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  • Is Delaying An Examination Under Oath A Lack of Cooperation In A Homeowner’s Insurance Claim?

    In order to recover under a homeowner’s policy, there are many requirements with which you must comply. One common requirement is providing the insurer with requested documentation and undergoing an examination under oath where the insurer can ask questions and gather information relevant to the claim. What happens if a homeowner delays undergoing an examination under oath?

    Jesse and Dena McCartney’s house was destroyed in a fire. They filed a claim with Shelter Mutual Insurance, who issued their homeowner’s policy. Their policy required that they cooperate with the insurer, including answering questions under oath and submitting proof of loss. The McCartneys filed a lawsuit against Shelter for refusing to pay them anything. 

    Shelter filed a summary judgment motion, arguing the McCartneys had not provided the required requested information and had refused to submit to an examination under oath. The McCartneys claimed they had not refused to cooperate with the investigation and had submitted documentation and recorded statements. They also claimed they had only postponed the examination under oath, not refused it. They noted Shelter had requested an examination under oath more than sixty days after the McCartneys submitted their proof of loss, which was after the time by when Shelter was required to pay them or make a settlement offer. The trial court granted Shelter’s summary judgment motion, explaining the McCartneys had voided their policy by not submitting to an examination under oath. The McCartneys filed an appeal. 

    Cooperation clauses in insurance policies protect insurers from fraud by allowing it to obtain relevant information about the purported loss close in time to the incident at-issue. See Johnson v. Geovera Spec. Ins. Co. If an insured violates the cooperation clause, it is considered a material breach of the insurance contract. One way to violate the cooperation clause is by refusing to provide requested documentation or submit to an examination under oath. See Hamilton v. State Farm Fire & Cas. Ins. Co.

    The appellate court considered the evidence Shelter had provided in support of its summary judgment motion. This included an affidavit from the claims representative who had investigated the claim. She explained coverage questions arose during the investigation when they learned at the time of the fire, the McCartneys had been living across the street from the house that burned down. The representative also testified about letters and requests that had been sent to the McCartneys, including a request for them to have an examination under oath. A paralegal at a law firm who represented Shelter submitted an affidavit about letters from the McCartneys’ counsel requesting to postpone and reschedule the examination under oath. 

    The appellate court held Shelter was not entitled to summary judgment given its delay in requesting an examination under oath. Further, the McCartneys and their counsel had never refused to undergo an examination under oath; rather, they had sought to reschedule it. Shelter did not provide any evidence the McCartneys’ actions or inactions had prejudice them. Therefore, the appellate court reversed the trial court’s grant of summary judgment in favor of Shelter.

    While it is important to cooperate after you have filed a claim with your homeowner’s insurer, a good attorney can advise you if your insurer is improperly claiming you have not cooperated with their investigation of your claim.

    Additional Sources: Jesse and Dena McCartney v. Shelter Mutual Ins. Co.

    Article Written By Berniard Law Firm

    Additional Berniard Law Firm Article on Homeowners’ Insurance: Homeowners Recover Full Amount of Wood Floor Damages and Home Insurance Company is Sanctioned for Delay

  • No Hostile Work Environment Where Employer Took Remedial Actions

    No one should have to deal with sexual harassment in the workplace. If you are dealing with sexual harassment at work and you report it to your employer, you hope they will act on your report. How do actions taken by your employer affect your ability to recover for sexual harassment in court?

    Shelita Tucker worked for UPS in Port Allen, Louisiana for three years. One of the subordinates she managed was Larry McCaleb. Tucker claimed McCaleb sexually harassed her for about two years. His alleged sexual harassment involved inappropriate touching. Soon after the incident with the inappropriate touching, Tucker reported what had happened to the business manager. McCaleb was taken out of service while the investigation was ongoing. The next day, Tucker filed a complaint with the UPS Compliance Line. She subsequently also filed a report with the local police department. 

