 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Owens v. Boh Bros. Construction Co.2/6/2002
REVERSED IN PART; AFFIRMED IN PART; AND REMANDED.
Factual and Procedural Background
On November 6, 1989, Robert Owens, an employee of Boh Bros. Construction Co., Inc. ("Boh Bros.") was injured while working as a member of the crew on a Boh Bros. barge. Mr. Owens' injuries were the result of a fall from a boat ramp. Following the accident, Mr. Owens sought medical treatment for pain in his left shoulder. On January 18, 1990, Mr. Owens underwent surgery at Lake Charles Memorial Hospital ("LCMH") to repair a torn rotator cuff in his shoulder caused by his accident. The shoulder was successfully repaired; however, Mr. Owens allegedly suffered severe injuries during his hospitalization, including a ruptured disk and partial paralysis.
Mr. Owens originally filed suit in Civil District Court for the Parish of Orleans against Boh Bros. and the owner and operator of the boat ramp. On October 30, 1991, Boh Bros. initiated a medial malpractice action in the form of a third-party demand against LCMH, Anesthesia Associates, Dr. Patrick Walken and James Landreneau. In its third-party demand, Boh Bros. sought complete indemnification, or, alternatively, contribution for the claims asserted by Mr. Owens against Boh Bros. Boh Bros. has since voluntarily dismissed Dr. Walken from the litigation.
On June 4, 1996, Robert and Ethel Owens and Boh Bros. executed a settlement agreement settling their claims for a total payment of $671,732.84. As part of this settlement, the original Plaintiffs were assigned Boh Bros.' third party rights against the LCMH, Anaesthesia Associates, Inc., and Landreneau. Pursuant to the settlement agreement, the third-party claim was to be prosecuted by plaintiff's counsel in the name of Boh Bros. Boh Bros. is to receive the first $225,000.00 of any recovery, and the parties are to share in any recovery over $225,000.00. In accordance with the settlement agreement, Mr. Owens' attorney continued to prosecute Boh Bros. third-party demands in the name of Boh Bros.
On April 30, 2001, the same morning trial was set to begin, LCMH filed several motions. Included in these motions, LCMH filed peremptory exceptions of no cause of action and no right of action. Additionally, LCMH filed a motion in limine to exclude testimony related to medical and/or economic loss after June 4, 1996. The trial court denied the exception of no right of action, but granted the exception of no cause of action. The trial court also granted the motion in limine.
From these rulings, Boh Bros. appeals. As its first assignment of error, Boh Bros. asserts that the trial court erred in granting the Defendant's exception of no cause of action. Furthermore, in its second assignment, Boh Bros. asserts that the trial court erred by stating that it would grant the Defendant's motion in limine. In brief, the Defendant alleges that the trial court erred in denying its exception of no right of action.
Law and Analysis
Exception of No Cause of Action
In its first assignment of error, the Plaintiff asserts that the trial judge erred in sustaining the Defendant's peremptory exception of no cause of action. Because a peremptory exception of no cause of action presents a question of law, we review it de novo, applying the same standard as applied by the trial court. Craft v. Allstate Ins. Co., 95-160 (La.App. 3 Cir. 8/30/95); 663 So.2d 116, writ denied, 95- 2403 (La.12/15/95); 664 So.2d 454. Generally, if a petition states a cause of action as to any ground or portion of a plaintiff's demand, a trial court should deny an exception of no cause of action. Ward v. Tenneco Oil Co., 564 So.2d 814 (La.App. 3 Cir. 1990).
In its th
Page 1 2 3 Louisiana Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|