Bourque v. Essex Insurance Co. , 11 La.App. 3 Cir. 587 ( 2012 )

AMY, J.,

dissenting.

|,I respectfully dissent from the majority decision. In short, I disagree that the construction of the verdict interrogatory prevents this court from divining the jury’s determination. Rather, it seems to me that the interrogatory very clearly reveals that determination. Simply, the jury rejected the plaintiffs’ evidence, either in whole or in part, as a jury is permitted to do within the confines of its fact finder role.

Although the parties attribute much of their argument in brief to essentially questioning whether the defendant offered reasonable evidence to establish that no accident or injury occurred, I find that those arguments distort the burden of proof and, instead, urge impermissible re-weighing of the evidence. Of course, it is the plaintiff who must bear the burden of proving his or her case. Given this burden, it is not up to the defendant to present evidence negating the existence of an injury-producing accident.

Here, the plaintiffs evidence, testimonial or otherwise, was not so compelling to require the jury to accept the plaintiffs version of the complained-of series of events. This is true of either the evidence related to the occurrence of the alleged accident or the evidence relating to causation of the injury allegedly sustained. Instead, two different juries rejected that evidence in whole or in part. Undoubtedly, the plaintiff presented evidence that she argues satisfied her burden |¡>of proof. However, the jury simply found that evidence lacking and that determination is supported by the record.

To the extent the majority finds the construction of the jury interrogatory erroneous, I find it notable, as a predicate consideration, that the record reveals no objection to the interrogatory now in question. Rather, it was used in both trials and, in a supplemental brief to this court, the defendants assert that the interrogatory was submitted by the plaintiff. Finally, the plaintiff did not assign any purported problem with the interrogatory as error in her appellant’s brief.

For these reasons, I dissent.