Benedic v. New Orleans Public Service, Inc.

389 So. 2d 871, 1980 La. App. LEXIS 4477
CourtLouisiana Court of Appeal
DecidedOctober 9, 1980
DocketNos. 10972 to 10978
StatusPublished
Cited by2 cases

This text of 389 So. 2d 871 (Benedic v. New Orleans Public Service, Inc.) 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
Benedic v. New Orleans Public Service, Inc., 389 So. 2d 871, 1980 La. App. LEXIS 4477 (La. Ct. App. 1980).

Opinions

GARRISON, Judge.

This is an appeal from a judgment of the district court rendered in accordance with the verdict of the jury on seven consolidated cases, finding the defendant, New Orleans Public Service, Inc., liable and granting damages to the several plaintiffs as follows:

1. Robert and Evelyn Benedic-$100,-000.00 plus legal interest from demand and costs.

2. Vanguard Underwriters Insurance Co., the insurer of the Benedics-$30,000.00 plus legal interest from demand and costs.

3. Joseph a'nd Joan Imbraguglio-$8,000.00 plus legal interest from demand and costs.

4. Alphonzo J. Yates-$1,500.00 plus legal interest from demand and costs.

All suits arise from the same cause of action, which is an explosion which occurred on July 1, 1977 at 4842 Corsica Place, the Benedics’ house, which prior to the explosion was located in Village de L’Est subdivision. All suits involve property damage and/or personal injuries allegedly resulting from the explosion.

The Benedics and their homeowner’s insurer, Vanguard Underwriters Insurance Company, hereinafter “Vanguard,” brought the original action against New Orleans Public Service, Inc., hereinafter “NOPSI.”

First of Georgia Insurance Group, hereinafter “First of Georgia,” by subrogation from Ronald Williams, brought action for property damage against NOPSI and the Benedics and their liability insurer, Vanguard.

Allstate Insurance Company, hereinafter “Allstate,” by subrogation from Joseph Im-braguglio, Ed Jones, and Frank Boutte, brought actions for property damage against NOPSI.

Joan and Joseph Imbraguglio brought a property damage action against NOPSI, Vanguard, and the Benedics.

Alphonso Yates filed a personal injury suit against NOPSI alone for personal injury resulting from the explosion.

Vanguard, as the Benedic’s homeowner’s insurer, filed third party actions against NOPSI in the First of Georgia, State Farm Fire and Casualty Company, Allstate and Imbraguglio suits.

On the morning of the trial, Vanguard entered into settlements with First of Georgia, State Farm, Allstate, and the Imbra-guglios. Vanguard reserved its rights against NOPSI by virtue of its third party demands in the above suits.

From the judgment which we amend and affirm, NOPSI appeals.

Appellant contends that the trial court erred in assessing liability against it, in failing to grant a motion for a directed verdict, and in admitting certain expert testimony. The Benedics and Vanguard contend that the award in favor of the Bene-dics should be increased to $140,000.00 and that the award in favor of Vanguard should be increased to $46,680.00. Allstate and the Imbraguglios contend that no error was committed and that their awards should be neither increased nor decreased.

The first question to be addressed by this court is the question of the trial court’s denial of defendant’s motion for a directed verdict. The standard for directed verdicts was extensively discussed in Campbell v. Mouton, 373 So.2d 237 (La.App. 3rd, 1979):
“The motion for directed verdict is a common law procedural device which has only recently found its >way into the law of Louisiana through Article 1810 of the Code of Civil Procedure. The purpose of the directed verdict is that ‘it serves judicial efficiency by allowing the judge to conclude the litigation (in a jury trial) if the facts and inferences are so overwhelmingly in favor of the moving party that the court believes that reasonable men could not arrive at a contrary verdict.’ Civil Procedure-Work of Louisiana Legislature for 1977 Regular Session, 38 La.L.Rev. 152, 157 (1977); See also Williams v. Slade, 431 F.2d 605 (5th Cir. 1970).
“Plaintiff asserts that the trial court erred in applying a standard of ‘a prepon[874]*874derance of the evidence’ in deciding defendants’ motion for a directed verdict. Article 1810, itself, establishes no standard to be used in determining a party’s right to a directed verdict. Plaintiff argues that the correct standard in ruling upon such a motion is the same as the one applied in Federal Courts, since Louisiana adopted verbatim Section 50(a) of the Federal Rules of Civil Procedure as our Article 1810A. See: Civil Procedure-Work of the Louisiana Legislature for 1977 Regular Session, supra, at p. 157. “We conclude that the plaintiff is correct in his contention that the trial court applied an incorrect standard in granting the defendants’ motion. Moreover, since the source of LSA-C.C.P. Article 1810A is the Federal Rules of Civil Procedure, we believe that the correct standard is that applied in the Federal Court. See Madison v. Travelers Insurance Company, 308 So.2d 784 (La.1975). This standard is succinctly stated in the following language penned by the U.S. Fifth Circuit Court of Appeal in Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir. 1969):
‘On motions for directed verdict and for judgment notwithstanding the verdict the Court should consider all of the evidence-not just that evidence which supports the non-mover’s case-but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury.” At 239 (emphasis added).

A thorough examination of the record convinces this court that defendant’s motion for a directed verdict was properly denied. The facts of the case are not so strong and overwhelmingly in favor of the defendant that reasonable and fair-minded men could not arrive at a verdict in favor of the plaintiffs.

The second issue raised is the court’s acceptance of George Martinsen as an expert in the fields of reconstruction and causes of explosion. Defendant agreed to accept Mr. Martinsen as an expert in the area of fire investigation and fire fighting, but objected to any expert testimony from him in the area of causation. Mr.

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Related

Johnston v. McCullough
401 So. 2d 509 (Louisiana Court of Appeal, 1981)
Benedic v. New Orleans Public Service
396 So. 2d 884 (Supreme Court of Louisiana, 1981)

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Bluebook (online)
389 So. 2d 871, 1980 La. App. LEXIS 4477, Counsel Stack Legal Research, https://law.counselstack.com/opinion/benedic-v-new-orleans-public-service-inc-lactapp-1980.