Louisiana Injury Lawyer Blog

It is well settled that gas is an inherently dangerous instrumentality because of its highly flammable and explosive character. Those who handle and distribute it are charged with the duty to exercise that degree of care commensurate with its dangerous character and necessary to protect the public from any foreseeable injury therefrom.

Giordano v. Rheem Mfg. Co., 93-1614 (La.App. 3 Cir. 10/05/94), 643 So.2d 492, 496.

Continue reading "Louisiana Jury Instructions - Burn Injuries - Highly Flammable and Explosive Character" »

On this Memorial Day weekend, the Baton Rouge, Louisiana head and brain injury attorneys at Due', Price, Guidry, Piedrahita & Andrews advise motorcyclists to wear a DOT approved helmet while riding. It is well known that head injuries are a leading cause of death in motorcycle accidents. Wearing a helmet has been shown to limit injury severity and reduce he number of traumatic brain injuries and fatalities. According to the National Highway Traffic Safety Administration (NHTSA), helmets are estimated to have saved the lives of 1,829 motorcyclists in 2008.

After a 1999 law in Louisiana limiting helmet use requirements, the motorcycle fatality rate increased by more than 25 percent. After Louisiana discovered that nonhelmeted riders in accidents experienced head injuries at twice the rate of helmeted riders, the universal helmet law was reinstated in 2004 and the number of motorcycle deaths declined.

Continue reading "Baton Rouge Louisiana Head and Brain Injury Attorneys Advise Motorcyclists to Wear a DOT Approved Helmet" »

The dangerous nature and hazardous character of gas has been recognized and provision has been made for the regulation of its use in the interest of public safety. Moreover, our law recognizes the greater and higher than ordinary degree of care demanded of those involved in the manufacture, preparation and distribution of gas and similar products.

Home Gas & Fuel Co. v. Miss. Tank Co., 246 La. 625, 633-34, 166 So.2d 252, 255 (1964).

Continue reading "Louisiana Jury Instructions - Burn Injuries - Dangerous Nature of Natural Gas" »

Starting June 1, 2011, the Louisiana State Police headquarters in Baton Rouge will no longer accept mail-in or walk-in requests for automobile accident reports. The Uniform Motor Vehicle Traffic Crash Reports will only be available on-line at the Louisiana State Police website.

Each accident report will cost $8.50.

Continue reading "Louisiana State Police Automobile Accident Reports Available On-Line" »

Baton Rouge, Louisiana motorcycle accident lawyer, Scott Andrews, urges motorcycle riders to take a Louisiana State Police Motorcycle Safety and Awareness Course. The Louisiana State Police offers both a Basic Motorcycle Rider Course for inexperienced motorcycle operators and an Advanced Rider Course.

After the third fatal motorcycle crash in less than a week just in Troop L, the Louisiana State Police issued a news release on May 22, 2011, reminding all motorists to safely "share the road" with motorcycles and to be extra alert to help keep motorcyclists safe. Additionally, the Louisiana State Police urges motorcyclists to "RIDE LIKE YOU ARE INVISIBLE TO OTHER MOTORISTS!!!!" and to follow these safety guidelines to increase awareness and have a safe riding experience:

Be visible:

Remember that motorists often have trouble seeing motorcycles and reacting in time.
Make sure your headlight works and is on day and night.
Use reflective strips or decals on your clothing and on your motorcycle.
Be aware of the blind spots cars and trucks have.
Flash your brake light when you are slowing down and before stopping.
If a motorist doesn't see you, don't be afraid to use your horn.

Dress for safety:

Wear a quality helmet and eye protection.
Wear bright clothing and a light-colored helmet.
Wear leather or other thick, protective clothing.
Choose long sleeves and pants, over-the-ankle boots, and gloves.
Remember - the only thing between you and the road is your protective gear.

Apply effective mental strategies:

Constantly search the road for changing conditions. Be aware of other traffic, road surfaces and debris.
Give yourself space and time to respond to other motorists' actions.
Give other motorists time and space to respond to you.
Use lane positioning to be seen; ride in the part of a lane where you are most visible.
Watch for turning vehicles.
Signal your next move in advance.
Avoid weaving between lanes.
Don't ride when you are tired or under the influence of alcohol or other drugs.
Know and follow the rules of the road and stick to the speed limit.

Know your bike and how to use it:

Practice. Develop your riding techniques before going into heavy traffic. Know how to handle your bike in conditions such as wet or sandy roads, high winds, and uneven surfaces.
Get formal training and take refresher courses.

