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  • Permanently Disabled Individual Not Acting Under Scope of Employment In Workers’ Compensation Case

    Unfortunately, accidents at the workplace are not uncommon occurrences. What happens, however, when you are injured while traveling? Will you still receive workers’ compensation if you are not physically on the jobsite? The answers to these questions will depend on the facts of the case and whether you were acting within the scope of your employment. The following Caddo Parish case outlines this predicament.  

    It is undisputed that Mitchell Stringer was hired at Hand Construction, LLC, sometime after September 30, 2014, and that he was asked to attend a meeting at the company office by John Provost, Vice President for the company, in early October. However, the parties disagree on whether Stringer was terminated at the meeting, as testified by Provost and Adam Hubble, CEO for the company, or was told there would not be any more work for him, but that he would receive two weeks’ severance pay, as testified by Stringer. Stringer’s final paycheck included the date “October 9, 2015.” He was issued a check with “severance” in the ledger for the week ending in October 16, 2015. 

    It was also disputed as to whether or not the parties agreed that Stringer would fly to North Dakota to retrieve his vehicle and the company’s GPS equipment. Regardless, on October 8, 2015, Stringer flew to North Dakota to obtain his vehicle and company equipment. Two days later, while traveling from North Dakota to Louisiana, Stringer was involved and injured in a motor vehicle accident in Arkansas.

    As a result of his injuries, Stringer was hospitalized and underwent a minimum of ten surgeries. He also sustained permanently disabling injuries, although he was able to return to modified employment with an employer in Alabama in 2017. 

    Stringer ultimately brought a Disputed Claim for Compensation, where he requested, in part, wage benefits, payment of medical expenses, and authorization for additional medical treatment against Hand Construction, LLC. The Office of Workers’ Compensation, District 1-W for the Parish of Caddo, found that Stringer was told at the October meeting that he was no longer performing services for the company and subsequently entered judgment in favor of the company. Stringer then filed this appeal with the Louisiana Second Circuit Court of Appeal. 

    In order to bring a compensation action, the claimant must be able to establish an injury by an act arising out of, or in the course of, employment. La. R.S. 23:1031(A). Additionally, when reviewing, a court does not determine whether the Workers’ Compensation Judge was right, but only if the findings were reasonable. See  Buxton v. Iowa Police Dept..   

    The Court of Appeal found the main issue in this case to be whether Stringer was employed by Hand Construction, LLC at the time of the automobile accident in Arkansas on October 10th. After hearing the evidence, the Court of Appeal found that Stringer’s trip to North Dakota was primarily a personal mission, he was not paid for the trip, and his plan to send back the company equipment did not extend or renew the employment relationship. As such, the Court of Appeal found no manifest error in the Workers’ Compensation Judge’s findings that Stringer’s employment had been terminated at the early October meeting and, therefore, his accident and subsequent injuries did not arise out of, or were in the course of, employment with Hand Construction, LLC.    

    As seen by the outcome of this case, it is important to fully understand the status of your employment at all times. If you have any questions as to whether you were injured within the course of employment, however, contact a personal injury attorney with ample experience in these matters. 

    Additional Sources: MITCHELL STRINGER versus HAND CONSTRUCTION, L.L.C.

    Written by Berniard Law Firm Blog Writer: Samantha Calhoun

    Additional Berniard Law Firm Articles on Workers’ Compensation: Worker Entitled To Workers’ Compensation From Injuries From Passing Out At Work — Louisiana Personal Injury Lawyer Blog

    Are Mental Injuries Covered By Workers’ Compensation?

  • What is Decretal Language, and Why is it Important?

    In the legal world, every word holds significance. Clarity and precision are of the utmost priority because even the slightest bit of ambiguity can have dire consequences. This is a truth that Terry Gotch would later find out after he filed suit against Scooby’s ASAP Towing LLC following a vehicular accident in Louisiana.

