Lewis & Caplan

Practice Areas

Personal Injury/Wrongful Death

Personal injury claims generally arise when individuals sustain injuries, damages or loss of life as a result of the negligence of others or due to defective properties or products. The attorneys in our firm specialize in personal injury claims and we fully understand how drastically the accidents which cause these claims can alter the lives of our clients. Practicing as New Orleans personal injury lawyers for three decades, we have vast experience in all types of personal injury cases, including automobile, trucking and motorcycle collisions, train accidents, boating, marine and offshore accidents, accidents stemming from defective products, longshore or workplace accidents and premises accidents.

The only way our civil justice system can compensate victims of personal injury and wrongful deaths is through monetary compensation. The lawyers at our firm are very experienced and skilled at assessing and proving monetary damages, and our goal is always to obtain a full and fair settlement or verdict for our clients. We often hire experts to assess certain parts of damage claims, for example, to determine the loss of earnings or earning capacity when the accident victim has been killed or has sustained injuries which impair the client's ability to earn money. Other elements of damages which may be available in these cases include pain, suffering, mental anguish, loss of enjoyment of life, impaired earning capacity, disability, wage losses and past and future medical expenses.

Wrongful death claims arise when the wrongful actions or omissions of a person or entity cause the death of another person. Our goal in handling wrongful death claims is to provide the victims family with compassionate and skilled representation, fighting hard to obtain the full measure of compensation for families devastated by the life-changing tragedy resulting from a wrongful death.

One of our first steps is to determine who is entitled under Louisiana law to bring a wrongful death claim and who is or will be the representative authorized to bring a claim on behalf of the estate of a deceased person. Typically, it is the victims surviving spouse and children who are the plaintiffs and are entitled to financial and other compensation resulting from the victims death. Time limitations for death claims vary, and anyone with a potential case should consult an experienced wrongful death lawyer to determine what law or laws apply to their claim.

Automobile Accidents

Car accidents, unfortunately, happen every day in our community and often have the effect of altering lives. These accidents often leave the victims with serious and devastating physical and emotional injuries, and also cause significant financial hardship.

Each of our lawyers has substantial expertise and vast experience in handling accidents involving automobiles, 18-wheelers and motorcycles. We are highly experienced at determining the monetary damages available to our clients from these types of accidents, including loss of wages and earning capacity, physical and emotional pain and suffering, property damages, rental or substitute vehicle expenses, and the like. In our over 30 years of existence, we have helped clients recover from nearly every type of motor vehicle accident imaginable.

Dealing with Automobile Insurance Companies

In our experience, motor vehicle accident claimants cannot adequately represent themselves when significantly injured in these types of accidents. Insurers have too much expertise and knowledge. The playing field is not level unless you have a skilled auto accident lawyer. Your best bet is to hire a New Orleans auto accident lawyer who has the experience needed to deal with the insurance companies.

The insurance companies are usually looking out for their own bottom line and do not care about your pain, suffering and other damages. An adjuster may make a quick settlement offer to you which may seem fair at the time, but may not be prudent for you to accept, since these settlement offers usually require you to sign a full release of your rights. An experienced attorney can properly evaluate the amount of money that it will take to cover the many facets of a serious accident claim. Individual claimants simply are not usually in a position to assess loss of earnings and earning capacity, medical expenses that may occur in the future and other elements of damage available under the law.

Even if the opposing driver is uninsured, the victim of a negligent driver may still have a recovery available under the victim's own uninsured or under insured motorist insurance coverage or may have a claim against the manufacturer, if the accident was caused in whole or in part by the defective manufacture or design of a vehicle, or its component parts, such as airbags, tires or gas tanks.

What to do After a Motor Vehicle Accident

You will likely be very excited with your heart beating faster then normal. You may be angry, outraged or just glad to be alive. Try to remain calm and consider doing the following:

• Stay at the scene of the accident and call the police. Make sure that the police have come and investigated the accident fully. Take down the name of the officer or obtain from the officer a slip providing the information on how the police report can be obtained. Remain calm and allow the police to create a full record of what has occurred and who may be at fault. Provide the information requested by the police and do not make any additional statements until you consult with an attorney.
  
• Gather information about the parties involved in the accident (names, addresses, and phone numbers), drivers' license and license plate numbers and name and contact information for anyone who has witnessed the accident.
  
