Lawyers from TWPD’s Baton Rouge office secured a defense verdict in a bench trial in south Louisiana involving a premise liability matter. The plaintiff allegedly injured her hand and arm when she was struck by several falling coolers placed at the top of a freezer. At trial, TWPD challenged both the applicability of the Merchant Liability Statute and the validity of plaintiff’s alleged injuries. First, the court found the Merchant Liability Statute did not apply because the plaintiff did not actually fall to the ground. Instead, general negligence would be analyzed. Second, the judge concluded that TWPD had successfully shown the plaintiff to be a fraud. Cross-examination of the plaintiff revealed clear inconsistencies between her version of events and the store’s surveillance system regarding the severe pain plaintiff claimed she experienced immediately after the incident. The plaintiff’s reports of pain and limitations were also inconsistent throughout trial. The judge concluded there was a clear showing that this plaintiff was malingering and faking. He added: “Plaintiff tried to bootstrap the incident into a payday” and awarded no damages.
Congratulations to Doran Drummond for receiving LSU Law Center’s 2021 Advocacy Program Coach of the Year Award! Doran was the co-coach of the LSU Law National Pretrial Competition team, which competed in October 2020. Named in honor of the late Professor Susan C. Kalinka, the award recognizes a coach of one of LSU Law’s moot court, trial advocacy, or dispute resolution external competition teams who embodies the inspiration and dedication of Professor Kalinka. Despite many hardships last year involving COVID and hurricanes, the team advanced to the quarterfinals of the 2020 Pretrial Competition: a competition which brings together many of the best trial ad teams from around the country. Doran has been coaching and mentoring students in the trial advocacy and moot court program at LSU since graduating from LSU Law in 2014.
The firm’s Baton Rouge attorneys secured a workers’ compensation verdict in favor of an employer regarding a dispute over entitlement to supplemental earnings benefits(SEB). The employee was a laborer who suffered shoulder and wrist injuries in a work accident. Following surgery and conservative treatment, a functional capacity evaluation released him to medium duty work. The employee advised his doctor his job was medium duty, and the doctor initially released him to “full duty” based on the employee’s own description of his position. Following an objection from his lawyer, the release was modified to reflect “medium duty,” but claimant did not return to the job. A dispute arose as to whether SEB was owed because: 1) the employee and employer disputed the exact physical requirements of the job of injury; and 2) the employee and employer disputed whether the employer was required to specifically offer the position. The issue was whether a release to the job of injury means the accident no longer prevents an employee from earning 90% of his/her pre-injury income?
The employee alleged his job of injury required strenuous lifting: despite a 60 year old 90 pound female employee being physically capable of working the position. On behalf of the employer, we argued that because the employee was released to his job of injury and chose not to return to it, he did not carry his burden of proving he was unable to earn 90% of his average weekly wage, and thus the burden never shifted to the Employer. The evidence showed that the job of injury was available and there is nothing in the law indicating an employer must formally re-offer the position. The SEB statute does not permit a claimant to choose not work and still collect SEB. The OWC judge entered judgment in favor of our client and the suit was dismissed with prejudice.
The firm’s Baton Rouge attorneys secured summary judgment declaring an automobile policy did not provide coverage and was properly and timely terminated under Louisiana law. The plaintiff filed a Petition for Declaratory Judgment alleging the insurer was in bad faith for improper termination of the policy. Specifically, the plaintiff asserted the insurer had knowledge the insured was deceased and the fact the plaintiff was serving as the administratrix of the insured’s succession, utilizing the insured’s vehicle. Accordingly, the plaintiff argued the notice of non-renewal of the policy should have been sent to her address, which the insurer should have known based on their dealings with her on an unrelated property insurance claim. TWPD established the insurer properly and timely mailed notice of non-renewal to the deceased insured at the address listed on the automobile policy and had no obligation to notify the plaintiff at a different address. The plaintiff failed to provide the insurer with any succession or administrative paperwork establishing herself as the administratrix until after the automobile accident at issue. The court granted summary judgment finding the termination was valid as a matter of law and dismissed the case with prejudice.
TWPD’s Baton Rouge attorneys succeeded in having suit against a local excavating company dismissed from a construction defect suit via Exception of Peremption. The plaintiff-homeowners filed suit against their general contractor under the Louisiana New Home Warranty Act (“the Act”) for a series of alleged construction defects. The homeowners’ suit was filed five (5) years and twenty-seven (27) days after they took occupancy of the subject property. While the Act has a five-year prescriptive period, it also provides homeowners an additional 30-days to file suit for any defects which the contractor had prior notice. Thus, plaintiffs’ suit was timely. The contractor, in turn, filed a third-party demand against multiple subcontractors, including our client. In response to the suit, we filed an Exception of Peremption arguing that, despite the timeliness of plaintiffs’ suit, the 30-day extension in the Act did not toll the five-year preemptive period against subcontractors contained in La. R.S. 9:2772. The contractor argued that its third-party demand was timely because La. R.S. 9:2772(A)(1)(c) provides a 90-day grace period to file a third-party demand if the contractor is sued “within ninety days of the expiration of the five-year peremptive period. . .“ The contractor argued that “within ninety days” meant ninety days before or after the expiration of the five-year period, and that any other interpretation would mean that its claim against the subcontractors was perempted before it had ever been sued. In response, we pointed out that prior jurisprudence had interpreted the same phrase as meaning only before the expiration of the five years, and to interpret the statute in the expansive way suggested by the contractor would have the unintended result of extending the peremptive period up to an additional 180-days. Recognizing that under Louisiana law a preemptive period may not be renounced, interrupted, or suspended, the court granted our exception and dismissed the contractor’s third-party demand in its entirety.