    On February 8th, 2013, Joseph DeRousselle was backing out of a driveway and almost hit the car Terry Gotch was a passenger in. The driver took evasive maneuvers, which led to the vehicle leaving the road and crashing into a ditch. Gotch was injured as a result of the accident. At the time of the accident, DeRousselle was an employee of Scooby’s ASAP Towing. Gotch then filed a lawsuit against Scooby’s ASAP Towing, claiming vicarious liability of the employer for DeRousselle’s negligence. A judgment was made following a jury trial in favor of Scooby’s ASAP Towing, absolving them of any negligence, and Gotch’s claim was disregarded.

    Gotch, understandably unhappy with the verdict, orally moved for a mistrial. This motion was denied a short time later following a hearing. Still unsatisfied, Gotch filed an appeal on October 23rd, 2017. A written judgement was issued; however, it was insufficient in that it lacked decretal language.

    Decretal language is generally defined as the portion of a court’s decision in which an official statement as to what the court is ordering is contained. As outlined in Input/Output Marine Sys., Inc. v. Wilson Greatbatch, Tech., Inc., “An appellate court cannot determine the merits of an appeal unless a valid final judgment properly invokes their jurisdiction. That judgment must be precise, definite, and certain.” Further, “the specific relief granted should be determinable from the judgment without referencing an extrinsic source such as pleadings or reasons for judgment.” Input/Output Marine.

    Here, the trial court found no negligence on behalf of DeRousselle’s involvement in the car accident. A judgment was released in correspondence with that finding. Additionally, the trial court’s final judgment would also represent Gotch’s mistrial motion denial. However, the judgment does not indicate the trial court’s final disposition on the matter.

    Gotch conceded this judgment alone was insufficient and wanted his appeal to be dismissed and remanded to the trial court so they could enter a judgment containing the correct decretal language required. The appellate court did just that, dismissing the appeal without prejudice and remanding it to the trial court with the purpose of decretal language being added so Gotch could later appeal.

    This case outlines the importance of every word in a legal proceeding. If a court leaves out the proper decretal language, which is required, even seemingly obvious cases may not be reviewable on appeal. This is why it is essential to get a lawyer experienced in navigating the various intricacies of the legal system. A sharp eye can mean the difference between a quick, viable appeal and a much longer, dragged-out appeal.

    Additional Sources: TERRY GOTCH VERSUS SCOOBY’S ASAP TOWING, LLC, ET AL.

    Article Written By: T.J. Reinhardt

    Additional Berniard Law Firm Articles on Decretal Language and Judgments: Appealing a Court Judgment in Louisiana: Why Decretal Language Matters

    Judgment In Lawsuit From Garage Sale Injury Lacked Necessary Decretal Language

  • The Road Less Licensed: Bosley’s Driving School Chronicles

    Buckle up your seatbelts and get ready for a wild ride through the twists and turns of Bosley’s Driving School saga! Meet Mr. Bosley, the daring entrepreneur behind this driving school extravaganza, with locations in the charming towns of Donaldsonville and Gonzales, Louisiana. Now, picture this: Mr. Bosley is on a mission to teach the art of driving, but not just any driving – he dreams of offering the elusive 38-hour driver’s education course. But, oh, the drama unfolds when his dreams clash with the stern rules and regulations of the Louisiana driver’s education system. Despite a denial that would make even the bravest soul reconsider, Mr. Bosley and his team continued their quest, issuing certificates left and right. Little did they know, the authorities were hot on their tail, leading to a showdown of epic proportions. Fast forward to courtroom battles, administrative hearings, and a rollercoaster of legal twists that could rival any Hollywood blockbuster. Will Mr. Bosley’s driving school dreams come crashing to a halt, or will he find a way to steer his way out of this legal maze? Strap in and find out!

    Mr. Bosley owns and runs Bosley’s Driving School for drivers’ education classes. The driving school has two locations—one in Donaldsonville and the other in Gonzales, Louisiana. The Donaldsonville location was licensed to teach 6 hours of classroom instruction, while the Gonzales location was licensed to teach the full 14-hour driver’s education course. Neither location was licensed to teach the 38-hour course. Louisiana offers two types of driver’s education courses: (1) A 14-hour course for individuals over eighteen, which requires 6 hours of classroom instruction and 8 hours of behind-the-wheel driving, and (2) a 38-hour course for individuals under eighteen, which requires 30 hours of classroom instruction and 8 hours of behind -the -wheel driving. La. R.S. 32:402. 1.

