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Mitchell v. ACE Hardware

Larry Mitchell et al v. ACE Hardware Corp, USDC- Eastern Dist of LA (Hon. Mary Ann Lemmon)- (May 22-24, 2017) – Peter Wanek and Elizabeth McDermott obtained a unanimous defense verdict in the defense of an 18 wheeler truck driver who allegedly rear ended another motorist driving him off the interstate highway resulting in serious spine injuries. The defendant driver was cited for the accident. Plaintiff had a cervical fusion and his neurosurgeon recommended a three-level lumbar fusion. Past and future medical expenses purportedly totaled more than $400,000. After approximately three hours of deliberation, the jury concluded that the defendant-driver was not negligent for the accident.

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Jessica Faust v. United Services Automobile Association

Jessica Faust v. United Services Automobile Association
(April 2017)

Peter Wanek received a defense verdict from a jury in the 34th Judicial District Court/St. Bernard parish, Judge Jeanne Juneau, for a rear end auto accident for client, USAA. Ms Faust alleged that she suffered an exacerbation of a herniated disc and was offered lower back fusion surgery only after the accident. The defense alleged that the plaintiff returned to her pre-accident level of pain, and that her surgery was related to the previously diagnosed herniated disc. Plaintiff had received $15,000 from the primary insurer, and USAA had tendered $15,799. The jury awarded $9,799, less than what had been tendered presuit, resulting in a net zero verdict. Poll of jury was 12-0.

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Casey Krueger vs. La Quinta Inn & Suites

Casey Krueger vs. La Quinta Inn & Suites
(April 2017)

Mike Sistrunk and Matt Garver obtained a defense verdict for LQ Management, LLC (La Quinta’s management company) following a 3 day jury trial in the 19th Judicial District Court for East Baton Rouge Parish.  On August 22, 2010, Krueger was injured when he stepped on a large piece of glass while using the La Quinta pool.  Krueger suffered a complex laceration on the bottom of his foot that severed several tendons and required surgical intervention.  Krueger alleged that La Quinta was negligent in its operation and inspection of the pool and sought damages of over $350,000.    La Quinta maintained that its employees regularly inspected the pool area and that the pool, and the surrounding area, was free of trash and debris when the incident occurred.  Further, the plaintiff presented no evidence that a La Quinta employee was aware of the foreign body in the pool or that the foreign body was in the pool for any length of time before the injury.  The plaintiff theorized that a full trashcan in the pool area was evidence that the pool inspection was lacking.   The jury found by a vote of 11-1 that La Quinta did not know, nor should it have known, of the defect in the premises prior to the injury and La Quinta was free from fault.  As a result, judgment on the jury verdict in favor of La Quinta was entered by the trial judge.

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Ruffin v. Stewart and Associates, and Republic Vanguard Insurance Company

Ruffin v. Stewart and Associates, and Republic Vanguard Insurance Company
(November 2016)

Mike Sistrunk and Devin Fadaol obtained a victory for Republic Vanguard Insurance Company’s (“Republic”) named insured, Byron Stewart, Sr. d/b/a Stewart and Associates Architectural Company (the “Company”), following a two-week jury trial in CDC/Orleans Parish, Louisiana.   The lawsuit arose from a pedestrian-vehicle accident that occurred on May 26, 2010, in New Orleans, Louisiana.   The plaintiff suffered from paranoid schizophrenia, which commenced after head trauma resulting from a decades earlier criminal battery.  On the day of the accident, Stewart, Sr. and Stewart Jr. left their home/office during work hours to retrieve the vehicle from a repair shop.  Byron Stewart, Jr. was driving the vehicle when he lost control and struck the plaintiff.  The vehicle was owned by Stewart, Sr., but it was used at times for business related activities and all expenses were paid by the Company.   The plaintiff sought to hold the Company vicariously responsible for the acts of Stewart, Jr.

