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Chanler v. Jamestown Insurance Co.

Court of Appeals of Louisiana, Second Circuit

May 17, 2017

RAYMOND DOYLE CHANLER, JR. AND PAMELA TURNER CHANLER Plaintiffs-Appellees
v.
JAMESTOWN INSURANCE COMPANY, O'NEALGAS, AND ROGER MOORE Defendants-Appellants

         Appealed from the Second Judicial District Court for the Parish of Bienville, Louisiana Lower Court Case No. 41-773, Honorable Glenn Fallin, Judge

          MAURICE L. TYNES, Counsel for Appellants, O'Nealgas, Inc., and Roger Moore.

          SENTELL LAW FIRM LLC, By: C. Sherburne Sentell III, Counsel for Appellees.

          Before WILLIAMS, GARRETT, and STONE, JJ.

          GARRETT, J.

         This suit arises from a collision wherein a propane gas delivery truck backed up and struck a vehicle driven by a postal worker who was delivering mail. The trial court granted the plaintiffs' motion for partial summary judgment on the issue of liability. It ruled that the propane gas truck driver was 100 percent at fault and the postal worker was free from any comparative fault. The defendants appeal that judgment. We affirm the trial court judgment.

         FACTUAL AND PROCEDURAL BACKGROUND

         On December 23, 2009, Roger Moore ("Moore") was driving a 2003 FRHT propane gas truck for his employer, O'Nealgas, Inc., on Kenneth Road, a two-way, unlined but paved country road in rural Bienville Parish near Ringgold. Raymond Doyle Chanler, Jr. ("Chanler"), a United States Postal Service (USPS) mail carrier, was driving a 2004 Jeep Wrangler, which had a passenger-side steering wheel (or right-hand drive) to facilitate mail delivery and a flashing light affixed to the top of the vehicle. Moore drove past a driveway where he intended to turn for a home delivery. Realizing his error, he placed his truck in reverse and began to back up. Chanler was in the Jeep delivering mail and was behind the truck. The truck collided with the Jeep, sending it into a ditch.

         On December 15, 2010, Chanler and his wife, Pamela Tanner Chanler, filed suit against Moore, O'Nealgas, and its insurer, Jamestown Insurance Company ("Jamestown"). The plaintiffs alleged that Chanler sustained a severe lower back injury which required surgery and prevented him from returning to his job. They claimed that his medical bills already exceeded $100, 000. The plaintiffs demanded general and special damages, and Chanler's wife sought damages for loss of consortium. The defendants answered and asserted defenses of comparative fault, sudden emergency, and act of God.

         In November 2012, the defendants filed a notice of automatic stay, informing the court that Jamestown, a risk retention group, had been placed in receivership in a South Carolina state court and that an automatic stay was in place. After the company commenced liquidation proceedings, the South Carolina court issued an order clarifying that the stay did not apply to pending claims against third parties. Consequently, in June 2013, the Louisiana trial court signed a judgment holding that the stay order was not applicable to O'Nealgas and Moore and that the plaintiffs could proceed against these two defendants.

         In December 2013, the plaintiffs filed a motion for partial summary judgment on the issue of liability alone. In support of their motion, they submitted several affidavits, including three from witnesses to the accident - David Reliford, Barbara Reliford, and Barbara's daughter, Ashley Chase. In their March 2012 affidavits, all of these witnesses stated that the truck backed up into the Jeep and slammed it into a ditch and that the truck driver should have seen the Jeep, especially after it began blowing its horn. Chase stated that she jumped from her vehicle and ran up to the truck, waving her arms and trying to get the truck driver to stop. Chase said she assumed the Jeep was in the truck's blind spot, but there was a flashing light on top of the Jeep. Both of the Relifords stated that they observed Chase yelling at the truck driver to stop and that the truck driver apparently failed to see her. Ms. Reliford stated that she also waved her hands and hollered at the driver to stop. The Relifords also stated that, even after impact, the truck kept going, pushing the Jeep until it was knocked into a ditch. In her affidavit, Tambra Manuel, the Ringgold postmaster, stated that she immediately went to the crash scene after she was notified about the accident. In front of her and Chanler, the truck driver said, "I am so sorry. I didn't see him and I hit him." In his affidavit, Larry Loudd, a Bienville Parish deputy sheriff who investigated the accident, said that Moore gave him a statement in which he recounted: "I . . . decided to back-up to the drive I was at, did not see mail carrier, hit his Jeep and knocked him into ditch."

