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Category: Industry Spill

  • Berniard Law Firm Takes Legal Action for Families Displaced by the Smitty’s Supply Fire

    Thick smoke and flames rising from the Smitty’s Supply lubricant plant in Roseland, Tangipahoa Parish, after the August 22, 2025 explosion and fire.When the Smitty’s Supply facility erupted in flames on August 22, 2025, residents within a one-mile radius were ordered to evacuate. Families were forced from their homes, many for several days, unsure of when it would be safe to return. In the aftermath, thick soot, oily residue, and chemical contamination settled on homes, vehicles, and property—leaving long-term damage and raising serious questions about insurance coverage.

    The Berniard Law Firm has filed a class action lawsuit against Smitty’s Supply, Inc. seeking justice for affected residents. The petition alleges negligence, gross negligence, nuisance, trespass, and strict liability, arguing that Smitty’s failure to properly store and manage dangerous chemicals directly caused the disaster.

    Residents have reported:

    • Difficulty cleaning soot and ash from their homes and vehicles.

    • Property losses and decreased home values.

    • Health effects such as headaches, stomach aches, respiratory irritation, and anxiety.

    • Out-of-pocket expenses for relocation, cleanup, and repairs.

    While many homeowners will turn to insurance for relief, coverage disputes are likely. Insurers may attempt to minimize payouts or deny claims by pointing to exclusions for chemical damage, pollution, or industrial accidents. The lawsuit filed by the Berniard Law Firm seeks to ensure that residents are not left carrying the financial burden of Smitty’s negligence.

    Our legal team is actively investigating claims and working to protect the rights of those affected. If you or someone you know was displaced or suffered losses from the Smitty’s fire, you should understand both your legal and insurance rights.

    For a free consultation, contact the Berniard Law Firm today at (504) 521-6000 or online at GetJeff.com

  • Community Concerns After the Smitty’s Supply Explosion in Tangipahoa Parish

    Thick smoke and flames rising from the Smitty’s Supply lubricant plant in Roseland, Tangipahoa Parish, after the August 22, 2025 explosion and fire.The Smitty’s Supply plant explosion and fire in Roseland, Louisiana on August 22, 2025 has left the Tangipahoa Parish community shaken. Families were forced to evacuate, businesses were disrupted, and questions remain about the long-term impact of the disaster.

    While officials report that the fire is largely contained, many residents are still facing uncertainty—about their health, their homes, and their future.

    What Residents Experienced

    • Evacuations: Homes, schools, and businesses within a one-mile radius were evacuated immediately.

    • Environmental Fallout: Thick smoke and oily rainfall blanketed the area, leaving behind property damage and health concerns.

    • Lingering Worry: Even after the fire was 90% contained, many locals expressed concerns about possible chemical exposure and contamination of soil or water.

    Why This Matters

    Large-scale industrial accidents don’t just end when the flames go out. They can cause:

    • Respiratory or health issues from chemical exposure.

    • Property damage that requires costly repairs or cleanup.

    • Financial hardship due to missed work, medical bills, or temporary displacement.

    • Stress and uncertainty for families forced to leave their homes.

    These are not just inconveniences—they can have long-lasting effects.

    Do You Have Legal Options?

    If negligence played a role in the Smitty’s Supply fire, those responsible may be held accountable. Victims of this disaster may have legal claims for:

    • Medical expenses

    • Property cleanup or repair costs

    • Lost income

    • Emotional distress

    • Wrongful death claims (in the most tragic cases)

    Our Commitment to Tangipahoa Parish

    As a Louisiana-based law firm, we care deeply about protecting the rights of our neighbors. Our attorneys are already reviewing the situation at Smitty’s Supply and are prepared to investigate potential claims on behalf of affected families and workers.

    We will work tirelessly to:

    • Identify responsible parties

    • Secure fair compensation for victims

    • Provide compassionate support during this difficult time

    Contact Us for Help

    If you or someone you love was impacted by the Smitty’s Supply explosion in Tangipahoa Parish, don’t wait to get answers.

    📞 Call us today at 504-521-6000 or fill out our [contact form] for a free consultation.

    You don’t have to face this alone—we are here to stand by you.