• If you carry a camera or cell phone with a camera, take photos of the vehicles involved and of the scene.
  
• If you feel that you are injured, consult with a doctor to obtain treatment and document your injuries. Even in fairly minor accidents, injuries, even severe injuries, can occur.
  
• Contact an experienced accident attorney to determine what your rights may be and what further steps you should take. If you wait too long, you risk jeopardizing your claim in that evidence or information may be lost or witnesses may become unavailable.
  

Maritime and Jones Act Personal Injury

We have represented injured marine workers for over 30 years. We are quite familiar with the companies that employ maritime workers, the offshore injury risk and claims handling process, maritime experts and counsel that defend these claims. We have vast experience representing persons who are injured or who have lost family members due to accidents that have occurred on navigable waterways, including injured maritime workers, such as crew members and longshoremen, and also those injured on personal boats, cruise ships and other watercraft. We also represent victims of accidents occurring on offshore platforms for oil and gas production.

Maritime workers, due to the high-risk nature of their duties and the distance they are from medical care, have a number of particular legal remedies available relative to care and compensation following an injury.

The Jones Act

The Jones Act was adopted by Congress to allow injured seamen to seek damages resulting from the negligence of their employers or co-workers during the course of their employment on a vessel. The Jones Act provides that a seaman's employer may be liable for even a small breach of duty which causes or contributes to the seaman's injury. The Jones Act and its benefits are very complex, and those making a claim under the Jones Act should always hire an experienced maritime attorney who is familiar with this field of law.

The Jones Act also allows a seaman who is injured at sea to receive "maintenance and cure", meaning that his employer must pay him a daily amount of money (for meals and lodging) and provide medical care to treat his injuries. The Act includes damages for wrongful death if the sailor is killed on the job.

If one spends 30% or more of his time actively serving on a merchant marine vessel he can qualify for Jones Act benefits. This includes all crew members and staff on board the ship, and other special purpose vessels (such as drilling rigs). The benefits and recovery provided under the Jones Act may be much greater than benefits for workers on land, depending on the facts of the case.

Unseaworthy Vessels

The seaman is owed a duty by the vessel owner which requires the owner to provide a "seaworthy vessel." The vessel must do more then just float. It must be reasonably fit for its intended use, equiped with proper equipment, safety gear and the like, have a competent crew, and in general be a safe place to live and work. A vessel may start out from shore as a seaworthy vessel, but become unseaworthy during its voyage. Claims for unseaworthiness of a vessel are often brought at the same time as Jones Act claims

Liability of Other Parties

There may be parties liable for the losses of an accident victim, such as when a seaman's injury occurs due to the actions of an employee of an independent contractor. In such instances, it may be possible to bring a claim against that independent contractor in addition to the Jones Act Claim. The lawyers at Lewis & Caplan can help an injured seaman determine all possible sources of recovery.

 

Longshore Act Claims

The "Longshore and Harbor Workers' Compensation Act" is commonly referred to as the "Longshore Act". It was first enacted in 1927 to cover certain maritime workers, including most dock workers and others not covered by the Jones Act. It covers maritime workers (including longshoremen, harbor workers, ship-repairmen, ship-builders, and ship-breakers) who become disabled or are killed by an injury which occurs on the navigable waters of the United States of adjoining areas. It allows the injured worker to collect both compensation and medical benefits from his employer. Recovery is usually available whether or not there was fault on the part of the employer.

Benefits under the Longshore Act depend on the type of injuries suffered, but generally include the following:
Medical and hospital care and treatment, including the cost of travel to and from treatment.
Compensation for the inability to work, which may be based on a permanent disability or a partial disability. Permanent disabilities generally result in a continuation of the rate of pay the worker was receiving at the time of his injury. Partial disabilities are usually compensated at a lower rate.
Death benefits are paid to the spouse or widower or other eligible survivors. A widower generally will receive 50% of the worker's average weekly wage during the widower's lifetime or until remarriage, and other compensation is available if the deceased worker had children. Funeral expenses up to a maximum amount are also covered.

If you are injured on the job as a maritime or dock worker you should be sure to inform your employer about your injury and obtain medical treatment as soon as possible. You should keep in mind that the Longshore Act is very complicated and your rights may be compromised if you do not have an experienced maritime attorney handling your claim.

