gets.primecure.net

Category: Uncategorized

  • Hello world!

    Welcome to WordPress. This is your first post. Edit or delete it, then start writing!

  • New Orleans Police Officer’s Termination from Traffic Accident Confrontation Upheld

    To ensure public trust in law enforcement, local government officials have the power to regulate police officers’ conduct both on and off duty. There are certain lines that police officers should not cross, even in their private lives. The following case shows how the New Orleans Police Department (“NOPD”) can terminate the employment of a long-serving police officer for fighting after a traffic accident and reinforce the high standard they hold their employees to.

    Officer Tracy Fulton of the NOPD was waiting at a stop light in his personal vehicle when he was hit from behind by a driver under the alias in court as E.C.. Officer Fulton left his car and began yelling at E.C. and the occupants of his vehicle. When Officer Fulton attempted to open the door of E.C.’s vehicle, E.C. drove off and went to his home. Officer Fulton called the police to report a hit-and-run and followed E.C., who was returning home. Officer Fulton then confronted E.C. again, and the argument eventually became a fight between the two men. 

    After the two men exchanged blows, they retreated to their vehicles to grab weapons, and the fight ended. After the fight, E.C. had a broken nose, a dislocated jaw, a concussion, and concussion-related symptoms. After an NOPD investigation, Officer Fulton was charged with second-degree battery and was also investigated and eventually fired. Officer Fulton was found not guilty of the battery charge at trial, but the termination was never reversed. Officer Fulton then appealed his termination to the New Orleans Civil Service Commission (“the Commission”).

    According to the Louisiana Constitution, the NOPD can discipline an employee for sufficient cause. La. Const. art. X, § 8(A). This termination stipulates that it must have a cause or a legitimate reason for the termination. La. Const. Art. X, § 12.  The standard for legal cause is whenever the employee does something that hurts the ability of the employee to effectively engage in public service. See Cittadino v. Dep’t of Police, 558 So.2d 1311, 1315 (La. Ct. App. 1990). Finally, the law in Louisiana allows disciplinary action even if a criminal case based on the same events is not successful. See Bailey v. Dep’t of Pub. Safety & Corr., 951 So. 2d 234, 240 (La. Ct. App. 2006).

    On appeal, the Louisiana Fourth Circuit Court of Appeal upheld the Commission’s decision to terminate Officer Fulton’s employment. Officer Fulton attempted to explain his conduct as self-defense and argued that his actions were justified. This claim failed because the Commission determined that Officer Fulton was the aggressor. E.C. drove away after the initial confrontation, but the Fourth Circuit noted that E.C.’s behavior was not that of a driver committing a hit-and-run. E.C. stopped at a red light, which allowed Officer Fulton to gather E.C.’s vehicle information and license plate number.

    In fact, the Commission found that all of Officer Fulton’s actions after the accident were inappropriate, unnecessary, and threatening. Officer Fulton never withdrew and was continuously the threatening party; accordingly, he was not entitled to use self-defense. Instead, E.C.’s actions of engaging in a fight after being followed to his home were found to be justified. The Commission found that the evidence was overwhelming that Officer Fulton’s aggressive nature in this confrontation hurt his ability with the NOPD to conduct efficient and effective operations.

    The purpose of a police department is to protect and serve the members of a community. Officers getting aggressive with community members after a simple traffic accident can undermine all of the good work a police department provides. The NOPD and the Commission were correct in removing officers who could not handle themselves professionally, even if they were not on the clock. 

    Additional Sources: Tracy Fulton versus Department of Police

    Written by Berniard Law Firm 

    Additional Berniard Law Firm Articles on Police Conduct: Eunice Police Chief Comments about Business Owners Found Defamatory

  • Smoking Or Radioactive Material? Summary Judgment Reversed Given Factual Disputes On Causation

    Everyone knows someone who has been affected by cancer. Despite being a widespread disease, there is a lot we still do not know about cancer. One area where a lot is still unknown is causation. For example, lung cancer can be caused by a variety of things, including smoking and exposure to radioactive materials. These multiple potential causes can present challenging issues in lawsuits where an individual developed cancer. An medical expert is one possible way to address potential causation issues. 

