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Category: Summary Judgment

  • Analysis of Insurance Coverage Exclusion in a Complex Liability Case

    In the realm of insurance coverage disputes, a recent case has brought attention to the application of policy exclusions and their impact on the availability of coverage. Daphne Richardson Valteau took legal action after her father had been stabbed to death on premises owned by The Terraces Limited Partnership (“The Terraces”). The Terraces was managed by Latter & Blum Property Management, Inc. (“Latter & Blum”), while another company, Patriot Protection Agency, Inc. (“Patriot”), had been handling the security services for The Terraces.

    Patriot’s liability insurance was through First Mercury Insurance Company (“First Mercury”), First Mercury moved for summary judgment, seeking dismissal of Valteau’s claims. First Mercury argued that the exclusions provided in Patriot’s insurance policy regarding intentional and criminal acts were valid and enforceable. After its motion was denied, First Mercury appealed, petitioning for a writ of certiorari from the Fourth Circuit Court of Appeal.

    After reviewing the contractual language of Patriot’s insurance policy with First Mercury, specifically the “Exclusion of Specific Work” provision, the Appeals Court identified various issues that need to be addressed before summary judgment could be ruled on, as well as a major distinction from precedent Louisiana case law. The Court distinguished this case based on how the exclusionary language essentially provided no coverage to Patriot if the incident occurred on a property “established for the purpose of providing subsidized housing….” 

    The Appeals Court held that the following issues needed to be resolved before summary judgment could be ruled on. First, the ambiguity of the endorsement provision within the policy needed to be addressed to determine if the policy provided any coverage at all to Patriot. Second, the definition of the exclusion needed to be reviewed to ensure compliance with state and federal housing laws. Lastly, the overall policy needed to be assessed to confirm it met the relevant licensing requirements under Louisiana law, which mandated that Patriot have liability insurance. The Fourth Circuit denied First Mercury’s relief, stating there were still genuine issues of material fact. Therefore the matter was not yet ripe for summary judgment. 

    This case underscores the importance of thoroughly examining the language and implications of insurance policy exclusions. It highlights the need for a comprehensive analysis of the exclusion’s ambiguity, potential violations of housing laws, and compliance with licensing requirements. 

    Additional Sources: Daphne Richardson Valteau v. First Mercury Insurance Company, et al.

    Written by Berniard Law Firm Blog Writer: Kate Letkewicz

    Additional Berniard Law Firm Articles Involving Insurance Disputes: Employee-Injury Exclusion Precludes Insurance Coverage For Injured Stunt Performer; What Happens When Uninsured Motorists Coverage Is From A Different State Than Where the Accident Occurred?  

    Understanding Insurance Exclusions: A Case of Property Damage Coverage for Borrowed Cars

  • Timely Filings and the Road to Justice: The Implications of Abandonment in Civil Litigation

    Navigating the intricacies of civil litigation requires strict adherence to procedural rules, as the failure to meet deadlines or follow the correct timeline can result in serious consequences for plaintiffs seeking justice. In the case of Michael Neal Rollins, an inmate who filed a lawsuit against the State of Louisiana, Louis Ackal, Sheriff of Iberia Parish, and the Corrections Corporation of America, the impact of missed deadlines and abandoned filings became evident. Rollins alleged physical abuse during his transportation back to the Iberia Parish Jail, but his case was ultimately dismissed due to abandonment. This instance highlights the critical importance of timely and diligent filings within the legal system, emphasizing the need for plaintiffs to navigate the complex procedural landscape to have their claims heard.

    Rollins filed a lawsuit against the State of Louisiana, Louis Ackal, Sheriff of Iberia Parish, and the Corrections Corporation of America. Rollins was an inmate incarcerated at the Iberia Parish Jail in New Iberia. In 2008, Rollins was returned to the Iberia Parish Jail from prison in Winn Parish, having been evacuated there during Hurricane Gustav. After his subsequent release, Rollins filed his suit against the State of Louisiana in 2009 for injuries he suffered while transporting back to the Iberia Parish Jail from Winn Parish. Rollins alleged that officers physically abused him on the bus and in the Iberia Parish Jail parking lot.  

    Over seven years later, in 2017, the State of Louisiana filed a Motion to Dismiss the suit on the grounds of abandonment. The state claimed that there had been no filings or steps taken to proceed with the case since 2014. The plaintiff filed a counter-motion, alleging that it had filed a motion requesting discovery materials from the defense. The defendants argued that one of the defendants, Sheriff Louis Ackal, never received these requests. The district court ruled in favor of the defense, stating that failure to serve the request to all the defendants negates it as a step in prosecuting the action. Thus the district court dismissed the case in its decision, from which the plaintiff appealed.

