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Orellana v. Doe

Court of Appeals of Louisiana, Fourth Circuit

April 5, 2017

BRAYAN ORELLANA, ET AL
v.
JOHN DOE, ET AL

         APPEAL FROM FIRST CITY COURT OF NEW ORLEANS NO. 2015-05563, SECTION "C" Honorable Veronica E Henry, Judge

          Ivan A. Orihuela RIGUER SILVA, LLC COUNSEL FOR PLAINTIFF/APPELLANT

          Stephanie B. Laborde Benjamin M. Chapman Amy L. McInnis MILLING BENSON WOODWARD, LLP COUNSEL FOR DEFENDANT/APPELLEE

          (Court composed of Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge Regina Bartholomew-Woods)

          Roland L. Belsome Judge

         Plaintiffs appeal summary judgment granted in favor of Defendant, Affirmative Insurance Company. For the reasons that follow, we reverse and remand.

         FACTS AND PROCEDURAL HISTORY

         This matter arises out of a motor vehicle accident that occurred on August 21, 2014. Plaintiff, Brayan Orellana, was operating a 2010 Dodge Challenger when the vehicle was struck by a 1996 Jeep Cherokee or other white SUV operated by Tory Lewis or John Doe. The vehicle that struck the Dodge Challenger fled the scene of the accident. Plaintiffs Gladys Torres-Ortega, the owner of the Dodge Challenger and the holder of the insurance policy at issue in this case, and Damaris Andino were passengers in the vehicle driven by Mr. Orellana.

         Plaintiffs filed suit on August 31, 2015, against John Doe, Tory Lewis, and the alleged uninsured/underinsured motorist insurer for Ms. Torres-Ortega, Affirmative Insurance Company ("Affirmative"), seeking to recover for the injuries and damages allegedly sustained in the collision.

         Affirmative filed a Motion for Summary Judgment on the grounds that there was no uninsured/underinsured motorist ("UM") coverage on the vehicle because Ms. Torres-Ortega rejected UM coverage when she executed her policy. The motion was heard on January 28, 2016, and the trial court subsequently granted the motion and dismissed all claims against Affirmative. Plaintiffs timely appealed the judgment.

         On March 24, 2016, during the pendency of this appeal, Affirmative was placed into insolvency by virtue of an Order of Liquidation. As a result, Louisiana Insurance Guaranty Association ("LIGA") became responsible for claims pending against Affirmative pursuant to La. R.S. 22:2055(6), and thus intervened in this action.

         STANDARD OF REVIEW

         "Motions for summary judgment are reviewed de novo under the same criteria governing the trial court's consideration of whether summary judgment is appropriate."[1] At all times pertinent to this matter, La. C.C.P. art. 966 B(2) provided that a motion for summary judgment "shall be rendered forthwith 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 mover is entitled to judgment as a matter of law." The determination of whether a fact is material turns on the applicable substantive law.[2]

         On motions for summary judgment, the burden of proof remains with the movant; however, if the moving party will not bear the burden of proof on the issue at trial he must only point out that there is an absence of factual support for one or more elements essential to the adverse party's claim.[3] The burden then shifts to the non-moving party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial.[4]

         The trial court cannot make credibility determinations on a motion for summary judgment, nor may it consider the merits of the issues raised.[5] Further, the weighing of conflicting evidence has no place in summary judgment procedure.[6] "Despite the legislative mandate that summary judgments are favored, any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of a trial on the merits."[7]

         LAW ...


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