Law FAQ

Can I still have a claim if the accident is partly my fault?

Yes. In most cases accident victims can recover money even if they are partly to blame for the accident. Louisiana operates under a Comparative Negligence system, wherein the percentage of fault of all persons contributing to the accident is determined and the proportion of fault is assigned to each responsible party. Using this system, an injured person may recover his or her damages even if the injured person was 99% at fault in causing the injury, with those damages reduced by his or her portion of the fault.

 

What if an insurance adjuster offers me a settlement?

Before accepting a settlement, it is always in your best interest to consult an attorney. An attorney’s expertise is vital for accident victims when an insurance adjuster is trying to settle the case. Adjusters work for the insurance company — not for you — and their job is to settle the matter for the lowest possible expense to the company. Since a consultation is free, it won’t hurt to ask us if we can help.

 

Can I get financial compensation in a personal injury claim?

For purposes of settlement, a claim is valued upon an estimate of what a judge or jury would likely believe the case to be worth, taking into account the severity of the injury, the effects of the injury on your life and the negligence of the other party. If you were partially at fault for the accident, the amount of damages will be reduced proportionately. Any settlement will be reduced if there appears to be a good chance that the claim will not be successful. Other factors that may reduce the damages include past medical history, pre­existing injuries, and prior claims history.

Considerable compensation may be commanded if your injuries are severe requiring extensive medical treatment, absences from work and permanent injuries. This is especially true if you were a healthy, productive, young worker prior to the accident. That is because an important factor in the value of your claim is the difference between your quality of life before the accident as compared to after the accident.

 

What Damages Can I Recover?

You are entitled to recover for any actual damages that were proximately caused by the wrongful conduct of the defendant. Actual damages refers to the amount of money it would take to fully compensate you and place you in the same position you would have been in had the injury never taken place. You can recover for losses such as costs of reasonable and necessary medical care, property damage, car rental expenses, costs of domestic services, and loss of earnings. The law allows compensation for future medical and care expenses that the claimant can prove will be reasonably necessary to treat the injury. The claim may include income the claimant can prove will probably be lost in the future because of the injuries. Loss of earning capacity is also allowed when the patient proves he or she is less able to earn a living as a result of the injuries. You are also entitled to non­economic damages for physical pain and suffering, mental and emotional suffering, physical impairment, inconvenience, disfigurement, loss of enjoyment of life, loss of consortium (disruption of your personal relationship with your spouse), etc. There is no definite standard of calculating reasonable compensation for these types of damages other than being just and reasonable in light of the evidence. Punitive damages are intended to punish a defendant for reckless or malicious behavior and are only recoverable if specifically authorized by statute.

In certain instances, damages may be awarded to families of injured claimants for loss of care, companionship, love and affection. Family members can be compensated for the wrongful death of a loved one. These damages may include medical and burial expenses, loss of income that would have supported the family members, emotional suffering, and loss of the pleasures of the family relationship.

There are caps on damages for medical malpractice claims against health care providers who are insured by the state. A claimant’s total recovery is limited to $500,000 plus future medical costs.

 

How long do I have to file a law suit for the injuries I have sustained?

The law requires that you file a lawsuit within a specified period of time depending on the nature of the claim and the entity that caused your injury. This is referred to as the statute of limitations. Generally, in Louisiana, there is a one-year statute of limitations within which to file suit for personal injury or death resulting from that injury. Failure to file suit within this time frame prevents you from filing suit at all. In some instances, there are various exceptions to the statutes of limitation that may extend or limit the limitation periods. There may be special claims presentation requirements for claims against state and local government. For these reasons, it is important to consult an attorney as early as possible to be sure you don’t miss a crucial deadline.

 

How Will My Claim Be Processed?