Workers' Compensation

For over 30 years we have handled the claims of injured workers when serious or disabling injuries are involved, fighting for full compensation for traumatic injuries and occupational diseases which may be compensable under the Louisiana Workers Compensation Act. Workers compensation law is very complex and often changing. For an injured and disabled worker to attempt to handle his claim without the assistance of an experienced worker's compensation lawyer can be stressful, confusing and often result in the loss of valuable rights. Insurers and employers may take advantage of an injured worker not represented by counsel by denying a legitimate claim, undervaluing a claim, offering a low settlement amount, or pressuring a worker to return to work while the worker is still disabled. Often the employer or insurer discourages the worker from seeing a doctor of his or her choosing or may even refuse to accept responsibility for medical expenses which are covered under the workers compensation law. As experienced workers compensation attorneys, we are able to sort through all of the details and complexities of this law and see to it that our clients recover all of the benefits due in the form of full medical care and workers compensation payments.

Workers that are temporarily totally disabled and unable to do any work generally should receive up to two-thirds of the earnings that the worker was receiving prior to the onset of the disability (subject to a statutory maximum set each year). These benefits should be based on one's gross salary. The first payment is due within 14 days after adequate documentation has been given to the employer showing the inability of the worker to work. Penalties are owed by the employer if benefits are not started in a timely manner. Weekly benefits should be payable to the worker until there is a valid medical release to return to work.

Supplemental Earnings Benefits (often called "SEB") are available for workers who can return to work but whose medical condition prevents the worker from earning at least 90% of the pre-accident income. These benefits should be based on two-thirds of the difference between what the worker was earning at the time of the injury and what the worker is able to earn currently.

These are just a few examples of the types of benefits available under the Louisiana compensation law. Other benefits include Permanent Partial Disability, Permanent Total Disability and the like.

Lewis & Caplan is often called upon by both clients and other attorneys to assess and handle cash settlements for injured workers. When appropriate the worker can negotiate for a single lump sum payment for his or her earning capacity losses, future medical expenses and other benefits which may be owed to the worker. Assessing a cash settlement is a serious matter, involves the termination of future rights and should only be handled by a skilled Louisiana workers compensation attorney.

Nursing Home Negligence

We have had great success in handling negligence claims against nursing homes in the New Orleans area, recovering millions of dollars for frail elderly clients who are neglected or were the victims of unsafe or unsanitary conditions. As the number of elderly people grows, unfortunately, so does the amount of nursing home neglect that occurs in facilities in our area. We have found that many such facilities are under staffed or simply hire attendants lacking the proper qualifications or expertise, resulting in needless suffering and even death to its helpless residents.

We are committed to prosecuting claims against those facilities that do not give proper care to its senior residents and we have successfully handled cases involving abuse, dehydration, bed sores, management errors and unsanitary living conditions.

Nursing home and other care facilities should be held liable when they pay too much attention to their bottom line and to little attention to the daily needs of their dependent elderly residents. We believe that these residents, because of their great dependence on the nursing homes in which they live, have the right to qualified staff, comprehensive evaluations, adequate pharmaceutical services and quality assistance with bathing, dressing, grooming and adequate supervision to prevent the developing or worsening of pressure sores. In short, we know how to evaluate and prosecute nursing home abuse and neglect claims.

Medical Malpractice

Medical malpractice occurs when a negligent or careless act is committed by a doctor or other healthcare provider. The patient may have a cause of action against a healthcare provider if the provider causes injury to the patient when the provider's acts or omissions are "below the standard of care" required for diagnosing or treating the condition involved. The "standard of care" essentially is the type of care recognized by other healthcare providers in the same field, i.e. it is the degree of care, skill and knowledge that a healthcare provider in that particular field should possess and provide to the patient. It is the breach of a duty owed by the healthcare provider to the patient, and may be based on a failure to inform the patient of a particular fact or risk, the missed diagnoses of a patient, the failure to use the correct treatment or the failure to consult with a specialist when necessary.

