CALANDRA F. CARR INDIVIDUALLY AND LOUIS CARR ON BEHALF OF MINOR CHILDREN LOUIS CARR, JR. AND CIARA CARR
LOUISIANA FARM BUREAU CASUALTY INSURANCE COMPANY, NTHONY AMEDEE, OHIO SECURITY INSURANCE COMPANY, GEAUX CLEAN EXPRESS CAR WASH, AND ALLSTATE PROPERTY AND CASUALTYINSURANCE COMPANY
from the 19th Judicial District Court in and for
the Parish of East Baton Rouge, Louisiana Trial Court No.
C637958 Honorable Todd Hernandez, Judge
P. KEYSER ADRAS PAUL LaBORDE III BATON ROUGE, LA ATTORNEYS
FOR PLAINTIFFS -APPELLANTS CALANDRA F. CARR, LOUIS CARR AND
MINOR CHILDREN, LOUIS CARR, JR. AND CIARA CARR
S. GIARDINA BATON ROUGE, LA ATTORNEY FOR DEFENDANT -APPELLEE
OHIO SECURITY INSURANCE CO.
MOAK BREANN CRANE BATON ROUGE, LA ATTORNEYS FOR DEFENDANTS
-APPELLEES LOUISIANA FARM BUREAU CASUALTY INSURANCE COMPANY
AND ANTHONY AMEDEE
P. HENDERSON BATON ROUGE, LA ATTORNEY FOR DEFENDANT -APPELLEE
ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY
BEFORE: GUIDRY, PETTIGREW, McCLENDON, CRAIN, AND PENZATO,
case, plaintiffs challenge the trial court's January 6,
2017 judgment, dismissing their claims against defendant,
Ohio Security Insurance Company ("Ohio Security"),
with prejudice. For the reasons that follow, we reverse and
remand for further proceedings.
AND PROCEDURAL HISTORY
matter arises in connection with a lawsuit filed by
plaintiffs, Calandra F. Carr, individually, and Louis Carr,
on behalf of their minor children, Louis Carr, Jr. and Ciara
Carr, against defendants, Anthony Amedee and Amedee's
liability insurer, Louisiana Farm Bureau Casualty Insurance
Company ("Farm Bureau"); Geaux Clean Express Car
Wash ("Geaux Clean") and its insurer, Ohio
Security; and Allstate Property and Casualty Insurance
Company ("Allstate") as the Carrs' UM insurers.
According to the petition, Calandra was operating her 2008
Chevrolet Uplander van, with her minor children as
passengers, and traveling through Geaux Clean directly behind
a 2013 Ford F150 driven by Jeffrey Dykes. Amedee's 2006
Nissan Titan pickup truck was directly in front of Dykes'
truck in the car wash. Amedee's truck "suddenly and
without warning move[d] backwards striking [the Dykes]
vehicle ..., causing the Dykes vehicle to then strike the
front of the Plaintiffs' vehicle, causing the collision
as well as the Plaintiffs' injuries, damages, and losses
complained of herein." Plaintiffs asserted that
Amedee's failure to maintain proper control of his
vehicle and his careless operation of his vehicle were the
proximate causes of the collision. Plaintiffs further alleged
numerous acts of fault, gross and wanton negligence, and lack
of skill by Geaux Clean as the proximate cause of the
collision, i.e., failing to properly maintain the
car wash; careless operation of the car wash and its
mechanical systems; and inadequate supervision, training, and
management of the car wash and its employees.
response to plaintiffs' claims, Ohio Security filed a
motion for summary judgment, alleging that plaintiffs are
incapable of proving that their injuries, damages, and losses
complained of were caused by Geaux Clean's careless
operation of the car wash or its mechanical system. Rather,
Ohio Security argued that plaintiffs' injuries were
caused entirely by Amedee's accidental gear movement or
negligence. Thus, Ohio Security maintained it was entitled to
summary judgment as a matter of law.