The Republic insurance policy contained language which allowed plaintiff to argue for coverage.  For instance, simply using the vehicle “in furtherance of the business” or “in connection with the business” triggered coverage.   Further, the plaintiff made allegations of negligent entrustment,  as Byron Stewart, Jr. also had been diagnosed with paranoid schizophrenia.  The jury heard testimony that Stewart, Jr. may not have been taking his prescription anti-psychotic medication in the months leading up to the accident.   The Company also faced excess exposure based on bad faith allegations and demands to pay the policy limits made before and during the trial.

The plaintiff claimed damages from a crushed leg, amputated toe, amputated leg, and colon removal.  The plaintiff incurred $644,499.00 in past medical expenses and was hospitalized and/or under nursing home care since the 2010 accident.  The judge gave the jury parts of the subject policy as jury charges instead of determining coverage as a matter of law.  The jury verdict form provided the jury with three separate opportunities to find liability against the Company.  Shortly before midnight on a Friday, the jury returned a verdict in the Company’s favor.  The jury placed all fault for the accident on Stewart, Jr. in his personal capacity  and Progressive Insurance Company, who had a separate personal policy on the vehicle.    During closing arguments, the plaintiff’s attorney asked for approximately $3.5 million.  After seven hours of deliberation, the jury returned a verdict of $2,670,614.00, but found that plaintiff failed to mitigate his damages, which reduced the award by approximately $170,000.00.    The jury also accepted a reduced life expectancy for the plaintiff’s life care plan because of his pre-existing schizophrenia and the testimony of the defense expert, Dr. John Thompson, who is a renowned neuropsychiatrist.  The jury assessed 100% fault to Stewart, Jr. and Progressive Insurance Company, whose policy limits only complied with the state minimum.  In closing argument, the plaintiff’s attorney and co-defendant’s counsel both pointed to the Company as the only responsible party.

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Tiffany Roy and Glenda Abate, et al v. Republic

Tiffany Roy and Glenda Abate, et al  v. Republic
(September 2016)

Devin Fadaol and Geoff Hingle won a victory for Southern Insurance Company (The Republic Group) in the 15th Judicial District Court for the Parish of Lafayette.  The trial court granted Southern’s Motion for Summary Judgment on the issue of coverage under a Farm and Ranch Policy.  There were two lawsuits with multiple plaintiffs arising out of the same accident and Farm and Ranch Policy.    Southern successfully argued that the subject policy unambiguously excluded coverage for bodily injury or property damage arising out of the operation of a personal pick-up truck.    The plaintiff filed a cross-motion claiming that there is coverage because of a conflict between the definitions of “motor vehicle” and “non-farm vehicle.”   The trial court judge accepted Southern’s position that there is no ambiguity in the policy, and held that the pick-up truck falls under all three definitions of motorized vehicle, motor vehicle, and non-farm vehicle.   The trial court judge dismissed Southern Insurance Company from both lawsuits.

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Deloris Butler, et al vs. Billy David, The Town of Welsh, and Southern Insurance Company
(June 2016)

Mike Sistrunk and Matt Garver obtained a favorable result for the Town of Welsh, Louisiana and one of its police officers, Billy David.  On October 6, 2012, Officer Billy David was responding to a non-emergency call when he merged onto I-10  eastbound and caused a motor vehicle accident.  Mr. David merged into a lane occupied by a vehicle owned by Deloris Butler.  The Butler vehicle avoided a collision with Mr. David, but spun in the median and was subsequently struck by an 18-wheeler operated by Panfilo Carrillo.  Both vehicles suffered significant damage.  At the time of trial, Panfilo Carrillo was the remaining plaintiff.  Carrillo alleged injury to his low back and neck.  A low back MRI showed that Carrillo had disc herniations at L2-3 and L4-5.  Plaintiff’s treating neurosurgeon opined that he needed either a single level discectomy or a multi-level fusion, depending upon the condition of his spine at the time of surgery.  Carrillo’s past medical expenses totaled over $30,000 and future medical expenses ranged from $45,000 to $150,000.  Carrillo employed a vocational rehabilitation expert and an economist to quantify his claim for loss of future earning capacity.  On cross examination, Carrillo admitted that he was following the preceding car too closely so as not to delay his delivery.  Additionally, the nature and extent of Carrillo’s injuries were called into question by a defense expert.  In closing, Carrillo’s attorney asked the jury for over $1.1 million.   The jury returned a verdict for the plaintiff, finding that Officer David was solely at fault for the accident.  The jury awarded Carrillo his past medical expenses of $30,493 and general damages of $55,000, for a total award of $85,493.   The jury’s verdict mirrored what Mr. Garver suggested in closing.  The plaintiff appealed to the 3rd Circuit, which increased the damages award by $25,000.

