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What is the Difference Between DWI and DUI?

Clients usually misunderstand the terms DUI and DWI and often ask me, an experienced DWI lawyer in New Orleans, Louisiana, what is the difference between DUI and DWI. DUI stands for “driving under the influence” while DWI means “driving while intoxicated.” DWI is the term used in Louisiana while DUI is used in other states. In other words, the difference between DUI and DWI in very simple:   Louisiana only uses the term DWI, and not the term DUI.

OWI is still another term that is similar to DWI and DUI. OWI refers to “operating while intoxicated.” Whether the term DWI, DUI, or OWI is used, each term refers to laws enacted by states that are designed to reduce the dangers imposed by impaired or drunk driving. These laws punish motorists who operate a motor vehicle while under the influence of alcohol or drugs.

Driving a motor vehicle is an intricate activity that requires alertness, divided, yet wide-ranging attention, concentration, eye-hand-foot coordination, and the ability to process visual, auditory, and kinesthetic information quickly. Because alcohol and drugs can hamper a driver’s tracking skills, attention, signal detection, hazard perception, reaction time, concentration, and hand-eye coordination,  DWI, DUI, and OWI laws make it illegal to operate a motor vehicle while intoxicated.

If you have been accused of a DWI or another crime, contact experienced DWI and criminal defense attorney Gaynell Williams today at (504) 302-2462 for a free, no obligation consultation. Evenings and weekend sessions are available by appointment. We will work around your schedule. New Orleans criminal lawyer Gaynell Williams, L.L.C. has offices in Gretna and Downtown New Orleans by appointment only to serve victims of auto accidents, work related accidents, medical malpractice, and wrongful death.

This information has been provided for informational purposes only and is not intended and should not be construed to constitute legal advice. Please consult your attorney in connection with any specific situation under federal and/or Louisiana law and the applicable state or local laws that may impose additional obligations on you and/or your family member. © 2020 Gaynell Williams LLC Attorney at Law.

By |2020-07-03T11:19:29-05:00July 3rd, 2020|Uncategorized|0 Comments

Is Your COVID-19 Business Interruption or Civil Authority Insurance Loss Covered?

In March 2020, the Governor, parish presidents, and mayors, issued orders closing non-essential businesses in Louisiana. Do you know whether your insurance policy has business interruption coverage or civil authority coverage that will cover your losses resulting from these closures and the COVID-19 pandemic? It may be a good idea to review your insurance policies to see if such coverage exists. Even if you think you understand the cope of your policy’s coverage, you might want to check with an experienced lawyer who handles these types of cases.

Business Interruption and Civil Authority Insurance

Business interruption coverage permits a business to recover financial losses in the event that the business suffers physical damage or loss or if other property at a described location suffers physical damage that prevents the business from operating. This type of coverage protects against losses that occur when the normal operations of a business are not possible because of some covered cause of loss. This insurance pays the business owner based on the loss of revenue that would have been earned if the business had not been interrupted. Not all business interruption insurance policies are alike. And not all business or commercial policies cover business interruption losses. The business owner generally elects to purchase this sort of coverage. The insurance policy purchased by the business will list the types of perils that are covered. If a specific peril is not listed, it is not usually covered.

Civil Authority Insurance

Civil authority coverage allows a business to recover sustained losses when a civil authority (such as a governor, mayor, or parish president) issues an order that forces a business to close or that prevents a business from operating normally. Many Louisiana businesses closed when Governor Edwards issued a stay-at-home order in March. In other words, civil authority coverage is available if a civil authority orders a business to close after an event and there is physical damage due to a covered peril in the immediate vicinity of the business.

What If My Insurance Says That My Business is Not Covered?

Numerous Louisiana insurers have asserted that claims related to COVID-19 are not covered. They are contending that coverage does not exist because there has been no physical damage to the insured property or to property at a described location or because the policy expressly excluded coverage for virus such as COVID-19. If this has happened to you, you might wish to get a second opinion from competent and experienced legal counsel.

What Should I Do If I Have Questions About My Business Interruption Policy?

