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Mackmer v. Estate of Angelle

Court of Appeal of Louisiana, Third Circuit

December 10, 2014

KEITH WILLIAM MACKMER
v.
THE ESTATE OF FRANK ANGELLE, JR., NATIONAL UNION FIRE INSURANCE COMPANY, AND LEXINGTON INSURANCE COMPANY

APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT, PARISH OF CALCASIEU, NO. 2011-2928, DIVISION " H" . HONORABLE RONALD F. WARE, DISTRICT JUDGE.

David H. Hanchey, The Hanchey Law Firm, Lake Charles, Louisiana, COUNSEL FOR PLAINTIFF/APPELLANT: Keith William Mackmer.

Todd A. Townsley, Jordan Z. Taylor, The Townsley Law Firm, Lake Charles, Louisiana, COUNSEL FOR PLAINTIFF/APPELLANT: Keith William Mackmer.

Christopher P. Ieyoub, Plauché, Smith & Nieset, L.L.C., Lake Charles, Louisiana, COUNSEL FOR DEFENDANTS/APPELLEES: National Union Fire Insurance Company and Lexington Insurance Company.

Sidney Wallis Degan, III, Emily R. Adler, Degan, Blanchard & Nash, New Orleans, Louisiana, COUNSEL FOR INTERVENOR/APPELLEE: New Hampshire Insurance Company.

Court composed of John D. Saunders, Jimmie C. Peters, and James T. Genovese, Judges.

OPINION

Page 126

[14-665 La.App. 3 Cir. 1] GENOVESE, Judge.

In this suit for personal injuries, Plaintiff, Keith William Mackmer, appeals the trial court's grant of summary judgment in favor of Defendants, National Union Fire Insurance Company of Pittsburgh, Pennsylvania,[1] and Lexington Insurance Company. Mr. Mackmer also avers that the trial court erroneously denied his motion for partial summary judgment on the issue of liability.[2] For the following reasons, we find that the trial court erred in granting Defendants' motion for summary judgment as there remain genuine issues of material fact. For the same reasons, we affirm the trial court's denial of Plaintiff's motion for partial summary judgment. Accordingly, we reverse in part, affirm in part, and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

On December 9, 2010, Mr. Mackmer was a guest passenger in a vehicle owned by Moncla Coil Tubing Well Service, LLC (Moncla) and driven by Frank Angelle, Jr., when the vehicle was involved in an accident with an oncoming vehicle on Highway 27, between Sulphur and DeQuincy, Louisiana.

Page 127

Dustin Bass and Timothy Bass were also occupants in the vehicle when the accident occurred, and the men were all employed by Moncla.

Mr. Angelle died as a result of the injuries he sustained in the accident, and Mr. Mackmer sustained serious personal injury. Mr. Mackmer instituted this [14-665 La.App. 3 Cir. 2] personal injury action, naming as Defendants the estate of Mr. Angelle[3] and the liability insurers of the Moncla vehicle Mr. Angelle was operating at the time of the accident, National Union Fire Insurance Company of Pittsburgh, Pennsylvania, and Lexington Insurance Company (collectively Lexington).

In its Answer, Lexington denied liability and affirmatively alleged its entitlement to tort immunity pursuant to La.R.S. 23:1032. On September 11, 2013, Mr. Mackmer filed a motion for partial summary judgment on the issue of liability. Therein, Mr. Mackmer asserted that the undisputed facts established that Mr. Angelle was not in the course and scope of his employment with Moncla when the accident happened; accordingly, Lexington could not prevail on its affirmative defense of tort immunity. Lexington filed a cross-motion for summary judgment, likewise on the issue of course and scope and its immunity from the claims asserted by Mr. Mackmer. Thereafter, Mr. Mackmer filed a motion to strike: (1) portions of Lexington's asserted undisputed facts; (2) what he contended were new defenses raised by Lexington in its brief to the trial court; [4] and (3) the affidavit of Leon Charles Moncla, Jr. submitted by Lexington in support of its motion.

Following a hearing, the trial court denied Mr. Mackmer's motion to strike relative to the undisputed facts set forth by Lexington. Mr. Mackmer's motion to strike the affidavit of Mr. Leon Moncla was denied in part and granted in part, resulting in the word " directly" being striken by the trial court. Substantively, on the cross motions for summary judgment, the trial court denied Mr. Mackmer's motion and granted Lexington's motion, finding that Mr. Angelle was in the course and scope of his employment with Moncla when the accident happened and that [14-665 La.App. 3 Cir. 3] Lexington could not be held liable to Mr. Mackmer due to the ...


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