  • Cancer Patient Prevails on Workers’ Compensation Claim Against Exxon

    We have all read headlines about lawsuits filed against gas and energy companies by workers who have developed health problems at their facilities. But what happens when a plaintiff files a lawsuit which could be barred by a workers’ compensation act? Will the claim be able to withstand a peremptory exception? How does the plaintiff fight against such a motion?

    Susan Mulkey appealed a trial court judgment sustaining a peremptory exception dismissing her claims against Exxon Mobil Corporation for damages. Her case arose from the death of her husband, Michael Mulkey Sr., who was exposed to toxic chemicals during his time at Exxon. Mulkey Sr. worked at Exxon for thirty-five years, during which he was exposed to benzene. He was subsequently diagnosed with acute myelogenous leukemia. 

    Mulkey Sr. claimed forty-one employees of Exxon were liable for his damages because of their negligence in properly safeguarding the work environment. When Mulkey Sr. died from leukemia, his wife and children filed a lawsuit for damages. Exxon filed a peremptory exception, claiming Mulkey failed to state a cause of action, which the trial court sustained. Exxon was eventually dismissed from the lawsuit, which Mulkey appealed. 

    Exxon contended Mulkey’s claims were barred by the Louisiana Workers’ Compensation Act (LWCA). Mulkey claims she successfully alleged an intentional tort, an exception to the LWCA. To establish this, an employee must show the employer “1) consciously desired the physical result of his act, whatever the likelihood of that result happening from his conduct; or (2) knows that that result is substantially certain to follow from his conduct, whatever his desire may be as to that result.” See Cador v. Deep South Equipment Co., 166 So.3d 344, 347 (La. Ct. App. 2015). 

    A plaintiff is allowed to show malice, intent and knowledge as part of the claim. The record showed Exxon knew of the risks of benzene exposure. Specifically, its potential to cause cancer. Mulkey showed Exxon employees knew of these problems. Even before Mulkey Sr. began working at Exxon, Exxon knew of benzene’s effect on the blood. Exxon knew prolonged exposure to benzene was incredibly dangerous. Despite this, Exxon exposed Mulkey to the benzene without warning him of its potential impact on his body. Mulkey thus alleged the exposure was without Mulkey Sr.’s consent, and exposure was done with intent. 

    The Louisiana Court of Appeal for the First Circuit found Mulkey’s claim sufficient in proving the element of intent for a tort action. Mulkey provided enough facts to support these findings. Exxon’s immunity under the LWCA therefore did not apply. The trial court’s judgment was reversed and remanded for further proceedings. 

    This case is an important example of why it is imperative to have the necessary evidence required to state a claim. If a party does not have evidence to prove all elements of a claim, their lawsuit might be dismissed for lack of cause of action. Luckily, the plaintiff here was able to prove there was prior knowledge of the effects of benzene exposure. This evidence successfully proved the elements of the case. A lawyer who does his due diligence can successfully state a claim. 

    Additional Sources: MICHAEL MARTIN MULKEY, SR. versus CENTURY INDEMNITY COMPANY, et. al. 

    Written by Berniard Law Firm Blog Writer: Gabriela Chilingarova

    Other Berniard Law Firm Articles on Benzene and Workers’ Compensation: Workers’ Compensation Suit Claiming Benzene Exposure Caused Non-Hodgkin’s Lymphoma Fails

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

    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. 

    A motion for summary judgment is appropriate if, after sufficient discovery, the motion and its supporting evidence show no dispute of material fact. See https://www.legis.la.gov/legis/Law.aspx?d=112309. Suppose the party requesting the motion doesn’t have the burden of proof at trial for that particular issue. In that case, their motion can be sufficient for summary judgment if they show that the other party lacks factual support for any element of their claim. See Id. at 966D(1). The party with the burden of proof at trial cannot rely on mere speculation or conclusory allegations to support the cause of action and show an actual dispute of fact. See Willis v. Medders, 00-2507 (La. 12/8/00), 775 So. 2d 1049, 1050. 

    Therefore, for a plaintiff to have a valid cause of action under the aforementioned Merchant Liability Statute, the plaintiff must bring sufficient evidence to show the elements of her cause of action and that the merchant created or knew of a condition that was dangerous to customers but failed to address the condition. See La. R.S. 9:2800.6B. 

