gets.primecure.net

Blog

  • Too Late to Sue: Court Upholds Prescription in Construction Site Injury Case

    In a ruling emphasizing the critical importance of adhering to legal deadlines, the Louisiana Court of Appeal, Fifth Circuit, affirmed the dismissal of a personal injury lawsuit due to prescription, leaving the injured plaintiff without recourse. In the case, the court affirmed a trial court judgment that dismissed Tammy Blanchard’s personal injury claims due to prescription or the expiration of the time limit for filing a lawsuit.

    In 2015, Ms. Blanchard filed a lawsuit alleging she was injured while walking on a grassy pathway to Gerry’s Place, a business in Jefferson Parish. She claimed she tripped over concrete debris left by contractors working on a nearby drainage canal project. The initial lawsuit named several defendants, including Gerry’s Place, Jefferson Parish entities, and an unnamed contractor referred to as “ABC Contractors.”

    Later, Ms. Blanchard amended her petition to add Fleming Construction Company, LLC, and Shavers-Whittle Construction, LLC, as defendants after discovering their involvement in the construction project. However, these amended petitions were filed more than a year after the injury occurred.

    The Issue of Prescription

    Fleming and Shavers-Whittle filed an exception to prescription, arguing that the claims against them were time-barred because the amended petitions were filed beyond the one-year prescriptive period for personal injury cases in Louisiana. Ms. Blanchard countered, invoking the doctrine of contra non valentine, which can suspend the running of prescriptions under certain circumstances.

    Trial Court’s Ruling

    The trial court granted the exception of prescription, dismissing the claims against Fleming and Shavers-Whittle. It reasoned that the amended petitions were filed too late and that Ms. Blanchard failed to demonstrate that she exercised reasonable diligence in identifying and naming the correct defendants within the prescriptive period.

    Court of Appeal’s Affirmation

    The Court of Appeal affirmed the trial court’s decision. It emphasized that once a petition is prescribed on its face, the burden shifts to the plaintiff to prove that prescription has been suspended or interrupted. In this case, Ms. Blanchard failed to provide sufficient evidence to support her claim of contra non valentem.  

    The court noted publicly available information about the construction project and the involved contractors. Ms. Blanchard could have exercised reasonable diligence to identify the correct parties within the one-year prescriptive period. Her failure to do so resulted in her claims being time-barred.

    Key Takeaways

    This case serves as a stark reminder of the importance of adhering to legal deadlines. In Louisiana, the prescriptive period for personal injury cases is one year. If you fail to file your lawsuit within this timeframe, you may lose your right to seek compensation for your injuries.

    The doctrine of contra non valentine can potentially suspend prescriptions under certain circumstances, such as when the plaintiff is prevented from filing suit due to factors beyond their control. However, the plaintiff must demonstrate that they exercised reasonable diligence in pursuing their claim.   

    If you have been injured, it is critical to consult with an attorney as soon as possible to ensure that your legal rights are protected and that you file your lawsuit within the applicable prescriptive period. Delaying legal action can have severe consequences, as illustrated in this case.

    Remember: Time is of the essence in personal injury cases. Don’t let the clock run out on your right to seek justice.

    Additional Sources: Tammy Blanchard v. Gerry’s Place, Inc., et al.,

    Written By Berniard Law Firm

    Other Berniard Law Firm Articles on Prescription: Louisiana Court Upholds Prescription in Wrongful Death Suit, Highlights Joint Tortfeasor Rule and The Clock is Ticking: Understanding Prescription in Louisiana Personal Injury Cases

  • When Ignoring Student Debt Comes Back to Bite: Xavier University Wins Key Court Battle

    In a recent ruling highlighting the importance of responding to legal actions, the Louisiana Court of Appeal, Fourth Circuit, sided with Xavier University of Louisiana in a case involving unpaid student debt. The court reversed a lower court’s decision, granting Xavier University a preliminary default judgment against a former student, Elemuel Coleman.

    Xavier University filed a lawsuit in 2015 seeking to recover over $21,000 in student loan debt from Coleman. After initial attempts to serve Coleman through the sheriff’s office failed, the court appointed a private process server. The process server successfully delivered the legal documents to Coleman’s residence, leaving them with a person of suitable age and discretion who also lived there.

