Opinion
No. 10263.
February 12, 1979.
In Re Edward R. Drury and St. Paul Fire and Marine Ins. Co. Applying for Supervisory Writs of Certiorari, Prohibition or Mandamus Directed to Melvin J. Duran, Judge, Civil District Court for the Parish of Orleans, Division "I", # 580-970.
Paul B. Deal, Darryl J. Foster, New Orleans, for relator.
Daniel J. Markey, Jr., New Orleans, for respondent.
ORDER
Granting writs, we order partial denial of jury trial of an action against a lawyer (and his insurer) for damages arising from his alleged breach of duty to prosecute plaintiff's action (and to defend against her husband's reconventional demand) for separation from bed and board.
In order to decide whether, and to what extent, the lawyer's alleged breach of duty damaged plaintiff, the "case within the case" must be decided, Ramp v. St. Paul F. M. Ins. Co., 1972, 263 La. 774, 269 So.2d 239, and that case, because it is a separation case, is not decidable by jury, La.C.C.P. 1733(3). Thus the judge alone must decide whether plaintiff would have "won" and what alimony or other pecuniary rights she would have received.
The jury may only decide such other questions (if at issue) as whether defendant lawyer was, by employment or otherwise, obliged towards plaintiff.
Accordingly, IT IS ORDERED that the Honorable Melvin J. Duran, Judge, Civil District Court for the Parish of Orleans, Division "I", modify his order consistent with this opinion.