    The appeals court predominantly engaged in an analysis of whether or not the restaurant knew about or caused a dangerous, slippery substance on the floor. Guillory failed to prove that the allegedly dangerous condition of the floor was directly the fault of the restaurant owners and workers. Instead, Guillory merely presented a conclusory allegation that she must have fallen due to something spilled by the waitstaff because she fell by the wait station. However, the court was unconvinced by this connection–Guillory could neither identify what substance caused her fall nor that only the waitstaff could have spilled something in a spot frequented by customers. Since it is not reasonable for the court to conclude that only the restaurant and its workers could have caused a hazardous condition, Guillory failed to prove this element of merchant liability.

    The appellate court affirmed the trial court’s dismissal of Guillory’s claim against Barco. Primarily, Guillory’s claim failed again because of insufficient proof to connect fault of her fall to the store owners. Guillory bore the burden of proving that the restaurant owners and employees created the condition that led to her fall; however, she relied on speculation and conclusory allegations rather than actual facts to support her claim. 

    In the end, mere speculation is insufficient to prove anything in a court of law. One must present evidence and facts for a lawsuit to succeed. Attorneys who are experts in trial procedure know how to procure and present facts so that your case will triumph. 

    Additional Sources: Guillory v. Chimes And/Or Barco Enters., Inc.

    Written by Berniard Law Firm Blog Writer: Callie Ericksen

    Additional Berniard Law Firm Article on Slip-and-Fall Liability for Merchants: Baton Rouge Restaurant Owner Not Responsible for Slip and Fall Accident

  • Petroleum Corporation Releases Millions of Gallons of Toxins Harming Many in Calcasieu Parish

    What happens when the same wrongdoer injures several people? Typically, in cases like this, the court may consolidate the actions to promote the efficient use of judicial resources. However, these cases may be complex and lengthy and require expert testimony, as exemplified by the following lawsuit out of Lake Charles, Louisiana.    

    CITGO Petroleum Corporation’s (“CITGO”) Calcasieu Parish Refinery released millions of gallons of slop oil and wastewater into the Calcasieu River, subsequently contaminating over 100 miles of coastline and taking six months to clean. Slop oil is extremely flammable, poisonous, and listed on the Toxic Substances Control Act inventory. On the same day as the spill, CITGO’s steam lines became submerged and released hydrogen sulfide and sulfur dioxide from several stacks in illegal concentrations for approximately twelve hours. The wind allowed those toxic emissions to reach the surrounding community. 

    The plaintiffs, in this case, assert various injuries as a result of their exposure to the toxic chemicals and emissions released by CITGO. The Louisiana Fourteenth Judicial District Court found in favor of thirty-four plaintiffs. CITGO then appealed the judgment awarding damages to twenty-two plaintiffs based on causation and duration of damages. 

    The first of several issues brought to the Court of Appeal in this case involved causation. In toxic tort cases, the plaintiff must establish both general and specific causation. See Berzas v. Oxy USA, Inc., 699 So.2d 1149 (La. Ct. App.1997). General causation asks whether a substance can cause a particular injury or condition to the public. Specific causation asks whether a substance caused the individual’s injury. See Knight v. Kirby Inland Marine, Inc., 482 F.3d 347 (5th Cir. 2007). 

    CITGO asserted that expert testimony was necessary to prove both types of causation in toxic tort cases. The Court of Appeal found that the plaintiffs did provide expert testimony that established both general and specific causation. The plaintiffs did so through the testimony of an occupational and environmental health physician and epidemiologist, a certified industrial hygienist, a physician of general medicine and occupational and environmental medicine, and a board-certified physician in family practice. 

    The next issue presented in this case involved exposure to slop oil. CITGO’s Material Safety Data Sheet stated that breathing the gas or vapor from slop oil may impact health, causing significant nose, throat, respiratory tract, and lung irritation, respiratory paralysis, nervous system depression, or even death. Additionally, it may cause eye irritation, skin irritation, lung damage, or intestinal upset if ingested. One of the plaintiffs’ expert witnesses demonstrated that even short periods of exposure led to detrimental health effects. 

    The Court of Appeal found that the District Court was provided with significant circumstantial evidence that linked the plaintiffs’ exposure to CITGO’s spills. The District Court judge also took into consideration the plaintiffs’ pre-existing conditions exacerbated by their exposures. The Court of Appeal found no manifest error on the part of the District Court in finding that the plaintiffs did establish causation between their exposure to slop oil and their subsequent symptoms.