    Despite being served, Coleman failed to respond to the lawsuit within the required timeframe. Xavier University then filed a motion for a preliminary default judgment, a legal maneuver that can lead to a judgment in favor of the plaintiff if the defendant fails to respond to the lawsuit.

    Surprisingly, the district court denied Xavier’s motion for a preliminary default. The reason given was that there was no evidence in the record proving Coleman actually lived at the address where the papers were served, or that the person who received them actually lived with him.

    Xavier University appealed this decision, and the Court of Appeal sided with the university. It found that the private process server’s affidavit provided sufficient evidence that the legal documents were correctly served at Coleman’s residence. Since Coleman failed to respond to the lawsuit, the Court of Appeal reversed the lower court’s decision and granted the preliminary default judgment to Xavier University.

    Key Takeaways:

    This case underscores the critical importance of responding to legal actions promptly. Ignoring a lawsuit will not make it go away. In fact, as this case demonstrates, it can lead to a default judgment being entered against you, potentially resulting in significant financial consequences.

    What is a Preliminary Default Judgment?

    A preliminary default is the first step towards obtaining a default judgment. It essentially signifies that the defendant has failed to respond to the lawsuit within the allotted time. Once a preliminary default is entered, the plaintiff can then proceed to confirm the default judgment, often through a simple hearing where they present evidence of their claim.

    Why is Proper Service of Process Crucial?

    Service of process is the formal delivery of legal documents to the defendant, notifying them of the lawsuit and giving them the opportunity to respond. Proper service is essential to ensure that the defendant has received notice of the legal action and that the court has jurisdiction over them. If service is not done correctly, any subsequent judgment may be invalid.

    Don’t Ignore Your Legal Obligations

    The Xavier University v. Coleman case serves as a cautionary tale for anyone facing a lawsuit. If you’re served with legal papers, it is crucial to seek legal advice and respond appropriately within the specified timeframe. Ignoring a lawsuit can have serious repercussions, including the possibility of a default judgment being entered against you.

    Remember, knowledge of the law is no excuse for non-compliance. If you have any questions or concerns about a legal matter, consult with an attorney to protect your rights and interests.

    Written by Berniard Law Firm

    Other Berniard Law Firm Blog Articles on Service of Process and Default Judgments: Can a Louisiana Court Impose a Default Judgment for Failure to Obey Pretrial Orders? and Court Throws Out Lafayette Parish Case As Plaintiff Fails To Deliver Service of Process Before Deadline

  • Injured Worker Wins Right to Shoulder Surgery: Court Upholds Decision Against Employer and Insurer

    In a victory for injured workers in Louisiana, the Court of Appeal for the Fourth Circuit recently upheld a decision granting Lorae Burnett the right to shoulder surgery following a work-related motor vehicle accident. The case, Burnett v. Full Force Staffing, LLC, & LUBA Casualty Insurance Company, centered on interpreting the state’s Medical Treatment Guidelines and whether the recommended surgery was medically necessary and appropriate.

    Background of the Case:

    Mr. Burnett, an employee of Full Force Staffing, was injured in a motor vehicle accident while on the job. He sought workers’ compensation benefits for various injuries, including significant pain in his right shoulder. After receiving conservative treatment that failed to alleviate his pain, Mr. Burnett’s orthopedic shoulder specialist, Dr. Savoie, recommended surgery.

    Dispute Over Surgery:

    LUBA Casualty Insurance Company, the Full Force Staffing insurer, denied the surgery request. They claimed the surgery was not pre-authorized, and there was no prior indication that Dr. Savoie was Mr. Burnett’s chosen physician.

    Mr. Burnett challenged this denial, filing a Disputed Claim for Medical Treatment with the Office of Workers’ Compensation’s (OWC) Medical Director. After reviewing Mr. Burnett’s medical records, the Medical Director determined that the surgery was in accordance with the OWC Medical Treatment Guidelines and should be covered.

    The Appeal

    Full Force Staffing and LUBA appealed the Medical Director’s decision, arguing that the surgery was unnecessary and did not comply with the Medical Treatment Guidelines. They also asserted that Mr. Burnett had not undergone sufficient conservative therapy before opting for surgery.

    Court’s Decision:

    The Court of Appeal reviewed the case and found that Mr. Burnett’s medical records clearly showed that conservative treatment had failed to relieve his pain. The court also noted that the Medical Director had likely reviewed additional medical records not presented in court, further supporting the decision to approve the surgery.