    Riley Hickman filed lawsuits against multiple oil and gas companies, claiming he had developed lung cancer from exposure to naturally occurring radioactive material while working to clean oilfield pipes. He claimed naturally occurring radioactive material deposits inside oil pipes and have to be cleaned out, which releases radioactive dust. One of the companies Hickman sued, Shell Oil, filed a summary judgment motion. Shell claimed Hickman could not establish his exposure to naturally occurring radioactive material had caused his lung cancer, in part because Hickman had smoked his entire life. Shell argued Hickman had gotten lung cancer from smoking, not from exposure to naturally occurring radioactive material. 

    The trial court granted Shell’s summary judgment motion and dismissed Hickman’s claims against Shell. Shell also claimed to have filed a motion to exclude testimony from Hickman’s expert witness, but there was no record of the motion and the court never ruled on it. 

    To prevail on a summary judgment motion, the party moving for summary judgment need only point to an absence of factual support for an element of their claim, such as causation. See La. C.C.P. art. 966. When granting Shell’s summary judgment motion, the trial court agreed with Shell’s argument Hickman had not provided expert medical testimony to link his lung cancer to his purported exposure to radioactive material. However, in reviewing the record, the appellate court found Shell was unclear about whether it was challenging the qualifications of Hickmna’s expert. 

    Any challenges to an expert’s qualifications or methodology are required to be filed in a pre-trial motion, under La. C.C.P. art. 1425(F). The expert had testified in her opinion, Hickman’s exposure to radioactive material increased his risk of developing lung cancer. Thus, the expert’s qualifications and methodology were essential to determining if the expert could provide an opinion on whether Hickman’s exposure to radioactive materials could have caused or contributed to his lung cancer.  However, Shell had not previously raised an objection to exclude the expert testimony. Further, at the summary judgment stage, the trial court was required to accept the expert testimony as competent evidence and could not analyze the reliability of the evidence. Therefore, the appellate court found there were genuine issues of material fact and reversed the trial court’s grant of the defendants’ summary judgment motion. 

    Lawsuits, especially those involving medical issues, often involve complicated issues related to causation. A good lawyer can advise you on what evidence you can provide to support this essential element, including possible testimony from a medical expert and advice you on procedural requirements to use any such testimony. 

    Additional Sources: Riley Hickman v. Exxon Mobile Corp. et al.

    Article Written By Berniard Law Firm

    Additional Berniard Law Firm Article on Causation: Adequate Medical Evidence Required To Establish Causation Of Alleged Injuries

  • Trial Court Errs by Granting an Exception of Prescription to Insurance Company

    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.

    On June 2, 2017, Scottsdale filed a preemptory exception of prescription. An exception of prescription, in the state of Louisiana, refers to the amount of time within a certain period where a person may file a lawsuit. It’s very similar to a more well-known term we call statute of limitations. Scottsdale claimed that because the claim was filed over a year after the default judgment against them had been completed, the claim could not be brought. A default judgment is where there is a failure to fulfill a legal obligation. 

    At the trial court level, the court found the exception of prescription was warranted because more than a year had passed between the default judgment and the filing of suit against Scottsdale in March of 2017 for an action that occurred in 2012 and, therefore, sided with Scottsdale. Russell appealed this and went to the Fifth Circuit Court of Appeal to address the claim that the trial court erred in concluding the exception of prescription was warranted.

    The appellate court looked to see if Russell filed the suit against SNIC within the correct timeframe that interrupted prescription against Scottsdale. Per La. C.C. art. 3492, delictual actions are subject to a liberative prescriptive period of one year, which begins to run from the day injury or damage is sustained. Similarly, the court notes that if prescription is evident in the beginning of the pleadings, the burden shifts to the plaintiff to show the action has not prescribed. Campo v. Correa,

    The court held that because the plaintiffs were not given sufficient discovery to bear the burden, the claim had not prescribed. This includes plaintiffs determining which insurance company was the defendants’ insurer when the incident occurred and whether the two insurers had a relationship. Ultimately, the appellate court sided with Russell and held that Scottsdale’s exception of prescription was premature.

