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Toups v. Dantin

Court of Appeals of Louisiana, First Circuit

August 3, 2015

RANDY J. TOUPS AND DEBORAH H. TOUPS
v.
JAMES G. DANTIN, ADELE B. DANTIN, AND ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY Consolidated With THE HARTFORD
v.
JAMES DANTIN, ALLSTATE INSURANCE COMPANY, AND ABC INSURANCE COMPANY

          On Appeal from the Seventeenth Judicial District Court. In and for the Parish of Lafourche, State of Louisiana. Civil Numbers 119331 and 119361. Honorable Jerome J. Barbera, III, Judge Presiding.

         Scott M. Hawkins, Baton Rouge, Louisiana, Counsel for Plaintiffs/Appellants, Randy J. Toups and Deborah H. Toups.

         James L. Donovan, Jr., P.M. Donovan, Metairie, Louisiana, Counsel for Defendants/Appellees, James G. Dantin and Allstate Property and Casualty Insurance Company.

         C. Shannon Hardy, John W. Penny, Jr., Lafayette, Louisiana, Counsel for Defendant/Appellee, Adele Bourg.

         BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ. Whipple, C.J., dissents for reasons assigned.

          OPINION

Page 34

          [2014 1754 La.App. 1 Cir. 2] McCLENDON, J.

         This case arises out of a tragic automobile accident that resulted in the death of the plaintiffs' son, Dr. Kristofor Toups.[1] The plaintiffs, Randy J. Toups and Deborah H. Toups, appeal a grant of summary judgment in favor of Adele B. Dantin, the wife of James G. Dantin,[2] the driver of the

Page 35

automobile that collided with the pickup truck driven by Dr. Toups. For the reasons that follow, we affirm.

         FACTS AND PROCEDURAL HISTORY

         On the morning of January 20, 2011, while driving southbound on Louisiana Highway 1, in Lafourche Parish, James Dantin was operating a 2009 Nissan Maxima owned by his wife, Adele Dantin. After passing a vehicle in a non-passing zone, at a high rate of speed, Mr. Dantin rear-ended the 2007 Chevrolet Silverado pickup truck being operated by Dr. Toups. As a result of the impact, Dr. Toups' truck was forced into the opposite lane of the two-lane highway, where it collided head-on with a Peterbilt garbage truck, fatally injuring Dr. Toups. Toxicology tests revealed that Mr. Dantin had alcohol, alprazolam (a generic form of Xanax), and benzoylecgonine (a metabolite of cocaine) in his bloodstream.[3]

         On January 17, 2012, the Toupses filed a petition for damages for the wrongful death of their son against Mr. Dantin, Ms. Dantin, and their insurers. They alleged that Mr. Dantin had a history of drug and alcohol related charges for more than thirty years, including in excess of fifteen arrests for driving under the influence of drugs and alcohol. The Toupses further asserted that since his release from jail in August 2009, in connection with a previous driving while intoxicated conviction, Mr. Dantin was prohibited from operating a vehicle that was not equipped with an ignition interlock device and that the Maxima that Mr. Dantin was operating at the time of the accident did not have an ignition interlock device. [2014 1754 La.App. 1 Cir. 3] In addition to asserting a cause of action against Mr. Dantin, the Toupses asserted a cause of action against Ms. Dantin. The Toupses alleged that Ms. Dantin knew that Mr. Dantin was prohibited from driving a vehicle without an ignition interlock device and that Ms. Dantin knew or should have known that Mr. Dantin on occasion operated one or more of their vehicles that was not equipped with an ignition interlock device. They contended that Ms. Dantin authorized Mr. Dantin to use the vehicles in which she had an ownership interest and which were not equipped with an ignition interlock device. The Toupses further asserted that Ms. Dantin was negligent for her breach of a legally imposed duty of reasonable care; negligent entrustment; failure to secure property within her custody; failure to install property safety equipment in vehicles available for the use and operation by Mr. Dantin; reckless disregard for the safety of the public; and other negligent acts and omissions.

         On June 30, 2014, Ms. Dantin filed a motion for summary judgment, in which she asserted that, as a matter of law, she was not legally responsible for the January 20, 2011 accident. Specifically, she contended that there was no evidence indicating that she gave Mr. Dantin permission to drive the Maxima at the time of the accident. Following a hearing on August 15, 2014, the trial court granted Ms. Dantin's motion for summary judgment, dismissing the Toupses' claims against her with prejudice. A judgment was signed on August 28, 2014, and the Toupses appealed.

         SUMMARY JUDGMENT

          A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine factual dispute. Sanders v. Ashland Oil, Inc., 96-1751

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(La.App. 1 Cir. 6/20/97), 696 So.2d 1031, 1034, writ denied, 97-1911 (La. 10/31/97), 703 So.2d 29. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue of material fact, and that mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966B(2).

         [2014 1754 La.App. 1 Cir. 4] The burden of proof to show that no material factual issue exists is on the mover. However, if the party moving for summary judgment will not bear the burden of proof at trial, the mover is not required to negate all essential elements of the adverse party's claim. Rather, the mover must point out to the trial court that there is an absence of factual support for one or more elements essential to the adverse party's claim. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966C(2).

          An appellate court's review of a summary judgment is a de novo review based on the evidence presented to the trial court, using the same criteria used by the trial court in deciding whether a summary judgment should be granted. Buck's Run Enterprises, Inc. v. Mapp Const., Inc., 99-3054 (La.App. 1 Cir. 2/16/01), 808 So.2d 428, 431. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material for summary judgment purposes can be seen only in light ...


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