         O'Nealgas and Moore opposed the motion on the grounds that there were disputed material facts as to whether Chanler failed to do all he reasonably could have to avoid contact with the truck, whether he negligently stopped in Moore's blind spot or was too close, and whether he should have recognized that the truck driver might be stopping and backing up. In support of their position, they submitted Moore's affidavit in which he stated that he backed up at no more than 5 mph and saw nothing in his rearview mirror on his side of the truck. He admitted seeing a woman "waving her arms and trying to say something maybe, but I had no idea what she was doing it for." He said he braked anyway, felt an impact, and stopped completely. He then asserted that he realized he had not seen the vehicle because it was too close behind him to be seen in the mirror. He further stated that he said he was at fault to make the "nervous and anxious" Jeep driver "feel better." Moore also stated that he told the police that he did not hear a horn blow or see any evidence of the vehicle behind him, such as a flashing light on its roof. He also asserted that he was sure the Jeep was too close to him for him to see it and that the other driver could have simply put his vehicle into reverse and "easily backed up faster than I did."

         Additionally, the defendants attached an excerpt from Chanler's deposition in which he recounted the accident. Specifically, he stated that, after he came around a curve in the road, he stopped when he saw the truck, which was half in the road and half in a driveway. According to Chanler, the truck was perpendicular to the road. Chanler had been driving about 35 mph and stopped about 75 to 80 yards from the truck. After pulling out of the driveway, the truck moved away from Chanler, who proceeded to service a mailbox. When the truck was about 100 to 120 feet[1] away from him, it stopped again after passing a driveway. When Chanler was about 50 feet behind him, the truck began backing up, first slowly, and then the truck driver "gunned it." Chanler said he started honking his horn and flashing his lights. At this point, the truck was about 35 to 40 feet away. He then put his car in reverse to try to get out of the way. At this point, the truck was about 30 feet away; Chanler said he thought the truck was going to stop and back into the driveway. However, instead of slowing down, the truck picked up speed. He also observed two ladies in a nearby yard screaming at the truck driver to stop. He was only able to back up "a yard or two" before the truck hit him. The force of the collision drove the bumper into the Jeep motor, killing the engine and causing a complete loss of control. Chanler said he put both feet on the brake to try to stop. When the truck driver finally saw what had happened, he braked, which pushed the vehicles apart. Chanler's vehicle stopped when it went in the ditch. According to Chanler, it had just stopped raining, and he had his regular car lights on.

         The motion for partial summary judgment was originally set for hearing in court on January 9, 2014. It was later reset for October 23, 2014. Shortly before the hearing date, the defendants submitted an affidavit from Daniel Emory dated October 10, 2014. Emory, an adjuster for Crawford & Company, claimed to have interviewed Chase by telephone on July 20, 2010. He stated that "the gist" of the interview was that Chanler had "plenty of time to back up to avoid danger" and that he was in Moore's blind spot. He also stated that Chase's recorded interview differed from her affidavit which was submitted to support the plaintiffs' motion for partial summary judgment. Also submitted were a CD audio recording and what purported to be a 9-page transcript of the interview with Chase.[2] According to this transcript, she said she was behind the vehicles involved in the accident. She said the truck driver was lost and the mailman was in the truck driver's blind spot and "right there on his bumper." Realizing what was about to happen, she pulled in her mother's driveway and jumped out of her car to let the truck driver know he was about to back into the mailman. According to her, the truck driver was trying to make a delivery at her mother's house and passed the driveway. She opined that the mailman had time to back up before the collision. She said the truck driver could not hear her yelling at him because his windows were up, but she did not know why he did not see her in his mirror. She thought the distance between the vehicles was one-half of a car length when the truck began backing up. She stated that the mailman began honking his horn when "it was too late" and that he made no attempt to back up. In her opinion, the accident could have been prevented.

         At the hearing on October 23, 2014, the trial court noted on the record that the case setting had been left off the docket and that it had just received copies of the motion and the opposition that morning. The trial court agreed to hear arguments and advised the attorneys the matter would be taken under advisement. The plaintiffs strenuously objected to the Emory affidavit and the transcript as inadmissible summary judgment evidence. The trial court gave the attorneys the opportunity to submit additional memorandums on the issues raised during argument. In a post-hearing brief, the plaintiffs again objected to the admissibility of the evidence. On December 22, 2014, the trial court issued extremely brief written reasons denying the partial summary judgment. It did not specifically address the plaintiffs' objections to the defendants' evidence.[3]

         On February 26, 2016, the plaintiffs filed another motion for partial summary judgment, reurging the same contentions as the previous one. In addition to all the exhibits previously submitted, they submitted a more detailed affidavit from Manuel and an affidavit from Chanler. Most significantly, they submitted excerpts from Moore's deposition, which had been taken after the denial of the first motion. In her affidavit, Manuel stated that the USPS has a safety policy to back up a vehicle only when "absolutely necessary" and that she could attest Chanler had been instructed in accordance with this policy.[4]