    In October 2012, Bosley applied for permission to instruct the 38-hour driver’s ed course. On December 10, 2012, Bosley was notified via email that their application was denied because they needed to meet the curriculum requirements. Regardless of this denial, Bosley continued to issue certificates of completion of the 38-hour course to several students. When the State learned of this, they sent Bosley an order to cease further operations as a driving school and third-party tester in Louisiana. On March 27, 2014, the State notified Bosley that because he was providing students with the 38-hour driver’s education course despite needing to be licensed, his licenses to teach the 6-hour and the 14-hour courses were rescinded. Bosley filed an appeal and requested a hearing. 

    On February 20, 2015, an administrative hearing was held. The State’s revocations were affirmed. The court agreed that Bosley had conducted the 30-hour classroom portion of the 38-hour course despite not being licensed. Bosley pursued judicial review of the decision by the district court. The State filed a motion to dismiss for a no cause of action, which the district court granted.

    Bosley filed a devolutive appeal of the district court’s decision on July 29, 2015. On April 27, 2016, the case was reversed and remanded back to the district court, finding that the district court should have ordered a hearing on the merits and the administrative record needed to be incorporated into the court’s record. In April 2017, the district court affirmed the administrative court’s decision again and dismissed the matter with prejudice. 

    On September 19, 2017, the State filed a motion and order to dismiss the appeal and alleged that Bosley failed to appeal the district court’s decision. The State argued that the deadline to appeal was July 5, 2017, but Bosley did not appeal until July 11, 2017.

    According to the Louisiana Code of Civil Procedure, Article 1974 “the delay for applying for a new trial is seven days, exclusive of legal holidays. The delay for applying for a new trial starts the day after the clerk mails it in, or the sheriff has been served, the notice of judgment.” 

    In this case, the district court mailed its notice of judgment on April 28, 2017. The deadline to apply for a new trial was May 9, 2017. The time to file a devolutive appeal expired on July 10, 2017. Bosley filed a motion for devolutive appeal on July 11, 2017. Because Bosley did not appeal within the available time, the appeal must be dismissed as untimely.

    In the end, the legal gears ground to a halt, leaving Bosley and his driving school dreams in the dust. Despite their persistence and determination, the unforgiving hand of time caught up with them, leading to the untimely dismissal of their appeal. The tale of Bosley’s Driving School serves as a cautionary reminder that even the most spirited endeavors can be derailed by the unyielding hands of bureaucracy. And so, the wheels of justice keep turning, leaving behind a trail of lessons for all those who dare to dream beyond the boundaries of the law. And with that, our thrilling journey through Bosley’s Driving School comes to an end, leaving us with a tale of ambition, struggle, and the relentless pursuit of the road less traveled.

    Additional Sources: Bosley’s Driving School and O’Neal versus Louisiana Department of Public Safety and Corrections

    Written by Berniard Law Firm Blog Writer: Needum Lekia

    Other Berniard Law Firm Articles on: Untimely Filing and Failure to Appeal Ends Lawsuit Against Kindred Hospital New Orleans

  • Are Mental Injuries Covered By Workers’ Compensation?

    Employees are often exposed to stressful situations while at work, whether from unhelpful coworkers or understaffing. Under what circumstances are resulting mental injuries entitled to workers’ compensation? 

    Diedre Emerson worked for Willis Knighton Medical Center as a certified nurse assistant on the cancer floor. One day, she arrived at work for her regular night shift. She found the prior shift had not completed a lot of their work, so she would have to do additional work. When she learned this, she became upset and mad. She said this was more of the same old behavior.

    While working that day, she indicated that she felt something pop in her head but admitted nothing physically happened to cause the pop. After completing her shift, she went to the emergency room. The medical records from the visit did not show she complained about weakness on one side of her body or other neurological symptoms. Her primary complaint was hyperventilation and nervousness. Emerson was subsequently late in calling Willis Knighton to tell them she would not be able to work her shift. She was fired. 