    On appeal, the appellate court looked to the definition of abandonment outlined by Louisiana law and relevant cases. Specifically, an action is considered abandoned after no step has been taken in moving the case forward over three years. These actions must either be formal in the trial court or an authorized request for discovery served on all parties. Giglio v. State. The Louisiana Supreme Court also specifically ruled that a request for discovery that is not served to all defendants is unsuccessful in preventing an action from being dismissed under the cause of abandonment. Guillory v. Pelican Real Estate. 

    Citing these cases and the very specific language of Louisiana’s Rules of Civil Procedure, the appellate court upheld the district court’s decision. Rollin’s claims of abuse by state and parish officials were dismissed outright without a chance of being presented to a judge or jury for judgment on the facts of the case. The rules that govern litigation are not as malleable as some may believe. Adhering to these rules is critical in ensuring that plaintiffs have their claims presented to the court in full and addressed on their merits rather than through technicalities of the court system. 

    This case is a stark reminder of the significance of timely filings and adherence to procedural rules in civil litigation. This outcome highlights the strict nature of civil procedure rules and their potential impact on individuals seeking justice. It underscores the importance of adhering to these rules to ensure that plaintiffs can present their claims before a judge or jury, allowing for a fair and thorough examination of the merits of their case. In litigation, procedural compliance can make all the difference in ensuring that claims are heard on their substantive merits rather than being dismissed due to technicalities.

    Additional Sources: MICHAEL NEAL ROLLINS VERSUS STATE OF LOUISIANA THROUGH THE DEPT. OF PUBLIC SAFETY AND CORRECTIONS, ET AL.

    Author: Colin McGinness

    Other Berniard Law Firm Articles on Abandonment in Court: Blind Trust: The Importance of Timely Appeals in Personal Injury Cases; Lawsuit Over Car Accident Involving Louisiana State Employee Dismissed After Three Years of Inactivity by Plaintiff; Does Scheduling A Court Status Conference Stop Case Abandonment?

  • Medical Deaths Aren’t Always Medical Malpractice

    When a patient suffers from harm done to them by the negligence of a health care provider, he may be a victim of medical malpractice. A recent Louisiana Fifth Circuit Court of Appeals case explained why it is not always a case of medical malpractice when an avoidable medical death occurs.

    Andrew Moonan fell at home and was taken by ambulance to the emergency room, where an x-ray showed two fractured ribs. Several days after being released, Moonan called Dr. Monte, his primary care doctor, after hours, requesting he return to the hospital. A couple of days later, he collapsed and was taken to the hospital, where he died due to a pulmonary embolism. His wife and son filed a complaint for medical malpractice against Dr. Monte with the Louisiana Division of Administration. The panel unanimously determined Dr. Monte was not negligent and did not breach his standard of care with Moonan. 

    The Moonans filed a medical malpractice lawsuit against Dr. Monte and his insurer, claiming Dr. Monte breached the standard of care in several ways, including failing to inform Moonan of the risks associated with staying in bed all day and the risk of a pulmonary embolism, allowing his medial technologist to tell Moonan to get up and walk since his condition was not serious, and failing to tell Moonan to return to the emergency room. The jury reached a unanimous verdict in favor of Dr. Monte, and the Moonans filed a motion for a new trial which the trial court denied. The Moonans appealed, claiming the trial judge erred in allowing Dr. Diechmann to testify as an expert because it violated the court’s Scheduling Order, and the judge erred in redacting two parts of the wife’s timeline because it contained crucial information about the credibility of the parties.

    The trial court has great discretion in implementing and enforcing pre-trial orders. When there is any doubt about whether an attorney has failed to abide by the pre-trial order, the court should favor receiving the information, and absent any abuse of discretion, the judge’s decision will be upheld (La. C.C.P. art. 1551). Here, the trial court did not abuse discretion to allow Dr. Diechmann to testify as an expert witness because the Moonans were aware of Dr. Diechmann’s opinion and potential testimony. Even though there was no expert report as required by the Scheduling Order, the Moonans were aware of his opinion. Therefore, the court concluded this claim made by the Moonans lacked merit.