    The next week, Tucker was on a scheduled vacation. While she as on vacation, UPS investigated the matter and suspended McCaleb. When McCaleb was allowed to return to work, UPS took corrective action including meeting with McCaleb, counseling him about proper behavior and relevant policies, and prohibiting him from going near Tucker. McCaleb was also convicted of battery and sentenced to 90-days in jail. Tucker reported McCaleb never talked to or touched her again. The one-time McCaleb entered her work area, she reported it and UPS addressed it. Tucker claimed she still felt unsafe at work because McCaleb also worked at the facility. However, she said she was still about to perform her job. She claimed McCaleb would stare at her as she walked in or out of work. 

    Tucker eventually quit. She received a right-to-sue letter after filing an EEOC charge and filed a lawsuit against UPS, claiming a hostile work environment from the alleged sexual harassment. UPS filed a summary judgment motion, which the district court granted. Tucker appealed. 

    Tucker claimed McCaleb had harassed her for approximately two years. However, Tucker was only entitled to recover for acts that occurred within 300 days prior to when she filed her EEOC charge, unless there were continuing violations. However, the district court had held the incidents prior to UPS taking action were not actionable. Tucker agreed. Although Tucker claimed the court should consider the subsequent incidents as part of the full scope of McCaleb’s behavior, she did not provide any support for that claim. Thus, the appellate court considered only two incidents – the inappropriate touching incident and an incident where McCaleb was waiting in the dark for Tucker. 

    In order for there to be an abusive working environment, the harassment must be severe or pervasive. See Aryain v. Wal-Mart Stores Tex. LP. Here, after Tucker reported the sexual harassment, UPS immediately took steps to protect Tucker while the investigation was underway. After the investigation, UPS moved Tucker to a separate work area and forbade McCaleb from going in there. UPS also provided counseling to McCaleb about professionalism and sexual harassment, and provided Tucker with an escort to help her feel safer. Tucker also admitted the sexual harassment had stopped. The appellate court agreed UPS took sufficient remedial action to avoid liability under Title VII and affirmed the district court’s dismissal of Tucker’s claims. 

    If you are dealing with sexual harassment at work, the best case scenario is your employer takes appropriate steps to protect you and stop the harassment. However, if not, a good attorney can advise you on possible legal remedies. 

    Additional Sources: Shelita Tucker v. United Parcel Service, Inc.

    Article Written By Berniard Law Firm

    Additional Berniard Law Firm Article on Sexual Harassment Claims: Boutte IHOP Successfully Defeats Sexual Harassment and Constructive Discharge Claims

  • Property Owners Barred From Interfering With Servitude

    One of the joys of owning property is dealing with potential property disputes. Such disputes can get especially complicated when they involve old surveys and records and promises from prior owners. This case illustrates the importance of doing due diligence before purchasing property so you understand which of your neighbors might have the right to use part of your property.

    This lawsuit involved multiple parcels of land located in Tangiphoa Parish, Louisiana. The Arnolds had previously owned all of the property at-issue. There was a right of way and road constructed by the early 1960s, which was marked by signs. An apparent servitude is perceivable by signs or constructions such as a roadway. See La. C.C. art. 707. The Arnold family and their tenants had regularly used the route since then. 

    The Aikmans, who owned some of the at-issue land, filed a lawsuit against the Naramores, who owned another parcel of land. The Aikmans claimed there was no servitude, so the Naramores could not use the road to access their property. At trial, there were over twenty witnesses, including multiple experts. The parties also presented exhibits, surveys, and maps. The trial court held the Aikmans could not interfere with the use of the passage, relying on La. C.C. art. 741, which governs the creation of servitudes. The Aikmans filed an appeal. 

    On appeal, the Aikmans argued the public records did not sufficiently establish that a servitude existed before they had acquired the property. The appellate court explained that when the Arnold family owned all the land, there was no servitude, because you cannot have a servitude on your own property. When they split the estate, and the land became owned by different people, an apparent servitude would have been formed unless the Arnolds had explicitly disavowed it. 