Although most of us would prefer to avoid filing a lawsuit or going to court, it is sometimes necessary to pursue litigation to get full value for your claim. Lawsuits usually become necessary when there are disagreements with the other party’s insurance company over who caused an accident or how serious the injuries are. You should be sure not to sign any documents without prior review by an attorney. You need to attend all scheduled doctor appointments in order to document your injuries. Accurate records should be kept of time you missed from work, medical bills, and property damage repairs. You can document your damages with photographs of your injuries or photos of property damage.

After a lawsuit has been filed, both parties will conduct discovery. Pretrial discovery usually takes about a full year during which time both parties investigate all aspects of the claim. This may include taking oral depositions, obtaining pertinent records, propounding interrogatories, and hiring expert witnesses to obtain more evidence about the claim. During this period of discovery and as the trial date approaches, the parties will exchange settlement offers/demands. A large majority of personal injury claims settle before trial. If you agree to accept a settlement, you will be required to sign an agreement stating you absolve the other party of all further liability in this case.

 

My spouse and I are thinking of getting a divorce, but we aren’t sure yet. Is there any way we can become legally separated while we make up our mind?

Judicial or “legal” separation is only available if the parties have entered into a covenant marriage. In the case of covenant marriage, the spouses may become judicially separated only after counseling and only if one of the following conditions exists (i) spouse has committed adultery, (ii) spouse has committed a felony and has been sentenced to death or imprisonment at hard labor, (iii) spouse has abandoned the matrimonial domicile and refuses to return for at least one year, (iv) spouse has physically or sexually abused other spouse or child of one of the spouses, (v) spouses have been living apart for two years, or (vi) spouse had engaged in cruel treatment or other outrageous conduct.

 

I’m getting married soon. Will my last name automatically change to that of my husband?

Marriage does not change either spouse’s surname, but a married person may use the surname of either or both spouses. After the marriage ceremony takes place and the marriage certificate is signed, the parties can take the certificate to different establishments (such as the Social Security Office or the Department of Motor Vehicles), and have either party’s last name changed.

 

My husband has filed for divorce and I don’t want to be divorced, do I have any defenses to his divorce action?

Other than arguing procedural deficiencies, the defenses to a divorce action are limited. In order to defend against such an action, you would have to show that you have reconciled with your husband in such a way that the life of the spouses together has resumed with a mutual intent to resume the marriage.

 

What is emancipation and how is it accomplished?

Prior to reaching the age of 18, a child typically remains under the authority of his father and/or mother. Emancipation relieves a child of all or part of his minority; in other words, the child is no longer under the authority of his/her parents and the parents are relieved of any liability for acts of the child. There are three types of emancipation, and each one has its own effects. The most typical type of emancipation is judicial emancipation. In that instance, when good cause is shown, a court can order the full or limited emancipation of a minor 16 years of age or older.

 

My lease is up and now my landlord will not return my deposit. Do I have a claim against my landlord?

The Louisiana Rent Deposit Return Act requires your landlord to return your deposit within 30 days of termination of the lease, provided you have fulfilled the lease and left a forwarding address. If your landlord fails to return your deposit, you may bring an action against your landlord to recover any funds due. Additionally, pet deposits are recoverable under this act.

 

What types are spousal support are available?

There are two forms of spousal support, or alimony, as it is commonly called. In a proceeding for divorce, a court may award interim periodic support to a party who is in need of support, regardless of whether or not that party is at fault. This award of interim periodic support will continue during the time in which the divorce is pending. Interim periodic support will usually terminate after a judgment of divorce. After the judgment of divorce is granted, the court may award final spousal support to a party free from fault prior to the filing for divorce. The availability of final spousal support will be based on the needs of the claimant spouse and the ability of the other spouse to pay. If ever involved in any type of domestic suit, you should seek an attorney of your choosing for representation.

 

Do I have to remain a co-owner of property with another person?