Continue reading "Louisiana Motorcycle Accidents on the Rise - Keep Motorcycle Operators Safe!!" »

A Holden, Louisiana, woman died in a two car wreck on Louisiana Highway 447 south of I-12 in Livingston Parish, Louisiana, when her 1997 Chevrolet Cavalier crossed the center line of Louisiana Highway 447 just north of Louisiana Highway 16 after entering a right-hand curve. The Cavalier collided head-on with an oncoming 1987 GMC single-unit truck, pushing the Cavalier backwards and off the road into the ditch and causing it to roll over onto its roof.

According to Baton Rouge, Louisiana car wreck attorney, Scott Andrews, the driver of a vehicle that crosses the center line and collides with another vehicle in its proper lane of travel is presumed to be at fault in causing the accident.

Continue reading "Holden, Louisiana Woman Killed in Livingston Parish Car Wreck" »

On May 20, 2011 MOEX USA and BP reached an agreement on a $1.06 billion payment for MOEX's involvement in the explosion of the Deepwater Horizon rig in the Gulf of Mexico which led to the devastating oil spill. MOEX continues, however, to deny liability for the accident. The parties agreed to release each other from mutual fault arising from the accident, although punitive damages, civil, criminal, or administrative fines, and penalties are not included in the indemnities. The companies jointly recognized the findings of the National Commission on the BP Deepwater Horizon which concluded that the explosion of the rig was the result of various risk factors, as well as, outright mistakes by multiple parties. BP claims it will apply the $1.06 billion payment to the $20 billion trust it has established for the payment of claims resulting from the explosion, oil spill, and damage to natural resources.

Three St. Francisville, Louisiana residents were arrested by the Insurance Fraud - Auto Theft Unit of the Louisiana State Police as a result of a complaint made by the Government Employees' Insurance Company (GEICO). According to the investigation, a GEICO automobile liability insured backed into a vehicle belonging to Honabea Cavalier of St. Francisville. No police report was filed until a month after the accident. After Cavalier filed bodily injury claims on behalf of herself and her five minor children for injuries that she claimed were caused by the collision, GEICO paid Cavalier five hundred dollars to settle the claims. Thereafter, Earl Barrow and Sandra Cavalier filed bodily injury claims with GEICO for the crash. After the investigation revealed that Cavalier's vehilce was actually unoccupied at the time of the collision, all three suspects were arrested and booked into the West Feliciana Parish Jail. Honabea Cavalier was booked on charges of insurance fraud, felony theft, and filing false public documents. Earl Barrow and Sandra Cavalier were both booked on charges of insurance fraud. They each face up to five years in prison and $5,000 in fines if convicted on the insurance fraud charges.

Baton Rouge, Louisiana auto accident attorney, Scott Andrews, applauds the work of GEICO and the Louisiana State Police in aggressively investigating and pursuing criminal charges against persons suspected of automobile liability insurance fraud. Insurance fraud costs policy holders dearly, not only in the form of fraudulent claims payments, but by the social and moral stigma that attaches to the claims of legitimate accident victims whose claims are often frowned upon because of the illegitimate claims of a few people that make the whole system look bad.

Louisiana injury lawyer Bob Downing (retired First Circuit Court of Appeal Judge) wrote the following article for the May 2011 issue of the Baton Rouge Bar Association's monthly publication, Around the Bar, regarding the impropriety of appealing from the denial of a motion for directed verdict:

There should be no appeal from the denial of a motion for a directed verdict. Graves v. Riverwood International Corp., 41,810 (La.App. 2 Cir. 1/31/07), writ denied, 07-630 (La.5/4/07), 956 So.2d 621; See Adams v. Purciau, 417 So.2d 860 (La.App. 4th Cir.), writ denied, 422 So.2d 157 (La.1982); Varnado v. Ins. Co. of America, 484 So.2d 813 (La.App. 1st Cir.), writ denied, 489 So.2d 248 (La.1986); and Miller v. Upjohn Co., 461 So.2d 676 (La.App. 1st Cir.1984).

