Louisiana Lawyer Blog

BP recently reached an estimated $7.8 billion settlement with private individual and business plaintiffs this month. Out of the settlement, the parties agreed to allocate $2.3 billion to claimants from the seafood industry. However this settlement is uncapped and only reflects BP's estimate of the damages.

A court will actively monitor the process, ensuring that BP pays damages to all legitimate claims including compensation for economic loss and medical claims. However, mystery continues to surround the terms and conditions of the agreement, which is expected to be released mid-April. The court-monitored settlement appears to be replacing the Gulf Coast Claims Facility, which has already paid out an estimated $6 billion in compensation to approximately 221,000 claimants out-of-court.

Some plaintiffs' lawyers suggest that this transparent approach will ensure that thousands of individuals receive compensation for their injuries. Even more significant, reports indicate that depending on the details of the agreement, thousands of new people across the Gulf Coast may become eligible to receive compensation and care for physical and mental health problems caused by the disaster.

Continue reading "BP Oil Spill Settlement Reached" »

A Costa cruise ship caught fire early this week, leaving over 1,000 passengers stranded in the Indian Ocean. After the ship's generator room caught fire, the ship was left without electricity and began to drift. Authorities rushed to the liner to help passengers and to search for the cause of the accident.

This fire occurred only one month after Costa's Italian cruise tragedy that killed over 25 people and left seven others missing. In light of these two accidents, Congress met to evaluate the safety of cruise ship vessels using U.S. ports. The hearing reviewed the adequacy of current U.S. cruise ship safety regulations and sought to find a cause of last month's deadly accident.

Continue reading " Ship Fire Leads to Question of Vessel Safety on Capitol Hill" »

Authorities continue to search for the cause of the tragic Italian cruise ship accident that injured and killed several passengers. The Italian liner suspiciously ran aground and rolled on its side last month. In a public statement, Costa Cruises, the ship's owner, alleged that captain error caused the fatal disaster.

Although cruise ship accidents are uncommon, cruise ships pose hidden dangers. All too often, an error on the part of the ship's captain or crew can lead to harmful consequences. Cruise ships typically transport large groups of people in a confined space, increasing the possibility for serious injury. For this reason, cruise ship companies have a duty to adequately screen and train all employees, especially ship captains. A liner's captain and crew are also under a duty to safely navigate, operate and maintain the ship while at sea. If these employees fail to maintain reasonably safe conditions on the ship, in certain circumstances the company may be held legally responsible for a passenger's injury.

Continue reading "Italian Cruise Tragedy" »

Almost two years after the anniversary of the BP Oil Spill, reports indicate that deep gulf drilling in the Gulf of Mexico is flourishing once again, with oil companies drilling deeper than ever before. Oil companies believe that deep fields in the Gulf of Mexico may contain enough oil to meet the United States' energy needs for almost two years.
Although deep gulf drilling poses economic benefits, widespread deep gulf drilling also raises concerns about offshore worker safety. As seen in the aftermath of the BP Oil Spill, deep gulf drilling poses even greater safety risks for offshore workers and the environment. Oil companies already have a legal responsibility to maintain safe working conditions for their workers. However, the deeper the drilling, the greater the need for oil companies to maintain adequate safety equipment and procedures.

In the event of an offshore accident, the Longshore and Harbor Workers' Compensation Act (LHWCA) protects certain maritime workers who sustain injuries on the job. The statute is a workers' compensation scheme that provides financial assistance to an injured offshore worker for his wages, reasonable medical expenses and vocational rehabilitation. The statute also protects injured workers from unjust termination or retaliation.

Continue reading "More Drilling May Equal More Injuries" »

A federal court judge recently ruled that the Mississippi attorney general's lawsuit against the Gulf Oil Spill Fund's administrator must be heard in state court. The judge ordered the case to be heard in state court because the lawsuit was brought under Mississippi's consumer protection laws.

In his claim, Mississippi's attorney general seeks to obtain the Gulf Coast Claim Facility's administrative records. The attorney general believes that the records will reveal a lack of transparency in the claims administration process, including the denial of many legitimate claims and inequitable payments to claimants. Kenneth Feinberg, the Gulf Coast Claims Facility Administrator, denied these allegations and refused to hand over the records, claiming that the records were irrelevant to individual claims.

With an already expired Gulf Coast Claim Facility deadline for filing claims, a state court judge's ruling could result in greater government intervention in the claims process. The Facility's lack of transparency has troubled many victims of the Gulf Oil Spill and has also led to frustration and skepticism about BP's intentions.

Continue reading "BP Oil Spill Update" »

Two Louisiana workers suffered fatal work-related injuries this month. In Houma, a Gulf Island Fabrication worker was killed when a cable at his work site loosened in the process of moving a 700-pound metal sheet piling. Also, a R&R Construction contractor was electrocuted and killed while working on a chlor-alkali unit.

These two tragic accidents highlight the critical need for employers to maintain safe working environments for workers, especially in the construction industry. The construction industry remains one of the most dangerous industries for workers, and all too often many of these hazards stem from employer negligence.

