February 16, 2014

Top 100 Trial Lawyers Recognizes Baton Rouge, Louisiana Lawyers

top100triallawyers.jpgLouisiana trial lawyers, Paul H. Due', Donald W. Price, and B. Scott Andrews, of the Baton Rouge, Louisiana personal injury law firm of Due', Price, Guidry, Piedrahita & Andrews have been selected for 2014 membership in The National Trial Lawyers Top 100 Trial Lawyers.

The National Trial Lawyers is a member-driven organization composed of premier trial lawyers from across the country who meet stringent qualifications. Only top trial lawyers from Louisiana who are actively practicing in civil plaintiff and/or criminal defense law are eligible for invitation. Invitees must demonstrate superior qualifications, leadership skills, and trial results as a legal professional. The selection process for this elite honor is based on a multi-phase process which includes peer nominations combined with third party research.

Prospective members of The National Trial Lawyers are carefully screened prior to receiving an invitation for membership. Membership is not automatically renewed; attorneys are reevaluated annually to determine whether their activities and accomplishments qualify them for continued membership.

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February 15, 2014

Louisiana Employers Allowed to Ignore Unsafe Work Practices That are Highly Probable to Cause Injury to Innocent Employee Victims

Safety Matters.jpgIn two recent per curiam decisions, the Louisiana Supreme Court protected employers who exposed their workers to high probability of harm from known unsafe working conditions by applying the "inevitability" test for determining whether a work place injury caused by an employer was intentional. In both cases, the Supreme Court found that the injuries were not "inevitable", thus immunizing the employer from the tort claim under the Louisiana Worker's Compensation Act.

To recover in tort against an employer under La.R.S. 23:1032(B), the employee victim must prove an intentional tort, which the Louisiana Supreme Court defines as: (1) the employer consciously desired the physical result of its act, whatever the likelihood of that result happening from its conduct, or (2) the employer knew that the result is substantially certain to follow from its conduct, whatever its desire may be as to that result. Moreau v. Moreau's Material Yard, 12-1096 (La. 9/21/12), 98 So.2d 297.

The "substantial certainty" test was described by the Louisiana Supreme Court in Reeves v. Structural Preservation Systems, 98-1795 (La. 3/12/99), 731 So.2d 208, 213, as follows:

-Believing that someone may, or even probably will, eventually get hurt if a workplace practice is continued does not rise to the level of an intentional act, but instead falls within the range of negligent acts that are covered by workers' compensation.

-"Substantially certain to follow" requires more than a reasonable probability that an injury will occur and "certain" has been defined to mean "inevitable" or "incapable of failing."

-An employer's mere knowledge that a machine is dangerous and that its use creates a high probability that someone will eventually be injured is not sufficient to meet the substantial certainty requirement.

-Mere knowledge and appreciation of a risk does not constitute intent, nor does reckless or wanton conduct by an employer constitute intentional wrongdoing.

The Louisiana Supreme Court in Simoneaux v. Excel Group, LLC, 06-1050 (La. 9/1/06), 936 So.2d 1246, 1248, further clarified that the employer's actions in providing poor working conditions "may have been negligent or even grossly negligent, but they were not intentional."

In each of the two recent cases before the Louisiana Supreme Court, the Court found that the injuries sustained were not "inevitable." In Ashton Miller, Jr. v. Sattler Supply Co., 13-2558 (La. 1/27/14), the employee died after a large engine block he was cleaning fell on him. The employer had been repeatedly informed about frayed straps, rusted chains, and lack of a safety latch on the engine hoisting equipment. Nevertheless, the Court held that the injury was not "inevitable" and that the, "mere knowledge that a machine is dangerous, and that its use creates a high probability that someone will eventually be injured, is not sufficient to meet the substantial certainty requirement."

In Rhonda Danos v. Boh Bros. Construction Co., 13-2605 (La. 2/7/14), the employee was directed to use a saw to cut a pipe which was laying flat on the ground without support. The pipe caved inward at the cut, pinching the blades of the saw. The saw then kicked back and struck the employee in the head and neck. Boh Bros. presented testimony that no one intended for the employee to be harmed in any way, and presented evidence establishing that a similar accident had never occurred in Boh Bros.' history of operation. In opposition, the plaintiffs submitted expert evidence indicating that Boh Bros. should have known that using the cutting saw in this manner would cause injury. Even accepting the plaintiffs' expert evidence, the Supreme Court found that the injury was not "inevitable." The Court found that, in hindsight, Boh Bros. may have been negligent in directing employees to use unsafe cutting procedures, but its actions were not intentional.