    None of the multitude of evidence presented at trial suggested the Arnolds had explicitly disavowed the servitude when they conveyed the parcels to different owners. Rather, the acts of conveyance explicitly recognized and described the servitude, which was also displayed on old surveys. Although the servitude was not recorded, the appellate court rejected the argument that the mere fact the survey was not recorded meant the servitude had been disavowed. 

    Additionally, the Aikmans argued the court should not recognize the servitude because Naramores could access their property through another route that did not use the servitude and would therefore not burden their property. The appellate court rejected this argument, explaining La. C.C. art. 689, which governs enclosed estates, did not require that the Naramores’  was landlocked in order for there to be a servitude. Therefore, the appellate court agreed with the trial court’s ruling the Aikmans could not interfere with the servitude. 

    If you are considering purchasing property, it is a good idea to consult with an attorney, who can help you review the applicable property records and advise you on possible property disputes that might arise. And if you are already involved in a property dispute, a good attorney can advise you on your rights. 

    Additional Sources: Jerelean Arnold Naramore et al. v. Baynum and Kayla Aikman

    Article Written By Berniard Law Firm

    Additional Berniard Law Firm Article on Property Disputes: When Present Interests Conflict with Past Laws: Property Disputes Between the Usufruct and the Naked Owner

  • Failure To Investigate Does Not Suspend Time Requirement For Filing Wrongful Death Lawsuit

    We have all heard the saying “time is of the essence.” This is especially true when you are filing a lawsuit. If you do not comply with the statutory requirements for how long you have to file a lawsuit, a court will be unable to hear your claim. Although certain exceptions apply that extend your timeline for filing a lawsuit, there are strict evidentiary requirements for these exceptions to apply. 

    Julius Lennie worked for a Company that cleaned pipes in oilfields. The cleaning process allegedly involved the emission of naturally occurring radioactive material. About fifteen years after retiring, Lennie was diagnosed with lung cancer and died shortly thereafter. Four years later, his surviving spouse and children filed a lawsuit against various companies for whom Lennie had cleaned their oilfield pipes. They claimed Lennie had been exposed to harmful levels of radiation, causing his lung cancer and death. They claimed the companies had been aware of the dangers of the radioactive materials but did not warn Lennie about the dangerous or take adequate precautions. The Lennies claimed they were not aware about the radiation exposure until less than a year before they filed their lawsuit, when one of Lennie’s children read about it in the newspaper and they met with an attorney. The Lennies claimed the companies had actively concealed the existence of the naturally occurring radioactive materials. 

    Because the Lennies filed their lawsuit over a year after Lennie’s death, the defendants filed peremptory exceptions of prescription, claiming they were required to have filed their lawsuit within one year of his death, pursuant to La. C.C. art. 2315.1. The Lennies claimed they did not have any actual or constructive knowledge of their claims until less than a year before they filed the lawsuit, because the companies had concealed it. The trial court granted the defendants’ peremptory exceptions of prescription, finding there was not sufficient evidence the defendants had concealed the existence of the naturally occurring radioactive material such that the Lennies did not have knowledge of their possible claims. The Lennies appealed.

    On appeal, the court considered whether the Lennies’ claim they did not have knowledge about the potential cause of his death until three years after Lennie’s death – and within one year of when they filed the lawsuit – was reasonable. In analyzing whether exceptions to prescription apply, courts consider what a plaintiff knew or should have known about the potential causes of action. See Wells v. Zadeck. The appellate court rejected the argument that the existence of any suggestive information on the internet was sufficient to establish constructive knowledge. 

    However, the Lennies had not taken other reasonable steps such as talking with Lennie’s doctors about the potential causes of the cancer that resulted in his death. Therefore, the appellate court agreed the one-year period for filing the lawsuit began to run at the time of Lennie’s death because there was not sufficient proof the Lennie’s lack of knowledge was the result of anything besides their failure to investigate. 