    It’s never easy to go through lawsuits. They can be timely, cumbersome, and just plain confusing. But don’t let that fear or worry keep you from filing a lawsuit if you think you’ve been unjustly treated. Immediately hire an experienced attorney who can file the lawsuit promptly and win your case without worrying about the time limits to bring your claim.

    Additional Sources: CARLOS RUSSELL AND DESHANNON RUSSELL V. MICHAEL G. JONES, RILEY & CARROLL PROPERTIES, INC. AND STATE NATIONAL INSURANCE COMPANY, INC

    Written by Berniard Law Firm Writer Brianna Saroli

    Other Berniard Law Firm Articles on Prescription: Trial Court Decision Overturned Due to Prescription Period Expiring

  • Law Firm Not Liable in Legal Malpractice Lawsuit Despite Conflict of Interest

    In some cases, mistakes in following procedure can harm a plaintiff’s cause of action even if the case otherwise may be successful on the merits. For example, legal malpractice cases in Louisiana must be filed within one year from when the plaintiff knew or should have known that malpractice had occurred. A recent case out of the Parish of East Baton Rouge has outlined when a plaintiff is considered to have some notice of legal malpractice. 

    Satterfield & Pontikes (S&P) was a general contractor for the construction of the Lawrence D. Crocker Elementary School in New Orleans, known as the Croker project. The Recovery School District (RSD) owned the property, and Jacobs Project Management Company/CSRS Consortium (Jacobs) acted as the project manager. Norman Chenevert and Chenevert Architects, LLC (Chenevert) and Julien Engineering & Consulting, Inc. (Julien), the sub-consultant structural engineers, created the plans and specifications for the project. In addition, S&P met with Murphy J. Foster, III, a partner at the Breazeale Sachse & Wilson (BSW) law firm, to represent them regarding a previous project S&P worked as a general contractor for. One of the other BSW partners, Steven Loeb, has represented Chenevert previously and had been representing them in connection with the Crocker Project. 

    Professional ethics rules required BSW to advise S&P and Chenevert on the potential for conflict and to receive a written waiver from both clients. The Chief Financial Officer of S&P, Laura Pontikes, signed the waiver. In contrast, Chenevert terminated its client-lawyer relationship with Leob, and its file regarding the Crocker Project was returned to the company. 

    The following year, RSD’s attorney sent S&P a notice alleging that S&P failed to perform the necessary work on the Croker project, such as failing to meet deadlines and causing delays. After receiving the notice, General Counsel for S&P, Dennis Ducran, and Laura Pontikes, asked Foster for assistance with the Crocker project. Foster attended a settlement meeting on behalf of S&P, and the two companies reached a settlement agreement. Foster then advised Laura Pontikes that S&P could sue RSD, Julien, and Chenevert for damages caused by the delay. However, Foster did explain that he could not represent S&P if it decided to sue Chenevert. 

    BSW then represented S&P in a lawsuit against Julien, Julien’s insurer, and then later RSD. Months later, S&P also decided to file a lawsuit against Chenevert. Because of a conflict of interest, Foster recommended S&P retain Shields Mott Lund (SML) to represent them in connection with the Crocker Project. Ducran then notified Foster that S&P had retained SML and requested him to deliver S&P’s client file to Sonny Shields at SML. 

    The following year S&P filed a lawsuit against BSW for legal malpractice. The company alleged that when BSW sent the S&P client file to SML, they also received a copy of an email from the senior project manager at Jacobs, John Haarala, to Norman Chenevert, where Haarla said the associated pricing for the miscellaneous steel scope of work and that was what he had been worried about from the start. Haarala also told Chenevert that this information would be included in an Errors & Omissions claim. Haarala also said that he asked for an order of magnitude from Chenevert and had yet to receive it and reminded him the entire evaluation was Chenevert’s responsibility. 

