United States District Court, E.D. Louisiana
TONJA WRIGHT, INDIVIDUALLY AND ON BEHALF OF HER MINOR SON, NOAH JACKSON
NATIONAL INTERSTATE INSURANCE CO., ET AL.
ORDER AND REASONS
E. FALLON, UNITED STATES DISTRICT JUDGE.
the Court is Defendants' motion for partial summary
judgment, asking the Court to dismiss Plaintiff's claims
against Defendant Mabe Trucking Company. Rec. Doc. 36.
Plaintiff opposes the motion. Rec. Doc. 71. Having considered
the parties' arguments, submissions, and applicable law,
the Court now issues this Order and Reasons.
case arises out of an automobile accident. On September 9,
2015, Plaintiff Tonja Wright was operating her 2011 Ford
Escape in Tangipahoa Parish, Louisiana, when she was
allegedly struck by a trailer operated by Defendant Terry
Poole. At the time of the alleged accident, Poole was
employed by Mabe Trucking Company. Mabe has stipulated that
at the time of the alleged accident, Poole was in the course
and scope of his employment with Mabe. Rec. Doc. 36-1.
August 23, 2016, Plaintiff filed suit against Defendants,
seeking damages for past and future mental and physical pain
and suffering, property damage, loss of use of vehicle,
depreciation, rental expenses, medical expenses, loss of past
earnings, loss of future earning capacity, disability,
scarring and disfigurement, loss of consortium, penalties,
and attorneys' fees. Plaintiff further alleges that Mabe was
negligent for allowing Poole to operate the vehicle, for
failing to train him, and for failing to
“maintain” the vehicle. Rec. Doc. 1-1. Plaintiff
claims that the 2015 accident caused her to need a cervical
fusion at the C4-C6 levels, which was performed on August 2,
2016. Rec. Doc. 23.
filed their motion for partial summary judgment, seeking to
dismiss claims against Mabe. Because Mabe has stipulated that
Poole was in the course and scope of employment, Defendants
argue that Plaintiff cannot simultaneously pursue both (1) a
negligence claim against Poole, in which Mabe would be held
vicariously liable if Poole's fault is proven, and (2) a
direct negligence claim against Mabe for allowing Poole to
operate the vehicle, failing to train him, and failing to
maintain the vehicle. See Rec. Doc. 36-3 at 1. To
support their motion, Defendants rely on a recent case from
the Western District of Louisiana: Dennis v.
Collins, No. CIV.A 15-2410, 2016 WL 6637973 (W.D. La.
Nov. 9, 2016) (Hicks, J.).
judgment is appropriate when “the pleadings, the
discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as
a matter of law.” Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986) (citing Fed.R.Civ.P. 56(c));
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994). When assessing whether a dispute as to any
material fact exists, the Court considers “all of the
evidence in the record but refrains from making credibility
determinations or weighing the evidence.” Delta
& Pine Land Co. v. Nationwide Agribusiness Ins. Co.,
530 F.3d 395, 398 (5th Cir. 2008).
Federal Rule of Civil Procedure 56(c), the moving party bears
the initial burden of “informing the district court of
the basis for its motion, and identifying those portions of
[the record] which it believes demonstrate the absence of a
genuine issue of material fact.” Celotex, 477
U.S. at 322. When the moving party has met its Rule 56(c)
burden, “[t]he non-movant cannot avoid summary judgment
. . . by merely making ‘conclusory allegations' or
‘unsubstantiated assertions.'” Calbillo
v. Cavender Oldsmobile, Inc., 288 F.3d 721, 725 (5th
Cir. 2002) (quoting Little, 37 F.3d at 1075).
“The mere existence of a scintilla of evidence in
support of the plaintiff's position will be insufficient;
there must be evidence on which the jury could reasonably
find for the plaintiff.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 253 (1986). All reasonable
inferences are drawn in favor of the nonmoving party, but a
party cannot defeat summary judgment with conclusory
allegations or unsubstantiated assertions. Little,
37 F.3d at 1075. A court ultimately must be satisfied that
“a reasonable jury could not return a verdict for the
nonmoving party.” Delta, 530 F.3d at 399.
“[a] partial summary judgment order is not a final
judgment but is merely a pre-trial adjudication that certain
issues are established for trial of the case.”
Streber v. Hunter, 221 F.3d 701, 737 (5th Cir.
2000). Partial summary judgment serves the purpose of rooting
out, narrowing, and focusing the issues for trial. See
Calpetco 1981 v. Marshall Exploration, Inc., 989 F.2d
1408, 1415 (5th Cir. 1993).
LAW AND ANALYSIS
Whether Plaintiff Can Pursue Simultaneous Causes of
Action-Under Respondeat Superior and Negligence of
Employer-When the Employer Has Stipulated that the ...