    This case illustrates the importance of being aware of, and complying with, applicable timelines for filing lawsuits. A good lawyer can advise you on the timing requirements and if any exceptions might apply. 

    Additional Sources: Patricia Lennie et al. v. Exxon Mobile Corp., et al.

    Article Written By Berniard Law Firm

    Additional Berniard Law Firm Article on Prescription: Trial Court Decision Overturned Due to Prescription Period Expiring

  • Louisiana Jury Did Not Err In Apportioning Fault For Car Crash

    In the heart of Lafayette Parish, Louisiana, tragedy struck on Interstate 10 as a routine drive turned fatal. Arthur Huguley, behind the wheel of a tractor-trailer for AAA Cooper Transportation, found himself in a situation that would forever alter the lives of those involved. A blown-out tire, a series of events, and a wrongful death lawsuit brought forth by Curley Mouton’s surviving family members set the stage for a courtroom drama that unfolded with unexpected twists. In the end, a jury assigned fault, but the defendants, Huguley, AAA Cooper, and their insurer, were not ready to accept the verdict without a fight. This article explores the intricacies of their appeal, shedding light on the compelling arguments presented and the complexities of apportioning fault in a tragic accident.

    Arthur Huguley was driving a tractor-trailer in Lafayette Parish, Louisiana, on Interstate 10 while working for AAA Cooper Transportation (“AAA Cooper”).  Huguley heard a bang and worried he might have blown out a tire. While performing a maneuver to see if he had blown out a tire, the tire that had blown out came apart and flew into the air. Curley Mouton was driving in a truck behind Huguley when debris from the tire started flying through the air. The debris hit Mouton’s truck, causing him to hit a guardrail, flip over, and crash. Mouton died in the crash. 

    Mouton’s surviving spouse and son filed a wrongful death lawsuit against Huguley, AAA Cooper, and their insurer. A jury found in favor of Mouton’s family and assigned 10% fault to Huguley and 90% to AAA Cooper for putting a defective tire on its truck. The defendants appealed, claiming the jury had erred in its ruling.

    On appeal, the defendants raised multiple issues about the trial court’s ruling. The defendants first argued that the jury erred in not assigning Mouton any fault and assigning 10% of fault to Huguley. An appellate court must defer to the jury’s division of fault. See Dupree v. City of New Orleans. If there are two reasonable ways to view the evidence, then the jury’s allocation cannot be manifestly erroneous, so the appellate court cannot overturn the division of fault. See Stobart v. State, Dep’t of Transp. and Dev.

    The appellate court reviewed the evidence related to the jury’s decision to allocate Mouton no fault for the accident. At trial, the driver who had been driving behind both Huguley and Mouton when the accident occurred testified about the events that gave rise to the car accident. The driver testified in his view, Mouton had not done anything wrong. Another witness to the accident also testified she did not think Mouton had done anything improper. The witnesses thought Mouton was safely and carefully operating his vehicle at the time of the accident. Therefore, the appellate court held the jury did not err in allocating no fault to Mouton.

    The appellate court next considered whether the jury had erred in assigning 10% fault to Huguley. At trial, Huguley had testified about why he had performed the maneuver to see if one of his tires had blown out instead of pulling over and inspecting the tires.  He also testified he had gone an additional two miles after hearing the loud bang before checking if one of the tires on the truck had blown out. The evidence also showed the at-issue tire was at least six years old and had been retreaded and plugged multiple times. AAA Cooper was aware of the tire’s history but decided to continue using it instead of replacing it. Therefore, the appellate court held that the jury did not err in assigning 10% of the fault to Huguley and the remaining 90% to AAA Cooper. 

    On appeal, the defendants also argued the trial court erred by allowing the Plaintiffs’ expert, Michael Gillen, to testify about accident reconstruction. An appellate court can only overturn a trial court’s decision on whether to qualify an expert witness if the trial court abused its discretion. See State v. Castleberry. 