    S&P argued that while representing the company, BSW withheld evidence that Chenevert, RSD, and Jacobs knew the design plans were incomplete and the reason for the Crocker project delays. S&P also argued that had it had this evidence, it would not have accepted the settlement with RSD. BSW responded by raising a peremption objection, arguing that S&P filed the malpractice over a year after S&P found or should have found the email. The one-year peremptive period for legal malpractice claims is established by La. R.S. 9:5605. The trial court ruled in favor of BSW because it found that S&P should have known the facts leading to the malpractice claim on March 7, 2012, but did not file until July 31, 2014. S&P then appealed the decision.

    Upon review, the court explained that La. R.S.9:5605(A) prescribes a one-year timeline to bring a legal malpractice action. The statute provides a legal malpractice claim must be brought within one year of the date of discovering the act, omission, or neglect and within three years of the date of the act, omission, or neglect from the lawyer.

    The peremption date runs from the “date of discovery,” which is considered to be when a reasonable person in the plaintiff’s position would have had actual or constructive knowledge of the damage. A plaintiff with information that would place a reasonable person on notice that malpractice had occurred shall be subject to the one-year peremption. Straub v. Richardson. 

    The court noted that when Foster represented S&P during negotiations with RSD, Foster acknowledged that S&P’s case against RSD arose from defective plans and that Chenevert admitted the steel design drawings were in error, and that everyone felt that way. However, Foster also told Laura Pontikes that S&P had a claim against RSD, Julien, and Chenevert but reminded her that his partner had represented Chenevert in connection with the Crocker Project and, therefore, would not be able to represent S&P if it decided to sue Chenevert. Therefore, Laura Pontikes was aware of a real conflict regarding the representation and had constructive knowledge that BSW was withholding evidence of Chenevert’s liability. 

    Overall, the court decided that S&P could not prevail on its legal malpractice action, despite the conflict that arose amid representation for the Crocker Project. S&P could not prevail because it let the one-year peremptive time period to file the action elapse when the company should have known that malpractice occurred. To prevent a legal malpractice claim from being dismissed, the plaintiff should first ensure they file their case within one year of becoming aware of legal malpractice.

    Additional Sources: SATTERFIELD & PONTIKES CONSTRUCTION, INC VERSUS BREAZEALE SACHSE & WILSON, LLP, MURPHY J. FOSTER III, INDIVIDUALLY AND STEVEN B. LOEB, INDIVIDUALLY

    Written by: Berniard Law Firm 

    Other Berniard Law Firm Articles on Peremption in Legal Malpractice Claims: Peremption Prevents Injured Longshoreman from Bringing Legal Malpractice Claim Despite Lack of Notice

  • Is It Constitutional To Suspend Someone’s License For Repeat Arrests for DWI?

    Everyone knows it is a bad idea to drive under the influence of alcohol. However, even if you are in the unfortunate situation of being arrested for drinking and driving, you still have constitutional rights. Nonetheless, it is important to be aware of the possible penalties you could face, including having your driver’s license suspended. These consequences can become even more severe if you are a repeat offender. 

    David Carver was arrested multiple times for driving while intoxicated (“DWI”) under La. R.S. 14:98. The first time, he did not receive a conviction as he participated in a diversion program. He pled guilty to the DWI the second time and was placed on probation. Because Carver refused to take the test for intoxication, his driver’s license was suspended. Although Carver attempted to have his license reinstated, the State denied the restatement because he had refused to submit to the chemical test.  La. R.S. 32:667 prohibits reinstating someone’s license who refuses to take the chemical test for a second or subsequent arrest, which occurred here. 

