Bourgeois v. Duplessis
Decision Date | 28 February 1989 |
Docket Number | No. CA,CA |
Citation | 540 So.2d 397 |
Parties | Neil BOURGEOIS v. W.I. DUPLESSIS and Louisiana Farm Bureau Mutual Insurance Co. 87 1661. 540 So.2d 397 |
Court | Court of Appeal of Louisiana — District of US |
Robert Faucheux, Jr., LaPlace, for Neil Bourgeois, plaintiff and appellant.
Robert Vandaworker, Baton Rouge, for W.I. Duplessis and Louisiana Farm Bureau Mut. Ins., Co., defendant and appellee.
Before COVINGTON, C.J., and LOTTINGER and FOIL, JJ.
This case involves an appeal brought by plaintiff from the granting of defendants' motion for summary judgment.
The plaintiff was a volunteer fireman with the Sorrento Volunteer Fire Department. On February 28, 1984, he was called to extinguish a fire that had begun at the residence of defendant, W.I. Duplessis. The plaintiff was injured when a loaded handgun located in a desk drawer overheated and discharged, striking plaintiff in the neck.
A suit for damages was filed against Mr. Duplessis and his insurer, Louisiana Farm Bureau Mutual Insurance Company. These defendants subsequently filed a Motion for Summary Judgment. The motion was denied by the presiding trial judge after a hearing on the same. Another Motion for Summary Judgment was filed on behalf of the defendants, which was heard by the then-presiding trial judge and taken under advisement. Thereafter, judgment was granted in favor of defendants, dismissing plaintiff's suit with prejudice. The plaintiff brings the instant appeal, urging the trial judge erred in granting defendants' motion for summary judgment despite the existence of material issues of fact. Appellees, defendants, urge that the issues of fact alleged to exist by plaintiff represent nothing other than legal questions. We agree.
After a thorough review and evaluation of the record, we are convinced the reasons assigned by the trial judge are correct, and we affirm, adopting his reasons as our own, and attach a copy hereto. All costs are to be paid by appellant.
AFFIRMED.
APPENDIX
This case as reargued by the parties on January 16, 1987 presents two basic questions for decision:
1. Whether or not a second hearing on the defendant's motion for summary judgment was proper; and
2. Whether the motion should be granted.
The first question should be answered in the affirmative. Authority for this is C.C.P. Arts. 966 through 969 and the holding Efferson v. Link Belt Corporation (1st Cir 1986) 476 So.2d 528 at 529:
...
The next question is:
WHETHER THE MOTION FOR SUMMARY JUDGMENT SHOULD BE GRANTED
The defendant mover argues in favor of the motion in words as follows:
The mover argues that no issue of material fact exists and cites Thompson v. Warehouse Corp. of America, Inc. 337 So.2d 572 (La.App. 4th Cir.1976), Mayor and Council et al v. Jessie J. Fontenot, 460 So.2d 685 (La.App. 1st 1984) and Gary v. Lopez, 460 So.2d 748 (La.App. 3rd Cir.1984). Mover also devoted some time in brief to refute plaintiff's argument in pre-trial memorandum Langlois v. Allied Chemical Corporation, 258 La. 1067, 249 So.2d 133 (1971).
The plaintiff opposer's argument was couched in the following language:
...
The basic law to be applied in considering this or any motion for summary judgment is Article 966.
"Article 966. Motion for summary judgment; procedure
A. The plaintiff or defendant in the principal or any incidental action, with or without affidavits, may move for a summary judgment in his favor for all or part of the relief for which he has prayed. The plaintiff's motion may be made at any time after the answer has been filed. The defendant's motion may be made at any time.
B. The motion for summary judgment shall be served at least ten days before the time specified for the hearing. The adverse party may serve opposing affidavits prior to the date of the hearing. The judgment sought shall be rendered forthwith if the...
To continue reading
Request your trial-
Miller v. Acadian Ambulance Serv. of New Orleans, L.L.C.
...155 So.3d 664 ; Mullins v. State Farm Fire & Cas. Co. , 96-0629 (La. App. 1 Cir. 6/27/97), 697 So.2d 750 ; Bourgeois v. Duplessis , 540 So.2d 397 (La. App. 1st Cir. 1989) ; Solis v. Civic Ctr. Site Dev. Co. , 385 So.2d 1229 (La. App. 4th Cir. 1980). However, Acadian argues that the doctrine......
-
Simpson v. Davidson
...Cir.10/1/97), 700 So.2d 1156. See also Efferson v. Link Belt Corporation, 476 So.2d 528 (La.App. 1st Cir. 1985); Bourgeois v. Duplessis, 540 So.2d 397 (La.App. 1st Cir.1989), writ denied, 541 So.2d 1392 (La.1989); and Melton v. Miley, 98-1437 (La.App. 1st Cir.9/24/99), 754 So.2d 1088, writ ......
-
Fiola v. Korman
...negligence, regardless of whether the firefighter is a paid public servant, or, as in this case, an unpaid volunteer (see, Bourgeois v. Duplessis, 540 So.2d 397 [La.], cert. denied 541 So.2d 1392 [La.]; Flowers v. Sting Security, 62 Md.App. 116, 488 A.2d 523; Baker v. Superior Court, 129 Ca......
-
Bourgeois v. Duplessis
...of Appeal, First Circuit, No. CA87 1661; Parish of Ascension, 23rd Judicial District Court, Div. "B", No. 34247. Prior report: La.App., 540 So.2d 397. ...