    The appellate court reviewed the record about Gillen’s training and experience. The evidence showed Gillen had extensive training and experience. He had also been qualified as an expert in multiple prior lawsuits. A prior case before the Louisiana Supreme Court, Cheairs v. State ex rel. DOTD noted Gillen’s extensive experience. Based on the evidence of Gillen’s experience and training, the appellate court held the trial court had not erred in permitting Gillen to testify as an expert witness. 

    Finally, the defendants argued plaintiffs did not plead a valid cause of action against AAA Cooper, who owned the tractor-trailer Huguley was driving at the time of the accident. The appellate court noted that the plaintiffs’ petition claimed that AAA Cooper did not properly maintain their tractor-trailer and did not adhere to reasonable safety standards. The appellate court found those allegations set forth the plaintiffs’ theory that AAA Cooper was responsible for the failed tire. Additionally, the plaintiffs noted the defendants did not object to including a blank for AAA’s fault at trial on the form provided to the jury. 

    Under La. C.C. art. 1793(c), if a party does not object to a jury instruction at trial, it waives its right to object to the charges at trial. Further, AAA Cooper had stipulated Huguley was in the course and scope of his employment with them when the accident occurred. As a result, because of vicarious liability, AAA Cooper would be responsible for the entire judgment amount the jury allocated to it and Huguley. Therefore, the appellate court found any error in how the jury allocated fault between AAA Cooper and Huguley would have been harmless because it would not have affected the amount AAA Cooper owed.

    The journey through the legal labyrinth, as seen in the appellate battle following Curley Mouton’s tragic accident, highlights the multifaceted nature of seeking justice. While the appellate court ultimately upheld the jury’s allocation of fault, the defendants’ efforts to challenge the judgment underscore the importance of legal expertise in navigating the intricate world of appeals. This case is a stark reminder that the pursuit of justice is not merely about the trial but extends to the post-trial battleground, where skilled attorneys play a pivotal role in defending or contesting verdicts. Mouton’s family prevailed in their pursuit of accountability, but their struggle on appeal illuminates the challenging terrain that litigants must traverse to secure justice in the face of adversity.

    Additional Sources: Linda and Cory Mouton v. AAA Cooper Transportation, et al.

    Article Written By Berniard Law Firm

    Additional Berniard Law Firm Article on Apportioning Fault: Iberville Parish Car Crash Shows Court’s Role in Apportioning Fault

  • Expert Witnesses Key To Establishing Damages From Industrial Fire

    In a world where news headlines often feature calamitous industrial disasters, it’s hardly surprising to find legal battles trailing in their wake. The following case involves multiple individuals who filed lawsuits against the owner of a facility in Iberia Parish, Louisiana, that had a large fire. 

    A fire at a facility owned by Multi-Chem Group caused multiple explosions, which released chemicals. Following the fire and explosions, multiple people filed lawsuits against Multi-Chem and others, alleging they had been exposed to hazardous materials. The multiple lawsuits were consolidated into three groups based on the distance the injured party was located from the fire source. At trial, the parties presented expert testimony about whether the plaintiffs were exposed to hazardous materials from the Multi-Chem fire and if they suffered damages due to the exposure. The trial court held that the plaintiffs had established exposure and awarded damages to the three groups. The damages included medical expenses, general damages, and mental anguish related to the fear of developing cancer. Multi-Chem filed an appeal. 

    On appeal, Multi-Chem argued the trial court erred in admitting and excluding certain expert testimony. Article 702 of the Louisiana Code of Evidence governs expert testimony. At trial, the trial court evaluated the expert witnesses’ relevant credentials when deciding whether and to what extent to credit the expert witnesses’ testimony. The court also analyzed the underlying data the experts used as the basis for their opinions. Therefore, the appellate court found Multi-Chem’s argument that the trial court erred in which expert testimony it admitted and excluded lacked merit. 