If you have a question about your insurance policy, contact an experienced lawyer today to determine if your policy provides business interruption coverage for the current COVID-19 pandemic.

Have Lawsuits Already Been Filed in Louisiana?

Yes. Several Louisiana businesses have already filed lawsuits seeking a ruling from the Court that business interruption coverage applies to COVID-19 closures. Cases have been filed in Louisiana state courts as well as federal courts.

CONTACT US TODAY

Gaynell Williams, L.L.C. offers a free initial review of your potential case. This review includes an examination of your insurance policy to assist you in determining whether your policy provides coverage for financial business losses related to the COVID-19 pandemic. Contact Gaynell Williams, L.L.C. (504) 302-2462 for a free consultation or policy review as soon as possible. If you would like to schedule an appointment, please call us at 504-302-2462. Evenings and weekend sessions are available by appointment. We will work around your schedule. New Orleans lawyer Gaynell Williams, L.L.C. has offices in Gretna and Downtown New Orleans by appointment only. We also serve victims of auto accidents, work related accidents, medical malpractice, and wrongful death.


This information has been provided for informational purposes only and is not intended and should not be construed to constitute legal advice. Please consult your attorney in connection with any specific situation under federal and/or Louisiana law and the applicable state or local laws that may impose additional obligations on you and/or your family member. © 2020 Gaynell Williams LLC Attorney at Law.

By |2020-05-20T12:08:16-05:00May 20th, 2020|Uncategorized|Comments Off on Is Your COVID-19 Business Interruption or Civil Authority Insurance Loss Covered?

Are you prepared? Powers of Attorney, Wills, Living Wills, and Tutorships

A snapshot of legal documents that will allow your affairs to be organized and your wishes to be honored.

The global impact, lengthy hospitalizations and shocking death toll caused by the COVID-19 pandemic should serve as a wake-up call to all of us that it is never too early to plan for the day when we are incapable of planning. It is an uncomfortable fact of life that all of us will die someday. Some of us may go quickly, others may linger in a healthcare facility. Some of us will leave behind minor children or pets. While we are alive and healthy, we should plan for the day when we are not alive by making our “Plan B” – what we want done when we cannot do it ourselves. We discuss below the various legal documents that can speak for us when we cannot do so.

POWERS OF ATTORNEY

A power of attorney allows you to appoint someone to act on your behalf in the event that you are not capable of doing so. The powers granted can be broad, such as to cover all aspects of your affairs, or it can be limited, perhaps as to only medical or business matters. Many times, people wait until they are in a crisis situation before giving someone their power of attorney. It is best to plan ahead and decide who you want to manage your affairs, and to what extent, while you are healthy and in a sound state of mind. For example, you may want to have one person make medical decisions for you while someone else manages your financial affairs, even something so simple as paying monthly bills, while you are incapacitated.

Medical decisions include what type of care you will receive and where you will receive it. Should you need to go to a rehabilitation facility or nursing home, you may want to give your power of attorney to a person you trust to investigate such places before you move to one of them.

Financial affairs may include selling real property or managing a retirement investment account. You should consider someone savvy in these fields before making an appointment.

You may put a clause in your power of attorney that it is not effective unless you have been declared incompetent by a medical doctor, thus staving off the effect of the power of attorney until you truly need it.

The law allows several forms for your power of attorney [1] but the most commonly accepted form is the one executed in the presence of a notary and two (2) witnesses who will not benefit from the power of attorney. Your power of attorney may be revoked at any time.[2]

In a similar vein, you may also wish to execute a “living will,” which will direct what kind of life-saving measures, if any, you wish to be taken if you enter end-of-life conditions. The Louisiana legislature has enacted La. R.S. 40:1151 et seq. for this very purpose. You may execute a living will while you are perfectly healthy, and you may file it into a registry with the Louisiana Secretary of State to make sure your wishes are known to your healthcare providers. [3] You can also give the living will to a friend or relative for safekeeping until it is needed.