    The third issue was related to the exposure to hydrogen sulfide and sulfur dioxide air release. According to a CITGO chemical engineer and investigator, hydrogen sulfide was released by both the slop oil spill and the submerged stacks. The District Court heard further testimony that these chemicals resulted in serious health concerns for those exposed to a certain concentration. The Court of Appeal found that the plaintiffs who claimed exposure to the chemical releases were all within a few miles of one another. Therefore, each of the plaintiffs were successful in proving a causal link between their injuries and their exposure to the two chemicals.

    Next, CITGO asserted the District Court erred in awarding damages to the plaintiffs for symptoms lasting longer than the durations to which their medical experts testified. Under Louisiana law, however, it was within the District Court’s discretion to consider the testimony of each plaintiff when assessing general damages, as the relevant injuries do not have common denominators and must be considered on a case-by-case basis. See Glasper v. Henry, 589 So.2d 1173  (La. Ct. App. 1991). The Court of Appeal emphasized the law that the trier of fact can accept or reject an expert’s findings or conclusions. La. C.E. art. 702. 

    This case involved many complicated concerns and assertions involving dangerous chemicals and several plaintiffs. With such lawsuits, it is crucial to hire an experienced lawyer to help find trusted experts and strategize the best course of action. 

    Additional Sources: EMMA BRADFORD, ET AL. VERSUS CITGO PETROLEUM CORPORATION, ET AL. 

    Written by Berniard Law Firm Blog Writer: Samantha Calhoun

    Additional Berniard Law Firm Articles on the CITGO disaster: Workers Injured During a 2006 Calcasieu Parish Oil Spill Finally Compensated

  • An Examination of Interlocutory Appeals and Collateral Order Doctrine

    In April 2010, an offshore drilling rig, the Deepwater Horizon, exploded and sank into the Gulf of Mexico. Eleven workers died and crude oil from the well spilled into the Gulf for months after the accident. The result was a mass of litigation involving multiple defendants. In order to deal with the extensive facts and individuals involved in this case, like many other cases, the parties can appeal just one issue of the case if the lower court denies or grants a judgment on that particular issue.

    Normally, a decision must be a final one in order to be appealed. That generally means that the case has concluded and the lower court has rendered a judgment. That way, the appeals court considers all of the facts involved, but can still allow the lower court to do most of the fact analysis. However, there are some occasions where an appeal on just one issue is allowed. This is known as an interlocutory appeal, and it falls under the collateral order doctrine. The collateral order doctrine assumes that some decisions are “final in effect although they do not dispose of the litigation.”

    In order to use the collateral order doctrine, the lower court must have 1) conclusively determined the disputed question, 2) resolved an important issue that is completely separate from the final decision in the case, and 3) the issue must also be effectively unreviewable on appeal in a final judgment. “Effectively unreviewable” means that the court of appeals will have no way to review the decision of the lower court once the lower court makes a decision on this particular issue. Generally, if the decision could be appealed in some other way than the interlocutory appeal, then the court will not use the interlocutory appeal.

    In the oil spill case, parties assumed that one worker in particular held a great deal of information because he was the BP Well Site Leader on duty aboard the rig at the time of the accident. However, the Site Leader had an undisclosed medical condition that prohibited him from testifying or answering written questions. The Site Leader explained his medical condition to the judge on two separate occasions, but did not disclose the information to the parties.

    Since the parties believed that he was such a valuable witness, they really wanted to obtain information from him. As such, another judge ordered an independent doctor to examine him and ordered the Site Leader to produce his medical records to the independent doctor. The Site Leader protested because he was concerned about sharing his personal information. This order is a discovery decision, and discovery decisions are appealable after the final decision of the court based on the use of inadmissible evidence.

    One of the Site Leader’s major arguments, however, was that releasing his personal medical information would cause a great deal of harm to him personally, and there is no method on appeal to reverse that type of harm. Nonetheless, the court determined that district courts can “burden litigants in ways that are only imperfectly reparable by appellate reversal of the final district court judgment.” Therefore, even though there may be harm that cannot be reversed for the Site Leader, the court will still allow the medical information to come in because the final verdict could change on appeal if the information is removed later. To use another example, the court explains that even if the information is privileged, that does not make it appropriate for an interlocutory appeal.