    Multi-Chem also argued the plaintiffs did not establish their exposure caused their damages. Mutli-Chem claimed the expert acknowledged that sampling of the air did not reveal hazardous chemical levels. However, the expert also testified the chemicals could have caused harm by adhering to and absorbing into the particulate matter from the fire. The expert also testified some of the at-issue chemicals could cause future injuries, including cancer. Based on the expert witness’s testimony, the appellate court concluded the trial court did not err in finding the plaintiffs established general causation.

    Multi-Chem also argued the trial court awarded excessive and unsupported damages. When appellate courts review a trial court’s award of general damages, it considers whether the trial court abused its discretion when assessing and awarding damages. See Purvis v. Grant Parish Sch. Bd. The appellate court reviewed testimony from witnesses in the different groups of plaintiffs about what they had suffered due to the fire and related chemical exposure. The appellate court deferred to the trial court’s determinations that these witnesses’ testimony was credible and held the trial court’s award of damages was supported by the record. However, the appellate court did reverse damages awarded to certain plaintiffs for fear of developing cancer because the relevant witnesses did not testify about their fear of developing cancer, so there was a lack of supporting evidence. 

    When dealing with a complex lawsuit, a good lawyer can advise you on needed expert testimony and help identify qualified expert witnesses. As seen here, testimony from the expert witnesses was essential for the plaintiffs to prevail on their claims and support the damages they were awarded on appeal.

    Additional Sources: Robert J. Broussard, et al. v. Multi-Chem Group, LLC

    Article Written By Berniard Law Firm

    Additional Berniard Law Firm Article on Expert Witnesses: Exposure to Radioactive Materials: Substantiating Injury Claims with Evidence and Expert Witnesses

  • Insurance Coverage Turns On Distinction Between Flood Damage And Mechanical Issue

    Dealing with the aftermath of a flood is never fun. This is especially true when the flood damages one of your vehicles. This is the situation Michael Jacobs found himself in after one of his cars was damaged in a flood. After a long fight with his insurance company, he eventually prevailed and was awarded damages. 

    Jacobs owned multiple vehicles that GEICO insured. His parish in North Louisiana was affected by heavy flooding. When the flooding started, Jacobs and his brother tried to move the vehicles from his house to higher ground but were unable to remove them before the floodwaters rose, so they could not drive up to the house. Jacobs waded through the floodwater to retrieve one of the vehicles, a 2001 Honda Accord. In the days following the flood, the Honda kept overheating. Jacobs claimed this had only occurred after the flood. 

    Jacobs submitted a claim to GEICO for the damage to the vehicle. The insurance inspector did not identify any flood-related problems and determined the upper radiator hose had blown out. Another mechanic gave Jacobs an opinion and concluded there were issues with his spark plugs. GEICO ultimately denied Jacobs’ claim because it had suffered a mechanical failure that was not flood-related. Jacobs filed a lawsuit against GEICO, alleging his Honda had been damaged from the flooding. At trial, the court ruled the Honda had suffered water damage and awarded vehicle property damages and attorney fees. GEICO filed an appeal.

    On appeal, GEICO argued the trial court erred in finding it was liable because the relevant insurance policy had not been provided as evidence. The trial court record indicated GEICO had not raised issues related to insurance coverage at trial. GEICO had also not objected to letters it had sent to Jacobs recognizing “flood damage” insurance being entered as evidence. Therefore, the assumption at trial was Jacobs had flood damage coverage but not coverage for mechanical issues with the vehicle. An appellate court will generally not consider issues raised for the first time on appeal. See Costello v. Hardy. As a result, the appellate court held that the insurance policy was not introduced as evidence did not make the ruling wrong.

