Comparative Fault – In Le v. Nitetown, Inc., 2010-1239 (La. App. 3 Cir. 7/20/11), 2011 WL 2848152, the Trial court was precluded from reducing a nightclub patron’s recovery for his contributory negligence. The plaintiff’s damages were caused by the intentional acts of the nightclub’s employees and by the negligent actions of the nightclub. In refusing to uphold any fault allocation to the negligent plaintiff, the Appellate court applied Louisiana Civil Code art. 2323 which provides that “if a person suffers injury, death, or loss as a result of the fault of an intentional tortfeasor, his claim for recovery of damages shall not be reduced.” Plaintiff’s contributory fault was found to be irrelevant when he suffered damage because of an intentional tort even if he was also injured by a negligent defendant.
Workers Compensation; Penalties – A workers’ compensation claimant filed a motion for penalties and attorneys fees for untimely payments of amounts awarded in a consent judgment. Specifically, because of adjuster oversight, the check issued to the claimant was short by $.90. Five days later, the insurer issued a $.90 check to cover the shortage. The trial court denied the motion for attorneys fees and penalties. The appellate court disagreed. It found that the penalty assessed in La. R.S. 23:1201(G) is mandatory and the statute does not exempt small mistakes or inadvertent actions where the employer fails to pay the full amount of a judgment. Claimant was awarded penalties and attorneys fees in the amount of $3,000.00 for the underpayment of the judgement. Richard v. Coastal Culvert and Supply, Inc., 11-232 (La. App. 3 Cir. 10/5/11), 2011 WL 4578593.
Workers Compensation; State IME’s – In Gaylord Chemical Corporation v. Short, 10-07170 (La. App. 1st Cir. 11/9/11), — So. 3d —, the court of appeal, reversing the Workers Compensation Judge, found that a request for the appointment of an independent medical examiner is not required to be made to the Director of the Office of Workers Compensation but may also be made directly to the WC Judge under the continuing jurisdiction of the WC tribunal afforded by La. R. S. 23:1310.8 even if there is no longer any pending suit between an employee and his employer.