    The court only briefly considered the rights of the Site Leader and his concern about protecting his personal information. In that discussion, they explain that they weighed the costs of sharing his information with the benefits of having his testimony at trial and determined that the benefits outweighed the costs.

    As result, the court determined that it could not use the collateral order doctrine and that the interlocutory appeal was inappropriate. Therefore, the court dismissed the appeal and allowed the bulk of the case to continue in the lower court.

    Civil procedure issues can be a delicate balance between protecting the case and protecting the individuals involved in the case.

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  • Louisiana’s Act 312 and its Impact on the Environment and Oil Exploration

    La. R.S. 30:29 (“Act 312”) was in enacted in 2006 and became effective in June of that year. Act 312 provides a procedure for the remediation of oil field sites as well as oil exploration and production sites. Generally, remediation is “the action of remedying something, in particular of reversing or stopping environmental change.” Before the Louisiana legislature enacted Act 312, most remediation requirements were through private party contracts; therefore, Act 312 did not change the normal trial procedures established by the Louisiana Code of Civil Procedure.

    The Louisiana Supreme Court recently discussed Act 312 at length, explaining what it did change, in a case involving the Vermilion Parish School Board. The Court explained that Act 312 was enacted because of serious concerns with the state of the land and ground water after an area was used for oil exploration and production. Parties would use the land and ground water under a mineral lease for several years, and leave the property in terrible shape by the time that they were done. Mineral leases allow the parties to contract for only the minerals or the potential oil that is located on that property. The party with the mineral lease, then, does not rent the entire property, but just the ability to find minerals or oil within or upon that property.

    Before Act 312, parties could still sue if one party left the land in terrible shape. Occasionally, however, it does not make sense economically to force a party to fix the land they damaged. Instead, the renting party would have to give the “landlord” the difference between the value of the land when they received it and the value of the land when it was returned after the lease, under a tort law theory. However, the person who owned the land, the “landlord,” was not required to use the funds to fix damage done to the land. As a result, property that had serious environmental problems often went without remediation because the landlord was not required to fix it. This creates health and safety concerns for the general public.

    When parties file under Act 312, a notice is sent to the Louisiana Department of Natural Resources, Commissioner of Conservation (“DNR”) and the attorney general. The court cannot issue a judgment unless this notice is filed. After the notice is filed, the DNR and the attorney general can intervene in the case if they so choose; they also retain the ability to bring an independent action through civil or administrative means. Then, the matter proceeds to trial as any normal case would.

    At the trial, the fact finder will determine if there actually is any environmental damage and whether the defendant or defendants were responsible for that damage. If the fact finder finds that there is environmental damage and the defendant is responsible, then the defendant is required to form a “remediation plan.” The remediation plan is submitted to the court for approval; the plaintiff is allowed to submit a suggested remediation plan to the court as well.

    Then, the DNR will hold a public hearing on the submitted remediation plans. The DNR will then determine the most feasible plan to accomplish the remediation of the environmental damage, keeping the health, safety, and welfare of the public at large in mind. After they approve the plan, the plan is sent to the court for further review. Within a certain time frame, parties can submit alternations, comments, or new plans to the court during this time as well. Unless the parties prove that another plan is more feasible, the court will allow the plan approved by the DNR to move forward. In addition, the court will determine how much of the damages amount will be required to be used exclusively for remediation. Then, the legally responsible parties will deposit funds into the court’s registry for remediation purposes.

    One of the many issues in the case involving the Vermilion Parish School Board was whether private parties could seek additional damages apart from the required remediation funds. The Court determined that Act 312 specifically provided that private parties would not be limited by the remediation plan. That is, if they wanted to seek damages beyond what would be required to correct the environmental damages, such as punitive damages (damages that are meant to punish the offending party), then Act 312 did not limit them from doing that.

    The Berniard Law Firm specializes in oil claims, including their effects on the environment. If you have questions about Act 312 or think your mineral lease has been violated, contact The Berniard Law Firm today.

  • Environmental Damage Appeal Focuses on Mineral Lease, Oil

    In January, the Louisiana Supreme Court considered an appeal from the Vermilion Parish School Board. The appeal centered on environmental damage to land that was subject to a mineral lease. The mineral lease allowed those leasing the land to look for and remove any mineral, including oil, that they found on the land. However, once they did this, they left the land in a state that was environmentally hazardous.