In reviewing the cases that state that the standard of review for the denial of a motion for directed verdict is the same for the granting of a motion for directed verdict, it appears that the error begins with Davis v. Board of Supervisors of Louisiana State University, 03-2219 (La. App. 4 Cir.11/17/04), 887 So.2d 722, writ denied, 04-3086 (La.2/18/05), 896 So.2d 40, which incorrectly cites Cross v. Cutter Biological, 94-1477 (La.App. 4 Cir.5/29/96), 676 So.2d 131, writ denied, 96-222- (La.1/10/97), 685 So.2d 142, a case dealing with the granting of a motion for directed verdict. Davis is in turn cited for this incorrect standard of review in Everhardt v. Louisiana Department of Transportation & Development, 07-0981 (La.App. 4 Cir. 2/20/08), 978 So.3d 1036.

Because Adams is the earlier panel of the Fourth Circuit Court of Appeal and the jurisprudence in a circuit cannot be changed by another panel without going en banc, then it appears that Pourciau is the correct statement of the law.

A defendant who introduces evidence after the denial of its motion for directed verdict is deemed to have abandoned the motion, and the evidence in the case is judged on the entirety of the record. Holloway v. Midland Risk Ins. Co., 36,262 (La.App. 2 Cir. 10/30/02), 832 So.2d 1004, writ denied, 02-3247 (La.3/28/03), 840 So.2d 571; Jackson v. Quick, 543 So.2d 552 (La.App. 4th Cir.), writ denied, 546 So.2d 1219 (La.1989); and Dunaway v. Rester Refrigeration Serv., 428 So.2d 1064 (La.App. 1 Cir.), writs denied, 433 So.2d 1056, 1057 (La.1983).

Because there is no appeal from the denial of a motion for directed verdict, it should not be assigned as an error on appeal. The proper recourse is an appeal of the judgment.

Louisiana Revised Statute 9:2794(D)(1)(a) requires that a physician who testifies as an expert witness in a medical malpractice case must be: "practicing medicine at the time such testimony is given or was practicing medicine at the time the claim arose." The Louisiana Supreme Court in Johnson v. Morehouse General Hospital, 10-387 c/w 10- 488 (La. 5/10/2011), held that the trial court did not abuse its discretion in allowing a disabled OB/GYN doctor who no longer had an active medical practice from testifying in a medical malpractice case involving obstetrics because the physician was still licensed to practice medicine and write prescriptions, and because he continued to render non-specialist medical services, albeit gratuitously, to friends and family.

On Friday, May 6, 2011, the Louisiana Supreme Court, in the per curiam decision of Johnson v. Louisiana Farm Bureau Casualty Insurance Company, 11-0476 (La. 5/6/2011), resolved a conflict between the Louisiana courts of appeal as to whether the "mailing or delivery" provision contained in La. R.S. 22:1335 (formerly La. R.S. 22:636.6) requires a notice of nonrenewal of a homeowner's insurance policy to be mailed to the insured at the address shown in the policy, or whether the notice of nonrenewal must be actually delivered to the policy holder in order to be effective. Louisiana Revised Statute 22:1335, Homeowner's insurance; cancellation, nonrenewal, provides in pertinent part:

A. An insurer that has issued a policy of homeowner's insurance shall not fail to renew the policy unless it has mailed or delivered to the named insured, at the address shown in the policy, written notice of its intention not to renew. The notice of nonrenewal shall be mailed or delivered at least thirty days before the expiration date of the policy. If the notice is mailed less than thirty days before expiration, coverage shall remain in effect under the terms and conditions until thirty days after the notice is mailed or delivered. Any earned premium for the period of coverage extended beyond the expiration date shall be considered pro rata based upon the rate of the previous year.

B. The notice of nonrenewal shall not be required if the insurer or a company within the same insurance group has offered to issue a renewal policy, or if the named insured has provided written notification to the insurer of the intention of the insured not to renew.

In the Third Circuit, proof of mailing created a prima facie rebuttable presumption that the notice of nonrenewal was delivered to the insured, which presumption could be overcome by proving that notice was not delivered. In the Fourth Circuit, mailing of a notice of nonrenewal was sufficient to comply with the statute.

The Louisiana Supreme Court held that the statute only requires "mailing, not proof of receipt. Any evidence of non-delivery is relevant only as far as it is evidence of non-mailing or improper mailing. *** [T]he fact that the plaintiff did not receive the notice was otherwise irrelevant."

So, it is crucial that policy holders immediately notify their homeowner's insurance company of a change in mailing address; especially after a loss that might render mail undeliverable to the address listed in the policy.

Continue reading "Notice of Nonrenwal of Louisiana Homeowner's Insurance Policy Effective Upon Mailing" »