United States District Court, W.D. Louisiana, Lafayette Division
DRELL, CHIEF JUDGE
the court are opposing motions for summary judgment filed by
Defendant Protective Insurance Company
("Protective") and Plaintiff, Matthew Thomas
("Plaintiff). Docs. 14, 18. Each motion asserts
entitlement to judgment as a matter of law under the
well-established summary judgment standard employed by courts
within the Fifth Circuit.
was a guest passenger traveling in a FedEx truck being driven
by David Journet on or about April 13, 2012 on Walker Road in
Lafayette, Louisiana. Complaint, Doc. 1-4 at ¶ 3.
Plaintiff alleges that "an unknown truck" crossed
the center line of Walker Road, causing Mr. Journet to run
off the road and, thereafter, lose control of the vehicle and
hit a culvert head on. Id. Plaintiff further alleges
that he was ejected from the FedEx truck through its
windshield as a result of the impact with the culvert,
sustaining numerous injuries. Id. at ¶¶ 3,
5. Plaintiff recalls that the unknown truck did not stop
after the accident and has not been identified. In support of
his claims, Plaintiff offers the eyewitness account of Mr.
Journet - the driver - which corroborates Plaintiffs account
of the unknown truck and the nature of the accident. Doc.
18-1 at p. 2; Doc. 18-3 Deposition of David Journet).
filed the instant suit in Lafayette Parish's Fifteenth
Judicial District Court on January 31, 2014, naming as
defendants Protective and Liberty Mutual Insurance Company
("Liberty Mutual"). Doc. 1-4. Liberty Mutual
answered, denying uninsured/underinsured motorist coverage as
to Plaintiff under any policy in existence at the time of the
accident in question. Doc. 1-11. Subsequently, Judge Marilyn
Castle granted a motion for summary judgment by Liberty
Mutual, declaring that it owed no coverage to Plaintiff
arising out of the April 2012 accident and dismissing Liberty
Mutual from further proceedings. Doc. 1-5. Protective timely
removed the suit to this court in January of 2015, invoking
the court's diversity jurisdiction under 28U.S.C.
§1332. Doc. 1.
motion denies that Plaintiff can meet his burden of proof in
this case and asks the court to render summary judgment in
its favor. Doc. 14-1. Specifically, Protective points out
that, in cases like this where an alleged "phantom
vehicle" causes a motor vehicle accident, but makes no
contact with the Plaintiffs vehicle, the Plaintiff bears the
burden of proving that his injuries are the result of the
actions of the unidentified vehicle. As asserted by
Protective, both its policy and Louisiana law require that
Plaintiff prove the fault of the unidentified vehicle through
testimony from an "independent and disinterested
witness[.]" La. R.S. 22:1295(1)(d)(i) and (1)(f); Doc.
14-3. Protective denies that Mr. Journet may be characterized
as an "independent and disinterested witness"
because he was the driver of the FedEx vehicle with a vested
interest in not being found at fault in the accident and he
and Plaintiff are friends. Doc. 14-1. Protective also argues
that it was Mr. Journet's own actions in overcorrecting
the FedEx truck, rather than those of any unidentified
vehicle, that caused Plaintiffs alleged injuries.
Id. at p. 8.
contrast, Plaintiffs motion alleges entitlement to summary
judgment based on the testimony of Mr. Journet. Doc. 18-1.
Plaintiff insists that Journet may properly be considered
"independent and disinterested" because, although
he was the driver of the vehicle, he was not subject to
discipline when he gave his testimony and has not been named
as a defendant in this suit. Id., at pp. 8-9.
"shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a). A dispute of material fact is genuine if
the evidence is such that a reasonable jury could return a
verdict for the nonmoving party. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). "We consider
all evidence 'in the light most favorable to the party
resisting the motion.'" Seacor Holdings, Inc. v.
Commonwealth Ins. Co., 635 F.3d 675, 680 quoting
Trevino v. Celanese Corp., 701 F.2d 397, 407
(5th Cir. 1983). However, the non-moving party
does not establish a genuine dispute with "'some
metaphysical doubt as to the material facts, ' by
'conclusory allegations, ' by 'unsubstantiated
assertions, ' or by only a 'scintilla' of
evidence." Little v. Liquid Air Corp., 37 F.3d
1069, 1075 (5th Cir. 1994) (citations omitted). It is
important to note that the standard for a summary judgment is
two-fold: (1) there is no genuine dispute as to any material
fact, and (2) the movant is entitled to judgment as
a matter of law.
review of the briefs in these opposing motions, the court
finds that summary judgment is inappropriate in favor of
either party. The extent of Mr. Journet's current
potential interest in the outcome of this matter is unclear
to the court. Moreover, given the nature of the accident and
the fact that Mr. Journet did not, apparently, actually see
the unidentified vehicle directly, the consideration of his
testimony requires a credibility determination lying outside
the scope of the court's proper role in summary judgment
proceedings. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 135 (2000) citing Anderson v.
Liberty Lobby, Inc. 477 ...