Employers are legally required to provide a reasonably safe work environment and to warn workers of all hazards associated with their work. If an employer fails to meet these requirements and this failure causes an employee's injury, the employer may be held legally responsible for the injury. Examples of employer negligence include an employer's failure to implement adequate safety procedures and an employer's failure to properly train employees. An employer may also be held liable if it knowingly subjects its employees to dangerous working conditions.

Continue reading "2 Louisiana Workers Killed in Work Injury Accidents" »

The U.S. Coast Guard and Department of Interior's Bureau of Ocean Energy Management and Enforcement released a 500-page report this week finding BP primarily responsible for the Gulf Oil Spill. The report revealed that the company took many shortcuts in an attempt to cut costs and complete its troubled well project.

The report states that the primary cause of the drilling rig's explosion was defective cement at the base of the well. This cement is typically used to contain oil and gas within the wellbore. According to a detailed analysis of the report, this failure led to a chain of errors that ultimately caused natural gas to shoot onto the drilling platform and ignite the explosion. '

This final report could affect the allocation of liability among the parties responsible for the spill in subsequent litigation and increases the likelihood that BP will face criminal charges for its role in the Gulf Oil Spill. The report makes clear that BP, as the owner of the well, was responsible for the accident and further indicates that Transocean and Halliburton, BP's chief contractors who supplied the cement, contributed to the deadly errors.

Continue reading "BP Shortcuts Blamed for Gulf Oil Spill" »

The Medicare Secondary Payer (MSP) statute is a federal statute that governs the receipt of Medicare payments. Under the statute, Medicare is a secondary insurer that may only be used after an individual exhausts any other available means of insurance. Accordingly, in workers compensation claims, workers compensation should be the primary source of medical insurance coverage.

The MSP statute states that if the plaintiff intends to settle with workers compensation for an amount greater than $250,000 and anticipates future medical treatment, the plaintiff must allocate a specific portion of the settlement to a Medicare Set Aside account (MSA). If the injured individual exhausts his MSA allocation, then he may receive Medicare payments. This account protects Medicare's interests as a secondary insurer.

Continue reading "Medicare Set-Asides and your settlement " »

Governor Bobby Jindal recently signed House Bill 291 into law, prohibiting underage drinking in waterways. The new law also increases fines for the careless operation of a watercraft and imposes penalties for flight from an officer on water.

Until this legislation, uncertainty existed as to whether the State's underage drinking prohibitions applied to waterways. According to the bill's authors, the legislation is now clear: A person must be 21 to consume alcoholic beverages on a boat.

The same bill also rewrote the state's law regarding the careless operation of a watercraft. The new law requires a watercraft's operator to issue warning signals in fog or bad weather, to operate the boat at reasonable speeds and to maintain a proper lookout. Violations of the law may result in up to a $300 fine, 30 days in prison, or both.

Continue reading "Boating Safety in Louisiana" »

The U.S. Department of Interior recently released a report showing the results of a federal investigation of the Deepwater Horizon blowout preventer (BOP). The Department of Interior hired a team of forensic experts to salvage the BOP from the gulf floor and to study the cause of its malfunction. According to the report, the BOP failed to close properly when a drill pipe buckled inside the device.

The report suggests that Cameron International, the company that built the Deepwater Horizon BOP, failed to design the BOP to handle extreme emergency situations. Cameron claims that they built the BOP pipe in accordance with industry standards.

Cameron's compliance with industry standards may not insulate the contractor from liability. Government regulations only establish a minimum duty of care. In the past, courts have been reluctant to allow corporations to assert compliance with industry standards as a defense to products liability claims. For example, in a case involving asbestos and the Louisiana Products Liability Act, the Louisiana Fourth Circuit held that "mere compliance with federal standards or any other safety standards without more is not prima facie proof that a product is not dangerous or is no longer dangerous." Asbestos v. Bordelon, Inc., 726 So. 2d 996 (La. App. 4 Cir 10/21/98). Similarly, in light of the Supreme Court's recent holding in Williamson v. Mazda, companies still have a duty to take necessary safety precautions in designing and constructing products, regardless of minimum government safety regulations.

The Department of Interior's findings could dramatically alter the allocation of liability among the responsible parties in the spill. The study's results could affect the distribution of civil penalties between BP and its contractors. Furthermore, the findings may also shift the focus of the federal government's ongoing criminal investigation into whether the parties' willfully violated environmental and maritime laws.

Oil and gas companies rely on BOPs as the last resort in stopping uncontrollable wells. The report suggests that the Deepwater Horizon rig's BOP failure may not be an isolated incident, leaving open the possibility that all BOPs may similarly malfunction in the event of a well blowout. According to The Times-Picayune, members of Congress have called for a study of all current BOPs in operating gulf wells.

Continue reading "Deepwater Horizon Update: Blowout Preventer Malfunction Discovered" »

In light of a recent tragic offshore accident near Lake Charles, oilfield vessel operators need to be held responsible for their failure to provide safe working conditions to employees. According to The Daily Advertiser, federal authorities believe that the fatal accident occurred when an offshore worker fell while transferring from a vessel to a platform. Oilfield vessel operators often abuse their broad authority over employees, and workers who are seriously injured should not hesitate to seek legal counsel.

