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McGinn v. Crescent City Connection Bridge Auth.

Court of Appeals of Louisiana, Fourth Circuit

July 22, 2015

AMBRE P. MCGINN, ET AL.
v.
CRESCENT CITY CONNECTION BRIDGE AUTHORITY, ET AL

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH. NO. 2011-12039, DIVISION " G-11" . Honorable Robin M. Giarrusso, Judge.

James E. Shields, SHIELDS & SHIELDS, APLC, Gretna, LA, COUNSEL FOR PLAINTIFF/APPELLANT.

James D. Buddy Caldwell, Attorney General, Phyllis E. Glazer, Assistant Attorney General, Michael Courtney Keller, Assistant Attorney General, LA Department of Justice, Litigation Division, New Orleans, LA, COUNSEL FOR DEFENDANT/APPELLEE.

Court composed of Chief Judge James F. McKay, III, Judge Daniel L. Dysart, Judge Joy Cossich Lobrano.

OPINION

Page 146

Daniel L. Dysart, J.

[2015 0165 La.App. 4 Cir. 1] Plaintiff-appellant, Ambre McGinn,[1] appeals the trial court's judgment granting a Motion for New Trial filed by defendants, Police Officer Lance Lavigne, of the Crescent City Connection Bridge Authority (" CCCBA" ), and the Louisiana Attorney General.[2]

This lawsuit concerns the alleged wrongful death of plaintiff's husband, Joseph L. McGinn, III, in March, 2011. Plaintiff alleges that, on March 17, 2011 Mr. McGinn was involved in a hit-and-run accident while he was driving a motorcycle on the entrance ramp of U.S. Highway 90 (Claiborne Avenue leading to the Pontchartrain Expressway). As a result of the accident, Mr. McGinn was thrown over the rail of the elevated highway onto the ground. The Petition for Damages alleges that a motorist reported the accident and that the CCCBA Officer Lavigne arrived at the scene and located the motorcycle, but made no effort to locate Mr. McGinn. According to

Page 147

the Petition, Officer Lavigne left the scene without locating Mr. McGinn, who died fourteen hours later. An employee of a nearby business discovered Mr. McGinn's body on the morning of March 18, 2011.

[2015 0165 La.App. 4 Cir. 2] The original Petition for Damages names the CCCBA, Officer Lavigne, and several fictitious insurers as defendants. Service of the Petition was requested of the CCCBA through its director, Peter Maggiore, and of Officer Lavigne at the CCCBA's office located at 2001 Mardi Gras Boulevard in New Orleans. The record reflects that Officer Lavigne was not served personally, but rather, service was accepted by an Officer Williams on December 5, 2011.

On September 17, 2012, plaintiff filed a Motion for Preliminary Default against the CCCBA and Officer Lavigne. There is no evidence in the record that the preliminary default was served on anyone.

More than ten months later, on July 24, 2013, plaintiff filed an amended petition, adding as defendants the New Orleans Police Department (" NOPD" ), additional fictitious insurers and fictitious employees of the NOPD and the CCCBA. After obtaining an extension of time to plead, the NOPD answered the amended petition on September 19, 2013. The record reflects that neither the CCCBA nor Officer Lavigne was served with the amended petition.

Approximately a year later, and almost two years after filing the Motion for Preliminary Default, plaintiff obtained a default judgment on August 26, 2014, following a hearing on August 15, 2014. The judgment was rendered against the CCCBA and Officer Lavigne (together having been found ...


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