    The State later reinstated his license on the condition that he install an ignition interlock device. Carver filed a motion arguing that certain sections of La. R.S. 32:667 were unconstitutional. The district court held that sections (H)(3) and (I)(1)(a) of La. R.S. 32:667 were unconstitutional because they violated the Due Process Clauses found in the Constitutions of Louisiana and the United States.  Specifically, these provisions provided punishments based upon a prior arrest, not on prior illegal conduct that had been proven. The State appealed. 

    On appeal, the appellate court (here, the Supreme Court of Louisiana) reviews questions about the interpretation of a statute de novo. This means the appellate court does not have to defer to the lower court’s interpretation of the statute and whether or not it is constitutional. All statutes are presumed to be constitutional. Therefore, whenever possible, a court must construe a statute to be constitutional. 

    In reaching its decision, the court pointed to the evidence required under La. R.S. 32:667 before someone’s driver’s license is suspended. The State must prove that there were reasonable grounds to believe the arrestee was driving; the arrestee was arrested and informed of his Miranda rights and possible suspensions; and that the arrestee refused the chemical test. Furthermore, the ability of the State to withhold reinstatement of the driver’s license of someone suspected of driving while intoxicated was within the State’s police power. The State’s police power gives it the authority to enact laws to protect the safety and health of its citizens. This includes laws governing travel on roads within the State. Therefore, the Supreme Court of Louisiana held that the at-issue sections of La. R.S. 32:667 did not violate the Due Process Clause in the Constitutions of Louisiana or the United States.

    If you find yourself arrested for driving while intoxicated, it is important to consult a good attorney who can help protect your constitutional rights. 

    Additional Sources: DAVID CARVER V. LOUISIANA DEPARTMENT OF PUBLIC SAFETY

    Written By Berniard Law Firm Writer

    Additional Berniard Law Firm Article on Repeat DWIs: Beware of Dangerous Drivers; Man Booked in Ouachita Parish for Third DWI

  • A Warning Cone and a Wet Floor, Who Wins in a Slip and Fall Lawsuit?

    We have all seen warning cones and signs in front of a wet floor at a business. But what happens when you fall in front of the warning cone? Can the company still be held accountable for your injuries? The subsequent lawsuit, Kenner, Louisiana, shows how courts review slip and fall lawsuits on wet floors with warning signs in plain sight.

    Marion Bertaut was a patron of the Golden Corral Restaurant, where she allegedly slipped in a puddle of water and sustained injuries. She filed a lawsuit against the restaurant, seeking damages for her fall and injuries. 

    Corral filed a motion for summary judgment, arguing Bertaut could not prove there was an unreasonable risk of harm at the restaurant. Under Louisiana law, wet or slick floors marked by warning signage are not unreasonably dangerous. La. R.S. 9:2800.6. Corral provided a surveillance video showing a yellow warning cone placed in the area, and Bertaut passed it multiple times. 

    Bertaut argued there were genuine issues of material fact concerning (1) whether the condition was open and obvious, (2) if Corral had a duty to warn its customers of the condition, (3) whether there was a duty to warn by placing a cone down, and (4) whether Corral’s duty to warn Bertaut was discharged. The trial court granted Corral’s motion for summary judgment, which Bertaut appealed.

    Under Louisiana law, a merchant owes a duty to those on his premises to keep his establishment in a reasonably safe condition, including keeping the premises free of hazardous conditions. La. R.S. 9:2800.6. In a negligence claim, a plaintiff must prove (1) the condition presented an unreasonable risk of harm and that risk of harm was foreseeable, (2) the merchant created or had notice of the condition, and (3) the merchant failed to exercise reasonable care. A plaintiff must prove these elements, and the elements in a standard negligence claim to prevail. 

    In determining whether a condition is unreasonably dangerous, the courts look to four factors in the risk-utility test:  (1) the utility of the complained of condition, (2) the likelihood and magnitude of harm, including the obviousness and apparentness of the condition, (3) the cost to prevent the harm, and (4) the nature of the plaintiff’s activities in terms of social utility or whether the activities were dangerous by nature. Bufkin v. Felipe’s La., LLC, 171 So.3d 851 (La. 2014).