    The court ultimately affirmed the OWC’s judgment, upholding Mr. Burnett’s right to receive the recommended shoulder surgery. It concluded that the appellants failed to provide clear and convincing evidence to overturn the Medical Director’s decision, especially since they did not present any countervailing medical evidence to dispute Dr. Savoie’s recommendation.

    Key Takeaways:

    This case is an essential reminder that injured workers in Louisiana have the right to receive medically necessary treatment, even if it requires surgery. The Medical Treatment Guidelines provide a framework for determining appropriate care, and the OWC Medical Director plays a critical role in resolving disputes.

    If your workers’ compensation claim for medical treatment is denied, you can challenge that decision. It is crucial to consult with an experienced workers’ compensation attorney who can guide you through the dispute resolution process and advocate for your right to receive the necessary medical care.

    Written by Berniard Law Firm

  • Siblings Awarded $200K in Legal Malpractice Case: A Cautionary Tale of Attorney Negligence

    In a poignant reminder of the potential consequences of attorney negligence, the Louisiana Court of Appeal recently upheld a substantial $200,000 legal malpractice award to four siblings who tragically lost their brother due to their former attorneys’ alleged mishandling of a wrongful death lawsuit. This case highlights the importance of competent legal representation and the potential consequences of attorney negligence.

    Case Background

    The plaintiffs, siblings of the deceased Frank Anthony Dawson, hired the defendants, Gray & Gray and James Gray, II, to represent them in a wrongful death and survival action against the Sheriff of St. Tammany Parish. Mr. Dawson tragically died by suicide while under suicide watch in the sheriff’s custody.

    The initial lawsuit was dismissed due to procedural errors. While an appeal led to a partial reversal and remand, the case was ultimately dismissed again due to abandonment, primarily caused by the defendants’ inaction.

    Subsequently, the plaintiffs filed a legal malpractice claim against their former attorneys, alleging negligence in handling their original case. The trial court granted partial summary judgment on the liability issue, finding the defendants negligent. After a trial on damages, each of the four plaintiffs was awarded $50,000.

    Key Issues on Appeal

    The defendants appealed the judgment, challenging the grant of summary judgment on liability and the damages awarded. They also argued for a new trial due to the trial court’s failure to provide written reasons for its decision, which was attributed to the trial judge’s illness.

    Court’s Analysis

    The Court of Appeal affirmed the trial court’s decision on several key points.

    • Liability: The court upheld the summary judgment on liability, finding that the plaintiffs had established a prima facie legal malpractice case. The defendants’ negligence in failing to comply with procedural rules led to the dismissal of the original lawsuit, causing the plaintiffs to lose their opportunity to pursue their claims.

    • Damages: The court found the $50,000 award to each sibling reasonable, considering the evidence presented and prior awards in similar cases. The plaintiffs’ emotional loss and the value of their potential recovery in the underlying wrongful death suit were considered.

    • Written Reasons for Judgment: The court acknowledged the defendants’ request for written reasons but determined that the absence of such reasons did not warrant a new trial. It emphasized that the appellate court reviews judgments, not reasons for judgment and that a complete record and trial transcript were available for review.

    Conclusion

    This case is a stark reminder of the importance of competent legal representation, especially in sensitive matters like wrongful death claims. Attorney negligence can have devastating consequences, depriving clients of their opportunity to seek justice and compensation.

    The court’s decision underscores the need for attorneys to adhere to procedural rules and diligently pursue their clients’ cases. It also highlights the potential for substantial damages in legal malpractice cases when negligence results in the loss of a viable claim.

    If you believe you have been a victim of legal malpractice, seeking advice from another attorney is crucial. They can assess your case, determine if you have a valid claim, and help you pursue the compensation you may be entitled to.

    Additional Sources: Connie Dawson, et al. v. Gray & Gray, A Professional Law Corporation, and James A. Gray, II

    Written by Berniard Law Firm

    Other Berniard Law Firm Blog Articles on Legal Malpractice: Understanding Legal Malpractice Claims: Establishing Negligence and Loss and Louisiana Court Reverses Summary Judgment in Legal Malpractice Case, Underscoring Importance of Contractual Claims in Insurance Disputes

  • No Bond, No Appeal: Louisiana Court Dismisses Workers’ Comp Appeal for Procedural Misstep

    In a decisive move highlighting the importance of procedural adherence in workers’ compensation cases, the Louisiana Court of Appeal, Fourth Circuit, dismissed an appeal because the appellants failed to post a required appeal bond.