    About two months later, she went back to the emergency room, where she was found to have a blocked artery and stroke. Emerson filed a workers’ compensation claim for mental distress and stroke-like systems present at her first visit to the emergency room immediately after completing her shift. The workers’ compensation judge denied her claim, finding Emerson had not proven she had an injury under La. R.S. 23:1021(8) and had not connected any purported injuries to a work-related stress. 

    La. R.S. 23:1021(8)(a) defines which injuries an employee is entitled to compensation for depending on the relevant circumstances. As defined, injuries only relate to the “physical structure” of the body. La. R.S. 23:1021(8)(b) defines mental injuries caused by stress. Such injuries are only compensable if the injury resulted from extraordinary sudden or unexpected stress related to employment.

    Emerson admitted nothing physical had happened to cause her supposed “pop” in her head while on shift. She explicitly denied having bit hit or fallen. Therefore, she did not appear to have suffered a physical injury. With respect to a potential mental injury, Emerson said the occurrences the day at-issue at work were more of the “same old.” She had been anxious and stressed about work before that day. 

    Emerson also did not establish a mental injury by providing a diagnosis from a licensed psychologist or psychiatrist. Emerson also did not provide sufficient evidence of a heart-related conditions. Her medical records from the at-issue emergency room visit did not indicate she had been diagnoses with any heart-related condition. Furthermore, even if Emerson had suffered a stroke on the day she went to the emergency room immediately after her shift, the evidence suggested it was more likely caused by a preexisting condition than work stress. Therefore, the workers’ compensation judge did not err in denying Emerson’s claims. 

    A knowledgeable attorney can help you navigate the workers’ compensation system, which has specific requirements to establish your mental injury is entitled to compensation. 

    Additional Sources: Diedra Emerson v. Willis Knighton Medical Center

    Article Written By Berniard Law Firm

    Additional Berniard Law Firm Article on Workers’ Compensation Claims: Workers’ Compensation Lawsuits and the Battle for Evidence

  • When Doctors Disagree: What Happens When There Is Conflicting Testimony In A Workers’ Compensation Case?

    Medical testimony is an essential part of determining whether an injured worker has a valid claim. What happens if the doctors’ diagnoses conflict and they reach different conclusions about whether an injured worker can return to work?

    Maxine Hall worked as a housekeeper for Global Solution Services. While working for Global at a hotel, a door closed on her foot. She went to the emergency room, where a doctor told her she did not have any broken bones. However, another doctor subsequently diagnosed her with a fractured toe. 

    Despite receiving medical treatment, Hall continue to suffer from pain in her foot. Hall received workers’ compensation benefits, but the benefits terminated approximately two years after the accident occurred. She then filed a Disputed Claim for Compensation against Global and Illinois National Insurance Company, its insurer. Hall sought to get her benefits reinstated. The Workers’ Compensation Judge dismissed Hall’s claims. Hall filed an appeal. 

    When appellate courts review workers’ compensation cases, if there are two reasonable views of the evidence, then the trial court’s choice between them is not clearly wrong or erroneous. See Chaisson v. Louisiana Rock Monsters, LLC. Here, the appellate court reviewed the various testimony and evidence presented at trial to see whether the trial court erred in dismissing Hall’s workers’ compensation claims.

    Hall saw various doctors, who diagnoses her with a variety of issues and had varying views on whether, and to what extent, she could return to work. One doctor who testified at trial, an orthopedic surgeon, initially said Bostick could return to work to do sedentary work, but later stated Hall was unable to return to work. A vascular surgeon diagnosed Hall with Complex Regional Pain Syndrome. A few other doctors agreed with this diagnosis. The vascular surgeon referred Hall to see another doctor in order to receive a nerve block, which helped Hall. 

    However, Hall did not receive any additional nerve blocks. A neurologist disagreed Hall had Complex Regional Pain Syndrome and believed Hall’s remaining complaints were subjective. The neurologist testified from his perspective, Hall could return to work fully, but deferred to others to whether there were an orthopedic issues. 

