hurricane_bob_1991_cyclone-scaled Over a decade after Hurricane Katrina, we have almost all heard of the difficult choices hospitals faced while trying to care for patients. This case involves a patient who was allegedly injured while being evacuated from a New Orleans hospital during Hurricane Katrina.

Lionel Favret was admitted to the hospital in New Orleans, Louisiana where he was diagnosed with a bone disease and back pain. He was treated with antibiotics and underwent back surgery. He faced a difficult recover and while in the ICU, Favret had to be resuscitated on two different occasions.

He was moved out of the ICU into a unit for surgery patients when Hurricane Katrina hit. Hospital employees carried Favret down several stories of stairs into the parking garage where he was eventually evacuated after over a day. When he arrived at the new hospital, he was diagnosed with fractures in his back and an infection. He underwent another back surgery.

Injured Work Release Inmate’s Sole Remedy Is Workers’ Compensation

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

prison_alcatraz_prison_wing-scaled Even while an inmate, you are still entitled to damages if you are injured on the job. If you are injured while working in a release program, are you entitled to compensation through the workers’ compensation scheme?

Lindsey French was serving a sentence for drug and firearm charges at the detention center in Claiborne Parish, Louisiana. Inmates at the detention center could be released to work for the police as part of the highway maintenance crew. French volunteered to join the crew. While on the crew, French was responsible for operating a tractor.

One day, the tractor French was using hit a tree stump. French was not wearing his seat belt. He fell through an opening in the tractor and fractured his pelvis.

Presumption of Negligence in Rear-End Accidents Does Not Always Lead To Summary Judgment Victory

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

car_racing_crash_accident-scaled Under Louisiana law, there is a presumption the driver of a car that rear-ends another car acted negligently. However, this presumption of negligence can be overcome in certain situations, such as if the driver of the vehicle that was rear-end shifted lanes soon before the accident.

While Tammy Bloxham was stopped at a red light in her car, she was hit from behind by Andy Gibbs Jr. At the time of the accident, Gibbs was driving a tractor-trailer owned by 31 Energy. Bloxham filed a lawsuit against Gibs, 31 Energy, and 31 Energy’s insurer. Bloxham argued 31 Energy had been negligent in hiring Gibbs and not inspecting its vehicle’s brakes. The defendants filed a summary judgment motion, claiming Bloxham had not reported this claim in her pending bankruptcy. Bloxham also filed a summary judgment motion, claiming Gibbs was liable under La. R.S. 32:81 A and the presumed negligence of the driver of a following vehicle who hits the rear of another vehicle.

The trial court granted Bloxham’s summary judgment motion given the presumption that a following driver who rear ends another vehicle is negligent. The court held this applied even if Bloxham had changed lanes immediately before the accident. The defendants filed an appeal.

Can an Independent Contractor collect Workers’ Compensation Benefits?

Published on: October 19, 2023 | By Berniard Law Firm

labor_farmer_village_work The distinction between independent contractors and employees has always been something of a balancing test. This distinction becomes vital in workers’ compensation issues, where employees generally enjoy peace of mind with workers’ compensation in the event of an injury, whereas independent contractors usually do not. But are there some cases where an independent contractor can collect workers’ compensation benefits? The answer to this question is illustrated in the following appeal from the New Orleans Office of Workers’ Compensation.

Federico Espinoza Martinez and four others were hired by Jaroslov Rames to lower a washer/dryer combination unit to the first floor of an apartment building. During the lowering of the unit, Mr. Martinez received a laceration on his hand when one of the ropes used snapped. Despite a broken rope and cut hand, Mr. Martinez and the others completed the job. Afterward, Mr. Rames drove Mr. Martinez to the emergency room, paying five hundred dollars to ensure proper treatment was administered. Mr. Martinez later attempted to collect his pay from Mr. Rames. Mr. Rames informed him that he had deducted the five-hundred-dollar emergency room fee from Mr. Martinez’s check and planned to deduct the remainder of the hospital fee from his future earnings.

Mr. Martinez filed a claim for workers’ compensation benefits he believed Mr. Rames owed him. The issue was heard by the Office of Workers’ Compensation (henceforth “OWC”), and it was found that Mr. Martinez was not an employe of Mr. Rames, but rather an independent contractor. Benefits were denied based on this finding. Mr. Martinez appealed, maintaining that the OWC failed to apply the manual labor exception outlined in La. R.S. 23:1021(7). The OWC found the manual labor exception did not apply to the set of facts, denying benefits again for Mr. Martinez.

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.

Is It Possible To Modify a Workers’ Compensation Judge’s Judgment?

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

worker_shoes_shoes_work-1-scaled If you have been injured on the job, you might be entitled to workers’ compensation. In order to receive compensation, there are a number of procedural requirements with which you must comply.

