Opinion · Court of Appeals for the Fifth Circuit

Mr. And Mrs. Neal Schexnaydre, Sr. v. The Travelers Insurance Company

527 F.2d 855

Type
Opinion
Court
Court of Appeals for the Fifth Circuit
Jurisdiction
Federal
Date
1976-02-26
Topic
general

How later courts describe this case

  • “True multiplicity is not present where . . . the plaintiff merely presents alternative theories . . . by which the same set of facts might give rise to a single liability.”

Citator

UpLaw has not yet analyzed Mr. And Mrs. Neal Schexnaydre, Sr. v. The Travelers Insurance Company. The absence of a flag is not a finding that it is good law.

Cited by
27 opinions
SCHEXNAYDRE v. TRAVELERS INS. CO.,527 F.2d 855(5th Cir. 1976)
MR. AND MRS. NEAL SCHEXNAYDRE, SR., PLAINTIFFS-APPELLANTS, v. THE TRAVELERS
INSURANCE COMPANY, DEFENDANT-APPELLEE.
No. 74-3863.
United States Court of Appeals, Fifth Circuit.
February 26, 1976.
Vincent J. Glorioso, Jr., New Orleans, La., for plaintiffs-defendants.

John J. Weigel, John V. Baus, New Orleans, La., for defendant-appellee.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before MORGAN, CLARK and TJOFLAT, Circuit Judges.
PER CURIAM:
[1] Plaintiff's decedent, Neal Schexnaydre, Jr., died as a result of injuries received in a fall from a scaffold on a construction site. Young Schexnaydre's employer, the general contractor, is not a party to this suit; the sole defendant is the Travelers Insurance Company. Plaintiff asserts defendant's liability rests alternately on its position as the general contractor's negligence insurancePage 856carrier under the Louisiana direct action statute and on Travelers' acts and omissions relative to safety inspection of the equipment, materials and working conditions maintained by its insured at the construction site, including the scaffold which collapsed.1

[2] The court below directed entry of an order dismissing only the claim based on the negligent safety inspection theory. The order found that there was no just cause for delay pursuant to Fed.R.Civ.P.54(b). The remaining issue of liability was not reached and, when Travelers gave notice of the instant appeal, the court removed the cause from its trial docket pending resolution here.

[3] The order dismissing the safety inspection theory is not a final order within the meaning of Rule 54(b). A single plaintiff may appeal an order made final under Rule 54(b) only where multiple claims are involved. True multiplicity is not present where, as here, the plaintiff merely presents alternative theories, drawn from the law of the same sovereign, by which the same set of facts might give rise to a single liability.SeeUnited States v. Crow, Pope Land Enterprises, Inc.,474 F.2d 200(5th Cir. 1973);Backus Plywood Corp. v. Commercial Decal,Inc.,317 F.2d 339(2d Cir. 1963); 10 C. Wright A. Miller, Federal Practice and Procedure § 2657 (1973). The district court decided only one of the grounds urged as support for a single claim against the defendant. Such a judgment is not appealable, even though the proper Rule 54(b) prerequisites for finality are found. Accordingly, the appeal is

[4] Dismissed.
  1. The complaint was set out in one count. See Fed.R.Civ.P.10(b), which requires that claims founded on separate transactions and occurrences be stated in separate counts if it would facilitate clear presentation. ↩