Stevenson v. New Orleans Public Service

423 So. 2d 1288, 1982 La. App. LEXIS 8587
CourtLouisiana Court of Appeal
DecidedDecember 1, 1982
DocketNo. 13090
StatusPublished
Cited by2 cases

This text of 423 So. 2d 1288 (Stevenson v. New Orleans Public Service) 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
Stevenson v. New Orleans Public Service, 423 So. 2d 1288, 1982 La. App. LEXIS 8587 (La. Ct. App. 1982).

Opinion

BYRNES, Judge.

This appeal arises out of an intersectional collision between a New Orleans Public Service Bus (NOPSI) traveling lake bound on [1289]*1289Desire Street in New Orleans and a car driven by Brenda Gray. Gray was traveling on Johnson Street and proceeded across its intersection with Desire Street. Her car was struck by a NOPSI bus. The intersection of Desire and Johnson is an uncontrolled intersection. Jackie Stevenson, appellant, was one of a number of passengers on the bus who were injured. Seven suits arose from this collision, all of which were consolidated for trial. The morning of the trial appellant added the City of New Orleans as defendant alleging that they were negligent in not placing a stop sign or other traffic control at the intersection of Johnson and Desire Streets. Additionally, on the morning of the trial, six of the seven lawsuits were compromised and settled with funds tendered into the registry of the court by United States Fidelity & Guaranty Insurance Co. (USF & G), the insurer of Brenda Gray. Jackie Stevenson did not participate in this distribution of funds, choosing instead to go against NOPSI and the City of New Orleans. The trial was bifurcated, with the issue of the negligence of NOPSI presented to the jury and the issue of the City of New Orleans’ negligence determined by the judge. The jury returned a verdict in favor of NOPSI and against Jackie Stevenson. Before the trial judge ruled on the negligence of the City of New Orleans, the City filed an exception of prescription inasmuch as they had been added as defendant well after the prescriptive period had run. The judge upheld the City’s exception of prescription and therefore did not rule on the City’s negligence. From these adverse judgments plaintiff appeals, alleging five specifications of error.

Appellant’s original petition was filed on December 13,1979, naming NOPSI & Brenda Gray as defendants. NOPSI was served and filed an answer. There is no return indicating that Brenda Gray was ever served with the petition. Appellant’s attorney moved on April 8, 1980 to set trial for May 8, 1980. Trial was then continued on the motion of NOPSI. On June 27, 1980 some two and one-half months after appellant’s motion to set trial was filed, an amended petition was filed adding USF & G as a defendant inasmuch as it was alleged that USF & G had a policy of insurance on Brenda Gray at the time of the accident. USF & G answered the supplemental and amending Petition on July 29, 1980. They did not answer on behalf of Brenda Gray. On the motion of USF & G a pre-trial conference was set for September 29, 1980. At this conference trial was set for January 21, 1981. Appellant’s attorney was listed on the roster of attorneys notified of this pre-trial conference and since there was no indication to the contrary in the record 1, it can be assumed that he did in fact attend or had a representative attend at the pre-trial. This attendance is further evidenced by the fact that the attorney for appellant filed a list of witnesses to be called pursuant to the jury trial order issued at the pre-trial hearing.

A motion to place funds into the registry of the court and motion to dismiss was then filed by USF & G on January 13, 1980. It reads in part:

“Pursuant to the order of the Court given at the pre-trial conference, United States Fidelity & Guaranty Co., through undersigned counsel, with respect represents that:
A. There is in existence a policy of insurance between Brenda Gray and USF&G, which policy has limits of $5,000.00 per person and $10,000.00 per accident:...”

A certificate of service indicates that counsel for appellant was mailed this motion on the same day it was signed. Therefore the record indicates that appellant’s counsel was well aware of this motion and indeed evidence in the record leads this court to conclude that he was indeed present when it was discussed at the pretrial conference.

The above procedural history is germane to our disposition of appellant’s first [1290]*1290specification of error, that the trial court’s ex parte dismissal of defendant USF & G and Brenda Gray on January 12, 1981 upon the deposit of funds into the registry of the court is null and void because proper procedural requirements were not followed.

The case at bar involves seven consolidated actions. USF & G, insurer of Brenda Gray, upon “order of court given at pre-trial” admitted coverage and deposited the limits of its policy coverage into the registry of the court. An order of dismissal was signed dismissing both Gray and USF & G. This was nothing more than a court sanctioned settlement which commenced with the deposit of funds into the registry and concluded with the distribution of funds to all plaintiffs, save Stevenson, on the morning of the trial.

We find no merit in appellant’s contention that even if the dismissal of USF & G was proper the dismissal of Brenda Gray was improper. Counsel for appellant was fully aware of the dismissal of Brenda Gray and in fact had acquiesced to said dismissal. This is made abundantly clear upon a review of the transcript. Out of presence of the jury, after the settlements to the various other plaintiffs were reached, but before trial commenced, the following colloquy took place in the chambers:

THE COURT:

“... Brenda Gray was never served and (sic) answered the lawsuit. USF&G, her insurer, deposited in the registry of the court $11,662 representing the total amount of their liability under their policy. The Court dismissed USF&G as a defendant....
Mr. Bruno has objected to Mr. Maher’s —who represents NOPSI — trial tactic of referring to Brenda Gray as a negligent defendant by virtue of the deposit and the settlement of all the claims out of that fund.
This Court now rules and has explained to counsel that a deposit in the registry of the court is equal to or synonymous to a settlement made prior to the trial and treats it as such following the [dicta] and the language in Wexler vs. Allstate, the 4th Circuit case, and has issued an in limine order against NOPSI prohibiting them to make any reference to the deposit or prior settlements and the fact that Mrs. Brenda Gray confessed any negligence ....

Further conversations between the court and various counsel again shows this acquiescence.

“MR. MAHER:

... The second point is that I feel that I have a right to let the jury known that the defendant, Brenda Gray, is a defendant to the lawsuit. Since Mr. Bruno decided to dismiss her this morning, I would have to object to that and I feel I do have a right to let the jury know that Brenda Gray as a named defendant. And I also would object to not letting the jury know that there is insurance; that there was an insurance policy.
My third objection would be by not being able to tell the jury that by depositing the amount of the policy into the court, that USF&G has admitted liability or has said that Brenda Gray was at fault for this accident.
It’s exactly those reasons that this Court denies to Mr. Maher and his client the right to do that.
There is a judgment in the record signed by me dismissing Brenda Gray and USF&G from the lawsuit.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Massey v. Johnson
488 So. 2d 1233 (Louisiana Court of Appeal, 1986)
Stevenson v. New Orleans, Public Service, Inc.
430 So. 2d 93 (Supreme Court of Louisiana, 1983)

Cite This Page — Counsel Stack

Bluebook (online)
423 So. 2d 1288, 1982 La. App. LEXIS 8587, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stevenson-v-new-orleans-public-service-lactapp-1982.