support of its motion for summary judgment, Ohio Security
offered excerpts of deposition testimony from Calandra;
Amedee; Cameron Brown (a former employee of Geaux Clean); and
Dykes. Plaintiffs filed a memorandum in opposition to the
motion for summary judgment. Plaintiffs alleged that there
were still many unresolved questions regarding Geaux
Clean's liability and that the conflicting testimonies of
Amedee and Dykes required a credibility determination that
was improper on summary judgment. In support of their
position, plaintiffs relied on the deposition testimony
submitted by Ohio Security, in addition to deposition
testimony submitted by Amedee and Farm Bureau in their
opposition to the motion for summary judgment. Plaintiffs also
offered the East Baton Rouge Sheriffs Office incident report
prepared by Corporal Nicholas Tullier, which was struck as
inappropriate summary judgment evidence by the trial court at
the hearing below.
a hearing, the trial court found no genuine issues of
material fact. A written judgment was subsequently signed by
the trial court on January 6, 2017, granting summary judgment
in favor of Ohio Security and dismissing plaintiffs'
claims against it with prejudice. The instant appeal by
plaintiffs followed, wherein plaintiffs alleged the
trial court erred as follows:
1. The Trial Court erred by granting summary judgment because
there is evidence that Geaux Clean carelessly operated the
car wash and negligently trained and/or supervised its
2. The Trial Court erred by granting summary judgment because
Anthony Amedee and Jeffrey Dykes presented conflicting
testimony regarding whether Amedee was in reverse when he
entered the car wash.
3. The Trial Court erred by striking Corporal Tullier's
report as inadmissible summary judgment evidence when it
falls under an exception to rule against
motion for summary judgment is a procedural device used to
avoid a full-scale trial when there is no genuine issue of
material fact. All Crane Rental of Georgia, Inc. v.
Vincent, 2010-0116, p. 4 (La.App. 1 Or. 9/10/10), 47
So.3d 1024, 1027, writ denied, 2010-2227 (La.
11/19/10), 49 So.3d 387. After an opportunity for adequate
discovery, a motion for summary judgment shall be granted if
the motion, memorandum, and supporting documents show there
is no genuine issue as to material fact and that mover is
entitled to judgment as a matter of law. La. Code Civ. P.
art. 966(A)(3). The only documents that may be filed in
support of or in opposition to the motion are pleadings,
memoranda, affidavits, depositions, answers to
interrogatories, certified medical records, written
stipulations, and admissions. La. Code Civ. P. art.
burden of proof rests on the mover. Nevertheless, if the
mover will not bear the burden of proof at trial on the issue
that is before the court on the motion for summary judgment,
the mover's burden on the motion does not require him to
negate all essential elements of the adverse party's
claim, action, or defense, but rather to point out to the
court the absence of factual support for one or more elements
essential to the adverse party's claim, action, or
defense. The burden is on the adverse party to produce
factual support sufficient to establish the existence of a
genuine issue of material fact or that the mover is not
entitled to judgment as a matter of law. La. Code Civ. P.
art. 966(D)(1). If, however, the movant fails in his burden
to show an absence of factual support for one or more of the
elements of the adverse party's claim, the burden never
shifts to the adverse party, and the movant is not entitled
to summary judgment. LeBlanc v. Bouchereau Oil Co.,
Inc., 2008-2064, p. 4 (La.App. 1 Cir. 5/8/09), 15 So.3d
152, 155, writ denied, 2009-1624 (La. 10/16/09), 19
courts review evidence de novo under the same
criteria that govern the trial court's determination of
whether summary judgment is appropriate. Bouquet v.
Williams, 2016-0134, p. 5 (La.App. 1
Cir. 10/28/16), 206 So.3d 232, 237, writs denied,
2016-2077, 2016-2082 (La. 1/9/17), 214 So.3d 870, 871. Thus,
appellate courts ask the same questions that the trial court
does in determining whether summary judgment is appropriate:
whether there is any genuine issue of material fact, and
whether the ...