In most circumstances, no. Louisiana law provides that no one may be compelled to be a co-owner of a thing unless a law specifically provides to the contrary. A co-owner has a right to demand partition (divide or split), of the thing held in co-ownership although partition may be excluded by agreement of the co-owners for a period of time up to 15 years. The property co-owned may be partitioned by agreement of all co-owners or, if they cannot agree, one or more co-owners can file suit to have the court order partition of the property. There are two kinds of partition: partition in kind and partition by licitation (private sale). A partition in kind occurs when the property itself is split into portions of equal value, as long as the aggregate value of all portions is not significantly lower than the value of the property as a whole. Partition by licitation means that the property is sold and the proceeds are distributed to the co-owners in proportion to their shares. If you ever wish to cease being a co-owner of property, you should seek counsel of your choosing to assist you with partition of the property.

 

How can I determine how much child support I am going to owe every month?

In Louisiana, child support is an obligation of a parent to provide financial aid and medical support for their child. It is awarded based on the needs of the child and the ability of the parents to provide support. The amount of child support can be determined using the child support guidelines and table that the legislature has provided. Those guidelines can be found in Louisiana Revised Statutes 9:315-9:315.35. The child support award set by the court, in most cases, will not change until the child reaches majority/is fully emancipated, or until there is a material change in circumstances.

 

Can a grandparent get court ordered visitation of a child?

Yes, depending on the circumstances. Under some circumstances, a relative by blood or marriage, or a former step-parent or step-grandparent, not granted custody of the child in question may be granted reasonable visitation rights of the court finds that it is in the child’s best interest. The Court considers the prior relationship between the child and the person seeking visitation rights, the child’s need for guidance, the preference of the child, the willingness of the person seeking visitation rights to cooperate with the child’s parents, and the mental and physical health of both the person seeking visitation rights and the child. Additionally, the parents of a deceased, interdicted, or incarcerated parent, and the siblings of that child can be awarded visitation if it is in the child’s best interest.

 

How long do you have to live separate and apart from your spouse before you can obtain a divorce?

The answer now depends on whether or not there are minor children of the marriage. Generally, if there are no minor children of the marriage, the parties must live separate and apart continuously for 180 days. If there are minor children of the marriage, generally the parties must live separate and apart for 365 days. If the parties have entered into a covenant marriage, the time periods change. If there are no minor children of the covenant marriage, the parties must live separate and apart continuously for one year after a judgment of separation and counseling. If there are children of a covenant marriage, the parties must live separate and apart continuously for one and one half (1.5) years after counseling. If you are ever in the unenviable position of going through a divorce proceeding, you should seek counsel of your choosing.

 

Can I be held liable if someone else is driving my vehicle and gets into an accident?

In Louisiana, owners of motor vehicles are ordinarily not personally liable for damages which occur while another is operating their vehicle. Exceptions to this rule occur only when the driver is on a mission for the owner of the vehicle, when the driver is an agent or employee of the owner, and when the owner is himself negligent in entrusting the vehicle to an incompetent driver. Also, a parent can be held liable for the actions of an unemancipated minor child, which is one of the most common situations. Another is when an employee is driving the employer’s vehicle while at work, and gets into an accident. Finally, another common claim is one of negligent entrustment of the vehicle to another but, in that instance, the lender of the vehicle is not responsible for the negligence of the borrower unless he knew or should have known that the borrower was physically or mentally incompetent to drive. If you are ever in the unenviable position of being sued for the actions of another, you should immediately contact the attorney of your choosing.

 

What do I need to do if I am sued?

If a lawsuit is filed against you, it must be properly served on you in order for the other party to move forward with the suit. If the suit is filed in state district court, you have fifteen days from the date of service to file a response to the allegations against you, which is usually done in the form of an answer, although various exceptions may also be filed with, or before, the answer. Keep in mind that if you are sued in a city court, you only have ten days to file a response. If the response is not filed within these respective time periods, the other party may file a motion to take a judgment against you. If ever in the unenviable position of being sued, you should seek an attorney of your choosing immediately upon being served.

What warranties are provided by law for a new home?