    GEICO also argued the trial court erred in finding the flood had damaged the Honda. The appellate court pointed to conflicting testimony at trial from different witnesses about the cause of the Honda’s damage.  An appellate court can only overturn a trial court’s factual finding if it is manifestly erroneous or clearly wrong. See Cole v. State, Dept. of Public Safety and Corr. The trial court appeared to have found the witness who testified the flooding had caused the Honda’s damage to be more credible. Because there was nothing clearly wrong or erroneous in the trial court’s finding, the appellate court did not disturb the trial court’s finding.

    As seen here, although GEICO initially denied Jacobs’ claim, Jacobs prevailed at trial. If you feel like your insurance company has improperly denied a claim, an experienced attorney can advise you on possible legal remedies. 

    Additional Sources: Michael J. Jacobs v. GEICO Indemnity Co.

    Article Written By Berniard Law Firm

    Additional Berniard Law Firm Article on Insurance Coverage for Flood Damage: Homeowners Recover Full Amount of Wood Floor Damages, and Home Insurance Company is Sanctioned for Delay

    Dealing with Flood Damaged Property? Be Prepared to Show Causation

  • 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

  • Injured Employee Entitled To Select One Physician Of Choice in Workers’ Compensation Claims

    If you are injured on the job, one of your primary concerns is likely finding competent medical care. Under the Louisiana Workers’ Compensation Act, injured workers can select one physician of any specialty without their employer’s approval. What happens if your employer refuses to pay for your selected physician? 

    Marvin Ray Scott brought a workers’ compensation claim against his employer, Packaging Corporation of America (“PCA.”) Scott claimed he had lost his hearing because of his work at the Boise Paper Mill in DeRidder, Louisiana. Scott then filed a motion to have an expedited hearing under La. R.S. 23:1121. Scott claimed PCA had not authorized his initial visit to his selected physician. PCA responded, claiming Scott had improperly used summary proceedings because he was not just trying to get approval for his selected physician, but he was also seeking attorney’s fees and penalties. At the hearing, the workers’ compensation judge ruled in favor of Scott and ordered PCA to pay Scott’s relevant medical bills and pay separate penalties and attorney’s fees, totaling $7,000. PCA filed an appeal.

    Louisiana Workers’ Compensation Act sets forth rights and remedies for injured workers. Under La. R.S. 23:1121, an employee is permitted to select one physician of any specialty without their employer’s approval. If the employer denies that, the employee is entitled to an expedited proceeding. Under La. R.S. 23:1201(F), the employer can also be required to pay penalties and attorneys’ fees if it does not comply with its statutory obligations to an injured worker. 

    PCA raised numerous arguments on the appeal of why the workers’ compensation judge had erred in ruling in favor of Scott. Although PCA claimed Scott had waited too long to bring his workers’ compensation claim, the court found no evidence Scott’s hearing loss had prevented him from completing his work. Because the employee being disabled is one of the conditions in La. R.S. 23:1031.1(E) that starts the one-year clock running for bringing a workers’ compensation claim, Scott’s time for bringing his claim had not yet ended. Additionally, there had not yet been any discovery into this issue. 

    PCA also argued it was improper for the court to have awarded Scott attorneys’ fees and penalties. While PCA admitted there were other cases where the court had awarded the employee penalties and attorneys’ fees where the employer did not permit the injured employee to select one physician of any specialty without approval, it claimed those were inapplicable here because it had filed an exception claiming Scott had improperly used summary proceedings. 

    The appellate court disagreed because Scott was entitled to a visit with his choice of physician even before a formal investigation of the merits of the claim. Therefore, the appellate court found the workers’ compensation judge had not erred in denying PCA’s exception of unauthorized use of summary proceedings and awarding Scott attorneys’ fees and penalties. 

    Navigating the Louisiana workers’ compensation system can be complex, and it is essential to have the guidance of an experienced attorney who can not only help you understand your rights but also assist you in seeking compensation if your employer fails to adhere to the statutory requirements of the Workers’ Compensation Act. An attorney’s expertise can make a significant difference in ensuring you receive the necessary support and benefits following a workplace injury.

