Bordelon v. Drake

578 So. 2d 1174, 1991 WL 63345
CourtLouisiana Court of Appeal
DecidedApril 17, 1991
Docket90-CA-776
StatusPublished
Cited by10 cases

This text of 578 So. 2d 1174 (Bordelon v. Drake) 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
Bordelon v. Drake, 578 So. 2d 1174, 1991 WL 63345 (La. Ct. App. 1991).

Opinion

578 So.2d 1174 (1991)

Jacqueline R. Bordelon, Wife of/and James BORDELON
v.
Orie K. DRAKE, Timber Products Inspection, Inc. and Wausau Insurance Company.

No. 90-CA-776.

Court of Appeal of Louisiana, Fifth Circuit.

April 17, 1991.

*1175 Terry A. Bell, Appeal Counsel, Belle Chasse, for plaintiff-appellant, Jacqueline and James Bordelon.

Elizabeth Clinton, New Orleans, for intervenor-appellant, Nat. Union Fire Ins. Co.

Raymond P. Augustin, Jr., Metairie, for defendants-appellees.

Before BOWES, DUFRESNE and WICKER, JJ.

BOWES, Judge.

Plaintiff, Jacqueline R. Bordelon (hereinafter Bordelon), and intervenor, National Union Fire Insurance Company (hereinafter National Union), insurer of Bordelon, appeal a judgment of the district court dismissing the suit against defendants, Orie K. Drake (hereinafter Drake), Timber Products Inspection, Inc. and Wausau Insurance Company. We affirm.

FACTS & BACKGROUND

The accident which is the subject of the present matter occurred on July 1, 1985, on or near the upgrade of the Oaklawn overpass in Metairie, some distance after the merging of Interstate 10 and Interstate 610. The vehicle driven by plaintiff was hit in the right rear by a truck driven by Drake. Bordelon's automobile then spun around and was hit again, in the left front, by Drake's truck. Bordelon filed suit against the defendants in June, 1989. Trial was continued three times, finally commencing on March 20, 1990. Following trial on the merits, the court took the matter under advisement and, on May 25, 1990, rendered judgment in favor of the defendants. Plaintiff and intervenor appeal.

In its reasons for judgment, the court found that the plaintiff, Mrs. Bordelon, was "not a very credible witness." Neither was the Court favorably impressed with the testimony of the state trooper who investigated the accident, the Court commenting:

"... who had no independent knowledge of the accident. It was apparent that the state trooper based his conclusions on the assumption that the Bordelon vehicle and the Drake vehicle were in the same lane of travel. The Court believes *1176 this assumption to be erroneous."

[Emphasis supplied]

The Court concluded that the sole and proximate cause of the accident was the failure of the plaintiff to keep her automobile under proper control. He based his conclusions on the testimony of Drake and an independent witness, Albert Kauffman. Kauffman's testimony was admitted into evidence via introduction of his deposition by the defendant. The Court found that Kauffman's vehicle, a 75,000 pound rig positioning the witness 8 1/2 feet above the ground in an excellent position to observe, was behind the Bordelon vehicle in the right center lane and:

"The truck driver [Kauffman] testified that the car driven by plaintiff was overtaking another vehicle, a vehicle which totally was not involved in the accident.
He testified that she came so close to the vehcile [sic] in front of her that he had to jam on his brakes. He testified that she missed hitting this car by inches.
After plaintiff made this passing maneuver her car made a slight jar to the right and then a severe right turn sending the rear end of her car into the next lane to her left, which was the lane the Drake vehicle occuppied [sic].
When the rear of the car went into the other lane it met the front end of Mr. Drake's car.
Plaintiff's car then went back to the right, in a broad side-slide; then to the left, across her lane making a U-turn back into the left lane again.
Bordelon's vehicle then faced Drake's vehicle when it collided again, and this collision knocked her back straight into her original lane. Finally, positioning her broadside across two lanes within a few feet of the truck."
The Court continued:
"Drake testified that the Bordelon vehicle was in front of the truck and that she started skidding and came into his lane of traffic.
Defendant testified that he was never in the same lane of traffic as plaintiff.
Defendant testified that he hit his brakes immediately upon seeing plaintiff go out of control.
The Court further believes that the testimony of Drake and Kauffman is consistent with the damage that occurred to the Bordelon vehicle."

ASSIGNMENTS OF ERROR

On appeal, plaintiff urges, as assignments of error, that the trial court erred:

I. In admitting the deposition of Kauffman;
II. In failing to allow the rebuttal testimony of plaintiff's expert witness;
III. In its credibility determinations.

ANALYSIS

I. Admission of Deposition

Following the continuation of trial on October 5, 1989, when Kauffman was present in court to testify, his deposition was taken by the defendants. Counsel for Bordelon was present at the deposition; counsel for the intervenors was not present. At the taking of the deposition, Drake's attorney stated on the record that the deposition was being taken for perpetuation; counsel for plaintiff stated, that while he agreed to the deposition being taken without notice, it was "not noticed for perpetuation. I reserve my rights in connection with the deposition." There was no written notice of deposition. Plaintiff and intervenor contend that admission of the deposition was error, since a written notice was never served on the parties and intervenor was not present nor aware of the deposition; and because there was no basis for such admission under LSA-C.C.P. art. 1450(3)(a) and Louisiana Code of Evidence art. 804.

LSA-C.C.P. art. 1450 states in pertinent part:

"Use of depositions
A. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the Louisiana Code of Evidence applied as though the witnesses were then present and testifying, may be *1177 used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions:
. . . . .
(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds:
(a) That the witness is unavailable;
(b) That the witness resides at a distance greater than one hundred miles from the place of trial or hearing or is out of the state, unless it appears that the absence of the witness was procured by the party offering the deposition; or
(c) Upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used."

LSA-C.C.P. art. 1438 requires a party taking a deposition to give reasonable notice in writing to every other party to the action. C.C.P. art. 1453 states:

"All errors and irregularities in the notice for taking a deposition are waived unless written objection is promptly served upon the party giving the notice."
Unlike Hollier v. Galtier, 430 So.2d 376 (La.App. 3 Cir.1983) and Highstreet v. Regency Apartment Hotel,

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Cite This Page — Counsel Stack

Bluebook (online)
578 So. 2d 1174, 1991 WL 63345, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bordelon-v-drake-lactapp-1991.