    The Moonans also argued parts of the wife’s timeline should not have been redacted because they were not hearsay. Hearsay is an out-of-court statement offered for the truth of the matter asserted (La. C.E. art. 801(c)). The appeals court decided the statements were hearsay, but the trial court did not abuse discretion in redacting the statements from the timeline. 

    The redacted portions of the timeline were about statements by Dr. Monte, and Mrs. Moonan admitted she never heard the phone conversation between her husband and Dr. Monte. In addition, the statements were offered to prove Dr. Monte breached the standard of care. The court concluded there was no merit for the Moonans’ second assignment of error. The court concluded there was no basis for overturning the jury’s unanimous verdict in favor of the defendant and decided the trial court did not abuse its power in denying the motion for a new trial. 

    Losing a loved one is an immeasurable hardship, particularly when their passing may have been preventable. In the midst of such a devastating situation, it is crucial to untangle the intricate web of circumstances surrounding medical malpractice claims. While the tragedy of Moonan’s death cannot be understated, the court concluded that it was not a case of medical malpractice on the part of Dr. Monte. This poignant reminder serves as a testament to the intricacies of medical negligence, urging us to approach such cases with an open mind and retain experienced legal counsel before proceeding with a lawsuit.

    Additional Sources: Noemie I Moonan, et al. v. Louisiana Medical Mutual Insurance Company and Dr. Frank J. Monte

    Written by Berniard Law Firm writer Alivia Rose

    Additional Berniard Law Firm Article: Louisiana Medical Malpractice Lawsuit by Dental Patient Fails at Appeals Court

  • Understanding Open and Obvious Defects: Implications for Personal Injury Claims

    When it comes to personal injury claims resulting from slips, trips, or falls, the concept of open and obvious defects plays a significant role. Failing to act reasonably or being harmed by an apparent defect may hinder your ability to recover compensation for your injuries. This case exemplifies the importance of these factors in determining liability.

    Ray Eskine was a permanently disabled individual who used a walker to move around.  When trying to see how long the grass was on his lot across the street, he walked across an elevated walkway in front of his house. One of the wheels on his walker slipped, causing him to fall into a ditch and get injured. 

    Eskine and his wife filed a lawsuit against the City of Gretna and its insurer, claiming the walkway was defective and presented an unreasonably dangerous condition. They claimed the City of Gretna was responsible for the care of the walkway and had knowledge of the defective condition that resulted in his injury. 

    The City of Gretna filed a summary judgment motion, arguing the Eskines could not show the walkway’s condition created an unreasonable risk of harm. Additionally, the City of Gretna argued the walkway’s condition was open and obvious, and Eskine did not exercise reasonable care in walking on it. Eskine claimed the walkway was defective because it was too narrow, had too much slope, was uneven, and the asphalt was breaking off. He said over the past twenty years, during which he had been using his walker, he had only walked over the at-issue walkway two or three times. He conceded nothing prevented him from seeing the walkway’s condition at the time of the incident. 

    A City of Gretna employee submitted an affidavit stating he was unaware of any prior complaints regarding the walkway-s condition. The trial court granted the City of Gretna’s summary judgment motion. The Eskines appealed.

    The Eskines argued the trial court erred in granting summary judgment in favor of the City of Gretna. They claimed there was a hidden defect in the walkway as it was not apparent it was too narrow. The City of Gretna claimed the walkway’s condition was open and obvious, and the appellate court agreed. Here, Eskine indicated he knew the location and condition of the at-issue walkway in front of his house. The evidence indicated that Eskine and anyone else could see the width of the walkway before deciding to walk there. The appellate court explained a reasonable person like Eskine, who used a walker, should not have tried to cross the walkway. Therefore, the appellate court agreed with the trial court’s grant of summary judgment in favor of the City of Gretna. 

    In personal injury cases involving hazardous conditions, the presence of open and obvious defects can significantly impact the outcome. If a defect is apparent and a reasonable person should have been aware of it, it may hinder the injured party’s ability to recover damages. In this case, the appellate court agreed with the trial court’s decision, noting that the condition of the walkway was open and obvious. Since Eskine was aware of the walkway’s condition and chose to walk on it despite its apparent defects, the court concluded that he did not exercise reasonable care. Therefore, the summary judgment in favor of the City of Gretna was upheld.

    Consulting with a knowledgeable attorney is crucial if you have suffered harm due to a dangerous or defective condition. They can guide you on the necessary evidence to support your claim, assess the viability of your case, and help you navigate the complexities of personal injury law. By seeking legal advice, you can better understand your rights and options to pursue the compensation you deserve.

