United States District Court, E.D. Louisiana
ZAINEY UNITED STATES DISTRICT JUDGE.
the Court is a Motion for Partial Summary Judgment (Rec. Doc.
12) filed by Plaintiff Sandy Casmier. Defendants Neal Bowles
(“Bowles”), Cumberland Products, Inc.
(Cumberland), and the Cincinnati Insurance Company
(“Cincinnati”) oppose the Motion. (Rec. Doc. 15).
The Motion, set for submission on May 3, 2017, is before the
Court on the briefs without oral argument.
matter arsis out of an automobile collision involving
Plaintiff, Defendant Bowles, and Bob Pellegrin, who is not a
party in this lawsuit. On August 6, 2015, a collision
occurred between a vehicle operated by Plaintiff and a truck
operated by Bob Pellegrin. (Rec. Doc. 15). Plaintiff claims
that Bowles failed to yield the right of way and came into
Plaintiff's lane, “requiring her to take evasive
actions to avoid a crash resulting in a collision with”
Pellegrin's vehicle. (Rec. Doc. 1-2). At the time of the
collision, Bowles was allegedly acting in the course and
scope of his employment with Defendant Cumberland, who
Plaintiff claims is vicariously liable for Bowles'
negligence. (Rec. Doc. 1-2). Plaintiff filed her lawsuit
against Defendants in the 24th Judicial District Court for
the Parish of Jefferson, which Defendants removed to this
Court based on diversity jurisdiction. (Rec. Doc. 1).
Plaintiff then filed the instant Motion for Partial Summary
Judgment. (Rec. Doc. 12).
filed her Motion for Partial Summary Judgment seeking a
declaration from the Court that 1) Defendant Bowles is 100%
liable and solely at fault for the damages arising out of the
motor vehicle collision between Bowles, Plaintiff, and Bob
Pellegrin, 2) that Defendant Cumberland is vicariously liable
for the negligence of Bowles, and 3) that Defendant
Cincinnati provided automobile liability coverage to Bowles
and Cumberland. Defendants maintain that summary judgment is
not appropriate because genuine issues of material fact
judgment is appropriate only if “the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, ” when
viewed in the light most favorable to the non-movant,
“show that there is no genuine issue as to any material
fact.” TIG Ins. Co. v. Sedgwick
James, 276 F.3d 754, 759 (5th Cir. 2002) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249-50 (1986)). A dispute about a material fact is
“genuine” if the evidence is such that a
reasonable jury could return a verdict for the non-moving
party. Id. (citing Anderson, 477 U.S. at
248). The court must draw all justifiable inferences in favor
of the non-moving party. Id. (citing
Anderson, 477 U.S. at 255).
the moving party has initially shown “that there is an
absence of evidence to support the non-moving party's
cause, ” Celotex Corp. v. Catrett, 477 U.S.
317, 325 (1986), the non-movant must come forward with
“specific facts” showing a genuine factual issue
for trial. Id. (citing Fed.R.Civ.P. 56(e);
Matsushita Elec. Indus. Co. v. Zenith Radio, 475
U.S. 574, 587 (1986)). Conclusional allegations and denials,
speculation, improbable inferences, unsubstantiated
assertions, and legalistic argumentation do not adequately
substitute for specific facts showing a genuine issue for
trial. Id. (citing SEC v. Recile, 10 F.3d
1093, 1097 (5th Cir. 1993)). Additionally, if the moving
party will bear the burden of persuasion at trial, then the
moving party “must come forward with evidence which
would ‘entitle it to a directed verdict if the evidence
went uncontroverted at trial.'” Int'l
Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257,
1263-64 (5th Cir. 1991) (quoting Golden Rule Ins. Co. v.
Lease, 755 F.Supp. 948, 951 (D.Colo. 1991)).
Defendant Bowles' Fault
seeks a declaration from the Court that Bowles was 100%
liable and solely at fault for any damages Plaintiff
sustained as a result of the collision that occurred on
August 6, 2015. Defendants oppose Plaintiff's Motion
asserting that Bowles is not 100% at fault because Pellegrin
and Plaintiff are at fault.
support of her Motion, Plaintiff points out to the Court that
“Bowles was cited for failure to yield under LSA-R.S.
32.123.” (Rec. Doc. 12-1). She also points out to the
Court that Bowles' insurer paid for the property damage
sustained by Plaintiff and Pellegrin. (Rec. Doc. 12-1).
Additionally, Plaintiff asserts that she was driving at the
speed limit, and that her evasive action was reasonable and
appropriate because she was presented with an unexpected
emergency situation. In support of their opposition,
Defendants note that Bowles' vehicle never came into
contact with another vehicle, and cite to the Police Report
from the date of the accident in which the officer reported
that Pellegrin was traveling ten miles above the speed limit
when his vehicle struck Plaintiff's vehicle. (Rec. Doc.
15). Defendants also note that there are conflicting facts as
to whether Plaintiff was traveling in the far left lane or
the center lane before Bowles' vehicle began to merge.
(Rec. Doc. 15). Finally, Defendants maintain that more than
one party may be at fault for the damages sustained in a
motor vehicle accident.
Court denies Plaintiff's Motion for Summary Judgment on
the issue of liability and comparative fault. Taking the
pleadings, depositions, answers to interrogatories, and
admissions on file, in the light most favorable to Defendants
as the non-moving parties, the issue remains as to how much
fault should be apportioned to Plaintiff and to Pellegrin.
Considering the fact that Defendant Bowles' vehicle never
came into contact with another vehicle and that Pellegrin was
traveling above the speed limit, whether Plaintiff and
Pellegrin were at least partially at fault remains unclear.
In ordinary tort actions, “the determination and
apportionment of fault is a factual issue.” Coleman