    The Office of Workers’ Compensation appointed a doctor to complete an independent medical exam of Hall. That doctor found Hall was exaggerated her pain as he could distract her and change her pain levels. He also did not think Hall had Complex Regional Pain Syndrome. He believed Hall could return to work without any restrictions. 

    Under La. R.S. 23:1123, courts should give the conclusions from the independent medical exam significant want because they are from an objective third-party. Here, the independent medical examiner concluded Hall could return to work fully. Therefore, the appellate court held the trial court did not err in dismissing Hall’s Disputed Claim for Compensation based on the independent medical examiner’s conclusion Hall could return to work and conflicting other medical testimony. 

    If your workers’ compensation case includes conflicting medical testimony, a good attorney can advise you on the best strategy to prove your claim.

    Additional Sources: Maxine Hall v. Global Solution LLC and Illinois National Ins. Co.

    Article Written By Berniard Law Firm

    Additional Berniard Law Firm Article on Workers’ Compensation Claims: Prevailing Against All Odds: Triumphing in a Workers’ Compensation Claim

  • Who Is Responsible For Damages In Accident Involving Borrowed Car And Inadequate Maintenance?

    It is common to borrow a car from a family member or friend. If you are unfortunately involved in an accident while driving a borrowed car, who is liable for damages if the accident results from inadequate maintenance? 

    While Holly Fontenot was driving a car owned by Patricia Neil and her husband, the parents of Fontenot’s fiancé, she was involved in a single-car accident when she lost control and hit a utility pole. Fontenot had the Neils’ permission to drive their car. There were also two minors in the car with her. 

    Fontenot and the mother of the two minor children passengers filed a lawsuit against Safeway Insurance, who insured the Neils’ car. Fontenot claimed the accident occurred because of a lack of maintenance. She claimed the car went off the road because it had a broken tie road, which caused the car’s steering mechanism to fail. 

    Safeway moved for a directed verdict under La. C.C.P. art 1672(B), claiming Fontenot had not presented evidence sufficient to show she was entitled to any relief. The court granted Safeway’s motion and dismissed Fontenot’s claims. Fontenot appealed.

    The appellate court explained the trial court had granted Safeway’s motion for a directed verdict because Fontenot had not established what caused the car to go off the road and had not provided sufficient evidence there had been insufficient maintenance on the vehicle. Under King v. Louviere, the vehicle’s owner, not a driver who has been given permission to drive the car, is liable when an accident occurs because of a defect with the vehicle. 

    Fontenot testified she had been driving the Neils’ car with permission, within the speed limit, when she heard a pop and the car’s steering mechanism failed, which resulted in her losing control and hitting a utility pole. Fontenot could not provide specific details about the timeline of what happened after she heard the pop. One of the investigating police officers testified it appeared to him like the crash resulted from something in the front area of the car’s drive train. The police officer did not think the accident could have resulted from a tire blowout.

    Furthermore, there was no evidence Fontenot was speeding or otherwise driving erratically at the time of the accident. Based on this testimony and evidence, the appellate court held Fontenot had provided sufficient evidence to survive Safeway’s motion for a directed verdict. 

    Once Fontenot presented evidence that she had lost control of the car because of a broken tie rod, the burden shifted to the Neils to provide evidence the accident resulted from a defect it was not aware of and did not result from their improper maintenance of the vehicle. The only evidence they presented was speculated the tie rod might have broken when the car hit the utility pole or curb. The Neils also did not present evidence Fontenot had been given the right or obligation to maintain the vehicle. Therefore, the appellate court reversed the trial court’s dismissal of Fontenot’s claims. 

    If you have been involved in an accident while driving a borrowed car, a good attorney can advise you on who is liable and what evidence you need to present in support of your claim. 