    This decision underscores the importance of adhering to procedural requirements in workers’ compensation appeals.

    Case Background:

    Angela Jackson sustained an ankle injury while working at a Family Dollar Store in New Orleans. She filed a workers’ compensation claim, asserting that she was a direct employee of Becky Tolito and Tolito Services Co., L.L.C., and a statutory employee of Family Dollar, S&S Janitorial Services, and SMS Assist.

    The Worker’s Compensation Judge (WCJ) ruled in favor of Ms. Jackson, finding that she was injured in the course and scope of her employment. The WCJ awarded her medical expenses, temporary disability benefits, and supplemental earnings benefits and assessed penalties and attorney’s fees against the defendants.

    The defendants appealed the WCJ’s decision. However, they failed to post an appeal bond, a mandatory requirement in Louisiana workers’ compensation cases where the claimant has been awarded benefits.

    Court’s Ruling:

    The Court of Appeal dismissed the appeal as premature due to the lack of an appeal bond. It emphasized that Louisiana law mandates appeal bonds in workers’ compensation cases to guarantee payment of the awarded benefits, interest, and costs. The court noted that while the appellants failed to post the bond, the delay for doing so does not begin until the WCJ sets the bond amount.

    The case was remanded to the WCJ with an order to set the appeal bond amount, allowing the appellants to perfect their appeal by posting the bond within the prescribed time limits.

    Key Takeaways:

    This case serves as a crucial reminder for employers and their insurers to follow procedural requirements diligently when appealing workers’ compensation decisions. Failure to post an appeal bond can result in the dismissal of the appeal, potentially delaying the resolution of the case and incurring additional legal costs.

    In Louisiana, appeal bonds are mandatory in workers’ compensation cases where the claimant has been awarded benefits. The WCJ sets the bond amount, and the appellant has a specific timeframe to post the bond after being notified of the amount.

    It is imperative for parties involved in workers’ compensation litigation to consult with an experienced attorney to ensure compliance with all procedural rules and avoid potential pitfalls that could jeopardize their appeal.

    Additional Sources: Angela Jackson v. Family Dollar Stores of Louisiana Inc., et al

    Written by Berniard Law Firm

    Other Berniard Law Firm Articles on Workers Compensation Issues: Work-Related Injury and Subsequent Leave: When is Compensation Due? and Understanding the Finality of Workers’ Compensation Settlements

  • Louisiana Court Reverses Summary Judgment in Medical Malpractice Case, Highlighting Importance of Fact-Finding in Proving Negligence

    In a significant development for medical malpractice litigation in Louisiana, the Fourth Circuit Court of Appeal recently reversed a summary judgment, underscoring the importance of thorough fact-finding and the potential need for expert testimony in such cases. The case, Diana Deruise-Pierce v. University Healthcare System, L.C., et al., underscores the necessity of thorough fact-finding and the potential need for expert testimony in medical malpractice cases, even when negligence appears evident.

    Case Overview:

    The lawsuit stemmed from the treatment rendered to Mr. Pierce at University Medical Center in New Orleans. Mr. Pierce was admitted for a medical procedure, but his condition deteriorated overnight. Despite this, the medical team proceeded with the planned procedure.

    Tragically, Mr. Pierce went into cardiac arrest during the procedure and passed away. His widow, Diana Deruise-Pierce, filed a medical malpractice lawsuit alleging that the healthcare providers breached the standard of care by transporting and leaving Mr. Pierce unattended in the hallway outside the radiology suite while he was in a severely deteriorated state.

    Trial Court’s Ruling:

    The trial court granted summary judgment in favor of the defendants, relying on the medical review panel’s opinion that no breach of the standard of care occurred. The court also emphasized the absence of independent medical expert testimony to support the plaintiff’s negligence claim.

    Court of Appeal’s Decision:

    The Court of Appeal reversed the summary judgment, highlighting the presence of genuine issues of material fact that precluded summary judgment. The court emphasized the ambiguity surrounding whether Mr. Pierce was left unattended and for how long.