    Additional Sources: Ray Eskine and Sondra Eskine v. The City of Gretna

    Additional Berniard Law Firm Article on Open and Obvious Conditions: Popular Baton Rouge Shopping Center Avoids Liability for “Open and Obvious” Sidewalk Danger

  • No Legal Malpractice Where Underlying Medical Malpractice Claim Was Meritless

    When considering a legal malpractice claim, it is crucial to understand that proving your attorneys’ negligence alone is insufficient. To establish the merit of such a claim, you must demonstrate an underlying loss resulting from their negligence. This requires presenting compelling evidence that your original claim would have been successful had your attorneys not been negligent. The case of Shawn Cupit, who pursued a wrongful death lawsuit, highlights the significance of providing admissible evidence and the challenges involved in proving a legal malpractice case.

    Shawn Cupit hired Joseph Moffett, a lawyer in Mississippi, to represent him in a wrongful death lawsuit involving the death of his mother. His mother had been a patient at a rehabilitation hospital in Concordia Parish, Louisiana, because of injuries related to a burned foot. One night, she climbed out a window at the rehabilitation hospital and was hit and killed by a drunk driver. They filed a lawsuit against the drunk driver, his insurer, and the rehabilitation hospital. They claimed the rehabilitation hospital had been negligent in observing their patient and did not provide a safe prejudice.  

    Moffett retained Roger Burgess and Baggett McCall as local counsel in Louisiana. Burgess submitted a request for a Medical Review Panel under La. R.S. 40:1231.8. The Medical Review Panel found the rehabilitation hospital had not failed to comply with the required standard of care. Burgess and McCall also retained expert witnesses, but the expert’s medical opinion letter concluded there was no evidence of the rehabilitation hospital committing medical malpractice. 

    Cupit filed a legal malpractice lawsuit against Burgess and McCall (the “Defendants”). The Defendants filed a summary judgment motion, which Moffett and his insurer joined, claiming Cupit could not prove he would have succeeded in his underlying medical malpractice claim. In support of their summary judgment motion, Defendants attached Cupit’s discovery responses, which indicated he had not retained a medical expert in his medical malpractice case to establish the required standard of care. 

    Cupit countered the negligence was so obvious that no expert testimony was needed to establish the required standard of care. He also included an affidavit from a nurse who said the rehabilitation hospital should have installed a bed or chair alarm in Cupit’s mother’s room. The trial court held that this affidavit was deficient because the nurse was not qualified as an expert and did not address causation. Therefore, the trial court granted the Defendants’ summary judgment motion. Cupit appealed.

    On appeal, Cupit argued the medical opinion letter Defendants provided in support of their summary judgment motion was impermissible under La. C.C.P. 966(A)(4) because it was unsworn and hearsay. The appellate court disagreed, explaining that Burgess had attached the opinion letter to an affidavit, where he stated the affidavit’s contents were within his personal knowledge. Further, the expert was unavailable for testimony as he had passed away. 

    Cupit also argued the trial court erred in not holding a hearing related to the nurse’s affidavit and finding she was not qualified to provide expert opinion and not finding the affidavit created genuine issues of material fact. Again, the appellate court disagreed. The appellate court explained a trial court is not required to determine whether an expert’s testimony is permissible before ruling on a summary judgment motion. The evidence did not indicate the nurse had applicable training, experience, or education to render opinions in this case. 

    In his medical malpractice case, Cupit was required to prove the hospital had a duty to protect the patient from the at-issue risk. Here, Cupit was injured by a drunk driver. Nothing in the affidavit addressed the required causation element linking the hospital’s duty to Cupit’s mother’s injury. The appellate court also disagreed this was a case where there was obvious negligence and causation. Because of the shortcomings in Cupit’s underlying medical malpractice case, Cupit could not prove he had suffered a loss due to his attorneys’ actions. Therefore, the appellate court agreed summary judgment was appropriate because there were no genuine issues of material fact.

    This case illustrates the importance of understanding what evidence is permissible, especially concerning expert witnesses. A good attorney can help you prepare the required evidence and advise on what evidence is admissible to support your claim. This is especially true in cases involving legal malpractice claims, where you also have to show you suffered a loss from having a viable underlying claim that your attorneys adversely affected. 

    Additional Sources: Shawn M. Cupit, Individually and o/b/o James D. Cupit (Deceased) v. Twin City Fire Ins. Co., et al.