The firm’s Baton Rouge attorneys secured summary judgment in favor of our client, Performance Contractors, in Louisiana’s 18th Judicial District Court. The plaintiff was the lead vehicle in a three car collision on I-10 East before the Mississippi River bridge. An employee of Arrow Pest Control failed to see slowing traffic and crashed into the back of a vehicle driven by a Performance Contractor’s employee. That initial impact pushed the Performance truck into the rear of Plaintiff’s truck. Plaintiff sued Arrow Pest Control as the precipitating vehicle that caused the collision but also sued Performance Contractors arguing their driver contributed to the cause of the crash by following him too closely and also not stopping her vehicle timely. The investigating officer along with the drivers involved in the accident all ultimately admitted they had no evidence the Performance driver’s actions caused or contributed to the cause of the accident. The trial judge granted summary judgment, dismissing all claims against Performance and their driver with prejudice.
Taylor, Wellons, Politz & Duhe is excited to welcome Caitlin Carrigan, Ginny Deliman, Linnette Goodly, Sammie Henry, and Rachel Roe as its newest partners in 2021. Over many years of dedicated service, each has carried out TWPD’s mission of providing our clients with the most creative and highest quality legal representation. To learn more about TWPD’s newest partners and their areas of practice, please click on their names above.
TWPD secured vital application of federal law in applying the immunity provisions of the Longshore and Harbor Workers’ Compensation Act (“LHWCA”). In Hulin v. Huntington Ingalls, Inc., 2020 WL 307 2187, plaintiff filed suit against Avondale Shipyards’ successor company and its executive officers seeking damages for contracting mesothelioma as a result of his alleged exposure to asbestos while employed at Avondale from 1956 to 1973. The plaintiff contended his exposures to asbestos occurred both while working on ships in the water and also while he worked on land. Before 1972, a plaintiff was allowed to elect his remedy if he was injured on land and he could pursue a state tort claim against his employer in lieu of receiving workers’ compensation benefits. Application of the LHWCA would bar the plaintiff’s tort claims, but plaintiff argued that state law and the law in effect at the time of the alleged exposure should apply, in which case the tort claim would be valid. TWPD represented Lamorak Insurance, one of Avandale’s insurers, and joined in a Motion for Summary Judgment arguing the plaintiff’s claims were governed by the current version of the LHWCA and therefore barred by LHWCA's immunity provision. The federal court agreed, dismissing the plaintiff’s state law tort claims. This ruling undermines 20 years of contrary state court rulings allowing these matters to proceed in tort and, going forward, will have great implications for all shipyard asbestos claims in Louisiana state and federal courts.
During a bench trial in New Iberia, LA District Court in September of 2020, TWPD successfully defended an apartment complex against plaintiff’s claims of a slip-and-fall. Plaintiff claims she was walking along the property’s sidewalk with her boyfriend and their three young children when she encountered an obstruction of concrete bags on the sidewalk, forcing her to cut through the grass. While walking through the grass, she claims she stepped in a hole in the ground obscured by uncut grass that caused her to fall and injure her foot.
During plaintiff’s presentation of her case at trial, TWPD’s lawyers impeached several points of her testimony that contradicted her pre-trial deposition: including the size of the hole, the location of the alleged concrete bags, and where she fell on the property. Plaintiff also contradicted her own trial testimony on several occasions relative to her injuries – first claiming she did not cut her foot in the hole, then claiming she did cut her foot after she was shown medical records noting lacerations and debris removal on her heel. This testimony was not logical since she was wearing shoes at the time of the alleged accident. Finally, plaintiff’s own physician testified he had no information indicating the plaintiff’s foot injuries were caused by a fall at the apartment complex. At the close of plaintiff’s presentation, TWPD’s lawyers convinced the presiding judge to dismiss plaintiff’s case in its entirety without any further defense evidence required.
The firm’s Mississippi attorneys secured summary judgment in favor of their client regarding a UM matter. In addition to suing the two commercial trucking companies for negligence arising from a collision, Plaintiffs sued their own carrier for benefits under the UM/UIM coverage of their personal auto policy. Under Mississippi’s UM law, in order to have a claim for UM/UIM benefits, the claimant must establish that the tortfeasor is either uninsured or underinsured. To be “uninsured” within the meaning of the statute requires a showing that the tortfeasor has no liability insurance coverage or that the liability carrier has legally denied coverage for the accident. The definition of uninsured also includes an unidentified motorist when there has been contact that caused an accident. For a motorist to be “underinsured” requires a comparison of all the tortfeasors’ liability limits applicable to the accident,with to the limits of coverage under the plaintiff’s own UM/UIM policy.Mississippi law allows the limits for each insured vehicle under the plaintiffs’ policy to be aggregated or “stacked” for purposes of this limits-to-limits analysis. Thus, in order to trigger a claim for underinsured motorist coverage under Mississippi law, as the plaintiffs did in this case,the insured plaintiffs must have UM/UIM coverage with limits of liability greater than the tortfeasors’ combined coverage. In this case, the tortfeasors each had $3,000,000 in liability limits, for an aggregate of $6,000,000 in liability limits. The plaintiffs had an aggregate of $300,000 in UM/UIM coverage and, therefore were unable to satisfy their burden of establishing that the tortfeasors were “underinsured.”