    Louisiana has special procedures for dealing with restoring land so that we do not harm the environment, specifically when removing oil. The remediation of the land, this restoring process, was one of the major issues in the Vermilion Parish case. The defendants included Union Oil Company of California, Union Exploration Partners, Carrollton Resources, LLC, Chevron USA, Inc., and Chevron Midcontinent, L.P.

    The Court faced two major issues in this case. The first was whether the parties could receive damages in excess of the amount it would take to restore the property, thereby correcting the environmental damage. The Court determined that the language of the legislation (La. R.S. 30:29) was clear and that the parties could receive a larger amount.

    Under Louisiana law, when a case arises where a party is required to correct an environmental wrong, the funds are deposited into the court’s registry. The court will then disperse the funds to repair the land. This is a relatively new development because this act was put into effect in 2006. The legislature was concerned that parties who received funds to help correct the damage done to their land would not use it for that purpose if they were not so required. Leaving property that is damaged could create serious issues for the health, safety, and welfare of the surrounding population.

    The legislation focuses on the role of the fact finder in determining whether there was environmental damage, and how much that environmental damage will cost to fix. As such, the court determined that the case should continue so that the fact finder could make those determinations.

    The second issue was whether Chevron should be dismissed from the case. According to the facts, Union Oil had the mineral lease first, but Chevron subsequently acquired Union Oil and all of their assets, including the lease. As such, Chevron became responsible for any environmental damage that Union Oil may have caused. Chevron admitted responsibility initially, but then denied that they should be legally responsible later.

    Chevron explained that while Chevron Corp. owns both Chevron USA and Union Oil Company of California, the two sections do not overlap. That is, Union Oil had $18 billion in assets, and should they be found liable for environmental damage, the amount that they will pay will come from their assets and not Chevron’s. Chevron explained that those assets were never transferred out of Union Oil, so Union Oil remained somewhat independent even after Chevron acquired them.

    Therefore, Chevron argued that Chevron USA should be removed from the case so that those assets are not adversely affected. Nonetheless, Frank Soler, the senior liaison in the subsidiary governance unit of the corporate governance department for Chevron Corp. admitted that Union Oil does not have any employees and there may be service agreements between the two sections for day-to-day activities.

    The Plaintiffs in the case were only allowed to discover a very limited amount of information from Chevron regarding this case. The court restricted the information until they determined whether or not Chevron should remain in the case a defendant. As such, many facts remained unknown regarding the relationship between Chevron and Union Oil. Therefore, the court determined that Plaintiffs should be allowed to gather more information and the case should continue.

    Both of these issues failed the summary judgment test. The test is whether there is an absence of material facts in the case. If there is such an absence, then the court will only determine the questions of law and one side will receive a summary judgment. In this case, however, the court determined that there may be facts in dispute because they did not have enough information; therefore, the case continued.

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  • Louisiana Supreme Court Finds Binding Arbitration Clause Fair and Reasonable to the Client

    The Louisiana Supreme Court has recently undertaken a case deciding whether arbitration clauses in attorney-client retainer agreements are appropriate. In the past, Louisiana has favored the enforcement of arbitration clauses in written contracts. Arbitration avoids taking a case to trial and is a thrifty and efficient way to conduct the resolution of disputes outside of the courts. During arbitration, each party refers its dispute to an arbitrator, who then imposes a decision that is legally binding for both sides. However, Louisiana law also imposes a fiduciary duty requiring attorneys to act with the utmost fidelity and forthrightness in their dealings with clients and any contractual clause, which may limit the client’s rights against the attorney is subject to the upmost scrutiny.

    According to the Louisiana Supreme Court in Hodges v. Reasonover, there is no per se rule against such binding arbitration clauses, provided that they are fair and reasonable to the client. In Hodges v. Reasonover, Jacqueline Hodges, the founder, sole shareholder, and CEO of Med-Data Management, Inc., hired Kirk Reasonover of the law firm of Reasonover & Olinde to sue a company known as MedAssets, Inc. in federal court in Atlanta, Georgia. In the retainer agreement between Hodges and Reasonover there was an arbitration clause, which essentially provided that any dispute shall be submitted to arbitration in New Orleans, Louisiana and that such arbitration shall be submitted to the American Arbitration Association (AAA).