Maritime law applies to workers injured on navigable waters. Applicable maritime laws include the Jones Act or the Longshoreman Harbor and Workers Act. The Jones Act permits an injured seaman to recover for an injury that occurred as a result of his employer's negligent operations or use of unseaworthy vessels. An individual may only recover under the Jones Act if he establishes seaman status. This is a highly fact-sensitive inquiry and largely depends on the facts surrounding the accident and the characteristics of the vessel. This inquiry depends on whether the worker is a member of the vessel's crew or merely a land-based employee who happens to be working on the vessel. Generally, courts look to the total circumstances of the individual's employment to make this determination.

If the Jones Act applies, a seaman may have three distinct claims. First, the seaman may be entitled to maintenance and cure from his employer if he is injured while "in the service of the vessel." Maintenance is small daily compensation intended to provide food and shelter that the seaman would have received on the vessel. Cure creates an obligation for the seaman's employer to provide medical treatment and related expenses until the seaman reaches maximum medical improvement. Second, the seaman may bring a claim against his employer in tort for the employer's negligent acts or omissions which caused the injury. Finally, the seaman may sue the vessel's owner if his injuries arose from a vessel's unseaworthy condition.

Continue reading "Lake Charles Offshore Accident Raises Questions about Safety Standards and Offshore Workers' Rights" »

Across the nation, courts are divided on the issue of whether punitive damages should be awarded in admiralty cases. While some courts have found punitive damages to be in unavailable in admiralty, some courts remain willing to award punitive damages under certain circumstances in a limited number of cases.

With respect to claims brought in Louisiana, Texas, and Mississipi, the U.S. Court of Appeals for the Fifth Circuit has ruled that punitive damages may be available in the right kind of case. In 1981, the Fifth Circuit held that punitive damages may be recovered under general maritime law when a ship owner acts with gross disregard for a seaman's rights. Because the Fifth Circuit is controlling precedent in Louisiana federal courts, this favorable federal jurisprudence indicates the potential for punitive damages in the state.

The decision to award punitive damages is primarily a policy decision. Punitive damages are not determined by a plaintiff's need for compensation but rather by the economic impact that the award would have in the general maritime setting. For example, expensive medical bills incurred as a result of the injury would not be perceived as a reason for an award of punitive damages; whereas, ensuring the promotion of safe working conditions across the maritime industry may suffice. Generally, punitive damages are only awarded as a means of deterrence.

Continue reading "Punitive Damages for Maritime Claims" »

Every accident is different: sometimes many people are responsible for the plaintiff's injuries; other times, the plaintiff's fault may have partially caused his injures. Comparative fault and contributory fault are general defenses a defendant may raise in an attempt to reduce the damages a defendant must pay. Contributory fault means that the plaintiff contributed to the wrongful act, injury, death or loss and traditionally served as a complete bar to recovery for the plaintiff. On the other hand, comparative fault is a system where courts allocate percentages to the parties involved in the suit based on each person's fault.

Louisiana is a comparative fault jurisdiction.

Almost all U.S. jurisdictions have shifted away from contributory fault and have adopted comparative fault systems. Dependent on the jurisdiction, however, courts may apply a "pure" comparative fault system or a "modified" comparative fault system. Under a "pure" comparative fault system, the jury allocates damages based on each person's fault and imputes a certain percentage of fault to each party. The plaintiff is not barred from recovery, even if the plaintiff is primarily responsible for his own injury. For example, if the plaintiff is 90 percent at fault, the plaintiff may still recover his 10 percent.
On the other hand, a modified comparative fault system permits the plaintiff to recover as long as the plaintiff's fault is not greater than the defendant's fault. As an illustration, if the plaintiff is 51 percent at fault and the defendant is 49 percent at fault, the plaintiff will not recover any damages for his injury. If a jurisdiction uses a modified comparative fault system, this jurisdiction may still incorporate the "all or nothing" approach of contributory fault into its comparative fault scheme of recovery.

Louisiana lawmakers have adopted a pure comparative fault system; Louisiana Civil Code article 2323 requires the allocation of fault among "all persons" causing or contributing to the injury, death or loss, even if the person is not a party in the suit.

For further questions, contact Broussard & David, LLC at 888-337-2323(toll free) or 337-233-2323 (local).

Offshore worker employed by flare boom installer suffered injuries after the flare boom he was working on collapsed sending him falling 110 feet from a jack-up rig into the Gulf of Mexico. Discovery revealed that jack-up rig welder ignored installation instructions of the flare boom company and improperly welded the base plate of flare boom. Also, the rig crane operator violated rig policy by allowing worker to walk on the flare boom without being tied off.

As a result of his fall into the Gulf of Mexico, Plaintiff suffered severe depression, head injury, PTSD, fractured ribs, broken left ankle with surgery, and instrumented two-level lumbar fusion surgery. He was disabled from offshore employment. Case brought in Iberia Parish and resolved for a combined $3,000,000.00.

Broussard & David, LLC represented the injured worker and secured compensation for his severe injuries.