Archive | December, 2008

White v. City of Kenner

White v. City of Kenner
(December 2008)

McCranie Sistrunk Attorneys, representing the interest of the Kenner Police Department, prevailed through motion practice resulting in the dismissal of the plaintiff’s suit. Lloyd White was allegedly injured when he was a passenger in a vehicle which collided with an 18-wheel truck. White claimed that another vehicle’s movement had caused the driver of his vehicle to collide with the truck. The Kenner Police Officer who investigated the accident determined that the other vehicle was not involved in the accident and did not memorialize any information pertaining to the other vehicle or its driver in the police report. White subsequently filed suit, naming the City of Kenner through its Police Department, claiming he was deprived of the right to sue the other driver because of the officer. Specifically, White claimed that the officer breached his duty under La. R.S. 32:398(D) which sets forth the criteria for investigating an accident. White also claimed the officer violated La. R.S. 14:133 by filing a police report which contained allegedly “false statements.” In affirming the 24th Judicial District Court’s judgment, the Louisiana Fifth Circuit Court of Appeal held that the officer, in complying with his statutory duty to investigate the accident, was within his discretion in determining that the other vehicle was not involved in the accident and further found that the officer did not knowingly or intentionally file any false documents. The Louisiana Supreme Court denied writs to review the Fifth Circuit’s ruling.

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Walker v. Llovet, et al.

Walker v. Llovet, et al.
(November 2008)

Thomas P. Anzelmo and Kyle P. Kirsch won a victory in favor of Jean M. Llovet and Glen D. Jett in the case entitled Walker v. Llovet, 2008 WL 4949038 (E.D. La. 2008). The plaintiff sued Llovet and Jett alleging his Civil Rights were violated when Llovet allegedly failed to provide him adequate medical care after he was allegedly injured in an altercation with prison officials. The District Court dismissed plaintiffs’ inadequate medical care claims against Llovet and Jett because plaintiff’s medical records established that his “claims of injury were not ignored and that his medical needs were not met with deliberate indifference.”

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Deborah Jackson v. Allstate Insurance Company, et al.

Deborah Jackson v. Allstate Insurance Company, et al.
(October 2008)

Thomas P. Anzelmo and Kyle P. Kirsch won a victory in favor of Landmark Insurance Company in Jackson v. Allstate Ins. Co., 07-7904 in the Eastern District Court of Louisiana. Plaintiff sued Landmark arguing that it provided Errors and Omission coverage for an insurance agent whom they alleged negligently procured her a flood insurance policy without advising her about the proper limits of insurance needed. Judge Lemmon granted Landmark’s Motion to Dismiss dismissing plaintiff’s claims against Landmark finding that Landmark’s “Claims Made” policy did not provide coverage since the alleged acts occurred prior to the retroactive date of the policy.

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Castellanos v. Jefferson Parish Correctional Center, et al.

Castellanos v. Jefferson Parish Correctional Center, et al.
(August 2008)

Thomas P. Anzelmo and Kyle P. Kirsch won a victory in favor of Jean M. Llovet in the case entitled Castellanos v. Jefferson Parish Correctional Center, 2008 WL 3975606 (E.D. La. 2008). The plaintiff sued Llovet alleging his Civil Rights were violated when the defendants allegedly failed to provide him adequate medical care after he was allegedly seriously injured in an altercation with a prison official. The District Court dismissed plaintiff’s inadequate medical care claims against Llovet because plaintiff’s medical records established that every time a request for medical care was made the medical department promptly responded.

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Dewright Peters v. Nissan Forklift Corporation

Dewright Peters v. Nissan Forklift Corporation
(March 2008)

Keith W. McDaniel, Lance B. Williams and Quincy Crochet, of McCranie Sistrunk Anzelmo Hardy, McDaniel & Welch in New Orleans, Louisiana obtained a unanimous defense verdict in a case tried to a Federal Court jury in New Orleans. The suit arose from a workplace accident in which the plaintiff, Mr. Peters, crushed his foot while operating a walkie/rider pallet jack at a Wal-Mart distribution center. In the accident, Mr. Peters, who was 30 years old, crushed nearly every bone in his foot and has since undergone 6 surgeries. He claimed total and permanent disability from future employment. Plaintiff asked the jury for $1.9 million in damages.