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Maurice Fontenot and Susan Melton Fontenot v. Jarred Levar Stevens, Carl’s Rentals, and Republic Fire and Casualty Insurance Company

Maurice Fontenot and Susan Melton Fontenot v. Jarred Levar Stevens, Carl’s Rentals, and Republic Fire and Casualty Insurance Company
(April 2015)

Mike Sistrunk, Lynda Tafaro and Matt Garver succeeded on a Motion to Set Aside a JNOV as absolutely null on behalf of The Republic Group and its insureds. In May, 2013, a jury in the 14th Judicial District Court in Lake Charles returned a verdict in favor of plaintiff for $500,500.00. Plaintiff quickly filed a Motion for JNOV, the trial judge having pre-judged the case, opining in pre-trial conference that the case was valued at close to the $1 million insurance limits based solely on plaintiff’s $275,000.00 in past medical expenses. The Motion for JNOV was granted, and the jury’s award was raised to $1,075,417.90, resulting in an excess judgment against the insureds. Once the defendants’ Motion for New Trial on the JNOV and Motion to Recuse were denied, the trial judge then denied defendants’ appeal, concluding that appeal delays had run. The judge then abruptly resigned from the bench, and a judge pro tempore was appointed. McCranie, Sistrunk was then retained by The Republic Group as appellate counsel for all defendants.

 A thorough review of the record revealed that although a judgment had been signed granting the JNOV, the trial court had failed to sign and issue notice of a judgment on the jury’s verdict. Defendants filed a Motion to Set Aside the JNOV as absolutely null, arguing that the court had no jurisdiction to consider the Motion for JNOV as it was premature until the court issued notice of judgment on the jury’s verdict.

 The trial judge, pro tempore, denied the Motion to Set Aside, concluding that the judgment granting the Motion for JNOV contained sufficient language to constitute a judgment on the jury’s verdict, thus satisfying the requirements of La. C.C.P. arts. 1911, 1913 and 1916.

 The Louisiana Third Circuit Court of Appeal granted and docketed defendants’ application for supervisory writ. After oral argument, the Third Circuit reversed and remanded, agreeing with defendants that the trial court lacked jurisdiction to consider the Motion for JNOV as no judgment had been signed on the jury’s verdict. As, “the judgment granting the JNOV is null on its face,” no appeal delays had begun, and the trial court was ordered to enter judgment in conformity with the jury’s verdict. The JNOV was set aside and the jury’s verdict reinstated. It is paramount that the jury’s verdict be reduced to a signed judgment to start the delays for all post-trial motions and appeals. Thus, delays for post-trial motions and appeals will begin once the trial court issues notice of judgment on the jury’s verdict. In April, 2015, the Louisiana Supreme Court unanimously denied plaintiff’s writ application.

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Christine Caminita v. Laura Cashio, USAA, and General Insurance Company

Christine Caminita v. Laura Cashio, USAA, and General Insurance Company
(September 2014)

Donna Bramlett Wood  tried a jury trial in 24th JDC, that defendants successfully defended on medical causation.   The plaintiff had a long history of back issues emanating from scoliosis. She was involved in the subject rear end accident on February 13, 2012 and a subsequent rear end accident on March 21, 2012. Dr. Rand Voohries performed an SI joint fuse procedure after both accidents but assigned medical causation to the February 13, 2012 accident.  After hearing the evidence and the testimony of Dr. Andrew Todd, defendants’ expert orthopedic surgeon, the jury was swayed that plaintiff could not satisfy her burden of proof that the SI joint injury was caused by the first accident. Plaintiff’s counsel asked the jury for $480,000. and the jury only awarded plaintiff her ER bill from the date of the first accident and $2,000. in pain and suffering for a total jury verdict of $3,710.

