Jeansonne v. Bosworth

601 So. 2d 739, 1992 WL 117267
CourtLouisiana Court of Appeal
DecidedMay 22, 1992
DocketCA 91-0461
StatusPublished
Cited by10 cases

This text of 601 So. 2d 739 (Jeansonne v. Bosworth) 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
Jeansonne v. Bosworth, 601 So. 2d 739, 1992 WL 117267 (La. Ct. App. 1992).

Opinion

601 So.2d 739 (1992)

Joey JEANSONNE
v.
Gerald BOSWORTH and William S. Bordelon.

No. CA 91-0461.

Court of Appeal of Louisiana, First Circuit.

May 22, 1992.

*740 Nanette J. Cagney, Lafayette, for plaintiff and appellant—Joey Jeansonne.

Albert H. Hanemann, Jr., New Orleans, for defendants and appellees—Gerald Bosworth and William S. Bordelon.

Before LOTTINGER, EDWARDS and GONZALES, JJ.

GONZALES, Judge.

This is an appeal of a legal malpractice case. On March 1, 1982 plaintiff Joey Jeansonne was injured while working on an offshore platform. The platform was located on the outer continental shelf off the coast of Louisiana. Jeansonne and another man had strapped themselves to a gin pole and were being lifted, along with the pole, on a half-inch Manila rope. The rope broke *741 and both men fell to the ground, with the gin pole penetrating Jeansonne's foot.

On March 19, 1982, Jeansonne engaged the services of Baton Rouge attorney William S. Whatley to represent him in connection with his personal injuries. On December 30, 1982, Jeansonne fired Whatley and hired Houma attorney Gerald Bosworth. Between six and ten days (plaintiff and defendant disagree on the exact date) before the anniversary date of the accident, Bosworth associated with William S. Bordelon, a Houma attorney, to assist him in the preparation and filing of a complaint on Jeansonne's behalf. Bordelon drafted the complaint and filed it in federal court on February 28, 1982, one day before the anniversary date of the accident. The named defendants were Lafayette Tower Service, Inc., ODECO Oil and Gas Company and Union Oil Company of California.

Shortly thereafter, Jeansonne fired Bosworth and hired a fourth attorney, Tommy Curtis, to represent him. Curtis settled with defendants in that suit, Lafayette Tower Service, Inc., Odeco, Inc., and Union Oil Company of California.

Jeansonne filed this suit against Whatley, Bosworth, and Bordelon, alleging that Whatley, Bosworth and Bordelon failed to ascertain the identity of the seller and manufacturer of the rope which broke and failed to name the manufacturer and seller in the suit before the prescription date; that they failed to act to preserve the rope involved; and that they allowed certain claims of Jeansonne's to prescribe. By supplemental and amending petition Jeansonne added Bordelon's malpractice insurer, Insurance Corporation of America, and Bosworth's malpractice insurer, ABC Insurance Company, as defendants.

Jeansonne and Whatley reached a settlement and Whatley was dismissed from the suit. Shortly before trial, Bosworth filed for bankruptcy and proceedings against him were stayed. The case, therefore, went to trial on October 24, 1988 against the sole remaining defendant, Bordelon. After trial on the merits, judgment was rendered in favor of Bordelon and plaintiff's suit was dismissed. The court found that Bordelon's duty to Jeansonne was limited and that he discharged that duty in the manner of a prudent practicing attorney. Plaintiff filed a motion for new trial, which was denied. Plaintiff is appealing that judgment.

ASSIGNMENTS OF ERROR
1. Did William S. Bordelon, as associated counsel, have a duty to the client, Joey Jeansonne, to adequately and thoroughly investigate his claim for all possible causes of action arising from his accident.
2. Was William S. Bordelon negligent in failing to ascertain the identity of the rope manufacturer/seller, and to timely file a products liability action.
3. Assuming that Bordelon was negligent, did that negligence deprive Joey Jeansonne of monetary damages he would have received had such a products liability suit been filed.
4. Should attorney Bosworth have been relieved of his duty to testify by exercising his Fifth Amendment right against self incrimination, and if so, should his deposition be admitted into evidence over the objection of plaintiff's counsel.
5. Should a subsequent judgment have been issued on the 13th day of February, 1991, dismissing William S. Bordelon's malpractice insurer, Insurance Company of America, from this suit thereby casting Joey Jeansonne with all the costs of these proceedings.

ASSIGNMENTS OF ERROR NO. 1, 2, AND 3

The decision to not pursue a products liability claim was a judgment call by Bordelon. An attorney need not make a wasted effort and file suit against a non-viable defendant. Bordelon was not found liable to plaintiff, not because this was a weak products liability case, but because the rope was not discovered by the previous lawyer or the client during the whole year. An attorney receiving a case from another attorney is entitled to place some reliance upon that attorney's investigation. Smith v. Our Lady of Lake Hospital, 960 *742 F.2d 439 (5th Cir.1992). There was no evidence of a defect in the rope. The likelihood of proving that the rope was intact and undamaged at the time of the accident was very slim.

We adopt the following from the reasons for judgment:

In the case at bar, Bordelon had very little time to make any reasonable inquiry. His involvement in the case was not through direct contact with the client, but rather through Bosworth, who gave him specific instructions. Furthermore, even if he had attempted to locate the rope and ascertain the name of the seller and/or manufacturer, it is doubtful he would have succeeded because the rope had more than likely disappeared. Ricky Jeansonne, the brother of plaintiff, testified he saw the rope at Lafayette Tower Service when he began working there in April of 1982, but he did not recall seeing the rope after six or seven months, i.e. November of 1982. Without the rope, there would be little likelihood of a successful action, according to attorneys, J.D. Schoonenberg, for the defendant, and William Miles, for the plaintiff.

We also adopt the following from the reasons for judgment:

Without the rope, there would be little likelihood of a successful products liability action. It is also questionable as to whether the rope was defective. Neither Bosworth nor even Jeansonne believed the rope was defective or that such a defect caused the fall. In a September 3, 1985 deposition, Jeansonne testified that he had no reason to believe that the rope was defective. Bosworth likewise had stated in a November 24, 1986 deposition that he had no reason to believe the rope was defective. He surmised that the rope was just too small for the weight it was hoisting. Defendant's expert, Stephen Killingsworth, P.E., wrote in a report admitted into evidence that, assuming the rope was a new, one-half inch manila rope, it had a maximum working load of 264 pounds. At the time of the accident, it is estimated the load was about 490 pounds—almost double the maximum working load intended for the rope. Killingsworth added that fractional (sic) factors would increase the working load to 698 pounds. An acceleration factor would further increase the load to 1,050 pounds. However, he added that the rope's tensile strength should have been 2,380 pounds, and that therefore, it should have supported a working load of 1,050 pounds. But the safety factor (two to one) would have been less than that desired by the manufacturer. Thus, there is some question as to whether the rope was defective. Furthermore, using a manila rope in such a fashion was not a common practice.

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Cite This Page — Counsel Stack

Bluebook (online)
601 So. 2d 739, 1992 WL 117267, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jeansonne-v-bosworth-lactapp-1992.