Elaine Rodrigue worked as a paralegal for the school board in Lafourche Parish, Louisiana. While working, she tripped over a rug and had to have surgery. When she returned to work from her surgery, she was transferred to work at a metal building. While working there, Rodrigue was exposed to noxious odors and forms. After she left her job, her symptoms from the exposure continued to get worse.

Rodrigue filed a workers’ compensation claim against the school board. The Workers’ Compensation Judge ruled in favor of Rodrigue, finding her exposure to the noxious odors and fumes at work had caused her medical issues, so she could recover for her related medical expenses. The judgment included twenty items from Rodrigue’s doctor’s prescriptions that were a reasonable and necessary part of her treatment.

Is Delaying An Examination Under Oath A Lack of Cooperation In A Homeowner’s Insurance Claim?

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

house_architecture_brick_door_0-scaled In order to recover under a homeowner’s policy, there are many requirements with which you must comply. One common requirement is providing the insurer with requested documentation and undergoing an examination under oath where the insurer can ask questions and gather information relevant to the claim. What happens if a homeowner delays undergoing an examination under oath?

Jesse and Dena McCartney’s house was destroyed in a fire. They filed a claim with Shelter Mutual Insurance, who issued their homeowner’s policy. Their policy required that they cooperate with the insurer, including answering questions under oath and submitting proof of loss. The McCartneys filed a lawsuit against Shelter for refusing to pay them anything.

Shelter filed a summary judgment motion, arguing the McCartneys had not provided the required requested information and had refused to submit to an examination under oath. The McCartneys claimed they had not refused to cooperate with the investigation and had submitted documentation and recorded statements. They also claimed they had only postponed the examination under oath, not refused it. They noted Shelter had requested an examination under oath more than sixty days after the McCartneys submitted their proof of loss, which was after the time by when Shelter was required to pay them or make a settlement offer. The trial court granted Shelter’s summary judgment motion, explaining the McCartneys had voided their policy by not submitting to an examination under oath. The McCartneys filed an appeal.

No Hostile Work Environment Where Employer Took Remedial Actions

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

usps_mcveytown_pa_17051-scaled No one should have to deal with sexual harassment in the workplace. If you are dealing with sexual harassment at work and you report it to your employer, you hope they will act on your report. How do actions taken by your employer affect your ability to recover for sexual harassment in court?

Shelita Tucker worked for UPS in Port Allen, Louisiana for three years. One of the subordinates she managed was Larry McCaleb. Tucker claimed McCaleb sexually harassed her for about two years. His alleged sexual harassment involved inappropriate touching. Soon after the incident with the inappropriate touching, Tucker reported what had happened to the business manager. McCaleb was taken out of service while the investigation was ongoing. The next day, Tucker filed a complaint with the UPS Compliance Line. She subsequently also filed a report with the local police department.

The next week, Tucker was on a scheduled vacation. While she as on vacation, UPS investigated the matter and suspended McCaleb. When McCaleb was allowed to return to work, UPS took corrective action including meeting with McCaleb, counseling him about proper behavior and relevant policies, and prohibiting him from going near Tucker. McCaleb was also convicted of battery and sentenced to 90-days in jail. Tucker reported McCaleb never talked to or touched her again. The one-time McCaleb entered her work area, she reported it and UPS addressed it. Tucker claimed she still felt unsafe at work because McCaleb also worked at the facility. However, she said she was still about to perform her job. She claimed McCaleb would stare at her as she walked in or out of work.

Property Owners Barred From Interfering With Servitude

Published on: September 30, 2023 | By Berniard Law Firm

private_property_sign_gate-scaled One of the joys of owning property is dealing with potential property disputes. Such disputes can get especially complicated when they involve old surveys and records and promises from prior owners. This case illustrates the importance of doing due diligence before purchasing property so you understand which of your neighbors might have the right to use part of your property.

This lawsuit involved multiple parcels of land located in Tangiphoa Parish, Louisiana. The Arnolds had previously owned all of the property at-issue. There was a right of way and road constructed by the early 1960s, which was marked by signs. An apparent servitude is perceivable by signs or constructions such as a roadway. See La. C.C. art. 707. The Arnold family and their tenants had regularly used the route since then.

The Aikmans, who owned some of the at-issue land, filed a lawsuit against the Naramores, who owned another parcel of land. The Aikmans claimed there was no servitude, so the Naramores could not use the road to access their property. At trial, there were over twenty witnesses, including multiple experts. The parties also presented exhibits, surveys, and maps. The trial court held the Aikmans could not interfere with the use of the passage, relying on La. C.C. art. 741, which governs the creation of servitudes. The Aikmans filed an appeal.