Belser v. St. Paul Fire & Marine Ins.

509 So. 2d 12, 1987 La. App. LEXIS 9665
CourtLouisiana Court of Appeal
DecidedMay 27, 1987
DocketCA 860302
StatusPublished
Cited by37 cases

This text of 509 So. 2d 12 (Belser v. St. Paul Fire & Marine Ins.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Belser v. St. Paul Fire & Marine Ins., 509 So. 2d 12, 1987 La. App. LEXIS 9665 (La. Ct. App. 1987).

Opinion

509 So.2d 12 (1987)

Robert BELSER, M.D.
v.
ST. PAUL FIRE & MARINE INSURANCE COMPANY, et al.

CA 860302.

Court of Appeal of Louisiana, First Circuit.

May 27, 1987.

*13 Daniel Reed, Baton Rouge, for appellants Dr. Eugene Berry & St. Paul Fire & Marine Ins. Co.

Paul DuÉ, Baton Rouge, W. Hugh Sibley, Greensburg, for appellee Robert Belser.

Before GROVER L. COVINGTON, C.J., and LANIER and ALFORD, JJ.

LANIER, Judge.

This is an appeal from a trial court judgment which overruled a declinatory exception raising the objection of improper venue.

FACTS

The plaintiff, Dr. Robert Belser, is a resident of St. Helena Parish. In his petition for damages, as amended, he makes the following factual allegations:

2.
Plaintiff avers that he was hospitalized at Baton Rouge Baton Rouge [sic] General Hospital in Baton Rouge, East Baton Rouge Parish, Louisiana, where he underwent surgery on May 18, 1983, performed by defendant, Dr. B. Eugene Berry, M.D., for elective bypass surgery procedure. During the surgery, plaintiff was placed on cardiopulmonary bypass equipment used at Baton Rouge General Hospital, portions of which were manufactured by defendants Bard Cardiopulmonary, Extracorporeal Medical Specialties, Inc., Sarns Inc., Shiley, Inc., Texas Medical Products, Inc. and PQR Corporation.
3.
Plaintiff avers that there were in the aforementioned equipment which contributed to plaintiff's suffering either diminished blood supply to his eyes or caused or permitted foreign objects or particles or part of some form of ambylus to break loose and impair plaintiff's circulatory system, resulting in ultimately-diagnosed permanent impaired vision suffered by plaintiff.
*14 4.
Plaintiff further avers that defendant, Dr. B. Eugene Berry, M.D., breached applicable standards of professional care owed to plaintiff, including failure to obtain plaintiff's informed consent, failure to advise plaintiff of the possibility of plaintiff ultimately losing his eyesight while undergoing an elective bypass operation, failure to perform the surgery in a proper manner and other acts of negligence which will be established at trial herein.
....
9.
Plaintiff ultimately had diagnosed that his impaired vision was permanent, which resulted while plaintiff initially being discharged from Baton Rouge General Hospital on May 25, 1983, was able to resume his general surgical practice, thereafter he was unable to continue to do so, and ultimately suffered such financial reversals owing to loss of his surgical profession that he was forced into bankruptcy.
....
10.
Plaintiff accordingly avers entitlement to recover damages from all defendants, insolido, [sic] as follows:
A. Damages for permanent vision ultimately
   rendering plaintiff legally blind        $1,000,000.00
B. Pain suffering, past and future            $500,000.00
C. Mental anguish and distress, past and
   future                                   $1,000,000.00
D. Loss of income, past and future          $5,000,000.00
E. Medical expenses, past and future
   (estimated)                                $100,000.00
                                            _____________
      TOTAL                                 $7,600,000.00