Unlike a power of attorney, the living will does not have to be notarized; instead, it must be signed in the presence of two (2) witnesses who do not stand to inherit from the person who is the subject of the living will. [4] Should you change your mind about your living will, you may revoke it at any time. [5]

WILLS

A will allows you to make sure that your property goes to the people you want it to go to. Perhaps you want a favorite niece to have a particular piece of jewelry or you want your favorite rod and reel to go to a nephew? Merely saying, “I want you to have this when I die” is no guarantee that your possessions will go where you want them to. A will, however, allows you to make such provisions. You are free to dispose of your estate as you please, subject to Louisiana’s forced heirship and usufruct laws.

A forced heir is your child who is 23 years of age or younger or a child of any age who is permanently incapable of taking care of himself due to a physical infirmity or mental incapacity. [6] If you have one (1) child who is a forced heir, 25% of your estate will be reserved by law for that child; if you have two (2) or more forced heirs, the law will reserve 50% of your estate for them. [7] You may, however, grant your surviving spouse a “usufruct” over the forced portion of your estate, thus allowing your spouse to use the property after your death even though your children may own the property. [8]

Under certain circumstances, you may disinherit your child, even if the child is a forced heir. [9] These circumstances include the child hitting or attempting to kill a parent or not having contact with a parent for two (2) years, unless the child was on active military duty. [10] The disinherison must be in writing. [11] Simply telling people that you do not want your child to inherit any of your property is insufficient.

TUTORSHIP OF MINOR CHILDREN

Upon your death, the tutorship of your minor children will automatically go to your child’s surviving parent if you are married to that parent or share joint custody with that parent. [12] If you are a mother who was never married to your child’s father, and he has not acknowledged the child, then the courts will look first to your parents and siblings and secondly to the child’s father, then award tutorship based on the best interest of the child. [13] If you are your minor child’s only living parent, then you may appoint a tutor to raise your child after your death, but you must do so in writing. [14]

PETS

We love our pets as much as we love our people and a will allows you to provide for your four-legged friends as much as your two-legged friends. The first thing you should do to make sure your pets do not end up in a shelter after you die is to talk to your relatives and friends and determine who is willing to take in your pets upon your death. Secondly, we all know that veterinarian bills can be expensive, so you may want to consider setting aside some money for the care of your pet. The provisions of the Pet Trust can be found in La. R.S. 9:2263. Quite simply, it allows for you to provide financial support to whomever is caring for your animals after your death. The trust will terminate upon the death of the last animal who is beneficiary of the trust and you may designate a beneficiary for the remaining principal.

CONCLUSION

We realize this blog has made you think about things you would rather not think about, but they are important matters that should be taken care of before it is too late. Doing so will ease the burden off of your loved ones and allow you to have things done your way. If you would like to schedule an appointment to prepare any of the documents discussed above, please call us at 504-302-2462. Evenings and weekend sessions are available by appointment. We will work around your schedule. New Orleans family and succession lawyer Gaynell Williams, L.L.C. has offices in Gretna and Downtown New Orleans by appointment only. We also serve victims of auto accidents, work related accidents, medical malpractice, and wrongful death.

This information has been provided for informational purposes only and is not intended and should not be construed to constitute legal advice. Please consult your attorney in connection with any specific situation under federal and/or Louisiana law and the applicable state or local laws that may impose additional obligations on you and/or your family member. © 2020 Gaynell Williams LLC Attorney at Law.

[1] LSA-L.C.C. art. 2993.
[2] LSA – L.C.C. art. 3025.
[3] LSA – La. R.S. 40.1151.2.
[4] LSA-La. R.S. 40:1151.4.
[5] LSA-La. R.S. 40.1151.3
[6] LSA-L.C.C. art. 1493.
[7] LSA-L.C.C. art. 1495.
[8] LSA- L.C.C. art. 1499.
[9] LSA- L.C.C. art. 1617.
[10] LSA- L.C.C. art. 1621.
[11] LSA-L.C.C. art. 1618.
[12] LSA-L.C.C. art. 250.
[13] LSA-L.C.C. art. 256.
[14] LSA-L.C.C. art. 257.

