Izzo v. Prudential Ins. Co. of America

Annotate this Case

352 A.2d 395 (1976)

Ralph C. IZZO v. The PRUDENTIAL INSURANCE COMPANY OF AMERICA.

No. 73-206-Appeal.

Supreme Court of Rhode Island.

February 17, 1976.

S. Thomas Cotroneo, Amato A. DeLuca, Warwick, for plaintiff.

Higgins & Slattery, Robert J. Dumouchel, Providence, for defendant.

OPINION

PER CURIAM.

The facts in this case are set forth in our opinion in Izzo v. Prudential Ins. Co. of America, 114 R.I. 224, 331 A.2d 395 (1975) and require no repetition here. After the filing of that opinion wherein we denied and dismissed the plaintiff's appeal and affirmed the judgment appealed from, the plaintiff filed a petition requesting permission to reargue. A majority of the court granted the petition, Mr. Justice Kelleher being of the opinion that it should be denied. Izzo v. Prudential Ins. Co. of America, 114 R.I. 937, 331 A.2d 395, 399 (1975).

We have considered all of the arguments made by plaintiff in this proceeding, but find no merit in any of them or any reason why we should modify our original ruling that a motion for a new trial which does not comply with the provisions of Super. R.Civ.P. 59(a) does not extend the 20-day appeal period set forth in our Rule 4.

Even if we assume, without deciding, that the "unique circumstances" doctrine mentioned by the plaintiff and referred to in the cases cited by him should be appealed, we find nothing in this record showing that the trial justice did anything which would warrant the granting of an untimely appeal. The cases cited by the plaintiff in his brief are materially distinguishable from the fact situation in the case at bar and therefore of no help to him here.[1]Mount Desert Yacht Yard, Inc. v. Phillips, 348 A.2d 16 (Me.1975), cited by the plaintiff during oral argument before us is also of no help to him. Indeed, the decision of the court in that case supports the conclusion reached by us in our original opinion.

The plaintiff has failed to persuade us to change our decision and, therefore, the *396 cause is remanded to the Superior Court for further proceedings in accordance with our original opinion. Izzo v. Prudential Ins. Co. of America, supra at 232, 331 A.2d at 399.

NOTES

[1] The plaintiff cited the following cases: Wolfsohn Hankin, 376 U.S. 203, 84 S. Ct. 699, 11 L. Ed. 2d 636 (1964); Thompson v. Immigration & Naturalization Service, 375 U.S. 384, 84 S. Ct. 397, 11 L. Ed. 2d 404 (1964); Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371. U.S. 215, 83 S. Ct. 283, 9 L. Ed. 23 261 (1902); Eady v. Foerder, 381 F.2d 980 (7th Cir. 1967); Pierre v. Jordan, 333 F. 20 951 (9th Cir. 1964).