Dr. Belser was the only witness to testify at the trial of the exception. His testimony, coupled with the above allegations, gives the following factual scenario. Dr. Belser established his medical practice in St. Helena Parish in December of 1967. In December of 1978, Dr. Belser went to Ramrock, Texas, but returned to St. Helena Parish in February of 1983. Dr. Belser had a heart attack on April 16, 1983, and was treated at the Lady of the Lake Hospital in Baton Rouge by a Dr. Woodard. Dr. Belser then consulted with Dr. Berry about elective bypass surgery. This surgery was performed on May 13, 1983, at the Baton Rouge General Hospital. Shortly after this surgery, Dr. Belser was examined by an ophthalmologist. Dr. Belser was discharged from Baton Rouge General Hospital on May 25, 1983. Dr. Belser saw an ophthalmologist on May 31, 1983, for postoperative visual difficulties. Dr. Belser's visual difficulties worsened, and this visual impairment caused his surgical practice to diminish to nothing.

PROCEDURAL FACTS

This suit was filed in St. Helena Parish, the domicile of the plaintiff. Dr. Berry, a resident of East Baton Rouge Parish, and his foreign insurer filed a declinatory exception raising the objection of improper venue and a peremptory exception raising the objection of no right of action. The former contends the proper venue for the suit is East Baton Rouge Parish, pursuant to La.C.C.P. art. 42, and the latter contends Dr. Belser has no right of action because he filed a petition in bankruptcy and the proper party plaintiff would be the bankruptcy trustee.

After a hearing, the trial court found that the bankruptcy proceedings were concluded prior to the time this suit was filed and Dr. Belser had a right to bring this action. The trial court also found that, although the surgery occurred in East Baton Rouge Parish, Dr. Belser was damaged in St. Helena Parish because his vision degenerated in St. Helena Parish and he lost his medical practice in St. Helena Parish. The trial court held St. Helena Parish was a parish where the damages were sustained, as provided in La.C.C.P. art. 74, and, thus, was a proper venue. Judgment was rendered overruling the exceptions. This devolutive appeal followed.

Dr. Belser filed a motion to dismiss the appeal, contending the trial court judgments were interlocutory and, thus, were not appealable. This court held that, although a judgment overruling a declinatory exception raising the objection of improper *15 venue was interlocutory, it could cause irreparable injury and, therefore, it was appealable. This court also held the judgment overruling the peremptory exception raising the objection of no right of action was interlocutory, it would not cause irreparable injury and it was not appealable. The appeal was maintained for the declinatory exception and dismissed for the peremptory exception. Belser v. St. Paul Fire & Marine Insurance Company, 492 So.2d 198 (La.App. 1st Cir.1986).

OBJECTION OF IMPROPER VENUE

The appellants contend the trial court ruling and rationale are in error citing King v. National Bank of Bossier City, 420 So.2d 1024 (La.App. 5th Cir.1982); Foster v. Breaux, 238 So.2d 803 (La.App. 1st Cir.1970); Coursey v. White, 184 So.2d 625 (La.App. 4th Cir.1966); and Town of Eunice v. M & L Construction Company, 123 So.2d 579 (La.App. 3rd Cir.1960). The appellee contends the trial court ruling and rationale are supported by Thibodeaux v. Hood Enterprises, Inc., 415 So.2d 530 (La. App. 1st Cir.1982); Reeves v. Dixie Brick, Inc., 403 So.2d 792 (La.App. 2nd Cir.1981); Hunter v. Office of Health Services and Environmental Quality of Dept. of Health & Human Resources, 385 So.2d 928 (La.App. 2nd Cir.1980), writ denied, 393 So.2d 737 (La.1980); Broussard v. Liberty Mutual Insurance Company, 210 So.2d 411 (La.App. 3rd Cir.1968); and the concurring opinion in Erdey v. American Honda Co., Inc., 415 So.2d 449 (La.App. 1st Cir.1982).

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509 So. 2d 12, 1987 La. App. LEXIS 9665, Counsel Stack Legal Research, https://law.counselstack.com/opinion/belser-v-st-paul-fire-marine-ins-lactapp-1987.