    Under the second prong, a defendant does not have a duty if the condition is obvious and apparent. The Fifth Circuit Court of Appeal reasoned the warning cone put out by Corral was enough to alert customers to a hazardous condition. The surveillance video clearly showed Bertaut walking by and looking at the cone. She walked by the spill three times before she fell, passing by the cone a total of seven times. The appeals court reasoned she was adequately alerted to the hazardous condition. Further, Bertaut could not establish that Corral failed to exercise reasonable care. The warning cone was right where Bertaut fell, and she looked at it multiple times. The appeals court found Corral’s argument more persuasive and upheld the lower court’s grant of summary judgment.

    Justice Chaisson wrote about the open and obvious doctrine in a concurring opinion. Bertaut argued the hazardous condition was open and obvious, contending the doctrine refers to the openness and obviousness of the condition, not the warning. Corral responded the condition of the floor was open and obvious and did not present a harmful condition. Justice Chaisson stated the open and obvious doctrine did not apply to this case. He goes on to summarize Corral’s argument: even if Bertaut could prove there was a dangerous condition present, the cone was an adequate warning that shielded Corral from liability. Accordingly, Justice Chaisson concluded Corral was entitled to summary judgment. 

    This case exemplifies why proving one’s evidentiary burden is essential before filing a claim. Perhaps a warning cone should have been placed in front of Bertaut’s lawsuit. An experienced lawyer will ensure your case can withstand a summary judgment claim. 

    Additional Sources: MARION BERTAUT versus CORRAL GULFSOUTH, INC. AND JAMES RIVER INSURANCE COMPANY

    Written by Berniard Law Firm Blog Writer: Gabriela Chilingarova 

    Other Berniard Law Firm Articles on Open and Obvious Conditions and Slip and Fall Lawsuits: When a Building’s Ledge is Open and Obvious, Building Owner Not Held Liable for Fall

  • Houma Residents Injured by Termite Treatment Shut Out of Court for Failure to Offer Qualified Expert Witnesses

    Expert testimony is one tool litigants can use to prove their arguments in a court of law. Expert witnesses are highly credible individuals with advanced knowledge in a particular field in a lawsuit. The testimony of experts is meant to assist the court in understanding the evidence in matters of fact. But not just anyone claiming to be an expert can testify on behalf of a litigant. As homeowners Blake and Courtney Freeman learned in a painful way, the testimony of six expert witnesses they offered was denied admissibility because it failed to meet Louisiana’s standards for expert testimony evidence.

     The Freeman family purchased a home in Houma, Louisiana, which at the time contained prior termite damage previously treated by Fon’s Pest Management. In 2010, the Freemans began renovating their kitchen and discovered additional termite damage in the kitchen cabinets. As a result, Fon’s Pest Management again treated the Freemans’ home on two separate occasions by drilling holes in the floor, injecting termiticide into the soil beneath the floor, and using spot treatments of termiticide around the house. The spot treatment chemical contained fipronil, a colorless, odorless neurotoxin. Following Fon’s Pest Management’s treatments, the Freemans began to experience health problems that they believed were caused by the termiticide used in their home. As a result, the Freemans moved out of their house and filed an action against Fon’s Pest Management for damages due to injuries caused by the exposure to fipronil. 

     In support of their theory of recovery, the Freemans relied on the expert testimony of three toxicologists, an engineer, an industrial hygienist, and a professional counselor. Fon’s Pest Management filed motions in limine, arguing that none of the expert’s testimony should be admitted into evidence because they failed to meet the required legal standard for experts. A motion in limine is filed by a party who seeks to have the court limit or prevent certain evidence from being presented by the opposing party at trial. These motions, usually filed before the commencement of a trial, are handled outside of the jury’s hearing. The trial court granted Fon’s Pest Management’s motions to exclude the Freemans’ expert testimony and subsequently granted Fon’s Pest Management’s motion for summary judgment.