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February 15, 2014

Bossier City Louisiana Slip and Fall Case Dismissed for Lack of Proof

Slip Trip and Fall and Premises Liability.jpgIn a 4-3 per curiam decision, the Louisiana Supreme Court in Ramanda Houston v. PNK (Bossier City), Inc., d/b/a Boomtown Casino and Hotel and Boomtown Casino, 2013-CC-1991 (La. 1/27/14), granted a summary judgment dismissing the accident victim's slip and fall case. The victim slipped on a walkway as she exited a bus at the Boomtown Casino parking lot in Bossier City, Louisiana.

In order to prevail in a non-merchant slip and fall accident in Louisiana, the victim must establish that the defendant knew or should have known of the defect which caused the damage, that the damage could have been prevented by the use of reasonable care, and that the defendant failed to exercise such care. La. Civ. Code art. 2317.1.

The defendant produced evidence establishing that the walkway was designed to promote a non-skid surface and to prevent water from pooling in the area. The defendant also showed that no other similar accidents had occurred in the area. The victim came forward with no contrary evidence, but only her own affidavit that stated the pavement was wet and slippery and "may" have been muddy because the ground was muddy on either side of the walkway.

The Supreme Court held that the victim's failure to produce any evidence of a material fact in dispute mandated the granting of the motion for summary judgment dismissing her case.

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February 15, 2014

Is the Louisiana State Bar Association Violating Applicant's Civil Rights Over Mental Health Issues?

lsbalogo.pngThe Louisiana Record reports that the Civil Rights Division of the United States Department of Justice (DOJ) is investigating the Louisiana Supreme Court Committee on Bar Admissions over alleged violations of the Americans with Disabilities Act (ADA). Specifically, the DOJ has found that the Committee on Bar Admissions requires disclosure of bar applicant's mental health status and access to applicant's mental health records. Admission for certain applicants with mental health issues are conditional despite the lack of any misconduct.

In a February 5, 2014 letter sent to the Chief Justice of the Louisiana Supreme Court, the executive director of the Louisiana Supreme Court Committee on Bar Admissions and the chief disciplinary counsel for the Louisiana Attorney Disciplinary Board, the DOJ states that: "Questions based on an applicant's status as a person with a mental health diagnosis do not serve the Court's worthy goal of identifying unfit applicants, are in fact counterproductive to ensuring that attorneys are fit to practice, and violate the standards of applicable civil rights laws."

The full article can be found here at The Louisiana Record.

January 1, 2014

Happy New Year - 2014!

Thumbnail image for free-happy-new-year-2014-clipart.jpgHappy New Year from the Baton Rouge, Louisiana injury lawyers at Due', Price, Guidry, Piedrahita & Andrews.

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December 28, 2013

Louisiana Super Lawyers 2014 Lists Every Member of Due', Price, Guidry, Piedrahita & Andrews

Super Lawyers logo.pngFor the second straight year, Louisiana Super Lawyers has selected every member (Paul H. Due', Donald W. Price, Kirk A. Guidry, Randy A. Piedrahita and B. Scott Andrews) of the Baton Rouge, Louisiana personal injury law firm of Due', Price, Guidry, Piedrahita & Andrews.

The reason each member has been selected for inclusions in the 2014 Louisiana Super Lawyers list in the practice area of Personal Injury is clear - more than 27 years of handling referrals of complex and difficult personal injury cases from lawyers around the world. The firm's success is rooted in academia, with all firm members having graduated at the top of their law school class and having served as members of or as editors of their Law Reviews. The firm boasts two former Louisiana Supreme Court law clerks, a former U.S. Fifth Circuit Court of Appeals law clerk, an Adjunct Professor of Law, two past Presidents of the Louisiana Association for Justice (LAJ), and both a former Louisiana appellate judge and an esteemed University of Texas Law Professor "of counsel".

This academic background, combined with dedication, hard work and extensive experience, has led to hundreds of millions of dollars in judgments, settlements and verdicts. The firm's success has been shared with the extensive number of attorneys around the world who have referred complex personal injury cases to the firm - and who find the firm's experience and funding assistance invaluable in representing their seriously injured clients.

