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Jones v. American Alternative Ins. Corp.

Court of Appeal of Louisiana, First Circuit

January 8, 2015

DWAN JONES
v.
AMERICAN ALTERNATIVE INSURANCE CORPORATION, ST. TAMMANY PARISH FIRE PROTECTION DISTRICT AND CHRISTOPHER J. SIMPSON

Appealed from the Twenty-Second Judicial District Court, In and for the Parish of St. Tammany, State of Louisiana. Docket No. 2011-10287. Honorable August J. Hand, Judge.

Page 387

James G. Kambur, Kevin Rieth, Laura Kambur, New Orleans, LA, Counsel for Plaintiff/Appellant, Dwan Jones.

Roy L. Schroeder, New Orleans, LA, Counsel for Defendants/Appellees, American Alternative Insurance Corporation, St. Tammany Parish Fire Protection District #4, and Christopher J. Simpson.

BEFORE: GUIDRY, THERIOT, AND DRAKE, JJ.

OPINION

Page 388

[2014 0367 La.App. 1 Cir. 2] GUIDRY, J.

A healthcare worker appeals a summary judgment dismissing her suit against an ambulance driver, his employer, and their insurer for injuries she allegedly sustained while accompanying a patient in the ambulance. Finding summary judgment was properly granted, we affirm.

FACTS AND PROCEDURAL HISTORY

On January 20, 2010, the plaintiff, Dwan Jones, accompanied a patient who was being transported from Southeast Hospital to Lakeview Hospital in Mandeville, Louisiana, in an ambulance owned by the St. Tammany Parish Fire Protection District #4 and operated by Christopher J. Simpson, an employee of the St. Tammany Parish Fire Protection District #4. Ms. Jones was employed by Southeast Hospital. Ms. Jones rode as a front seat passenger in the ambulance, and two paramedics rode in the back of the ambulance with the patient.

The ambulance traveled northbound on U.S. 190 East Service Road to Lakeview Hospital. As the ambulance approached the intersection of Fairway Drive and the U.S. 190 E. Service Road, the light controlling the ambulance's direction of travel was red. The ambulance stopped, then proceeded through the intersection, when it was struck by a 1999 Mercury Marquis taxi cab driven by Sim Coley and owned by Parish Cab, Inc.

As a result of the collision, Ms. Jones filed a petition for damages on January 13, 2011, against Mr. Simpson, St. Tammany Parish Fire Protection District #4, and their insurer, American Alternative Insurance Corporation (collectively " defendants" ).[1] The defendants answered Ms. Jones' petition, denying any liability for her alleged injuries, and later filed a motion for summary judgment seeking dismissal of the suit, or in the alternative, a partial summary [2014 0367 La.App. 1 Cir. 3] judgment declaring that the reckless disregard standard of La. R.S. 32:24 applied to Ms. Jones' claims. The trial court denied the motion for summary judgment and the alternative motion for partial summary judgment, and writs of review were denied by this court and the Louisiana Supreme Court. See Jones v. Simpson, 12-0690 (La.App. 1st Cir. 7/30/12) (unpublished writ action), writ denied, 12-1952 (La. 11/9/12), 100 So.3d 844.

Thereafter, the parties continued to conduct discovery and the matter was set for

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a jury trial; however, prior to trial, the defendants re-urged their motion for summary judgment and alternative motion for partial summary judgment, having supplemented their original submission with Mr. Coley's deposition. Following a hearing on the re-urged motion, the trial court granted summary judgment in favor of the defendants, dismissing the plaintiffs claims with prejudice.

ASSIGNMENTS OF ERROR

On appeal, the plaintiff raises three assignments as grounds for finding the trial court erred in granting summary judgment in this matter. In the first two assignments of error, the plaintiff alleges that the trial court improperly weighed the evidence submitted by the parties to find that the reckless disregard standard of La. R.S. 32:24 applied to assess liability in this matter. In her third assignment of error, the plaintiff alleges that the trial court further erred in holding that she could not prove gross negligence (reckless disregard).

APPLICABLE LAW

A motion for summary judgment is a procedural device used to avoid a full scale trial when there is no genuine issue of material fact. Johnson v. Evan Hall Sugar Cooperative, Inc., 01-2956, p. 3 (La.App. 1st Cir. 12/30/02), 836 So.2d 484, 486. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, [2014 0367 La.App. 1 Cir. 4] admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B)(2). An appellate court reviews a trial court's decision to grant a motion for summary judgment de novo, using the same criteria that govern the trial court's consideration of whether summary judgment is appropriate. George S. May International Company v. Arrowpoint Capital Corporation, 11-1865, p. 4 (La.App. 1st Cir. 8/10/12), 97 So.3d 1167, 1170.

The mover bears the burden of proving that he is entitled to summary judgment. La. C.C.P. art. 966(C)(2). However, if the mover will not bear the burden of proof at trial on the subject matter of the motion, he need only demonstrate the absence of factual support for one or more essential elements of his opponent's claim, action, or defense. See La. C.C.P. art. 966(C)(2). If the non-moving party fails to produce factual support sufficient to establish it will be able to satisfy the evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. art. 966(C)(2). Whether a particular fact in dispute is " material" for summary judgment purposes is viewed in light of the substantive law applicable to the case. MB Industries. LLC v. CNA Insurance Company, 11-0303, p. 15 (La. 10/25/11), 74 So.3d 1173, 1183.

The substantive law at issue in this matter is the Louisiana Emergency Vehicle Statute, La. R.S. 32:24, which provides:

A. The driver of an authorized emergency vehicle, when responding to an emergency call, or when in the pursuit of an actual or suspected violator of the law, or when responding to, but not upon returning from, a fire alarm, may exercise the privileges set forth in this Section, but subject to the conditions herein stated.
B. The driver of an authorized emergency vehicle may:
....
(2) Proceed past a red or stop signal or stop sign, but only after [2014 0367 La.App. 1 Cir. 5] slowing down or stopping as may be necessary for safe operation;

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....
C. The exceptions herein granted to an authorized emergency vehicle shall apply only when such vehicle is making use of audible or visual signals sufficient to warn motorists of their approach, except that a police vehicle need not be equipped with or display a red light visible from in front of the vehicle.
D. The foregoing provisions shall not relieve the driver of an authorized vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his ...

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