     On appeal, Louisiana’s First Circuit Court of Appeal reviewed the U.S. Supreme Court’s four-factor “Daubert Test” used to determine whether an expert’s testimony should be accepted into evidence. The factors include: (1) whether the theory or technique has been tested; (2) whether it has been subject to peer review; (3) whether there is a known or potential rate of error; and (4) whether the methodology has gained general acceptance. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 593-94 (1993). Additionally, the Court noted that expert testimony is subject to Louisiana’s rules of evidence. For expert testimony, the Louisiana Code of Evidence states that if scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or determining a fact in issue, then the testimony will be admissible to the court. See La. C.E. art. 702. In examining the record, the Court noted that none of the experts offered by the Freemans had the requisite knowledge of fipronil, none wrote any peer-reviewed articles on the effects of pesticides on humans, none had conducted studies reviewed by other experts, and none could point to any biological data supporting the Freemans’ claims. Accordingly, the Court affirmed the trial court’s exclusion of the Freemans’ expert testimony and granted summary judgment in favor of Fon’s Pest Management.

    The Freemans’ situation exemplifies the importance of retaining an expert attorney experienced in litigation involving expert witnesses. By failing to offer even one expert the court deemed qualified to present testimony in favor of their theory of recovery, the Freemans lost the opportunity to have their day in court. 

     Additional Sources: FREEMAN v. FON’S PEST MANAGEMENT, INC.

     Written by Berniard Law Firm Blog Writer: Gina McKlveen

     Additional Berniard Law Firm Articles on Expert Testimony: Baton Rouge Medical Malpractice Claim Dismissed Due to Lack of Expert Testimony; Medical Malpractice Case Dismissal Affirmed for Lack of Expert Testimony in Split Decision

  • Alexandria, Louisiana Last Will and Testament Invalidated for Failure to Follow Formalities

    Losing a loved one is an obviously devastating experience. Possessions left to the surviving family members cannot take the grief away but can prohibit an entire upheaval for the survivors. It is critical that an excellent attorney drafts the will and handles the probate process for the sake of those survivors.      

    An Alexandria, Louisiana, widow was out of luck after family members filed a lawsuit claiming that her late husband’s will was null and defective. In 1996, Elmoses Ivey executed his last will and testament, which left all his property to his wife, Lois Ivey. After Mr. Ivey died in 2016, Mrs. Ivey probated the will and obtained a judgment of possession. However, Mr. Ivey’s children from a prior marriage filed a lawsuit to contest the validity of their father’s will.   The children argued that the attestation clause at the end of the will did meet the necessary legal requirements and was, therefore, invalid. An attestation clause is a section at the end of the will stating that all the legal requirements in executing the will have been met. The Ninth Judicial District Court for the Parish of Rapides agreed and declared the will invalid. Mrs. Ivey appealed to the Louisiana Third Circuit Court of Appeal. 

    Louisiana law requires a notarial testament’s attestation clause to be in writing and dated.   The testator (person making the will) must sign the will at the end and on each separate page. The testator must declare in the notary’s presence and two witnesses that the instrument is his will. Finally, the notary and witnesses must include a written declaration that both the first two requirements have been met. See La. C.C. art 1577. While there is a presumption in favor of validity generally, will execution formalities must be strictly followed, or the will is invalid. See Successions of Toney, 226 So.3d 397 (La. 2017). The Louisiana Supreme Court further opined that any earlier cases which treated deviations from testamentary form requirements with leniency would no longer apply.    

    The Third Circuit examined the attestation clause of Mr. Ivey’s will and found that it lacked two requirements. Mr. Ivey’s will did not contain the declaration by the witnesses and notary that Mr. Ivey signed the will at its end and on each separate page. It also did not have the declaration by the witnesses and notary that Mr. Ivey declared to them that the document was his will. The Third Circuit affirmed that the will was invalid without those two requirements.  