The Louisiana trial lawyers at Due', Price, Guidry, Piedrahita & Andrews combine their academic backgrounds, practical trial experience and financial "staying power" to add up to success for clients and the lawyers trusting the firm with referrals.

Each year, no more than five percent of the lawyers in the state are selected by the research team at Super Lawyers to receive this honor. Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys.

December 12, 2013

Louisiana Advocates publishes article by Donald Price and Scott Andrews

The following article authored by Baton Rouge, Louisiana injury lawyers, Donald W. Price and B. Scott Andrews of Due', Price, Guidry, Piedrahita & Andrews, was published in the October 2013 edition of Louisiana Advocates.

A Streamlined, and One Hopes Improved, Procedure for Summary Judgment-A Précis

Louisiana Code of Civil Procedure article 966 has always allowed summary judgment when there is no genuine issue of material fact as to any element of a cause of action necessary for recovery. But how does one know what elements are at issue on any given motion? Perhaps the ultimate nightmare scenario illustrating this uncertainty was presented in McKee v. Wal-Mart Stores, Inc., 06-1672 (La. App. 1 Cir. 6/8/07), 964 So.2d 1008, writ denied, 07-1655 (La.10/26/07), 966 So.2d 583.

That case, which was handled by our law firm, involved an unconventional antibiotic prescription to a child, which caused the child to develop toxic epidermal necrosis. In that part of the litigation, the plaintiff alleged negligence on the part of the pharmacist who filled the prescription in failing to comply with a regulatory requirement that she counsel customers regarding prescription medications. The plaintiff claimed that under the facts, had there been such a consultation, it would have resulted in a call to the pediatrician and, in all likelihood, a change of the prescription to a more conventional and less-risky antibiotic.

After the pediatrician (who was a defendant in a separate medical review panel proceeding) testified that he would not have changed the prescription, the pharmacy moved for summary judgment on the issue of cause-in-fact. Plaintiff marshaled all of her evidence, but she focused her arguments on the cause-in-fact argument set forth in the motion and supporting memorandum. At the hearing, the trial judge granted summary judgment based upon his conclusion that the pharmacist - despite her admission that she had not counseled the mother and despite the legal requirement that she do so - was not negligent. Attempts to point out to the court in a motion for new trial that this issue was not before the court on the motion fell on deaf ears, so the case was appealed. On appeal, the plaintiff briefed both cause-in-fact and negligence arguments, but the court of appeal affirmed on the grounds that the alleged negligence was not the legal cause of the child's injury. On rehearing and in a writ application, the plaintiff briefed that issue too, to no avail. The plaintiff's arguments were always being made to judges who had already made up their minds on an issue, without the benefit of briefing by either side.

During the last four legislative sessions, Rep. Neil Abramson (D-New Orleans), in responding to concerns and requests from lawyers and the judiciary, has attempted to delineate specifically what issues and evidence the court may consider on a motion for summary judgment, and thus what issues and evidence counsel have to prepare for. Rep. Abramson consulted with the legislation committee of LAJ and the Louisiana State Bar Association to rewrite the summary judgment procedure to be more user friendly to practitioners, and to ensure fundamental fairness through express notice of the issues before the court. Effective August 1, 2013, La. Code Civ. P. art. 966 specifies that on a motion for summary judgment:

1) Summary judgment may be rendered or affirmed only as to those issues set forth in the motion for summary judgment under consideration by the court at that time.

2) Only evidence admitted for purposes of the motion for summary judgment may be considered by the court in its ruling on the motion.

A. To be considered by the court, pleadings, depositions, answers to interrogatories, admissions, and affidavits must be admitted for purposes of the motion for summary judgment.

B. Any evidence cited in and attached to the motion for summary judgment or memorandum filed by an adverse party is deemed admitted for purposes of the motion for summary judgment unless excluded in response to an objection raised in a memorandum or written motion to strike.

The recent amendments to Article 966, and the need for and effect of each are briefly summarized as follows.