    Crucially, the court recognized that even without expert testimony, a breach of the standard of care could be established if the alleged negligence was so obvious that a layperson could infer it. The court also pointed to the deposition testimony of a fellow physician, Dr. Cooper, which suggested potential deviations from the standard of care.

    While acknowledging the challenges in proving causation without expert testimony, the court stressed the need for further fact-finding to determine the circumstances surrounding Mr. Pierce’s death and whether the alleged negligence contributed to it.

    This case underscores the critical importance of thorough investigation and fact-finding in medical malpractice cases. It highlights that even when negligence seems apparent, a detailed examination of the circumstances is necessary to establish a breach of the standard of care and its causal link to the patient’s injuries.

    The decision also emphasizes the potential role of expert testimony in proving medical malpractice. Still, it acknowledges that negligence may be so evident that expert opinion is not required in some instances.

    This case serves as a reminder that medical malpractice cases are complex and require careful consideration of all relevant facts and evidence. If you or a loved one has suffered harm due to potential medical negligence, it is crucial to consult with an experienced attorney to understand your legal rights and pursue appropriate action.

    Written by Berniard Law Firm

    Other Berniard Law Firm Blog Articles on Fact-Finding and Expert Witnesses: When Do I Need Expert Testimony for a Medical Malpractice Lawsuit? and Appeal Necessary in Car Accident Case Where District Court’s Finding of Fact Strays

  • Louisiana Court Grapples with Complexities of Adoption in Wrongful Death Case

    A recent ruling by the Louisiana Court of Appeal, Third Circuit, has shed light on the complex interplay between adoption and the right to file wrongful death and survival actions. The consolidated cases, stemming from a tragic car accident that claimed the lives of Richard Stewart, Jr., and his two minor children, raised questions about whether adopted children and biological half-siblings can pursue such claims.

    The accident resulted in the deaths of Richard Stewart, Jr., and his two minor children. Mr. Stewart was survived by his wife, Lisa Stewart, and two adult sons, Daniel Goins and David Watts, who were adopted as minors. Additionally, the deceased minor children had a biological mother, Brandi Hardie, who was not a party to the lawsuits.

    Following the accident, multiple survival and wrongful death actions were filed. The central issue was whether Goins and Watts, as adopted children and biological half-siblings, had the right to bring these claims.

    The trial court denied the defendants’ exceptions of no right of action, allowing Goins and Watts to pursue their claims. The court reasoned that biological relationships and dependency, rather than legal classifications, should determine a child’s rights in such cases.

    The Court of Appeal, in a split decision, granted the defendants’ exceptions of no right of action concerning Goins’ claims for the deaths of his biological father and half-siblings. The majority concluded that adoption terminates the legal relationship between the adopted child and their biological parents, barring them from pursuing wrongful death claims.

    Judges Cooks and Savoie dissented, arguing that the Louisiana Civil Code articles governing wrongful death and survival actions do not exclude adopted children or half-siblings. They emphasized the importance of biological relationships and the potential unconstitutionality of denying adopted children the right to file such claims.

    Judge Conery concurred in part and dissented in part, agreeing with the dissenters regarding the inclusion of adopted children and half-siblings but disagreeing on the specific outcome of the case. He highlighted the need for the biological mother of the deceased minor children to be included in the proceedings to determine her potential abandonment and its impact on the siblings’ right to sue.

    This case illustrates the legal complexities surrounding adoption and inheritance rights in the context of wrongful death and survival actions. It underscores the ongoing debate about the balance between biological and legal relationships in determining who can seek compensation for the loss of a loved one.

    The dissenting opinions raise important questions about the potential implications of excluding adopted children from pursuing wrongful death claims, particularly concerning their constitutional rights.

    As the law continues to evolve in this area, it is crucial for individuals involved in adoption or facing the tragic loss of a loved one to seek legal counsel to understand their rights and navigate the complexities of the legal system.

    Additional Sources: KHRISTY GOINS RISMILLER, TUTRIX FOR DANIEL EDWARDS GOINS VERSUS GEMINI INSURANCE COMPANY, ET AL.

