Insurance Dispute Lawyer Blog

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.

Failure To Investigate Does Not Suspend Time Requirement For Filing Wrongful Death Lawsuit

Published on: September 29, 2023 | By Berniard Law Firm

uranium_radioactive_nuclear_rays-scaled We have all heard the saying “time is of the essence.” This is especially true when you are filing a lawsuit. If you do not comply with the statutory requirements for how long you have to file a lawsuit, a court will be unable to hear your claim. Although certain exceptions apply that extend your timeline for filing a lawsuit, there are strict evidentiary requirements for these exceptions to apply.

Julius Lennie worked for a Company that cleaned pipes in oilfields. The cleaning process allegedly involved the emission of naturally occurring radioactive material. About fifteen years after retiring, Lennie was diagnosed with lung cancer and died shortly thereafter. Four years later, his surviving spouse and children filed a lawsuit against various companies for whom Lennie had cleaned their oilfield pipes. They claimed Lennie had been exposed to harmful levels of radiation, causing his lung cancer and death. They claimed the companies had been aware of the dangers of the radioactive materials but did not warn Lennie about the dangerous or take adequate precautions. The Lennies claimed they were not aware about the radiation exposure until less than a year before they filed their lawsuit, when one of Lennie’s children read about it in the newspaper and they met with an attorney. The Lennies claimed the companies had actively concealed the existence of the naturally occurring radioactive materials.

Because the Lennies filed their lawsuit over a year after Lennie’s death, the defendants filed peremptory exceptions of prescription, claiming they were required to have filed their lawsuit within one year of his death, pursuant to La. C.C. art. 2315.1. The Lennies claimed they did not have any actual or constructive knowledge of their claims until less than a year before they filed the lawsuit, because the companies had concealed it. The trial court granted the defendants’ peremptory exceptions of prescription, finding there was not sufficient evidence the defendants had concealed the existence of the naturally occurring radioactive material such that the Lennies did not have knowledge of their possible claims. The Lennies appealed.

Louisiana Jury Did Not Err In Apportioning Fault For Car Crash

Published on: September 8, 2023 | By Berniard Law Firm

rim_tire_wheel_round-scaled In the heart of Lafayette Parish, Louisiana, tragedy struck on Interstate 10 as a routine drive turned fatal. Arthur Huguley, behind the wheel of a tractor-trailer for AAA Cooper Transportation, found himself in a situation that would forever alter the lives of those involved. A blown-out tire, a series of events, and a wrongful death lawsuit brought forth by Curley Mouton’s surviving family members set the stage for a courtroom drama that unfolded with unexpected twists. In the end, a jury assigned fault, but the defendants, Huguley, AAA Cooper, and their insurer, were not ready to accept the verdict without a fight. This article explores the intricacies of their appeal, shedding light on the compelling arguments presented and the complexities of apportioning fault in a tragic accident.

Arthur Huguley was driving a tractor-trailer in Lafayette Parish, Louisiana, on Interstate 10 while working for AAA Cooper Transportation (“AAA Cooper”). Huguley heard a bang and worried he might have blown out a tire. While performing a maneuver to see if he had blown out a tire, the tire that had blown out came apart and flew into the air. Curley Mouton was driving in a truck behind Huguley when debris from the tire started flying through the air. The debris hit Mouton’s truck, causing him to hit a guardrail, flip over, and crash. Mouton died in the crash.

Mouton’s surviving spouse and son filed a wrongful death lawsuit against Huguley, AAA Cooper, and their insurer. A jury found in favor of Mouton’s family and assigned 10% fault to Huguley and 90% to AAA Cooper for putting a defective tire on its truck. The defendants appealed, claiming the jury had erred in its ruling.

Expert Witnesses Key To Establishing Damages From Industrial Fire

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

fire_orange_emergency_burning-scaled In a world where news headlines often feature calamitous industrial disasters, it’s hardly surprising to find legal battles trailing in their wake. The following case involves multiple individuals who filed lawsuits against the owner of a facility in Iberia Parish, Louisiana, that had a large fire.

A fire at a facility owned by Multi-Chem Group caused multiple explosions, which released chemicals. Following the fire and explosions, multiple people filed lawsuits against Multi-Chem and others, alleging they had been exposed to hazardous materials. The multiple lawsuits were consolidated into three groups based on the distance the injured party was located from the fire source. At trial, the parties presented expert testimony about whether the plaintiffs were exposed to hazardous materials from the Multi-Chem fire and if they suffered damages due to the exposure. The trial court held that the plaintiffs had established exposure and awarded damages to the three groups. The damages included medical expenses, general damages, and mental anguish related to the fear of developing cancer. Multi-Chem filed an appeal.

On appeal, Multi-Chem argued the trial court erred in admitting and excluding certain expert testimony. Article 702 of the Louisiana Code of Evidence governs expert testimony. At trial, the trial court evaluated the expert witnesses’ relevant credentials when deciding whether and to what extent to credit the expert witnesses’ testimony. The court also analyzed the underlying data the experts used as the basis for their opinions. Therefore, the appellate court found Multi-Chem’s argument that the trial court erred in which expert testimony it admitted and excluded lacked merit.

Insurance Coverage Turns On Distinction Between Flood Damage And Mechanical Issue

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

dsc05934_0-scaled Dealing with the aftermath of a flood is never fun. This is especially true when the flood damages one of your vehicles. This is the situation Michael Jacobs found himself in after one of his cars was damaged in a flood. After a long fight with his insurance company, he eventually prevailed and was awarded damages.