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November 19, 2013

Baton Rouge, Louisiana Personal Injury Law Firm Recognized by Best Law Firms - U.S. News & World Reports and Best Lawyers

Best Law Firms Badge 2014.jpgFor the fourth consecutive year, the Baton Rouge, Louisiana personal injury law firm of Due', Price, Guidry, Piedrahita & Andrews has been recognized in the "Best Law Firms" rankings by U.S. News & World Report and Best Lawyers. The firm was recognized for 2014 in the plaintiff practice areas of Personal Injury Litigation, Product Liability Litigation, Medical Malpractice, and Admiralty & Maritime Law.

Firms included in the 2014 "Best Law Firms" list are recognized for professional excellence with persistently impressive ratings from clients and peers. Achieving a tiered ranking signals a unique combination of quality law practice and breadth of legal expertise.

"U.S. News has more than two decades of experience in providing the public with the most accurate and in-depth rankings of a wide range of institutions, including our Best Law Schools rankings," says Tim Smart, Executive Editor of U.S. News & World Report. "Law firms are an integral part of our rankings and a natural accompaniment to the law school rankings."

The 2014 rankings are based on the highest number of participating firms and highest number of client ballots on record. To be eligible for a ranking, a firm must have a lawyer listed in The Best Lawyers in America©, which recognizes the top 4 percent of practicing attorneys in the US. Over 12,000 attorneys provided over 330,000 law firm assessments, and almost 7,000 clients provided close to 20,000 evaluations. In addition, to provide personal insight, a new Law Firm Leaders Survey was implemented in the decision-making process.

"Because we combine hard data with peer reviews and client assessments," says Steven Naifeh, President and Co-Founder of Best Lawyers, "more and more clients inform us ours are the most thorough, accurate, and helpful rankings of law firms ever developed."

Ranked firms, presented in tiers, are listed on a national and/or metropolitan scale. Receiving a tier designation reflects the high level of respect a firm has earned among other leading lawyers and clients in the same communities and the same practice areas for their abilities, their professionalism and their integrity.

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November 18, 2013

Randy Piedrahita Serves as Moderator for the Wex Malone American Inn of Court Presentation of "Better Call Saul"

Thumbnail image for Better Call Saul.JPG
The Wex Malone American Inn of Court met on October 30, 2013. Shown are Inn members who presented a one hour CLE titled, "Better Call Saul." From right to left: Chris Cascio, Grant Herrin, Judge Charlene Day, Judge Pam Baker, Randy Piedrahita (moderator), and Monica Vela-Vick.

American Inns of Court (AIC) are designed to improve the skills, professionalism and ethics of the bench and bar. The Wex Malone American Inn of Court is an amalgam of judges, lawyers, and law students. The Inn meets approximately once a month both to "break bread" and to hold programs and discussions on matters of ethics, skills and professionalism.

October 30, 2013

Capital City Republican Women Welcomes Randy A. Piedrahita

At the September 26, 2013 meeting of the Capital City Republican Women at BREC's Independence Park, Baton Rouge, Louisiana attorney, Randy A. Piedrahita, discussed Louisiana's Stand Your Ground Law. Piedrahita was joined in the lively and informative discussion by Rep. Barry Ivey, Police Chief Carl Dabadie Jr., and Greg Phares.

October 17, 2013

Insurance Coverage for Vicarious Liability for Intentional Acts

No person can insure against his own intentional acts. Public policy forbids it. But public policy does not forbid one to insure against the intentional acts of another for which he may be vicariously liable.

If the exclusionary language in the personal liability insurance policy applies to the intent of "the" insured, then only the intent of "the" person for whom coverage is sought for his/her vicarious liability under the policy will be dispositive, rather than the intent of the intentional actor for whom the person for whom coverage is sought is vicariously liable, and coverage will not be excluded. However, if the exclusionary language in the policy applies to "an" or "any" or "one or more" insureds, then the intent of the intentional actor will be dispositive and coverage will be excluded.

See McBride v. Lyles, 303 So. 2d 795 (La.App. 3d Cir. 1974) ("the" insured); Lamkin v. Brooks, 498 So.2d 1068 (La. 1986) ("any" insured); Travelers Ins. Co. v. Blanchard, 431 So.2d 913 (La.App. 2d Cir.1983) ("an" insured); and Leslie v. Andrews, 905 So.2d 368 (La.App. 4th Cir. 2005), writ denied, 901 So.2d 1077 (La.2005) ("one or more" insureds).

