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Everett v. Intorbus of New Orleans, LLC

Court of Appeals of Louisiana, Fourth Circuit

December 19, 2018

FREDERICK EVERETT
v.
INTORBUS OF NEW ORLEANS, LLC AND JAPERLET WILSONKEVIN EVERETT
v.
INTORBUS OF NEW ORLEANS, LLC AND OCCIDENTAL INSURANCE COMPANYSEQUIN BRIMMER
v.
INTORBUS OF NEW ORLEANS LLC; JAPERLET WILSON; AND IAT SPECIALTY ACCEPTANCE INSURANCE COMPANY

          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2014-06250 C\W 2014-08223, 2014-08591, DIVISION "M" Honorable Paulette R. Irons, Judge

          Leonard J. Cline, Jr. LEONARD J. CLINE, P.L.C. COUNSEL FOR PLAINTIFF/APPELLANT

          Evan J. Bergeron DEUTSCH KERRIGAN, LLP COUNSEL FOR DEFENDANTS/APPELLEES

          Court composed of Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge Regina Bartholomew-Woods

          JOY COSSICH LOBRANO JUDGE\

          In this automobile accident case, plaintiff/appellant, Frederick Everett ("Everett"), appeals the November 18, 2016 judgment of the district court dismissing with prejudice all claims against defendants/appellees, Intorbus of New Orleans, LLC ("Intorbus"), Japerlet Wilson ("Wilson"), and Occidental Fire and Casualty Company of North Carolina (collectively "Appellees"). For the reasons that follow, we reverse and remand this matter to the district court for further proceedings.

         This litigation arises from the claims of three plaintiffs - Everett, his brother Kevin Everett ("Kevin"), and passenger Sequin Brimmer ("Brimmer")(collectively "plaintiffs"). Each plaintiff was represented by separate counsel, and each filed a separate lawsuit. These three lawsuits were consolidated and scheduled for a jury trial.

         This case concerns the second of two alleged accidents. In the first accident, Everett was operating an automobile in which Brimmer was a passenger when the automobile was rear-ended by a vehicle operated by Jesse Conrad ("Conrad"). Everett, thereafter, settled his claims against Conrad. Following the first accident, Kevin came to the scene to assist Everett. Next, a second accident allegedly occurred in which a double decker tour bus, owned by Intorbus and operated by Wilson, sideswiped the Everett automobile. As discussed herein, there was conflicting testimony about which of the three plaintiffs were inside the automobile during the second accident and about whether the bus collided with the automobile at all.

         A four-day jury trial began on October 24, 2016. On October 27, 2016, the jury finished its deliberations and found that Wilson was not negligent. Accordingly, on November 18, 2016, the district court rendered judgment dismissing all claims against Appellees. Everett filed a motion for judgment notwithstanding the verdict and/or new trial, which was denied. Everett was the only plaintiff to appeal.

         On appeal, Everett raises the following assignments of error, arguing that the district court erred as follows:

(1) in refusing to admit the deposition of an independent witness, Gilbert White;
(2) in refusing to either grant plaintiffs' motion for continuance or permit plaintiffs to take the trial deposition of the investigating officer;
(3) by rigidly enforcing trial management restrictions in a manner which deprived plaintiffs of a reasonable opportunity to present their case;
(4) in excluding the photographs taken at the scene by defendant's supervisor and produced by defendant ...

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