    Mrs. Ivey argued that there was no need for a rigid application of the attestation clause requirements because there was no evidence of fraud in the creation of Mr. Ivey’s will. Unfortunately,  the Third Circuit was bound to follow the Louisiana Supreme Court’s holding that the formalities prescribed for the execution of a testament must be strictly followed.   

    The case reminds all estate attorneys that the statutory formalities for notarial testaments will be applied rigidly. Despite a presumption that a will is valid, courts must apply the legislature’s statutory scheme for will requirements. A hard lesson for Mr. Ivey’s attorneys and a miserable day in court for his widow.  

    Additional Sources: SUCCESSION OF ELMOSES IVEY 

    Written by Berniard Law Firm Blog Writer: Elisabeth Tidwell 

    Other Berniard Law Firm Articles on Contested Wills:  Surviving Spouse Loses Fight with First Wife Over Provisions of “Clear and Unambiguous” Will in Louisiana

  • When an Insured Can Seek Statutory Damages from an Insurer

    Many coastal Louisiana homeowners were affected by Hurricane Katrina. Too many of those affected are still dealing with the stressful experience of rebuilding their homes, communities, and lives. When natural disaster strikes, the importance of good, quality homeowners insurance becomes starkly evident, and can provide much needed relief for homeowners. Unfortunately, insurance companies do not always make the recovery of benefits easy on the afflicted homeowner. The insurance claims process can be overwhelming, and may be complicated by the often necessary instigation of litigation. Homeowners carrying insurance need to be aware that in some instances the actions of their insurance provider in hindering their expedient recovery can compel a court to award additional compensation to the homeowner.
    Louisiana revised statute §22:1892 * governs the recovery of additional damages against an insurance provider. Under §22:1892, an insurance provider who fails to make a payment on a claim within 30 days of settlement or written agreement to pay could be subject to sanctions if the court finds that failure to disburse payment is “arbitrary, capricious, or without probable cause.” If an insurer fails to make a timely payment as per the statute, the court may “subject the insurer to a penalty, in addition to the amount of the loss, of fifty percent damages on the amount found to be due from the insurer to the insured, or one thousand dollars, whichever is greater.” This penalty, if awarded, is either paid out to the insured, or to a designated employee of the insured.

    The Fifth Circuit Court of Appeals case French v. Allstate Indemnity Co., addresses §22:1892. Allstate appealed the lower court’s ruling that it was liable under §22:1892 for failing to timely pay an undisputed portion of a wind damage claim made by the French’s. Allstate did not attempt to argue that they did not owe the French’s some amount under the statute, but rather they argued that the penalty amount awarded to the French’s was incorrectly calculated using an outdated version of § 22:1892. The lower court “calculated penalties on the Plaintiff’s entire wind-damage claim, without discounting any amounts Allstate had timely paid.” The court in French held that the lower court incorrectly calculated the statutory penalty to Allstate by failing to subtract a portion of the claim which Allstate timely paid from the penalty calculation. The court reduced the French’s award by $2,500.

    It is important to note that had Allstate simply argued that they should not be penalized under the statute they would almost certainly have been unsuccessful. In Louisiana Bag Co. v. Audubon Indemnity Co., the Louisiana Supreme Court ruled that mere failure to pay within the statutory time limit constitutes behavior that is “arbitrary, capricious, and without probable cause,” and the statutory penalty applies. In other words, simply failing to make a timely payment as required by the statute, and nothing more, is sufficient reason for a court to subject an insurer to penalties.

    The calculation of damages to be paid out by insurance companies is an often complicated process. Understanding and knowledge of any additional statutory awards that may be available to a homeowner in need can make all the difference. If you or a loved one has been affected by Hurricane Katrina you need an experienced law firm to help you navigate negotiations with your insurance company and to represent you in court should it be necessary.

    *Prior to 2009, § 22:1892 was designated § 22:658, and is cited in French v. Allstate Indemnity Co. as § 22:658.

    (more…)