    Additional Sources: Holly Fontenot et al. v. Safeway Ins. Co. of Louisiana

    Article Written By Berniard Law Firm

    Additional Berniard Law Firm Article on Involuntary Dismissals: The Complexities of the Involuntary Dismissal of a Claim

  • Is An Unmarried Romantic Partner Entitled to Death Benefits in Workers’ Compensation?

    It is always tragic when a loved one passes away, especially when there are children are involved. Death benefits are part of the workers’ compensation system intended to help the surviving family members when someone passes away as a result of an on-the-job accident. However, with the evolving definition of a family, there can sometimes be complicated legal issues about who is entitled to recover death benefits. This case involves a claim from a supposedly unmarried romantic partner who had a child with the worker who died in an accident at work. 

    Travis Chiokai died as a result of an accident at work. When he died, Chiokai was unmarried. However, Chiokai had been in a romantic relationship with Latashia Perez. Perez filed a Disputed Claim for Compensation against Chiokai’s employer, Irby Construction, as well as their insurer, Old Republic. Perez sought death benefits for herself, as well as for her unborn child. Once the child was born, DNA testing was conducted that confirmed the child’s father was Chiokai. The child subsequently received death benefits. 

    Irby Construction and its insurer argued Perez should not received benefits under La. R.S. 23:1253, which defines dependents who are entitled to receive death benefits. The statute explicitly states that a concubine, such as Perez, is not entitled to receive death benefits. Irby Construction and its insurer filed an exception of no right or cause of action. The Workers’ Compensation Judge denied the motion. 

    Perez’s claim alleged Chiokai was killed in an on-the-job accident and claimed she and her child were entitled to receive death benefits. Irby Construction and its insurer denied Perez’s allegations. They later claimed Perez and Chiokai were never married, so Perez was not entitled to receive death benefits. 

    Perez claimed she was entitled to receive the difference between the death benefits owed to their child and the maximum workers’ compensation rate under La. R.S. 23:1232(8). She also claimed La. R.S. 23:1253 did not apply because their child was Chiokai’s daughter. 

    The appellate court noted there was no evidence presented at the hearing. In this case, Irby Construction and its insurer had the burden of proof for establishing Chiokai and Perez had not been married. Because Irby Construction and its insurer had not presented any evidence about whether Perez and Chiokai had ever been married, the appellate court could not consider whether Perez was entitled to receive death benefits, despite the wording of La. R.S. 23:1253 that stated concubines were not entitled to receive death benefits. 

    This case illustrates the importance of providing evidence to support your claim. If you do not provide evidence in support of your claim, then the court cannot consider the merits of your claim. A knowledgeable attorney can help you determine what evidence to present in support of your claim and advise you on what benefits you might be entitled to. Although money can never replace a loved one, receiving death benefits is one way you can start to move forward and build a future after a loved one’s death.

    Additional Sources: Latashia v. Perez v. Irby Construction Co., et al.

    Article Written By Berniard Law Firm

    Additional Berniard Law Firm Article on Death Benefits: Company Trying to Avoid Worker’s Compensation Benefits For Family Of Deceased Employee Fails On Appeal

  • How Is Coverage Divided When Multiple Insurance Policies Are Involved?

    If you are involved in an automobile accident, it can be difficult to navigate insurance claims and coverage. The situation becomes even more complicated when there are multiple insurance policies involved. How is coverage allocated between multiple relevant insurance policies?

    Sonya Theriot was unfortunately in an automobile accident in Lafayette, Louisiana. The other driver involved in the accident, Todd Sparks, was working for Thermal Technologies at the time of the accident. He was driving a rental car Thermal Technologies had paid for when he rear-ended Theriot while she was making a right-hand turn. 

    Thermal Technologies had a business automobile insurance policy with State Farm, a commercial general liability policy, and an umbrella insurance policy with Owners Insurance. Sparks had a personal automobile insurance policy with Travels Home Insurance Company. Theriot filed a lawsuit against State Farm, Sparks, and Thermal Technologies. She later added Travelers and Owners to the lawsuit. 

    The parties disputed how to rank the multiple insurance policies involved. Travelers and State Farm both claimed their policies only provided excess coverage. They claimed Owners’ commercial general liability policy provided primary and excess coverage. Owners claimed its commercial general liability policy did not provide any coverage her, but its umbrella policy provided coverage. 