TWPD’s Baton Rouge office succeeded in having a suit against a Louisiana school board dismissed on summary judgment. The plaintiffs alleged the school board was vicariously liable for a teacher’s secretive, bizarre, and inappropriate communications and interactions with a minor student. We presented undisputed evidence that the school board’s pre-employment background check on the teacher revealed no prior criminal history or complaints. It was further undisputed that the student’s mother never reported the communications to the school board nor did she report the teacher visiting with the minor student after school hours, which occurred with the mother’s permission. With this evidence, TWPD convinced the court that plaintiffs could not prove the school board breached its duty of reasonable supervision or that the teacher’s intentional acts occurred in the course and scope of his employment. Therefore, the court granted summary judgment in favor of the School Board, dismissing the suit in its entirety.
The firm’s Baton Rouge attorneys recently won a Motion for Summary Judgment that resulted in the complete dismissal of a plaintiff’s suit against a national hardware and home improvement store. The plaintiff alleged he slipped and fell in a puddle of water that was near the store’s entrance. He allegedly did not see the water before his fall, and he could not say how long the water had been on the ground. TWPD obtained sworn affidavits from store employees, testifying they did not see any water on the ground prior to the subject accident. We argued the plaintiff could not meet his burden of proof under the Louisiana Merchant Liability Act, because he could not establish the defendant store created the complained-of condition, had actual notice of the water on the ground, or the water had been on the ground for a period of time sufficient to establish the store should have known it was there. The federal court was persuaded by these arguments, and granted summary judgment in favor of our client, resulting in dismissal of the case with prejudice.
TWPD’s Mississippi office recently secured a favorable summary judgment in a premise liability matter. Our client was a retail home improvement and hardware store.The plaintiff was in the store shopping for paint, and tripped and fell on a large blue lowboy cart that was in the aisle. The cart was one of several used by employees for restocking shelves. During discovery, the plaintiff admitted he observed the cart while speaking to a store employee. As he walked away from the conversation, he backed into the cart, tripped and fell.
TWPD argued the lowboy cart was not an unreasonably dangerous condition and thus the plaintiff could not meet his burden in proving the store was negligent. The U.S. District Court for the Southern District of Mississippi agreed with this position, reasoning that lowboy carts were the type of objects customers should reasonably expect to encounter in a similar retail business.As a result, the Court granted summary judgment, dismissing the case against our client with prejudice.
The firm’s Baton Rouge attorneys secured summary dismissal of a plaintiff’s premise liability suit filed in Lafayette, Louisiana. The defendant was a local supermarket. Plaintiff tripped over a piece of plastic that the supermarket used to display its price tags. The Judge agreed that plaintiff did not present any evidence that the supermarket caused the plastic piece to fall or how long the plastic piece had been on the ground before plaintiff tripped on it. The Judge also believed the plastic piece was “open and obvious” to all because it was approximately 3 – 3 ½ feet long, had multiple price tags stuck onto it, and because plaintiff had walked up and down the aisle on several occasions before he tripped on it.
Our firm’s Baton Rouge attorneys recently convinced the Louisiana Supreme Court to dismiss a personal injury suit against our client. The plaintiff in this automobile accident case filed suit in Louisiana almost two years after the accident. The statute of limitations in Louisiana is one year. Thus, TWPD immediately sought dismissal of the suit on the grounds that it was filed too late. However, because the accident at issue occurred in Texas rendering Texas’ substantive law applicable to the case, the plaintiff argued that Texas’ two-year statute of limitations also applied. The trial court and court of appeals agreed with the plaintiff and held that the suit was timely filed. TWPD took the case to the Supreme Court and won. The Supreme Court agreed with TWPD’s position that Louisiana’s one-year statute of limitation was controlling, and dismissed the suit.
When used properly, the Form 1010A can ensure doctors are providing all necessary information and complying with the MTG.
If you have any questions about how to calculate judicial interest, please give us a call.
Using SIF Questionnaires can be a pivotal part of the employment and workers’ compensation process. Call us with any questions.
Second Injury Fund, when pursued properly, can help offset costs of expensive claims involving workers with pre-existing conditions and also serve as the basis of a 1208.1 fraud claim.
These guidelines contained some marked changes in the area of pain management.
Our lawyers frequently present seminars before risk and management teams for insurance companies and other corporations across the country on a variety of legal topics. These seminars are regularly approved for CE/CLE credits by several states. Here is a list of our most recent seminars:
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