Plaintiff claimed Nissan failed to provide a safe design for the pallet jack, contending that the operator’s platform was too small and there should have been additional measures taken to prevent a rider from falling or becoming dislodged from the platform. Alternatively, plaintiff argued that the subject pallet jack’s end-control design should be replaced with a center-control design, because of the added protection provided to operators. Finally, plaintiff alleged that Nissan failed to provide sufficient warnings of the dangers associated with operating the pallet jack in the rider mode.

Nissan responded by demonstrating the dearth of similar incidents with a design which had been on the market for decades. The pallet jack further conformed to all relevant industry and governmental standards. Regarding plaintiff’s design alternatives, Nissan argued that the utility of the product as an order-picker in distribution centers would be severely handicapped if plaintiff’s design changes were implemented. The center-rider pallet jack, which was offered by Nissan as well as many other manufacturers, had a different utility, and the decision for which design best met a consumer’s needs was ultimately a decision for the customer, especially considering the sophistication of Wal-Mart.

Nissan responded to the warnings claims with evidence of the warnings provided by Nissan as well as the extensive three-day training program utilized by Wal-Mart. Finally, evidence was presented that Mr. Peters was not properly operating the product at the time of the accident, causing him to lose his balance and allowing his foot to come between the pallet jack and a concrete post.

Plaintiff’s experts were Thomas Berry of Wichita, Kansas and Andy McPhate of Baton Rouge, Louisiana for design issues. Dennis Seal, of Dallas, Texas testified regarding warnings. Nissan’s experts were John Johnson of Gresham, Oregon on design and Alan Dorris, Ph.D. of Atlanta, Georgia on warnings/human factors.

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House Call Home Health Care v. Rodco Worldwide, et al.

House Call Home Health Care v. Rodco Worldwide, et al.
(March 2008)

Michael R. Sistrunk and Kyle P. Kirsch won a victory in favor of Axis Surplus Insurance Company in the case entitled House Call Home Health Care v. Rodco Worldwide, et al., Docket No. 07-9088 in the United States District Court for the Eastern District of Louisiana where plaintiff attempted to assert a Hurricane Katrina claim against Axis. Judge Lemelle granted Axis’ Motion to Dismiss finding that Axis had no coverage for plaintiff’s claims.

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Bayou Medical Care, Inc. v Rodco Worldwide, et al.

Bayou Medical Care, Inc. v Rodco Worldwide, et al.
(February 2008)

Michael R. Sistrunk and Kyle P. Kirsch won a victory in favor of Axis Surplus Insurance Company in the case entitled Bayou Medical Care, Inc. v. Rodco Worldwide, et al., Docket No. 07-10966 in the Civil District Court for the Parish of Orleans where plaintiff attempted to assert a Hurricane Katrina claim against Axis. The Court granted Axis’ Motion for Judgment on the Pleadings find Axis had no coverage for plaintiff’s claims.

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Cairn Curran, LLC v. Axis Surplus Insurance Company, et al.

Cairn Curran, LLC v. Axis Surplus Insurance Company, et al.
(February 2008)

Michael R. Sistrunk and Kyle P. Kirsch won a victory in favor of Axis Surplus Insurance Company in the case entitled Cairn Curran, LLC v. Axis Surplus Insurance Company, Docket No. 07-8826 in the United States District Court for the Eastern District of Louisiana where plaintiff attempted to assert a bad faith claim against Axis after settling their property damage claim which was the result of Hurricane Katrina. Judge Porteous dismissed plaintiff’s claims finding that the settlement agreement barred plaintiff’s bad faith claims.

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