    Theriot filed for declaratory judgment to determine the rank and coverage of the various involved insurance policies. The trial court declared Travelers provided primary coverage, State Farm provided secondary coverage, and Owners provided excess coverage. State Farm filed an appeal, arguing it was not the second layer of coverage because the policies had “other insurance” clauses that should require the other insurers to share coverage pro rata. 

    “Other insurance” clauses define an insurer’s responsibility and how liability should be divided when there is other applicable insurance coverage. Under a pro rata “other insurance’ clause, the insurers divide the responsibility among themselves. When the words of an insurance contract, including “other insurance” clauses, are clear, courts must interpret the contract as written. See La. C.C. art. 2046 and 2047. 

    Here, the Owners commercial general liability policy included an explicit exclusion for damages resulted from a car accident and did not cover rented vehicles like the one involved in the accident. Therefore, the appellate court reversed the trial court’s holding that the commercial general liability policy provided coverage but affirmed affirmed the trial court’s judgment that Owners was liable for excess coverage. 

    Given the multiple “other insurance” clauses in the various insurance policies, the court tried to find an interpretation that would reconcile the various clauses. The appellate court disagreed Travelers had primary coverage and State Farm had secondary coverage. Rather, the appellate court found under La. R.S. 22:1296, which applies to coverage for rental cars, both policies provided primary coverage. Therefore, the appellate court allocated liability pro rata between Travelers and State Farm, based on their respective policy limits.

    This case illustrates the complexities that can arise in dividing coverage when multiple insurance policies are involved.  A good attorney can help you navigate these complexities so you receive the coverage to which you are entitled.

    Additional Sources: Sonya Theriot v. State Farm Automobile Ins. Co.

    Article Written By Berniard Law Firm

    Additional Berniard Law Firm Article on Insurance Policy Coverage: Understanding Recovery in Excess of Insurance Coverage in Car Accident Cases in Louisiana

  • Car Accident Case Dismissed For Improper Venue

    If you are considering filing a lawsuit, it is essential that you file it in the correct venue. Otherwise, the court may lack authority to hear your claim and will not be able to consider the merits of your case. 

    While driving in Terrobonne Parish, Louisiana, Joanna Gilbert had a single car accident on Highway 3011. The accident occurred where the road ended. When she went onto the unpaved pat of the road, she ran off the unpaved area and went into the water. 

    Gilbert filed a lawsuit in Iberia Parish, where she lived, against the State of Louisiana Department of Transportation and Development (“DOTD”). She alleged the car accident had occurred because of DOTD’s negligence, which resulted in her injuries. Gilbert later added her uninsured/underinsured motorist insurance carrier as a defendant. 

    Gilbert argued the inclusion of her insurer made the venue of the Parish of Iberia, where she lived, proper. The DOTD filed a motion arguing venue was improper, which the trial court granted. Gilbert filed an appeal.

    On appeal, Gilbert argued the trial court erred in grant DOTD’s motion arguing venue was improper. La. C.C.P. art. 41 defines venue as the parish where a lawsuit can be properly brought and tried. La. R.S. 13:5104 outlines the mandatory venue provisions in lawsuits brought against state agencies, including DOTD. It requires that all lawsuits brought against a state agency or Louisiana itself must be filed in the court where the state capitol is located or in the location where the cause of action arose – here, Terrebonne Parish.

    Gilbert filed her lawsuit against DOTD in Iberia Parish, which is where she lived. She claimed that was the appropriate venue, because she later added her uninsured/underinsured motorist insurance carrier as a defendant. DOTD argued the facts and theories of why DOTD was liable in Gilbert’s petition all occurred outside of Iberia Parish. 

    Although Gilbert claimed her later addition of her uninsured/underinsured motorist related back to her initial lawsuit, DOTD argued those facts were not the operative facts in the lawsuit. The court agreed with DOTD’s position.