    Written by Berniard Law Firm

    Other Berniard Law Firm Articles on Who Has a Right to Bring a Lawsuit: Louisiana Court holds that tutors are not considered a “parent” entitled to bring a claim for loss of consortium and Biological Father Denied Claim in Son’s Louisiana Wrongful Death LawSuit

  • Louisiana Court Raises the Bar on General Damages in Unprovoked Attack Case

    In a recent decision, the Louisiana Court of Appeal, Third Circuit, affirmed and amended a default judgment in favor of Matthew Hillman, who was injured in an unprovoked attack by Corey Seneca. The court upheld the special damages award but found the general damages award to be abusively low, increasing it from $2,500 to $10,000.

    Matthew Hillman filed a lawsuit against Corey Seneca after being attacked without provocation. Mr. Seneca failed to respond to the lawsuit, leading to a default judgment in favor of Mr. Hillman. During the confirmation hearing for the default judgment, Mr. Hillman provided evidence of his injuries, which included a lacerated lip requiring fifteen stitches, fractured teeth, and the inability to eat solid food for two months. He also testified about his pain and suffering and loss of income due to the attack.

    The trial court awarded Mr. Hillman special damages of $2,894.19 for lost wages, past medical expenses, and future dental treatment. However, it granted only $2,500 in general damages for pain and suffering. Mr. Hillman appealed the judgment, arguing that the general damages award was insufficient.

    The Court of Appeal reviewed the evidence presented at the confirmation hearing and found that the trial court had abused its discretion in awarding only $2,500 in general damages. The court emphasized the violent nature of the attack, the severity of Mr. Hillman’s injuries, and the ongoing pain and suffering he endured.

    The court also referenced previous cases involving similar injuries where higher general damage awards were granted. Based on this analysis, the court determined that the lowest reasonable amount within the trial court’s discretion was $10,000.

    The Court of Appeal affirmed the trial court’s judgment except for the general damages award, which was increased to $10,000. All costs of the appeal were assessed against the defendant, Corey Seneca.

    This case demonstrates the importance of seeking appropriate compensation for injuries, including general damages for pain and suffering. It also highlights the appellate court’s role in reviewing trial court decisions and ensuring that damage awards are reasonable and just.

    While default judgments may seem straightforward, it is crucial to present sufficient evidence to support the damages claimed. In this case, the court relied on Mr. Hillman’s testimony and a statement from his dentist to assess the extent of his injuries and the appropriate compensation.

    If you have been injured due to someone else’s negligence, it’s essential to consult with an attorney to understand your legal rights and pursue the compensation you deserve.

    Additional Sources: MATTHEW A. HILLMAN VERSUS COREY SENECA ET AL.

    Written by Berniard Law Firm

    Other Berniard Law Firm Articles on Default Judgments: Why It’s Important to Dot your I’s and Cross Your T’s When Filing a Default Judgment and What are the Standards for Default Judgments in Louisiana?

  • Louisiana Court Upholds Insurer’s Position in Uninsured Motorist Claim Dispute

    In a recent ruling, the Louisiana Court of Appeal, Third Circuit, affirmed a trial court’s decision denying Amanda Bertrand’s claim for penalties and attorney fees against her underinsured/uninsured motorist (UM) insurer, Progressive Security Insurance Company. The case stemmed from a dispute over the timeliness of Progressive’s payment following Ms. Bertrand’s demand for the limits of her UM coverage.

    Ms. Bertrand was injured in a car accident in 2012. The at-fault driver’s insurance company, Farm Bureau, tendered its policy limits of $15,000 in early 2013. Subsequently, Ms. Bertrand notified Progressive, her UM insurer, of the accident and demanded payment of her $15,000 UM policy limits.

    Progressive received Ms. Bertrand’s demand letter but requested an additional medical record from her treating physician. Upon receiving this record, Progressive promptly issued payment. However, due to a communication issue, Ms. Bertrand’s attorney indicated that the payment had not been received, leading Progressive to stop the initial payment and reissue it.

    Ms. Bertrand’s attorney then raised concerns about the language on the reissued check and accompanying release document, suggesting they constituted a conditional tender rather than the unconditional tender required by law. Progressive assured Ms. Bertrand’s counsel that the tender was unconditional.

    Ms. Bertrand eventually negotiated the check but later filed a lawsuit against Progressive, claiming they failed to issue an unconditional tender within the statutory timeframe and seeking penalties, attorney fees, and costs.

    The Court of Appeal focused on two key issues:

    1. Satisfactory Proof of Loss: The court determined that Progressive did not receive a satisfactory proof of loss until it received the additional medical record from Ms. Bertrand’s physician. This record was crucial in confirming the extent of Ms. Bertrand’s injuries and their relation to the accident.