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Tyron Eastwood v. Niblett’s Bluff Park Authority and Southern Insurance Company

Tyron Eastwood v. Niblett’s Bluff Park Authority and Southern Insurance Company
(April 2014)

Michael Sistrunk, Devin Fadaol and Lynda Tafaro won a victory for The Republic Group in this personal injury lawsuit alleging multiple injuries and surgeries to the legs, hip and lower back as a result of a slip and fall at the Niblett’s Bluff Park.   Defendants filed a Motion for Summary Judgment seeking dismissal of all of Plaintiff’s claims pursuant to Louisiana’s Recreational Use Immunity statutes, La. R.S. 9:2791, et seq.  The trial court originally granted the Motion for Summary Judgment, then reversed itself in a rehearing.  After the Louisiana Court of Appeals for the Third Circuit upheld the denial of Defendants’ Motion for Summary Judgment, Defendants took a writ to the Louisiana Supreme Court.  The Louisiana Supreme Court unanimously granted the writ application and granted the Motion for Summary Judgment, concluding that Defendants are immune from liability pursuant to the Recreational Use Immunity Statue.

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Diane Morgan, As Provisional Administrator of the Estate of Keibreon Morgan, and In Person v. Pam Schooler, et al

Diane Morgan, As Provisional Administrator of the Estate of Keibreon Morgan, and In Person v. Pam Schooler, et al
(March 2014)

Keith W. McDaniel and Heather M. Nagel obtained a defense verdict for the Union Parish School Board following a jury trial in Union Parish, Louisiana in March 2014.  Plaintiffs, Diane Morgan and Reginald Bilberry, brought suit as a result of the death of their son, Keibreon Morgan.  Keibreon, a sophomore at Farmerville High School, complained of pain and cramping during football practice in September of 2010.  After he was pulled from the practice field and addressed, an athletic trainer called an ambulance.  En route to the hospital, he lost consciousness, and he later died at the hospital. Following his death, an autopsy revealed a cardiomyopathy or an enlarged heart.  His heart weighed nearly two times that of an average heart for a 15 year old.

Plaintiffs filed suit naming the Union Parish School Board; Joe Spatafora, head football coach; and Pam Schooler, former principal.   In advance of trial, the trial court dismissed Joe Spatafora and Pam Schooler in their individual capacities, and the trial moved forward against the Union Parish School Board only. At trial, plaintiffs alleged that Keibreon died as a result of a heat related injury.  Plaintiffs retained an expert who opined that the coaching staff and athletic trainer were negligent because they failed to remove Keibreon from the heat and into an ice bath when he first reported complaints.  Plaintiffs also retained a cardiologist who opined that the Keibreon Morgan’s heart was not enlarged given his height and weight.

The school board defended the plaintiffs’ allegations with evidence demonstrating that Keibreon had undergone a conditioning program during the summer and that the team had a heat related emergency plan and hydration program in place.   On the day of Keibreon’s death, coaching staff immediately removed Keibreon from the practice field, provided him water and used an athletic trainer to assess his complaints and symptoms.  During the assessment, the trainer properly alerted 911 when she obtained a concerning blood pressure reading.

Defendants called the treating pathologist who testified that the autopsy showed that Keibreon Morgan died of an enlarged heart.  Moreover, he explained that Keibreon showed no signs of dehydration, which would have been expected in a death caused from heat exposure.  Defendants also retained a cardiologist, who testified that Keibreon suffered from an enlarged heart, which caused him to suffer an arrhythmia that went undetected by the emergency responders because they failed to put him on heart monitor.

Plaintiffs asked the jury to award general damages of $500,000. The jury found that the defendants had not caused the death of Keibreon Morgan.

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