Jacobs owned multiple vehicles that GEICO insured. His parish in North Louisiana was affected by heavy flooding. When the flooding started, Jacobs and his brother tried to move the vehicles from his house to higher ground but were unable to remove them before the floodwaters rose, so they could not drive up to the house. Jacobs waded through the floodwater to retrieve one of the vehicles, a 2001 Honda Accord. In the days following the flood, the Honda kept overheating. Jacobs claimed this had only occurred after the flood.

Jacobs submitted a claim to GEICO for the damage to the vehicle. The insurance inspector did not identify any flood-related problems and determined the upper radiator hose had blown out. Another mechanic gave Jacobs an opinion and concluded there were issues with his spark plugs. GEICO ultimately denied Jacobs’ claim because it had suffered a mechanical failure that was not flood-related. Jacobs filed a lawsuit against GEICO, alleging his Honda had been damaged from the flooding. At trial, the court ruled the Honda had suffered water damage and awarded vehicle property damages and attorney fees. GEICO filed an appeal.

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.

Injured Employee Entitled To Select One Physician Of Choice in Workers’ Compensation Claims

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

workers_construction_worker_work-scaled If you are injured on the job, one of your primary concerns is likely finding competent medical care. Under the Louisiana Workers’ Compensation Act, injured workers can select one physician of any specialty without their employer’s approval. What happens if your employer refuses to pay for your selected physician?

Marvin Ray Scott brought a workers’ compensation claim against his employer, Packaging Corporation of America (“PCA.”) Scott claimed he had lost his hearing because of his work at the Boise Paper Mill in DeRidder, Louisiana. Scott then filed a motion to have an expedited hearing under La. R.S. 23:1121. Scott claimed PCA had not authorized his initial visit to his selected physician. PCA responded, claiming Scott had improperly used summary proceedings because he was not just trying to get approval for his selected physician, but he was also seeking attorney’s fees and penalties. At the hearing, the workers’ compensation judge ruled in favor of Scott and ordered PCA to pay Scott’s relevant medical bills and pay separate penalties and attorney’s fees, totaling $7,000. PCA filed an appeal.

Louisiana Workers’ Compensation Act sets forth rights and remedies for injured workers. Under La. R.S. 23:1121, an employee is permitted to select one physician of any specialty without their employer’s approval. If the employer denies that, the employee is entitled to an expedited proceeding. Under La. R.S. 23:1201(F), the employer can also be required to pay penalties and attorneys’ fees if it does not comply with its statutory obligations to an injured worker.

Doctor Held Not Vicariously Liable For Physical Therapist’s Actions by Louisiana Court

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

courthouse_311_jarvis_st-scaled When you think about medical malpractice lawsuits, a botched surgery or missed diagnosis are likely the first things that come to mind. The following case involves a less common situation involving purported medical malpractice involving physical therapy post-surgery. It analyzes the relationship between a doctor and a physical therapist and whether a doctor can be vicariously liable for the actions of a physical therapist.

Jean McKeogh underwent a total shoulder arthroplasty, which Dr. Michael O’Brien performed. Following the surgery, Dr. O’Brien saw McKeogh for office visits at a Tulane University clinic. Part of McKeogh’s follow-up care involved physical therapy, which was located in the same building as Dr. O’Brien’s offices. McKeogh went to physical therapy but subsequently told Dr. O’Brien she thought she had been injured during it. A CT scan showed she had fractured her elbow. McKeough then had a frozen shoulder and had to have a second surgery.

As a result of the injury and alleged negligence, McKeough requested a medical review panel. In her complaint, she claimed Dr. O’Brien had not used reasonable care with respect to his post-surgery care for her, including with respect to the physical therapy he prescribed. The medical review panel determined Robin Silverman, the physical therapist, had not satisfied the applicable standard of care. However, the medical review panel found there was no evidence to support a finding that Dr. Brien and Tulane had not met the applicable standard of care.

Can a business be liable if a patron slips and falls on a wet walkway?

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

addiction_bet_betting_casino-scaled Lawsuits involving slip and fall accidents are widespread. However, specific requirements must be satisfied to prevail in a slip-and-fall case. The following lawsuit helps answer the question: Can a business be held liable if a patron slips and falls on a wet walkway?

While walking with her son in the Treasure Chest Casino parking lot, Linda Cangelosi slipped and fell under the outdoor tent that covered part of the walkway entrance into the casino. Cangelosi slipped while stepping from the roadway to the walkway. At the time of her fall, the ground was wet, with puddles. After he fell, employees of Treasure Chest Casino assisted Cangelosi and called an emergency team. Cangelosi declined their offer to transport her to the hospital and continued to the casino. However, about 45 minutes later, she left because her hip hurt. She consulted with a doctor, who provided her with pain medication. Since the accident, Cangelosi had to use a walker and has been in pain. Cangelosi filed a lawsuit against Treasure Chest Casino. Both Cangelosi and Treasure Chest Casino filed motions for summary judgment. The trial court granted Treasure Chest Casino’s summary judgment motion. Cangelosi appealed.

Under La. C.C. art. 2317, the owner of a thing is liable for damage if they knew or should have known about the defect that causes damage, which could have been prevented if the owner had exercised reasonable care. Further, under La. C.C. art. 2322, this also applies to building owners. Therefore, if Cangelosi provided sufficient evidence that Treasure Chest Casino knew or should have known about the wet walkway that caused her slip and did not act reasonably, she could prevail in her lawsuit.