If you’ve ever been injured in a car accident, you know that there is more to the situation than simply the inconvenience of having to deal with the repair of a damaged vehicle. Even this straight forward task can become a nightmare if your car is deemed to be a total loss, for example, or if the at-fault driver does not have enough insurance to cover the damages to your vehicle. The most mundane aspects of a car accident can quickly (and often do) become complex, and when you add a multiple of other issues that can also arise as a result of the crash, suddenly the whole situation can become unmanageable.
If you’re fortunate, only your vehicle is damaged, and once that’s repaired (without complications arising), you can move on from the accident without any further disruptions to your life. But what happens if you’re hurt as a result of the car accident? Who pays for the medical bills, and when? If you need medical treatment immediately and you don’t have medical insurance, how do you get the medical treatment you need? What if you can’t afford that medical treatment out-of-pocket, what then? And if your injury is so severe that it requires surgery of some kind, how do you afford that surgery while you’re fighting with the at-fault driver’s insurance company?
That’s just a few examples of the issues that may come up concerning your bodily injuries, but what about other, non-medical losses?
What if, for instance, you have to lose work because of the accident? Days? Weeks? Months? What if your injuries make it impossible for you to perform your job, temporarily or permanently? What if they affect the kind of work you can do for the rest of your life? Who pays for that? Is the at-fault driver responsible for those kinds of damages as well? Will you receive any kind of compensation for that kind of disruption to your life?
While the answer to the above concerns is generally, yes, a party is responsible for ALL damages occasioned by their fault, the reality of how that’s resolved isn’t a simple answer at all. Recovery of damages takes time. The amount of time it takes can depend on several different factors, including questions of liability or causation of damages, extent of damages incurred, ongoing medical treatment, the length of time of litigation, claims handling issues on the part of the automobile insurance company, etc. Meanwhile, you are still hurting, still incurring medical expenses, and still having trouble going back to work.
This is where we come in.
The attorneys at Ferriol Pérez can help you navigate all of the frustrating aspects of your car accident claim so that you can focus on what’s important; healing and getting back to your life. We here at Ferriol Pérez have the experience and knowledge associated with large firms combined with the personal touch of a family-operated practice. How does this benefit you? You will have every resource you need to fight the insurance companies and receive proper medical care while being counseled by attorneys who will take the time to guide you through unfamiliar situations and make you feel confident in knowing where you are at all times throughout the process, and where you will ultimately be at its end.
For your convenience, if you’ve been affected by a car accident, we hope the information below might prove helpful to you while you consider your options. Please note that the information disseminated here serves only as a very basic overview of Louisiana law. Should you wish to consult with an attorney regarding the particulars of your case, please contact us at (504) 324-8716 to schedule a free consultation today.
Some Pointers to Keep in Mind When in a Car Accident
- Contact the police while at the scene so that a report can be made (you will need the item number of that report to provide to the insurance company);
- Get the at-fault driver’s name and insurance information while at the scene and open a claim with their insurance company as soon as you are able (to get the ball rolling on your property damage claim);
- If you can, take photographs of the scene and the damage to the vehicles;
- Get the item number for the report from the responding officer before you leave the scene;
- If you are hurt at the scene, let the responding officer know immediately and ask for EMS. If you would prefer to drive yourself to the hospital, inform the officer of that as well. Make sure to follow any instructions you receive upon discharge from the hospital;
- If you didn’t think you were injured at the scene but begin to feel pain and discomfort after, make sure to seek medical attention as soon as your symptoms manifest;
- Once you open a claim with the at-fault driver’s insurance company, you will have one (1) year from the date of the accident to resolve that claim before you have to file a lawsuit;
- The insurance company will assign an adjuster (sometimes more than one) to handle the various aspects of your claim. Please be aware that anything you say to that adjuster can be used against you in resolving your claim, including any recorded statements you make at their request. This is one of the reasons why we recommend injured parties obtain representation as soon as possible;
- If you obtain counsel, the insurance adjusters cannot speak to you directly and must instead go through your attorney, who will do everything in their power to protect your interests as it relates to your claim; and
- If your claim against the at-fault driver’s insurance company can’t be resolved within a year of the date of the accident, then suit will need to be filed (see “Prescription” section below).
What is Tort Liability?
Under Louisiana law, every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it. This language gives rise to Tort Liability in Louisiana. In other words, a “tort” is an act by someone that causes harm to another. In order for the person to be responsible for repairing the harm they cause (in order for there to be liability), there has to be “fault” on their part and the act must “cause” you “damage.” Examples of “fault” under Louisiana law include negligence, imprudence, or want of skill.
In the circumstances of a car accident, the theory of recovery is negligence. What does that mean in layman’s terms? It means that one must prove the other driver was at fault for being negligent in their driving; the driver had a duty to drive a certain way (in a careful and prudent manner, for example) and he or she failed to do so (they breached their duty of care). But proving negligence, alone, is not enough. One must then prove that their negligence caused harm. This means that in order to recover damages from a negligent driver as a result of a car accident, several elements will need to be proven:
- The driver was negligent in their driving (fault);
- There were harm/damages as a result of the accident (damages); and
- The harm/damage was caused by the at-fault driver’s negligence (causation).