The New Home Warranty Act provides the exclusive remedies, warranties, and prescriptive periods as between builder and owner relative to home construction. It provides for the following warranties: (1) one year following the warranty commencement date, the home will be free from any defect due to noncompliance with local building standards or due to other defects in materials or workmanship not regulated by building standards; (2) two years following the warranty commencement date, the plumbing, electrical, heating, cooling, and ventilating systems exclusive of any appliance, fixture, and equipment, will be free from any defect due to noncompliance with local building standards or due to other defects in materials or workmanship not regulated by building standards; and (3) five years following the warranty commencement date, the home will be free from major structural defects due to noncompliance with local building standards or due to other defects in materials or workmanship not regulated by building standards. “Warranty commencement date” is defined as the date that legal title to a home is conveyed to its initial purchaser or the date the home is first occupied, whichever occurs first.

 

What are the benefits of Louisiana’s newly amended “small succession” law?

A “small succession,” as that term is defined under Louisiana law, is a succession in which the deceased left property in Louisiana, the gross value of which is seventy-five thousand dollars or less. This law changed as of January 1, 2010; the prior law required a gross value of fifty thousand dollars or less to qualify as a small succession. A small succession also requires that the deceased died without a will (or intestate), there are only certain categories of heirs, and the deceased’s immovable property qualifies as “small succession immovable property.” The benefits associated with being able to proceed with a small succession, as opposed to a standard succession, are less paperwork and, consequently, less fees and court costs. If you are in need of a succession, you should consult with an attorney of your choosing to determine the best, and least costly, way to proceed.

 

Are you entitled to Social Security disability benefits?

Persons entitled to social security disability benefits are those who cannot work because they have a medical condition that is expected to last at least one year or result in death. This is a very strict definition of disability in accordance with federal law. While some programs give money to people with partial disability or short-term disability, social security does not. Generally, to qualify for disability benefits, you must meet two different earnings tests: a “recent work” test based on your age at the time you became disabled; and “duration of work” test to show that you worked long enough under social security. A person should apply for benefits as soon as they become disabled, as the application process can take up to five months or longer. If denied, there is an appeal process provided by the social security administration. If you have become disabled from working, you should seek the attorney of your choosing to assist you with the social security disability application, and possibly appeal, process.

 

What auto liability insurance limits must I have?

Louisiana law requires motorists to maintain bodily injury policy limits of $15,000.00 per person and $30,000.00 per accident. The law also requires $25,000.00 in property damage policy limits. These liability limits cover bodily injury and property damage suffered by another party should you be in an accident where you are at fault. Furthermore, if you do not maintain auto liability insurance and you are in an accident that is not your fault, you cannot recover the first $15,000.00 in bodily injury damages and you cannot recover the first $25,000.00 in property damage. Simply stated: if a motorist fails to “pay” for liability coverage to protect others, the law prohibits that motorist from “playing” in the legal system, at least to the extent of the motorist’s ability to collect the initial $15,000.00 in bodily injury damages and $25,000.00 in property damage. If you are ever in the unenviable position of being in a motor vehicle accident, you may need to consult with an attorney of your choosing.

 

Does Louisiana allow common law marriage?

No. According to the Louisiana Civil Code, marriage is a legal relationship between a man and a woman created by civil contract. For a marriage to be valid, there must be an absence of legal impediments, a marriage ceremony, and mutual consent of both parties expressed at the ceremony. The legal impediments to marriage include an existing marriage, same-sex marriage, and blood relatives within the fourth degree. The marriage ceremony must be performed by a third-party celebrant who is qualified. Both the bride and groom must attend this ceremony. Finally, the mutual consent of both parties to the marriage must be verbally expressed at the ceremony in order for the marriage to be valid under Louisiana law.

 

Should I have uninsured motorist (UM) insurance?