    2. Unconditional Tender: The court concluded that Progressive’s subsequent communication clarifying the unconditional nature of the payment constituted an unconditional tender.

    Furthermore, the court addressed procedural objections raised by Ms. Bertrand regarding the evidence presented by Progressive. It determined that Progressive’s submissions complied with the relevant legal requirements.

    Based on its analysis, the Court of Appeal affirmed the trial court’s judgment, dismissing Ms. Bertrand’s claims against Progressive. It held that Ms. Bertrand failed to prove that Progressive’s actions were arbitrary, capricious, or without probable cause, which is necessary to recover penalties and attorney fees.

    This case highlights the importance of clear communication and complete documentation in insurance claims, particularly when dealing with UM coverage. It emphasizes the insurer’s right to request additional information to assess the claim’s validity and the insured’s obligation to provide a satisfactory proof of loss. Additionally, the ruling underscores the necessity of demonstrating an insurer’s bad faith to recover penalties and attorney fees.

    Additional Sources:AMANDA BERTRAND VERSUS PROGRESSIVE SECURITY INSURANCE COMPANY

    Written by Berniard Law Firm

    Other Berniard Law Firm Articles on Bad Faith Insurance Lawsuits: Court of Appeals Awards Bad Faith Damages Against Insurance Company Who Refused to Pay and Bad Faith Insurance Claim Dismissed Due To Waiting Too Long To File

  • Louisiana Court Adjusts Damages in Car Accident Case, Emphasizes Need for General Damages

    A recent ruling by the Louisiana Court of Appeal has highlighted the importance of awarding general damages in personal injury cases, even when the primary focus is on medical expenses. The case involved a car accident where the jury awarded the plaintiff past medical expenses but failed to award any general damages for pain and suffering.

    In 2013, Steven McDowell was involved in a car accident with Russell Diggs. McDowell sued Diggs and his insurer, seeking damages for physical and mental pain and suffering, loss of enjoyment of life, and medical expenses.

    The jury found both drivers equally at fault (50% each) and awarded McDowell $8,000 for past medical expenses. However, they did not award any general damages. McDowell appealed, arguing that it was legal error to award special damages without also awarding general damages.

    The Court of Appeal agreed with McDowell, finding that the jury’s decision to award medical expenses but no general damages was an abuse of discretion. The court conducted a de novo review of the evidence and awarded McDowell an additional $25,000 in general damages.

    Understanding the Types of Damages

    • Special Damages: These are quantifiable economic losses, such as medical expenses, lost wages, and property damage.
    • General Damages: These are non-economic losses that are more difficult to quantify, such as pain and suffering, mental anguish, and loss of enjoyment of life.

    Why General Damages Matter:

    General damages compensate for the intangible harms caused by an accident. They acknowledge the physical and emotional toll an injury can take on a person’s life. Even if medical expenses are covered, the pain, suffering, and reduced quality of life deserve compensation.

    Key Takeaways from the Case:

    • Legal Error: The court emphasized that it’s a legal error for a jury to award special damages without also awarding general damages when the injuries are proven.
    • De Novo Review: When such an error occurs, the appellate court can conduct a de novo review, meaning they will independently assess the evidence and determine an appropriate award for general damages.
    • Importance of General Damages: The case highlights that general damages are an essential component of fair compensation in personal injury cases.
    • Seek Legal Counsel: If you’ve been injured in an accident, it’s crucial to consult with an attorney who can help you understand your rights and ensure you receive full and fair compensation for all your losses, including general damages.

    This case serves as a reminder that even in cases where medical expenses are the primary focus, general damages for pain and suffering should not be overlooked. The court’s decision emphasizes the importance of ensuring that injured individuals receive just compensation for the full spectrum of harm they’ve suffered.

    Additional Sources: STEVEN MCDOWELL VERSUS RUSSELL DIGGS, UNITED SERVICES AUTOMOBILE ASSOCIATION AND LIBERTY MUTUAL INSURANCE COMPANY

    Written by Berniard Law Firm

    Other Berniard Law firm articles on General Damages: Louisiana Court Affirms General Damages Awarded to Ascension Parish Woman Injured In Auto Accident and Falling Tree Victim Entitled to Increase of General Damages