    Additional Berniard Law Firm Article on Legal Malpractice: Meritless Claim for Legal Malpractice Highlights Plaintiff’s Own Negligence

  • Summary Judgment for Malicious Prosecution Improper Without Adequate Discovery

    Sufficient evidence is required to prevail in any lawsuit. Generally, each side obtains additional evidence through the discovery process. However, what happens if a court grants a summary judgment motion for one party before the other party has time to complete adequate discovery? The following case helps answer this question.

    Shannon James Suarez supposedly threw a Twinkie box at Jerry W. Peloquin II. Peloquin claimed Suarez had previously been stalking him for months and battered him. Lori Smith also claimed Suarez had stalked her. Suarez was subsequently arrested and charged with stalking under La. R.S. 14:40.2(A). 

    The investigator, Bill Pousson, went to Suarez’s workplace to talk to him about the charges. Suarez claims Pousson spoke to him, told him he could make his problems disappear, and encouraged him to plead guilty, even though he knew Suarez had an attorney. Suarez then filed a lawsuit against Pousson and John DeRosier, the district attorney (the “Defendants”), claiming malicious prosecution and misconduct related to the District Attorney’s Office’s investigation. 

    Suarez’s attorney sent discovery requests via certified mail to the Defendants. Defendants then filed a summary judgment motion, claiming the lawsuit should be dismissed because they had absolute immunity given their positions as prosecutors. The defendants’ counsel repeatedly asked for extensions to the time to respond to Suarez’s discovery requests. They also impeded Suarez’s attorney’s efforts to schedule depositions. Suarez’s attorney filed a motion to compel discovery. The trial court granted the Defendants’ summary judgment motion. The trial court also held the motion to compel discovery was now moot. Suarez appealed.

    Summary judgment is appropriate if there are no genuine issues of material fact after adequate discovery. See La. C.C.P. art. 966. Defendants argued they were entitled to summary judgment because a prosecutor has absolute immunity. Suarez claimed adequate discovery was needed to determine if the torts in his petition fell under absolute or qualified immunity. Prosecutors are only entitled to qualified immunity when the tort at issue involves administrative, ministerial, or investigative tasks. 

    The appellate court considered the history of the at-issue discovery requests. Here, Defendants did not respond to Suarez’s discovery requests for months. Although the trial court had instructed Defendants to comply with Suarez’s discovery requests and indicated they would, they never responded. The defendants’ counsel denied receiving certain requests, which had been sent via certified mail, asked for multiple extensions to the deadlines to respond, and impeded Suarez’s counsel’s efforts to schedule depositions. As a result of Defendant’s unresponsiveness, Suarez had not been able to obtain adequate discovery to oppose Defendants’ summary judgment motion. Therefore, the appellate court reversed the trial court’s grant of summary judgment in favor of the Defendants and sent the case back to the trial court so that Suarez could have an opportunity for adequate discovery. The appellate court did not address the merits of Suarez’s claim for malicious prosecution. 

    This case serves as a powerful reminder of the significance of adequate discovery in the pursuit of justice. When a court grants summary judgment before allowing sufficient time for discovery, it undermines the fundamental principles of fairness and due process. In Suarez’s situation, the Defendants’ repeated delays and lack of responsiveness to discovery requests impeded his ability to obtain crucial evidence to counter the summary judgment motion. The appellate court rightfully recognized this injustice and reversed the trial court’s decision, granting Suarez the opportunity for adequate discovery. 

    If you find yourself involved in a lawsuit, it is vital to have a competent attorney who can guide you through the discovery process, ensuring that you serve the necessary requests and gather the evidence essential to support your claim. Remember, the path to justice demands diligent pursuit and a commitment to safeguarding your right to a fair trial with adequate discovery.

    Additional Sources: Shannon James Suarez v. John Derosier, Individually and in His Capacity as the Calcasieu Parish District Attorney et al.

    Additional Berniard Law Firm Article on Malicious Prosecution: Malicious Prosecution Case Lends Elements of Successful Gain

  • A Slippery Case: How a Lease Agreement Swayed a Personal Injury Lawsuit Against a Medical Facility

    Imagine attending a routine medical appointment at your local doctor’s office. You enter the premises expecting a standard check-up, but unexpectedly, you trip over a defective threshold and fall onto a hard terrazzo floor. This unsettling scenario is precisely what Lois J. Tate encountered in their accident, sparking a personal injury action against Touro Infirmary and Louisiana Children’s Medical Center. The Louisiana Fourth Circuit Court of Appeal affirmed the Trial Court’s decision to grant summary judgment in favor of the defendants, Touro Infirmary, and Louisiana Children’s Medical Center.