These elements are what you or your attorney will be arguing about with the insurance company when you make a claim against the at-fault driver’s automobile insurance. These arguments can delay resolution of your claim or lawsuit; all while you may be dealing with injuries/damages in real-time related to your case.
You might be asking yourself at this point, what exactly are damages and what kinds of damages are recoverable in a car accident case? The term “damages” refers to pecuniary compensation, recompense, or satisfaction for an injury sustained. In the context of a tort, the injured party is entitled to compensatory damages; meaning, damages designed to place the injured party in the position in which he or she would have been if the tort had not been committed. Compensatory damages are divided into two categories: general damages and special damages.
General damages are types of damages that are inherently speculative and cannot be calculated with mathematical certainty (it’s how courts give a monetary value to your pain). Special damages are those that have a ready market value and can be determined with relative certainty.
The kinds of damages recoverable as a result of an auto accident can include: pain and suffering; mental anguish associated with physical injury; loss of enjoyment of life; bodily disability; loss of consortium, service, and society; medical expenses; loss of income; loss of earning capacity; and property damage.
What if you were also negligent in your driving and your negligence contributed to your injury? Does that completely bar your recovery? No. Under Louisiana law, there’s something called the “comparative fault rule.” Under that rule, an injured person’s fault doesn’t defeat their cause of action. It merely reduces their recovery by the percentage of negligence attributed to their fault.
The principles of comparative fault apply in any action for damages. This means that the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss alleged in the action for damages must be determined and allocated, regardless of whether the person is a party to the action or a nonparty, or whether their identity is known. Each actor must be assigned an appropriate percentage of fault, and each at-fault party is only liable for his or her degree of fault.
How much time do you have to bring a lawsuit to recover damages suffered as a result of a car accident? Under Louisiana law, you have one (1) year from the date of the car accident to bring a lawsuit against the at-fault driver and his or her auto insurance company.
Divorce in Louisiana
Not a day goes by in which we don’t get asked a question pertaining to some aspect of divorce, whether it’s the procedure for obtaining a divorce, the partition of community property, or the custody of a minor child. While custody and partition of community property are aspects of the divorce process and can be handled incidentally to the divorce, they are in actuality independent of each other and can be handled separately depending on the client’s circumstances and needs.
There are two types of divorce in Louisiana: 102 Divorce and 103 Divorce (named after the Civil Code articles they correspond to). 102 Divorce requires a waiting period, while 103 Divorce does not. The grounds for obtaining a divorce under each code article are different, and the circumstances of each case will determine which code article applies.
Before delving into the subject further, we’d like to remind you that the information disseminated here serves only as a very basic overview of Louisiana law concerning termination of marriages under Civil Code articles 102 and 103. Should you wish to consult with an attorney regarding the particulars of your situation, please contact us at (504) 324-8716 to schedule a free consultation today.
Living Separate and Apart
Under Louisiana law, you must live separate and apart from your spouse for a certain period of time before a judge will grant you a divorce. You can either file for divorce and then live separate and apart for the requisite time period (102 Divorce); or live separate and apart for the requisite time period and then file for divorce (103 Divorce).
The time period in which you have to live separate and apart depends on whether you have minor children of the marriage. If you don’t have minor children, the time period that you must live separate and apart is 180 days; while if you do have minor children, it is 365 days. In other words, if you and your spouse have minor children your waiting period to get divorced is 1 year, while if you don’t have any minor children it is 6 months.
It is very important to note that these periods of time start over again if you reconcile with your spouse. For example, if after living separate and apart for 2 months you move back in with your spouse to try to work things out, but after a couple of weeks you decide your differences are irreconcilable and move out a second time; the waiting period for living separate and apart starts from the time you moved out the second time.
Other Grounds for Divorce
Aside from the above, there are also four other grounds for divorce in the state of Louisiana, which do not require a waiting period (or the need to live separate and apart). The first of these is if your spouse commits adultery. If this happens, you can ask the court for an immediate divorce. However, it is of significance to note that you must prove that the alleged action occurred by corroborative evidence.
The second way you can get divorced without having to live separate and apart from your spouse for an appropriate time period is if your spouse has committed a felony and has been sentenced to death or imprisonment at hard labor.
The third and fourth grounds for obtaining a divorce without living separate and apart from your spouse for the requisite amount of time involve domestic violence during the marriage; such as instances where a spouse has physically or sexually abused the spouse seeking divorce or a child of one of the spouses, or in instances where a protective order or an injunction has been issued against a spouse to protect the spouse seeking the divorce or a child of one of the spouses from abuse.
It is important to note that the requirements for divorce differ from those mentioned above when the parties have entered into a covenant marriage, although these will not be discussed in this writing.
It goes without saying that we are at your service if you have any questions about what has been written in these few paragraphs. Please don’t hesitate to contact us at 504-324-8716.