By |2020-04-23T05:20:47-05:00April 23rd, 2020|Uncategorized|Comments Off on Are you prepared? Powers of Attorney, Wills, Living Wills, and Tutorships

Negligence in Louisiana Personal Injury Law

Negligence occurs when the person’s conduct falls below an objective standard of care and that substandard conduct results in injury to another. The Louisiana negligence law specifically states, “every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.”

Negligence plays a part in almost every personal injury case, including motor vehicle accidents. Therefore, understanding negligence is essential to Louisiana personal injury law. If you are injured in a car accident, Louisiana’s duty-risk negligence analysis determines who is responsible for the damages suffered. Proving negligence using the duty-risk analysis consists of the following components:
1. Cause in-fact
2. Duty
3. Scope of duty
4. Breach
5. Damages

Cause in Fact

The cause in-fact element contains two inquiries: the “but for” and substantial factor tests. Specifically, we look to whether the accident would occur absent the driver’s negligent conduct and/or whether the driver’s negligent conduct was a substantial factor in causing the harm. For example, if a driver is texting while operating his vehicle and fails to stop at a red light, rear ending another vehicle, we know that “but for” his texting and driving, he would have stopped at the red light, avoiding the accident. Likewise, the driver’s texting and driving are a substantial factor in causing harm to the driver he rear-ended.

Duty

The general rule for duty is an objective reasonable person standard. This is the level of care owed to the victim of a car accident by the defendant. Simply put, the “duty” element requires that the defendant owe a legal duty to the plaintiff to act with reasonable care so one party does not physically injure others.

Scope of Duty

Scope of the duty questions whether this defendant should be responsible for the injury to this plaintiff in this case. For this element, the law looks to foreseeability, ease of association, intervening/superseding causes, and certain policy factors. The analysis is as follows:

1. Was the risk foreseeable as it pertains to this particular plaintiff? Referring back to the texting and driving example, it is undoubtedly foreseeable that texting and driving will result in a car accident.
2. How easily is this injury associated with the negligent act? From our earlier understanding, we are aware that the injury would not occur if the driver did not text and drive. Therefore, the potential neck and back pain is easily
associated with being rear ended by distracted driver.
3. Intervening/Superseding Causes are acts that occur between the negligent act and the resulting harm. For example, getting hit by a car on the highway while changing a tire after an auto accident versus getting struck by a
lightning bolt while changing a tire after an auto accident. Getting struck by a lightning bolt is not a foreseeable or probable event, therefore, it would be considered a superseding cause and the defendant is not liable for those
injuries to the plaintiff. However, the defendant is liable for injuries specifically caused by the car accident.
4. Pitre Policy factors – These factors are used to determine whether the defendant’s actions are in the scope of his or her duty to the plaintiff.
a. The need for compensation of losses.
b. The historical development of precedents.
c. The moral aspects of the defendant’s conduct.
d. The efficient administration of the law.
e. The deterrence of future harmful conduct.
f. The capacity to bear and distribute losses.

Breach of Duty

Breach of the duty refers to whether the defendant fell below the objective standard of care. Here, we look to whether the defendant’s conduct was “unreasonable.” For example, driving under the influence of alcohol is unreasonable. A
person who drives under the influence of alcohol and texts or talks on the phone while driving falls below an objective reasonable standard of care, thus, breaching their duty as a driver on the state’s roads and highways.

Actual Damages

Finally, a plaintiff must prove actual damage by showing personal injury damages, out of pocket damages such as medical expenses or lost wages, or by showing damages to property. If either of these exist, the plaintiff will likely recover compensation from a negligent defendant who caused a car accident.

Comparative Fault and Negligence

Louisiana is a pure comparative fault state. When an accident occurs, fault is assigned to each and every party involved, including the plaintiff. For example, Anne is texting and driving and hits Bob. However, Bob’s brake lights are broken and other drivers can’t tell when his vehicle is coming to a stop. In this situation, the law assigns a
percentage of fault to Anne for her negligent texting and driving, and Bob for his negligent failure to repair his brake lights.