    In reviewing the record, the appellate court noted all of DOTD’s acts of purported negligence occurred in Terrebonne Parish. Additionally, DOTD is a state entity covered by La. R.S. 13:5104. Therefore, it was mandatory for Gilbert to file her lawsuit against DOTD in the district court that had jurisdiction in the parish where the events giving rise to the cause of action occurred – here, in Terrebonne Parish. Therefore, the appellate court agreed the trial court had properly granted DOTD’s motion arguing there was improper venue. 

    It is important to consult with a knowledgeable attorney who can advise you on the appropriate venue in which to file your lawsuit. This is especially true if there are special venue statutes applicable to your case, such as if you are filing a lawsuit against a state agency. If you do not file your lawsuit in the proper venue, then the court will be unable to consider the merits of your case.

    Additional Sources: Joanna Gilbert v. State of Louisiana, through the Department of Transportation and Development

    Article Written By Berniard Law Firm

    Additional Berniard Law Firm Article on Venue: Vermilion Parish Car Accident Case Hangs on Thread Over Improper Venue

  • 1010 Form Required For Company To Cover Medical Expenses in Workers Compensation

    While workers’ compensation is intended to compensate injured workers, there are a number of procedural requirements with which an injured worker must comply in order for his or her company to cover the medical treatments. This case illustrates the importance of complying with procedural requirements and submitting all required paperwork.

    While working for Circle K Stores, Melody Smith went to a Capitol One bank located in Lafayette, Louisiana. Before Smith reached the bank to make the night deposit, she was robbed by a person who crashed his truck into the rear end of Smith’s car and shot at her two times. He then smashed her window and took the deposit bag from her. 

    Smith injured her knee, back, and neck in the incident. Circle K paid Smith workers’ compensation benefits following the incident. However, the parties disagreed about treatment for Smith’s injured knee. Smith filed a Form 1008 under La. R.S. 23:1034.2(F)(1) against Circle K, claiming it had failed to pre-authorize her evaluation for her knee injury with her selected physician. 

    The Workers’ Compensation Judge denied Smith’s claim, finding the treating physician had not properly requested the treatment for Smith’s knee injury because he had not completed and submitted the required form. Therefore, Circle K had reasonable established why it had not paid Smith’s claim, so Smith was not entitled to receive attorney fees and penalties. Before the judgment was signed, Smith filed a motion for a new trial, which was denied. Smith also filed an appeal.

    Smith claimed Circle K acted arbitrarily and capriciously in denying her treatment for her injured knee. There was a dispute about whether her claimed injury to her right knee was a compensable injury, as defined in La. R.S. 23:1021(8)(a).The claims professional for Circle K’s workers’ compensation insurer, Ace American, explained Smith had not received treatment for her injured right knee because it had not received the required form from her doctor. That form, the 1010 Form, was required to cover the diagnostic MRI requested by Smith’s doctor.

    Smith acknowledged during her initial visit with her doctor after the incident, she had not mentioned any problems or injuries to her knee. Smith’s medical records also indicated Smith had been diagnoses with have arthritis in her knee, which had been evaluated and treated. 

    However, there was no evidence Smith had properly requested treatment for her knee from Circle K. Although Smith’s arthritis was compensable because the incident at work had exacerbated her condition, there was no evidence Circle K had acted arbitrarily and capriciously because it had only approved the properly submitted forms from Smith and her physicians. 

    Circle K had acted promptly in responding to Smith’s properly submitted forms. Therefore, the appellate court affirmed the Workers’ Compensation Judge’s ruling that Smith was not entitled to receive penalties or attorneys’ fees from Circle K.

    A knowledgeable attorney can advise you on what forms you need to complete in order to receive workers’ compensation. If you fail to comply with procedural requirements or complete required paperwork, you might find yourself unable to receive workers’ compensation. 

    Additional Sources: Melody P. Smith v. Circle K Stores, Inc. and Ace American Ins. Co.

    Article Written By Berniard Law Firm

    Additional Berniard Law Firm Article on Workers’ Compensation Claims: Court of Appeal Discusses Application of Penalties in Workers’ Compensation Cases