October 17, 2013

Intentional Injury Exclusion - Different Kind or Degree - in Personal Liability Insurance Policies

The intentional injury exclusion for injuries of a "a different kind or degree" or sustained by a "different person or property, than intended or expected" in personal liability insurance policies is enforceable and excludes coverage even if the seriousness of the injury is not intended expected or if a different person is injured than intended or expected. See Simpson v. Angel, 598 So.2d 584 (La.App. 4th Cir.), writ denied, 605 So.2d 1091 (La.1992).

October 17, 2013

Intentional Injury Exclusion - Willful and Malicious - in Personal Liability Insurance Policies

When determining whether the intentional injury exclusion -- "willful and malicious acts of any insured" -- will preclude coverage in a personal liability insurance policy, it is immaterial whether the insured intended the actual resulting injuries.

The act is "willful" if the actor has intentionally done an act of unreasonable character in reckless disregard of the risk known to him, or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow. It is usually accompanied by a conscious indifference to consequences, amounting almost to a willingness that harm should follow.

"Malicious" is characterized by, or involving, malice; having, or done with, wicked or mischievous intentions or motives; wrongful and done intentionally without just cause or excuse.

Keatley v. State Farm Fire & Cas. Ins. Co., 594 So.2d 963 (La. App. 3d Cir. 1992).

October 17, 2013

Intentional Injury Exclusion - Expected or Intended from the Standpoint of the Insured - in Personal Liability Insurance Policies

When determining whether the intentional injury exclusion -- "expected or intended from the standpoint of the insured" -- will preclude personal liability insurance coverage, the subjective intent of the insured, as well as his reasonable expectations as to the scope of his insurance coverage, will determine whether an act is intentional. An act is intended if the perpetrator desires the results of his action or he believes that the results are substantially certain to occur. The insured's subjective intent or expectation must be determined not only from the insured's words before, at the time of, and after the pertinent conduct, but from all the facts and circumstances bearing on such intent or expectation. Breland v. Schilling, 550 So.2d 609 (La.1989). See also, Great American Ins. Co. v. Gaspard, 608 So.2d 981 (La.1992). In Breland, the Louisiana Supreme Court held:

We hold, therefore, that when minor bodily injury is intended, and such results, the injury is barred from coverage. When serious bodily injury is intended, and such results, the injury is also barred from coverage. When a severe injury of a given sort is intended, and a severe injury of any sort occurs, then coverage is also barred. But when minor injury is intended, and a substantially greater or more severe injury results, whether by chance, coincidence, accident, or whatever, coverage for the more severe injury is not barred. Whether a given resulting bodily injury was intended "from the standpoint of the insured" within these parameters is a question of fact. Such factual determinations are the particular province of the trier of fact, in this instance the trial jury. Breland, 550 So.2d at 614.
October 5, 2013

Punitive Damages are Available to Jones Act Seamen Under the General Maritime Law

In McBride v. Estis Well Service, 12-30714 (5th Cir. 10/2/13), the United States Fifth Circuit Court of Appeals held that Jones Act Seamen may recover punitive damages for their employer's willful and wanton breach of the general maritime law duty to provide a seaworthy vessel. Such breach reflects a reckless disregard for the safety of the crew, who remain "wards of admiralty" deserving special protection under maritime law.

The general maritime law cause of action (unseaworthiness) and remedy (punitive damages) were established before passage of the Jones Act, and the Jones Act did not address that cause of action or remedy. Thus, the Fifth Circuit held that the punitive damages remedy remains available under that unseaworthiness cause of action unless and until Congress intercedes.

The Court concluded as follows: "Like maintenance and cure, unseaworthiness was established as a general maritime claim before the passage of the Jones Act, punitive damages were available under general maritime law, and the Jones Act does not address unseaworthiness or limit its remedies. We conclude, therefore, that punitive damages remain available to seamen as a remedy for the general maritime law claim of unseaworthiness."

The Fifth Circuit cited as authority three law review and journal articles authored by University of Texas School of Law Distinguished Teaching Professor and W. Page Keeton Chair in Tort Law, David W. Robertson. Professor Robertson is one of the nation's leading experts in admiralty law and serves of counsel to the Baton Rouge, Louisiana admiralty and maritime law firm of Due', Price, Guidry, Piedrahita & Andrews.

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