Medical Malpractice claims are very complex and require getting through a maze of procedural rules under state law. The Louisiana Medical Malpractice Act was passed by the state legislature in 1976. It is an entire body of statutes that generally give numerous protections to doctors and other healthcare providers, while making the claims process more difficult for patients. Unlike most other injury claims, a patient cannot simply file a lawsuit against a doctor or other healthcare provider, but first must formally present the claim to a medical review panel. A medical review panel is a panel of three doctors set up for a particular case in the manner set forth in the Act. The Act further limits a patient's rights by limiting the amount that can be awarded against a doctor or other healthcare provider to the sum of $500,000 plus medical expenses.

Premises Liability

Lewis & Caplan has a broad array of experience handling litigation against owners, operators and tenants of properties containing unsafe conditions. During the last 30 years we have handled numerous cases for individuals injured on the premises of others in settings such as industrial properties and yards, hospitals, casinos, retailer stores, and properties owned by cities, parishes and the state of Louisiana.

Holding property owners (or tenants, managers or others occupying a property) accountable for injuries due to premises defects is a very complex area of law. One set of laws apply to retail merchants under the Louisiana retail merchant statute, which changed the law dramatically in 1988 and then again in 1996 by making it harder for claimants injured in a retail settings to recover in slip or trip and fall cases. In general, in those cases, the legislature shifted more of the burden of proof to the victim to show that the retail merchant knew or should have known of the condition causing the accident, a burden beyond merely showing the existence of a hazardous condition. Under the retail merchant statute, the claimant must usually present positive proof that the damage-causing condition existed for such a period of time that the merchant either knew or should have known of the condition.

A different set of rules applies to liability situations outside of the scope of the retail merchant statute. For example, accidents which occur in airports, banks, museums, gymnasiums, office buildings, apartment complexes, universities and many other places are governed by different standards. Those responsible for such property generally have a duty of reasonable care in discovering vices or defects on their property. Yet another set of laws apply to leased properties when the landlord, through its lease, has language attempting to transfer responsibility for premises accidents to the tenant. In such cases, issues often arise as to the effectiveness of the transfer of liability and whether or not the owner knew or should have known of the injury causing defect.

Having handled premises liability cases on a regular basis for over 30 years, we are familiar with the codes, rules, regulations, government agency inspections, and the architecture and engineering standards which become issues in these claims. We know what to look for in commercial settings in terms of discovering applicable security video taping, aisle way cleaning and inspection schedules, operating and training manuals, training videos, store diagrams and the like. In short, we know how to assess and handle claims against property owners or occupants when they fail to provide a safe environment and another person is injured.

Product Liability

Product liability is also a complex area of law. Claims against manufacturers, distributors, suppliers, retailers, and others who make products available to the public can be held responsible when these products are defective and pose hazards. This liability may result from improper manufacture, improper design or failures to warn of hazards associated with the product. We have represented individuals injured by such products during the last 30 plus years. From household products to industrial products to drugs and complex medical products, we have handled many complex products liability claims, often involving devastating injuries. We have worked with safety experts and engineers across the country in the evaluation and preparation of products liability cases, and successfully resolved many such cases.

Insurance Company Bad Faith Claims

The attorneys at Lewis & Caplan, for over 30 years, have handled numerous claims against insurers in which our clients have sought additional damages for "bad acts" by insurance companies. We frequently litigate bad faith insurance claims when insurers act or fail to act in some of the following ways:

• The insurer fails to pay a claim for no reason.
  

• The insurer has a duty to treat the claimant fairly, and to protect the claimant from other claims, because the claimant has bought insurance to protect it from such claims.
  

• The insurer has failed to settle in a manner which is unreasonable or arbitrary and capricious.
  

• The insurer has failed to initiate loss adjustment within the time frames set forth in Title 22 of the Louisiana Revised Statutes.
  

• The insurer fails to make timely payment for the portion of a claim which should be uncontested.
  

• The insurer fails to pay an amount agreed to under a settlement agreement within the time period required by Louisiana law.

The attorneys at Lewis & Caplan have substantial experience in litigating bad faith insurance claims, and have a strong record of success in holding insurers to the duties and responsibilities required of them by law. Our vast experience in these claims extends to both first-party bad faith claims (claims directly against our client's insurer) and third-party bad faith claims (claims against the insurer of the party that we are litigating against).

We firmly believe that insurance companies have a duty to treat claimants fairly, to pay at least uncontested amounts in many circumstances while litigating contested amounts, and to protect the insured person or entity from liability when claims can be settled within insurance policy limits.