    In a life-altering event, Tate tripped over what she claimed to be a defective threshold at the office of Dr. Shelton Barnes. The office was located in a building leased from Touro Infirmary. This unexpected fall led to injuries, which prompted Tate to file a lawsuit for damages based on negligence and strict liability against the defendants, including Touro Infirmary, Louisiana Children’s Medical Center, and Dr. Shelton Barnes. Tate’s claim encountered a significant challenge when the Trial Court granted summary judgment favoring the defendants. Tate could not prove a crucial element of her claim—Touro’s knowledge of the alleged defect. Undeterred, Tate appealed the decision.

    Under Louisiana law, a summary judgment is applied when there’s no genuine dispute regarding a critical fact that could influence the relief a litigant seeks. To successfully contest a summary judgment, a plaintiff cannot only rely on allegations or speculation. They must present substantial proof of a genuine issue of material fact. For Tate, this involved demonstrating Touro’s awareness of the defect. Simon v. Hillensbeck.

    Touro Infirmary and Dr. Barnes, the tenant, had entered a lease agreement, which explicitly stated Barnes accepted the premises “as is” with any defects. Additionally, Barnes would bear all responsibility for incidents resulting from alleged defects. This is permitted under Louisiana law as it supports the contractual shift of responsibility from the owner to the lessee, as long as the owner didn’t know or hadn’t been notified of the defect. LA Rev Stat § 9:3221.

    Legally, Touro Infirmary transferred any maintenance duty for the premises to Barnes through the lease agreement. No evidence indicated Touro knew of the alleged defect before Tate’s unfortunate accident. Consequently, the Court of Appeals ruled Touro was entitled to judgment as a matter of law, and the Trial Court’s decision was upheld.

    This case highlights the importance of understanding the fine details of lease agreements. It emphasizes the plaintiff’s need to substantiate all components of a claim when alleging negligence and strict liability. Good lawyers and attorneys comprehend these intricacies, making them excellent counsel and representation for their clients in complex personal injury lawsuits. The Court of Appeal reinforced the legal principle that a plaintiff must substantiate all aspects of her claim to prevail. 

    Overall, the case underscores the complexities of determining fault in personal injury cases. It serves as a stark reminder for all parties to be acutely aware of the agreements they enter. Likewise, it stresses the importance of retaining advice from experienced legal attorneys when navigating such complex scenarios.

    Additional Sources: Tate v. Touro Infirmary, Et Al

    Written by Brian Nguyen

    Additional Berniard Law Firm Article on Lease Agreement Issues: The High Cost of Overlooking Fine Print: A Cautionary Tale of Settlements and Release Forms

  • City Cannot Claim Immunity For Hurricane Damage When Alleged Misconduct Predated Hurricane

    Hurricanes can result in significant property damage, including flooding with contaminated water. When faced with such a situation, homeowners may wonder if they have a viable lawsuit against the responsible parties, such as the company responsible for the contaminants or the city involved in managing the wastewater system. The following case sheds light on the legal considerations surrounding property damage caused by contaminated floodwater and the potential liability of the responsible entities.

    Ronald and Virginia Colson owned property in Pineville, Louisiana, that was damaged by Hurricane Gustav. They claimed their property was flooded with water contaminated with contaminates from Colfax Treating Company’s wood-treating facility. As a result, they claimed they were evicted from their home. 

    Colfax had a permit to dispose of materials in Pineville’s wastewater system. The Colsons filed a lawsuit against Colfax and the City of Pineville. The Colsons claimed the City of Pineville did not timely activate pumps for evacuating waste and stormwater, failed to properly maintain or inspect these pumps, and improperly allowed Colfax to dispose of the contaminates at above-legal limits. 

    The City of Pineville filed a summary judgment motion, claiming it was immune from liability under La. R.S. 29:721-39, the Louisiana Homeland Security and Emergency and Disaster Assistance Act. They filed a second summary judgment motion the same day, arguing the City was not liable for flooding because other entities were solely responsible for flood control in the City of Pineville. The trial court granted summary judgment in favor of the City of Pineville for the flooding issue but not the immunity issue. An appeal by the City followed.

    Appellate courts review a trial court’s decision to grant a summary judgment motion de novo, meaning they use the same criteria as the trial court to determine if summary judgment is appropriate. Summary judgment is appropriate when there are no genuine issues of material fact. See La. C.C.P. art. 966.