UM insurance provides benefits if you are in an auto accident in which the other driver is at fault and does not have insurance or does not have enough insurance coverage to pay for all of your damages. For example, if you have a newer vehicle and it is severely damaged in an accident, you may have a substantial repair bill. If the other driver has no insurance or not enough coverage to pay for the full amount of the repair, your UM insurance may pay for the entire repair bill or pay the difference. With no UM insurance, you will either pay for the entire repair or the difference out of your own pocket or make a claim against your own collision coverage, neither of which is a desirable option. While you are not required by law to purchase UM insurance, it is a good idea to purchase it when you purchase or renew your auto liability insurance. Given that studies show that 12-18% of Louisiana drivers are on the road with no insurance, UM insurance is even more important.

 

How long do I have to file suit?

How long you have to file suit depends on the type of action being pursued. In most states, this period is referred to as the statute of limitations on a claim but, in Louisiana, we refer to it as the prescriptive period for a particular claim. If it is a tort claim, such as a personal injury suit, generally you have one year from the date of the accident or other damage-causing event. If someone owes you money on an account, which would be a suit on open account, generally you have three years to file such a suit. If it is a suit based on a contract, generally you have ten years to file such a suit. Of course, special statutes providing longer, or shorter, prescriptive periods may apply in your particular situation. If you feel you have a right to file suit against someone, you should consult with an attorney of your choosing as soon as possible.

 

What is a covenant marriage?

Covenant marriage is a type of marriage that was created by the Louisiana Legislature in 1997. It has special rules for formation, counseling, and termination. In a covenant marriage, both the bride and the groom understand that the marriage between them is a lifelong relationship. The parties must receive special counseling, declare their intent to contract a covenant marriage on their application for a marriage license, and execute a notarized declaration of intent to contract a covenant marriage. The parties commit to take all reasonable efforts to preserve the marriage, including marital counseling. After entering into a covenant marriage, in order to get a divorce, the couple must either live apart for two years, live apart for one year after a judgment of separation if they are childless, or live apart for one and one half years after a judgment of separation if they have children. Once entered into, a covenant marriage agreement cannot be dissolved, rescinded, or terminated by the consent of the parties. For more information on covenant marriage, you should contact the attorney of your choosing.

 

What are my rights if I am injured on the job?

On the job injuries are generally governed by the Louisiana Workers’ Compensation Act. An employee has the right to receive workers’ compensation indemnity payments, up to 66 2/3% of his average weekly wage, as well as related medical bills paid. There are a very few exceptions, the most common being the intentional act of a co-worker. Absent one of the exceptions, an employee may not sue his or her employer in tort for an on the job injury. However, if a third party unrelated to the employer causes the injury, the employee would still have a cause of action against that person or persons. In that circumstance, the employer would also have a right to recover from the third party any workers’ compensation payments made to, or on behalf of, the employee. If you are ever in the unfortunate situation of having been injured at work, you may need to seek an attorney of your choosing that handles workers’ compensation cases.

 

What types are spousal support are available?

There are two forms of spousal support, or alimony, as it is commonly called. In a proceeding for divorce, a court may award interim periodic support to a party who is in need of support, regardless of whether or not that party is at fault. This award of interim periodic support will continue during the time in which the divorce is pending. Interim periodic support will usually terminate after a judgment of divorce. After the judgment of divorce is granted, the court may award final spousal support to a party free from fault prior to the filing for divorce. The availability of final spousal support will be based on the needs of the claimant spouse and the ability of the other spouse to pay. If ever involved in any type of domestic suit, you should seek an attorney of your choosing for representation.

 

I’m about to get married. Are all of my assets automatically community property?

Any property acquired by a spouse prior to the establishment of the community is and remains the separate property of that spouse. However, it is possible for one spouse to donate his or her separate property to the other spouse, and it is possible to create a community asset if it was acquired with comingled (both separate and community) funds. If you have any concerns about keeping property separate, it may be advisable to enter into a prenuptial agreement regarding the separation of property.

 

What are my rights if I am hurt in the job?