    Additional Sources: Marvin Ray Scott v. Packaging Corp. of Am.

    Article Written By Berniard Law Firm

    Additional Berniard Law Firm Article on Selection of Medical Professionals in Workers’ Compensation Claims: Workers’ Compensation Claimant Denied Choice of Physical Therapist to Conduct Functional Capacity Evaluation (“FCE”)

  • Doctor Held Not Vicariously Liable For Physical Therapist’s Actions by Louisiana Court

    When you think about medical malpractice lawsuits, a botched surgery or missed diagnosis are likely the first things that come to mind. The following case involves a less common situation involving purported medical malpractice involving physical therapy post-surgery. It analyzes the relationship between a doctor and a physical therapist and whether a doctor can be vicariously liable for the actions of a physical therapist.

    Jean McKeogh underwent a total shoulder arthroplasty, which Dr. Michael O’Brien performed. Following the surgery, Dr. O’Brien saw McKeogh for office visits at a Tulane University clinic. Part of McKeogh’s follow-up care involved physical therapy, which was located in the same building as Dr. O’Brien’s offices. McKeogh went to physical therapy but subsequently told Dr. O’Brien she thought she had been injured during it. A CT scan showed she had fractured her elbow. McKeough then had a frozen shoulder and had to have a second surgery. 

    As a result of the injury and alleged negligence, McKeough requested a medical review panel. In her complaint, she claimed Dr. O’Brien had not used reasonable care with respect to his post-surgery care for her, including with respect to the physical therapy he prescribed. The medical review panel determined Robin Silverman, the physical therapist, had not satisfied the applicable standard of care. However, the medical review panel found there was no evidence to support a finding that Dr. Brien and Tulane had not met the applicable standard of care. 

    McKeough then filed a lawsuit against Dr. O’Brien, Tulane, and others. She repeated her allegations from the medical review panel. McKeough also claimed Dr. O’Brian and Tulane were vicariously liable for the physical therapist’s actions. Dr. O’Brien and Tulane filed a summary judgment motion. They argued McKeogh did not have an expert, as necessary to establish there had been medical malpractice, and had not established Dr. O’Brien and the physical therapists had an employee-employe relationship such that Dr. O’Brien could be vicariously liable for the physical therapist’s actions. The trial court granted Dr. O’Brien and Tulane’s summary judgment motion. The court explained under La. C.C. art. 2320, an employer can only be liable for its employee’s acts, not a third party’s acts. McKeough appealed. 

    Under Marchetta v. CPC of Louisiana, Inc., in medical malpractice lawsuits, the most important factor to determine if there is an employer-employee relationship is whether the purported employer can control the employee’s work. Here, Dr. O’Brien’s deposition testimony and other evidence did not indicate there was an employee-employer relationship between him and the physical therapist. For example, Dr. O’Brien testified he did not have supervision of the physical therapy and did not have the authority to direct or dismiss a physical therapist employed by third parties. The only “control” Dr. O’Brien had was the ability to recommend patients to a physical therapy center. Therefore, the appellate court affirmed the trial court’s grant of Dr. O’Brien’s summary judgment motion because there was no evidence Dr. O’Brien could supervise or control the physical therapist such that he could be vicariously liable for the physical therapist’s actions. 

    In medical settings, there are often multiple care providers involved. If you are considering filing a medical malpractice lawsuit, it is important to consult with an experienced medical malpractice attorney about the roles of the involved medical professionals to determine who to file claims against in your lawsuit. 

    Additional Sources: Jean Montedonico McKeogh v. Healthcare Indemnity Inc., University Healthcare Systems, LC, Robin A. Silverman, The Administrators of the Tulane Education Fund, and Michael O’Brien

    Article Written By Berniard Law Firm

    Additional Berniard Law Firm Article on Vicarious Liability: Vicarious Liability Doesn’t Always Extend Liability for an Employees Actions