The factors to be considered when assigning fault were enumerated in Watson v. State Farm Fire and Casualty Insurance Co. The Watson factors include:

1. Whether the conduct resulted from inadvertence or involved an awareness of the danger.
2. How great was the risk created by the conduct?
3. The significance of what was sought by the conduct.
4. The capacities of the actors, whether superior or inferior.
5. Extenuating circumstances which might require the actor to proceed in haste, without proper thought; and
6. The relationship between the fault/negligent conduct and the harm to the plaintiff.

Your Personal Injury Claim

Hiring an attorney experienced in auto accident reconstruction and fault determination is crucial in determining potential recovery. Many accidents and injuries are the result of someone else’s negligence, but it is important that the injured party be aware of his role, if any, in the accident as well. The attorneys at Gaynell Williams, LLC are dedicated advocates who pursue full and just compensation for clients who have been injured in auto accidents. If you are injured in an auto accident, contact our office to explore your legal options.

At the Law Office of Gaynell Williams LLC, we have attorneys readily available to assist after you are involved in an automobile accident. Our attorneys will ensure that you receive fair compensation for any personal injuries or property damage that you sustained, and appropriate medical attention to alleviate injuries after an automobile
accident.

If you have been injured in a car accident as a result of the negligence of another driver, or if you have suffered property damage due to the negligence of another driver, contact Gaynell Williams today at (504) 302-2462 for a free, no obligation consultation. Evenings and weekend sessions are available by appointment. We will work around
your schedule. New Orleans personal injury lawyer Gaynell Williams, L.L.C. has offices in Gretna and Downtown New Orleans (by appointment only) to serve victims of auto accidents, work related accidents, medical malpractice, and wrongful death.

This information has been provided for informational purposes only and is not intended and should not be construed to constitute legal advice. Please consult your attorney in connection with any specific situation under federal and/or Louisiana law and the applicable state or local laws that may impose additional obligations on you and/or your family member. © 2020 Gaynell Williams LLC Attorney at Law L.L.C. has offices in Gretna and Downtown New Orleans (by appointment only) to serve victims of auto accidents, work related accidents, medical malpractice, and wrongful death.

By |2020-02-17T15:22:22-05:00February 17th, 2020|Uncategorized|Comments Off on Negligence in Louisiana Personal Injury Law

Personal Injury Cases – What is Louisiana’s “No Pay, No Play” Law and How Might it Affect My Personal Injury Claim?

Several states, including the state of Louisiana, have passed laws with “no pay, no play” rules. These laws limit the amount uninsured motorists can recover when they are injured by insured motorists. When a driver suffers an injury or property damage in a car accident in Louisiana, they can file a claim with the other driver’s insurance company to obtain compensation for their losses. Louisiana’s “no pay, no play” law, passed in 2011, may prevent drivers who are uninsured or underinsured from collecting on a small insurance claim if they are involved in a motor vehicle accident. Specifically, the law states “[t]here shall be no recovery for the first fifteen thousand dollars of bodily
injury and no recovery for the first twenty-five thousand dollars of property damage based on any cause or right of action arising out of a motor vehicle accident, for such injury or damages occasioned by an owner or operator of a motor vehicle involved in such accident who fails to own or maintain compulsory motor vehicle liability security.”

An Example of No Pay No Play Insurance Laws in Action
This means that for personal injury claims against the negligent driver and their insurance company, the injured driver who does not have car insurance will not be able to recover the first $15,000 against the insurance company. But if the amount of your injuries is greater than $15,000, you can recover an amount in excess of $15,000. For
example, if your personal injury damages amount to $250,000, you will be able to recover $235,000 ($250,000 – $15,000).

Also, if the at-fault driver does not have insurance, the costs of vehicle repairs and medical treatment will fall on the injured driver. Thus, it is important for the injured driver to have proper insurance in the event that the negligent driver does not have sufficient insurance.