    On appeal, the City of Pineville argued the trial court erred in only granting summary judgment with respect to the flooding. The appellate court found the trial court properly denied the City of Pineville’s summary judgment motion, arguing it was immune under the Louisiana Homeland Security and Emergency and Disaster Assistance Act. Specifically, there were genuine issues of material fact about whether the Act applied here. 

    Under La. R.S. 29:735, the state and cities cannot be held liable for actions undertaken as part of emergency preparedness unless it involves willful misconduct. In order to succeed in its claim of immunity, the city needed to show the applicable events occurred during the emergency. In support, the City of Pineville provided a copy of the applicable emergency declaration related to Hurricane Gustav. Here, the appellate court found there were genuine issues of material fact about the alleged actions and inactions involving the City of Pineville prior to Hurricane Gustav. 

    Furthermore, the appellate court found there were genuine issues of material fact about which entity was responsible for the town’s flood control structures. As a result, the appellate court affirmed the trial court’s grant of summary judgment in favor of the City of Pineville for flood damage but did not find the City of Pineville was immune from liability.

    If your property has been damaged by contaminated floodwater in the aftermath of a hurricane, pursuing a lawsuit against the responsible parties may be a viable option. However, success in such a lawsuit depends on various factors, including establishing causation, proving negligence or wrongful conduct, and understanding the legal immunities or defenses that may apply. 

    Consulting with a skilled attorney experienced in property damage and environmental law is crucial to navigating these complex issues effectively. A knowledgeable attorney can assess the specific circumstances of your case, advise you on the legal actions available, and help you pursue the appropriate parties for compensation.

    Additional Sources: Ronald Colson and Virginia Colson, et al. v. Colfax Treating Co. LLC et al.

    Written By a Berniard Law Firm Writer

    Additional Berniard Law Firm Article on Hurricane Damage: St. John the Baptist Parish Enjoys Absolute Immunity from Residents’ Class Action Lawsuit for Damages Sustained in Hurricane Isaac

  • The Importance of Truthfulness in the Legal System and Its Effect on Case Outcomes

    Honesty is always the best policy. This proverb rings especially true in the legal system, where truthfulness and transparency are vital to maintaining the legal process. Failure to tell the truth or even a mistake in remembering the facts can bring severe consequences, as Mark and Paulette Moore discovered after a car accident on Interstate 10 in Iberville Parish.

    Russell Charles was driving his vehicle and pulling a flatbed trailer when a pick-up driven by Mark Moore suddenly rear-ended him. The pick-up was the property of Moore Leasing LLC, a company Mark and Paulette Moore, Mark’s wife, owned together and insured by State Farm.

    About six months after the accident, Moore signed an affidavit stating he was not in the course of employment when the car accident occurred and that the State Farm policy was the only liability insurance available that would give Charles coverage for the injuries from the accident.

    A few days after signing the affidavit, Russell Charles signed a release in consideration of fifty-thousand dollars to release all claims against Mark and Paulette Moore, Moore Leasing LLC, and “all other persons, firms, or corporations liable or, who might be claimed liable” for the accident. Less than one month after signing the affidavit, Charles sued multiple companies owned by the Moores (Moore Petroleum, Inc., and Power Petroleum, Inc.), seeking damages for injuries from the accident. 

    Moore Petroleum raised the defenses of compromise, settlement, and res judicata based on the prior release signed by Charles. Moore Petroleum then filed a motion for Summary Judgement claiming that 1.) Mark Moore was not in the scope or course of employment for either company at the time of the accident, and 2) the Charles release agreement precludes any action.

    Charles countered the motion stating that: 1.) Defendants did not put forth admissible summary judgment evidence with affidavits unsigned by the affiants. 2.) There were issues of fact as to whether Moore was working for Power Petroleum at the time of the accident as he was communicating with others about Hurricane Sandy’s effect on Power Petroleum. 3.) Genuine issues of fact were created by Moore’s previous inconsistent statements.

    Ultimately, the trial court granted the summary judgment motion holding the release signed by Charles was valid and enforceable. However, Charles appealed, contending the trial court erred. Charles’s main argument was that his release was invalid because of an error in dispute or fraud.

    The Appellate Court first reviewed Moore’s affidavit, stating that he had no other liability insurance to cover Charles’s damages and was not within the course and scope of employment at the time of the accident. In addition, the court reviewed a deposition from Moore where he said he was coming home from a personal trip to see his aunt in Montgomery when the accident occurred. Both the affidavit and deposition were consistent with the trial court’s holding. However, Charles also submitted emails from Moore’s attorney stating that Moore said he was actually in Mobile on business.

