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Foster v. Kinchen

Court of Appeals of Louisiana, First Circuit

March 29, 2017

WILLIAM FOSTER, JR.
v.
CAROL KINCHEN, JASON WELLS AND FARM BUREAU INSURANCE COMPANY

         Appealed from the Twenty-First Judicial District Court In and for the Parish of Tangipahoa, State of Louisiana Docket Number 2014-0002423 Honorable Brenda Bedsole Ricks, Judge Presiding

          Charles M. Thomas Logan Schonekas Albertine New Orleans, LA Counsel for Plaintiff/Appellant, William Foster, Jr.

          Craig Robichaux Mandeville, LA Counsel for Defendants/Appellees, Carol Kinchen, Jason Wells, Farm Bureau Insurance, Louisiana Farm Bureau Casualty Insurance Company

          BEFORE: WHIPPLE, C.J., GUIDRY, McCLENDON, WELCH, AND THERIOT, JJ.

          WHIPPLE, C.J.

         This matter is before us on appeal by plaintiff, William Foster, Jr., from a judgment of the trial court granting a motion for summary judgment filed by defendants, Carol Kinchen and Louisiana Farm Bureau Insurance Company ("Farm Bureau"). For the reasons that follow, we reverse.

         FACTUAL AND PROCEDURAL BACKGROUND

         According to the petition filed herein, on May 8, 2014, plaintiff was operating his bicycle in a westbound direction on the sidewalk of Pine Street in Ponchatoula when, while crossing the intersection of Pine and South 5th Streets, he was struck in the crosswalk by a 2007 Toyota Sequoia, owned by Jason Wells and driven by Carol Kinchen. Kinchen was turning left or southbound onto South 5thStreet, at the intersection of Pine and South 5th Streets, when the accident occurred.

         After the accident, plaintiff was taken to North Oaks Medical Center for evaluation. The treating hospital records indicated that plaintiff was treated for abrasions on his arms and that his blood work revealed a blood alcohol content of 0.084% at the time of the accident.

         As a result of the accident, plaintiff filed a petition for damages on August 15, 2015, against Kinchen, Wells, and Farm Bureau, alleging therein that the accident was caused by Kinchen's negligence. On December 7, 2015, Kinchen and Farm Bureau filed a motion for summary judgment, contending that plaintiff was precluded from recovering damages from the accident as LSA-R.S. 9:2798.4 provided them with statutory immunity from liability as a result of plaintiffs intoxication.

         Following a hearing on January 4, 2016, the trial court rendered judgment granting the motion for summary judgment and dismissing plaintiffs suit against defendants with prejudice, at plaintiffs costs, on February 1, 2016. It is from this judgment that plaintiff now appeals, contending that the trial court improperly applied LSA-R.S. 9:2798.4 herein, where plaintiff was riding a bicycle and was not operating a "motor vehicle" as required by the statute for the immunity to apply. Plaintiff further contends that in applying the statute, the trial court improperly made factual determinations regarding causation and allocation of fault in a summary judgment proceeding.

         DISCUSSION

         At the outset, we must determine whether this matter is properly before us on appeal. The trial court designated the February 1, 2016 judgment as a final judgment pursuant to LSA-C.C.P. art. 1915(A)(3).[1] Moreover, while the judgment dismissed plaintiffs suit as to Kinchen and Farm Bureau, Jason Wells, who was named as a defendant in the petition and answered same, was not dismissed as a defendant therein. Louisiana Code of Civil Procedure article 1915(A)(1) provides that a judgment that "[d]ismisses the suit as to less than all of the parties, defendants, third party plaintiffs, third party defendants, or intervenors" is a final appealable judgment Thus, we conclude the judgment is also final for purposes of an immediate appeal, pursuant to LSA-C.C.P. art. 1915(A)(1), because the judgment dismisses the suit as to less than all of the defendants. See Herrera v. First National Insurance Company of America, 2015-1097 (La.App. 1st Cir. 6/3/16), 194 So.3d 807, 811, writ denied, 2016-1278 (La. 10/28/16), ___ So.3d ___.”

         SUMMARY JUDGMENT

         A motion for summary judgment shall be granted only if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B)(2).[2] In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Willig v. Pinnacle Entertainment, Inc., 2015-1998 (La.App. 1st Cir. 9/16/16), 202 So.3d 1169, 1172-1173. Whether a particular fact in dispute is material for purposes of summary judgment can be seen only ...


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