General Insurance Requirement for Louisiana Drivers
To legally drive in Louisiana, drivers must have a valid driver’s license and a valid auto insurance policy to legally drive in Louisiana. The uninsured driver could be required to pay some of the expenses out of pocket, which can be rather expensive depending on the extent of the damages. However, the law only requires that drivers carry minimum liability insurance (i.e., you are not required to purchase full or comprehensive coverage.) The minimum car insurance requirements in Louisiana are as follows:

1. $15,000 per person for bodily injury liability;
2. $30,000 per accident for bodily injury liability; and
3. $25,000 for property damage liability.

Exceptions to Louisiana’s No Pay, No Play Law

Fortunately, Louisiana’s “no pay, no play” does not apply to all car accidents. The following are exceptions to the law:

1. The other driver is cited for operating a vehicle under the influence of alcohol or another mind-altering substance and later convicted. Since the other driver needs to be convicted for this exception to apply, it is particularly important that someone familiar with the legal system tracks the progress of the case.

2. The other driver intentionally caused the accident.

3. The other driver flees from the scene of the accident.

4. At the time of the accident, the other driver is in furtherance of the
commission of a felony offense. Louisiana recognizes that drivers who can’t
afford insurance should not be responsible for paying bodily injuries or
property damages if you were hit by someone engaged in a criminal act.

5. Your vehicle was legally parked at the time of the accident. The state of Louisiana recognizes that even if you don’t have car insurance, or you don’t have enough insurance as required by state law, you shouldn’t be responsible
for paying for any bodily injury or property damages if your car is legally parked at the time of an accident.

6. Your vehicle is registered in another state. Louisiana has strict insurance laws, but it recognizes it can’t enforce these laws on residents of other states. If you are an out of state driver whose state does not require minimum
coverage and someone hits your car while you are in Louisiana, the “no pay, no play” law does not apply.

7. The law does not apply to a passenger’s claim unless the passenger is a co-owner of the uninsured car. If you are riding in a car with a friend or family member who is uninsured, Louisiana recognizes this is not your fault and
does not apply the “no pay, no play” law to passengers of uninsured or underinsured car accidents.

Besides Louisiana, other states that have laws similar to Louisiana’s “no pay, no play” law. Those states are Alaska, California, Iowa, Kansas, Michigan, Missouri, New Jersey, North Dakota, Oklahoma and Oregon. In many of these states, the law only applies to non-economic damages like pain and suffering. Louisiana is one of the only
states where the law applies to economic damages (i.e., vehicle repairs and medical treatment). Louisiana established the “no pay, no play” law in an attempt to reduce the car insurance rates for legal drivers because insurance companies raised the rates to cover drivers who were driving uninsured or underinsured. Insurance companies believed that when an insured driver is involved in an accident with an uninsured driver,
insurance companies lose a large amount of money. Louisiana countered this issue of the perceived rising insurance costs by instituting the statute. Thus, you must ensure that you carry minimum liability insurance and it does not lapse from missing payments.

At the Law Office of Gaynell Williams LLC, we have attorneys readily available to assist after you are involved in an automobile accident. Our attorneys will seek fair compensation for any personal injuries or property damage that you sustained, and appropriate medical attention to alleviate injuries after an automobile accident.

If you have been injured in a car accident as a result of the negligence of another driver, or if you have suffered property damage due to the negligence of another driver, contact Gaynell Williams today at (504) 302-2462 for a free, no obligation consultation. Evenings and weekend sessions are available by appointment. We will work around
your schedule. New Orleans personal injury lawyer Gaynell Williams, L.L.C. has offices in Gretna and Downtown New Orleans (by appointment only) to serve victims of auto accidents, work related accidents, medical malpractice, and wrongful death. This information has been provided for informational purposes only and is not intended and should not be construed to constitute legal advice. Please consult your attorney in connection with any specific situation under federal and/or Louisiana law and the applicable state or local laws that may impose additional obligations on you and/or your family member. © 2020 Gaynell Williams LLC Attorney at Law.

By |2020-02-17T15:15:59-05:00February 17th, 2020|Uncategorized|Comments Off on Personal Injury Cases – What is Louisiana’s “No Pay, No Play” Law and How Might it Affect My Personal Injury Claim?
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