         In his deposition, Moore stated that he was backing up in the center of the road at a speed of 5 to 8 or 10 mph, except when he "froze up" while watching a lady waving at him. He said he didn't know what was happening and he "bumped" the accelerator when he tried to hit the brake and missed. He explained that, in addition to rearview mirrors on both sides of the truck, he also had blind-spot mirrors that allowed him to see vehicles in his blind spots. He further admitted that, if he had looked in all of those mirrors, "[p]ossibly, yes, " he should have been able to see the postal vehicle. He conceded that he did not look in the passenger-side mirror or the blind-spot mirror on that side. He said that he told the police the truth that day when he said that he did not see the mail carrier, hit his Jeep and knocked him into the ditch. He thought he pushed the Jeep "[m]aybe 20 feet or something like that" and that the vehicles were only a foot or two apart when he got out of his truck. He admitted that he never saw the Jeep until after the collision. When asked if he was informed that he was not supposed to back up on a roadway when he took the test for his commercial driver's license, he said "I guess so, yeah." As to O'Nealgas's policy, he said that drivers have "to make sure everything is clear behind us when we back up." Although he was aware that the witnesses heard Chanler honk his horn, he said he did not hear it. He only saw one of the ladies in the yard waving at him, but he did not hear her yelling. He thought she was trying to alert him to an emergency. Two or three seconds after he saw her, he accidentally tapped the accelerator. He also admitted that one reason he didn't hear her yelling could have been his radio. Moore further admitted that he was momentarily distracted due to disorientation about where he was. He stated that he "glanced" at his driver's side rearview mirror, but "[m]y mind was making sure I got to the right customer, and everything else was blocked out." He conceded that it would have been reasonable for the mail carrier to assume that: (1) he could hear the horn being honked, (2) he was backing up to then pull forward into one of the driveways, and (3) he was going to stop before impact due to the horn, the flashing light on the Jeep, and the hollering of the ladies to stop. He admitted making the statement to the police that was recounted by the postmaster. He was unable to say how much time Chanler had to react. He said that propane gas is considered a hazardous material.

         In his affidavit, Chanler explained that, due to the right-hand drive of the Jeep and its passenger-side steering wheel, he was seated on the passenger side of the Jeep. He could clearly see Moore's face in the truck's passenger-side mirror, which demonstrated that he was not in the truck's blind spot and that Moore could have seen him if he had looked. He described the collision, including the truck slowly backing up and then unexpectedly accelerating backwards, colliding with the Jeep seconds later. Chanler stated that he flashed his headlights and honked his horn. He stated that he and Manuel both heard the truck driver admit that he did not see Chanler. Like Manuel, he also stated that the USPS safety policy specified that a postal vehicle should be backed up only when "absolutely necessary." He further stated that he believed the truck would stop before hitting him due to the flashing light, the honking horn, and the woman waving and screaming at the truck driver.

         O'Nealgas and Moore opposed the second motion for partial summary judgment and relied upon the same exhibits previously submitted in their opposition to the first motion.

         At the hearing on April 7, 2016, the matter was argued before a different trial judge.[5] All of the plaintiffs' exhibits were admitted without objection. The plaintiffs informed the court that, while Jamestown had taken bankruptcy, there was an excess umbrella policy available, but the other side refused to negotiate any settlement until there was a finding of liability. They emphasized the new and "very candid" admissions in Moore's deposition, which was taken after the denial of the prior motion. Among these were his statements that he failed to look in his mirrors before backing up and that he accidentally hit the accelerator when he tried to stop. The plaintiffs again strenuously objected to the "double hearsay" in Emory's affidavit and the unsworn telephone interview with Chase. They maintained that the defendants had had more than enough time to correct the deficiencies in their evidence by deposing Chase or securing an affidavit from her, but they failed to do so. The attorney for O'Nealgas and Moore objected to allegedly conclusory statements in the plaintiffs' affidavits and argued that there were disputed issues of material fact as to comparative fault. They also asserted that the principle of "law of the case" should apply because the prior judge denied the motion due to the Emory affidavit and the Chase telephone interview.

         The trial court granted the motion for partial summary judgment and assigned oral reasons for so ruling. In particular, the trial court noted that the judge who previously denied the motion did not have the benefit of Moore's "telling" and "very strong" deposition, which overwhelmingly showed that there was no genuine issue of material fact as to fault. The court also noted the hearsay issue; it stated that Chase's statement to Emory should not be considered in this case. Further, the court indicated that defense counsel had ample time to address and correct the problems with the inadmissible evidence and failed to do so.

         Judgment was signed on April 27, 2016. It specified that O'Nealgas and Moore were solely at fault, precluding any finding of comparative fault on Chanler's part. O'Nealgas and Moore appealed.[6]

         LAW

         Summary ...


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