On the job injuries are generally governed by the Louisiana Workers’ Compensation Act. An employee has the right to receive workers’ compensation indemnity payments, up to 66 2/3% of his average weekly wage, as well as related medical bills paid. There are a very few exceptions, the most common being the intentional act of a co-worker. Absent one of the exceptions, an employee may not sue his or her employer in tort for an on the job injury. However, if a third party unrelated to the employer causes the injury, the employee would still have a cause of action against that person or persons. In that circumstance, the employer would also have a right to recover from the third party any workers’ compensation payments made to, or on behalf of, the employee. If you are ever in the unfortunate situation of having been injured at work, you may need to seek an attorney of your choosing that handles workers’ compensation cases.

 

I want to start operating a business out of my home, and would like to know if there’s any reason I can’t do this?

Many subdivisions have restrictions which would prevent you from operating a business out of your home, so if you live in a subdivision, you first need to check the subdivision restrictions to be sure that what you want to do is allowed. It’s important to note that some types of businesses may be allowed, while others may be prohibited, so you need to read the restrictions carefully to determine what types of businesses, if any, are allowed.

Even if you do not live in a subdivision, or if your subdivision allows the sort of business you’re considering, you will need to check the zoning of your home to determine if business operations are allowed in your area. You should be able to do this by calling the planning and zoning office for your city or parish.

Finally, if everything else checks out, you should consider the impact that your business will have on your neighbors and the property values in your neighborhood.

 

I’m selling a house and have been told that the taxes will be prorated at closing. Can you explain what this means?

Tax prorations are estimates based on the previous year’s tax bill, and are done at real estate closings so that the parties will each pay their fair share of taxes on the property being transferred.

For example, if the taxes on a given property are $1200.00 per year, and the property is sold exactly halfway through the year, the seller will give the buyer a credit for $600.00 at closing, representing the seller’s share of taxes due on the property for the year. When tax bills are issued at the end of the year, the buyer will pay the entire tax bill, but will already have the seller’s share of taxes from the closing. In this way, each party is assessed their fair share of taxes on the property.

 

The branches of my neighbor’s tree are damaging my roof. Can I have the branches cut or removed?

Assuming that the tree is on your neighbor’s side of the property line, and not sitting on the boundary between your properties, Louisiana law provides that your neighbor is obligated to trim the branches which are damaging your roof. Specifically, Louisiana Civil Code Article 688 provides:

A landowner has the right to demand that the branches or roots of a neighbor’s trees, bushes, or plants, that extend over or into his property be trimmed at the expense of the neighbor.

A landowner does not have this right if the roots or branches do not interfere with the enjoyment of his property.

As indicated by the above article, a person does not always have the right to demand that his neighbor trim branches extending onto his property, but in your case, the fact that the branches in question are damaging your roof indicates that the branches are interfering with your enjoyment of your property, such that you do have a right to demand that your neighbor trim the branches.

 

What are the consequences for being pulled over for DWI?

The State of Louisiana maintains a legal limit of .08% blood alcohol concentration (BAC), regardless of the type of vehicle you were operating (i.e., motor vehicle, aircraft, watercraft.) You will be presumed intoxicated if your BAC is above this limit and presumed innocent if your BAC is below .05%. Accordingly, you can still be arrested for DUI when your BAC is between .05% and .08%, provided law enforcement officers are able to establish your intoxication based on evidence of physical demeanor or impaired ability to drive.

After being arrested for DUI in Louisiana, two separate legal actions will be instigated against you. The first, an administrative action, will proceed against your driving privileges. The second, a criminal action, will go after your freedom and your wallet in addition to suspending your driving privileges. Generally, a DUI charge is treated as a misdemeanor offense; however, you will be charged with a felony if you have been previously convicted of DUI twice within the last ten years.

 

Administrative Hearing

If the arresting officer has retained your state issued driver’s license and you were issued a temporary receipt of license, this document will serve as a valid permit to drive for 30 days following your arrest. However, you must take action immediately. Failure to request an administrative hearing from the Department of Public Safety and Corrections within 15 days of your arrest will result in an automatic revocation of your driver’s license for the maximum statutory period. For this reason, it is imperative that you contact a skilled attorney immediately.