    Hodges was ultimately unsuccessful on her suit against MedAssets, Inc., which led her to file suit for legal malpractice against Reasonover. According to the Louisiana Supreme Court, Courts must closely scrutinize attorney-client agreements for signs of unfairness or overreaching by the attorney. Further, Louisiana Rule of Professional Conduct 1.8(h)(1) prohibits a lawyer from “prospectively limiting the lawyer’s liability to a client for malpractice unless the client is independently represented in making the agreement.”

    According to the state of Louisiana as well as the American Bar Association (ABA), an arbitration clause does not violate Rule 1.8(h)(1) unless some aspect of the arbitration clause limits the lawyer’s substantive liability. According to ABA Formal Ethics Opinion 02-425:

    [M]andatory arbitration provisions are proper unless the retainer agreement insulates the lawyer from liability or limits the liability to which she otherwise would be exposed under common or statutory law. For example, if the law of the jurisdiction precludes an award of punitive damages in arbitration but permits punitive damages in malpractice lawsuits, the provision would violate Rule 1.8(h) unless that client is independently representing in making the agreement.

    The Louisiana Supreme Court agrees with the aforementioned opinion by the ABA and states that an arbitration clause which does not inherently limit or alter either party’s substantive rights, but rather it simply provides for an alternative venue for the resolution of disputes is enforceable. In the case of Jacqueline Hodges, the Court found that there is no evidence that arbitration conducted in accordance with AAA rules and before AAA-approved arbitrators would in any way be presumptively unfair or biased. Thus, the Court said that arbitration provides a neutral decision maker and is otherwise fair and reasonable to the client.

    For clients, the word “binding” can have an intimidating effect. At the Berniard Law Firm, our lawyers do not take arbitration matters lightly and understand the gravity of such situations, particularly in personal injury and insurance disputes. Our attorneys are here to provide experience and quality representation from the beginning of our time with clients until the very end. We will explain and discuss contracts, such as retainer agreements, in great detail so that you as the client can feel comfortable with your signature on the dotted line. The Berniard Law Firm always has your best interests in mind and we are happy to counsel you if you have legal questions regarding arbitration.

  • Attorney Jeffrey Berniard makes New Orleans Magazine top lawyers list

    Licensed attorneys in New Orleans were asked which attorney they would recommend to residents in the New Orleans area. Attorney Jeffrey Berniard, of the New Orleans-based Berniard Law Firm, LLC, was named one of the best mass litigation and class action attorneys in New Orleans in the November 2012 issue of the magazine. Propelled into success by holding insurance companies accountable in the wake of Hurricane Katrina, Berniard has built the Berniard Law Firm into one of the premiere personal injury law practices in not only New Orleans, but the entire state of Louisiana. Since Hurricane Katrina, Berniard Law Firm has focused on insurance disputes and class action litigation.

    Jeffrey Berniard has been involved in several high-profile cases, solidifying his expertise in complex high risk litigation. He worked on the highly publicized Deep Water Horizon oil rig case in the Gulf Coast, representing a very large group of individuals affected by the sinking oil rig. In 2008, Berniard Law Firm secured a $35 million dollar settlement for a class of 70,000 members seeking bad faith penalties for tardy payments by a Louisiana insurance company in the wake of Hurricane Katrina and Hurricane Rita. In 2009, the Berniard Law Firm participated in five class actions against insurance companies and corporations. In the process of these major claims, the firm also helped many residents of the Gulf Coast with their personal injury concerns, insurance claims and business disputes.

    – What is Mass Tort Litigation? –
    Mass tort litigation involves a class of civil actions involving multiple plaintiffs who are injured by a defective product, a hazardous substance or some type of disaster. Mass tort actions can be against one or many defendants in either state or federal court. This type of litigation allows several attorneys or even a group of attorneys to represent several injured parties within an individual case. This becomes a much more effective form of litigation that allows for the pooling of resources and ideas.

    Mass tort typically involves a smaller group of individuals typically limited to a certain geographic area. This differs from the class action, which is one lawsuit that is filed by an individual or a small group acting on the behalf of a large group. Class actions tend to be much larger suits and are represented by one class representative who represents the entire class. In mass tort, each individual is treated as such–as individuals. In a class actions, the entire class is treated as one individual. Attorney Jeffrey Berniard and the Berniard Law Firm have extensive experience with both class action and mass tort litigation.

    Contact the Berniard Law Firm today at (888) 550 5000 if you feel that your rights have been violated.