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Alicea v. Doe

Court of Appeal of Louisiana, Fifth Circuit

February 25, 2015

JORGE ALICEA
v.
JOHN DOE, ABC INSURANCE COMPANY, JARED SUMMERS, XYZ INSURANCE COMPANY AND GEICO GENERAL INSURANCE COMPANY

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA. NO. 712-961, DIVISION " G" . HONORABLE ROBERT A. PITRE, JR., JUDGE PRESIDING.

IVAN A. ORIHUELA, ATTORNEY AT LAW, Kenner, Louisiana, COUNSEL FOR PLAINTIFF/APPELLANT.

RAYMOND R. EGAN, III, W. PAUL ANDERSSON, ATTORNEYS AT LAW, New Orleans, Louisiana, COUNSEL FOR DEFENDANT/APPELLEE.

Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Robert A. Chaisson.

OPINION

JUDE G. GRAVOIS, J.

[14-688 La.App. 5 Cir. 2] Plaintiff/appellant, Jorge Alicea, appeals a summary judgment granted in favor of his uninsured/underinsured motorist (" UM" ) insurer, GEICO General Insurance Company (" GEICO" ), finding no UM insurance coverage for the motor vehicle accident at issue. Upon de novo review, for the following reasons, we affirm the trial court's grant of summary judgment in favor of GEICO.

Page 809

FACTS

Appellant was involved in a motor vehicle accident on Interstate Highway 10 (" I-10" ) in Jefferson Parish, Louisiana, on March 30, 2011. The record reflects that while driving a 2007 Dodge Caliber, appellant rear-ended a 1997 Chevrolet 6000 being driven by defendant Jared Summers. The petition for damages, filed by appellant on March 26, 2012, alleged that Mr. Summers' vehicle came to a sudden stop due to an accident ahead of Mr. Summers that was caused by " John Doe," an unknown driver/vehicle, which in turn caused a collision between appellant and Mr. Summers. GEICO, as appellant's UM insurer, was also made a defendant in appellant's petition for damages.

[14-688 La.App. 5 Cir. 3] In his deposition,[1] appellant testified that the accident in question occurred around 5:00 a.m. It was dark. The weather was clear. The traffic was moderate. Appellant testified that he was traveling on I-10 near the Loyola Blvd. exit in Kenner, Louisiana, headed eastbound. He saw two accidents ahead of him to the left and other vehicles slowing down. As he slowed down in response, braking hard, he said his vehicle started to spin, and he ended up in the lane to the right, hit the wall or guardrail to the right, and then hit Mr. Summers' vehicle. Appellant's air bags deployed. He estimated that he was going around 45 miles per hour immediately prior to the accident because of the slowing traffic. He said that he braked hard to avoid hitting a white Lexus in front of him that had also stopped suddenly. He did not hit the Lexus, nor did he remember the Lexus swerving or changing lanes. He did not remember if Mr. Summers' red truck was stopped or moving when they collided.

Appellant stated in his deposition that the driver of the red truck (Mr. Summers) did not cause his accident,[2] but rather it was caused by " diesel fuel." Appellant claimed that an unknown person or vehicle spilled diesel fuel on I-10, which caused several accidents and caused I-10 to close thereafter to avoid more accidents. He said he learned after the accident about the diesel spill from a woman who worked where he worked whose husband was involved in another accident that day on I-10. He said that he, himself, did not observe any diesel on the roadway. He also heard a police officer, not the one who responded to his [14-688 La.App. 5 Cir. 4] accident, mention that there was diesel on the roadway. He claimed in his deposition that the diesel was spilled near the Power Boulevard exit.[3]

ANALYSIS

This Court, in Int'l Ass'n of Heat & Frost Insulators v. Paternostro, 13-1006 (La.App. 5 Cir. 05/28/14), 142 So.3d 284, 287-288, recently set forth the standards upon which courts grant and review summary judgments, to-wit:

A summary judgment is appropriate when there remains no genuine issue as to material fact and the mover is entitled to judgment as a matter of law. Zeri ...

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