    Fraud only needs to be proven by a preponderance of the evidence and may be established by circumstantial evidence like suspicious facts and circumstances. LSA-C.C. art. 1957; Wade v. Marine Services of Acadiana, LLC. The court reasoned that Moore’s inconsistencies in his original statements clearly destroyed his credibility and, at the least, raised genuine issues of fact ias to whether true information was withheld from Charles when the release was obtained. Thus, the trial court’s holding was reversed and the matter was sent back down to the trial court for further proceedings.

    This case highlights the significance of honesty and transparency in the legal system. The consequences of failing to tell the truth or providing inconsistent statements can be severe. This ruling emphasizes the need for competent legal representation to uncover the truth and expose misrepresentations. In the legal system, honesty remains the best policy.

    Additional Sources: RUSSELL CHARLES AND CONSANDRA CHARLES VERSUS MOORE PETROLEUM, INC., POWER PETROLEUM, INC., AND MOORE PROPERTIES, LLC

    Written by Berniard Law Firm Blog Writer: T.J. Reinhardt

    Additional Berniard Law Firm Articles on the Importance of Credible Testimony: Two Sides to Every Story: How Does a Louisiana Court Determine Who is Credible?

  • What Happens When Uninsured Motorists Coverage Is From A Different State Than Where the Accident Occurred?

    When a loved one dies in a car accident, dealing with insurance is likely the last thing on your mind. Unfortunately, insurance policies can be complicated, with many details and exceptions. If you do not fully understand your insurance coverage, you might find yourself in a difficult situation when seeking compensation from your insurance company. This is especially important when your vehicles and insurance policies cover multiple states. 

    Cesar Medina was involved in a car accident in Lafayette Parish, Louisiana, that unfortunately resulted in his death. His wife filed a lawsuit against the driver of the other car, its insurer, and Medina’s insurer. The car Medina was driving at the time of the accident was owned by someone who lived in Georgia. 

    Medina’s insurer filed a summary judgment motion, arguing Medina’s insurance policy did not cover uninsured/underinsured motorists as of the date of the accident. In addition, the insurer argued the car had a Georgia insurance policy, and the vehicle’s owner had signed a waiver rejecting uninsured motorist coverage. The insurer provided the waiver as evidence. Medina’s wife did not oppose the motion. The trial court found Georgia law governed and granted Medina’s insurer’s summary judgment motion and denied Medina’s wife’s request for a new trial. Medina’s wife then appealed. 

    On appeal, Mr. Medina’s wife argued the trial court erred by not applying Louisiana law to the Georgia uninsured motorist waiver. La. R.S. 22:1295 requires all car liability insurance policies to include uninsured motorist coverage unless the insured rejects the coverage or selects a lower limit. This applies to all policies delivered or issued for delivery in Louisiana. 

    In considering whether the trial court should have applied Louisiana or Georgia law, the appellate court explained that Georgia was the state whose policies would be most impacted if its laws were not applied to the case. This analysis was required under the Louisiana statute governing choice of law decisions, La. C.C. art. 3537.  The appellate court explained the vehicle’s owner had obtained the insurance policy in Georgia and registered it to an address in Georgia. Therefore, the appellate court found Medina’s car insurer had provided sufficient evidence that the vehicle owner had waived uninsured motor coverage under Georgia law and affirmed the trial court’s grant of the summary judgment motion dismissing Medina’s insurer from the lawsuit. 

    So what are the implications when uninsured motorists’ coverage originates from a different state than where the accident occurred? In Louisiana, the courts will look to the state whose policies would be most impacted if its laws were not applied to the case. The facts relevant to which state’s policies may be most affected should be presented by a skilled lawyer to prosecute your side of the case best.

    This case serves as a reminder of the importance of understanding insurance policies and their implications in times of tragedy. Dealing with losing a loved one is an emotionally challenging experience, and the last thing one wants to encounter is a complicated insurance process. By being proactive and seeking legal guidance, individuals can ensure they are well informed about their coverage and rights. Consulting with a knowledgeable attorney can provide the necessary support to navigate insurance complexities and pursue rightful compensation. 

    Additional Sources: Oswalda Rangel, et al. v. Felipe Vega-Ortiz, et al.

    Additional Berniard Law Firm Article on Uninsured Motorist Coverage: Considering Uninsured motorist coverage in Louisiana, Be Careful What You Sign For