WILLIAM FOSTER, JR.
CAROL KINCHEN, JASON WELLS AND FARM BUREAU INSURANCE COMPANY
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.
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,
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.
AND PROCEDURAL BACKGROUND
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.
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.
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
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.
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). 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
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). 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 ...