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Carr v. Louisiana Farm Bureau Casualty Insurance Co.

Court of Appeals of Louisiana, First Circuit

March 14, 2018

CALANDRA F. CARR INDIVIDUALLY AND LOUIS CARR ON BEHALF OF MINOR CHILDREN LOUIS CARR, JR. AND CIARA CARR
v.
LOUISIANA FARM BUREAU CASUALTY INSURANCE COMPANY, NTHONY AMEDEE, OHIO SECURITY INSURANCE COMPANY, GEAUX CLEAN EXPRESS CAR WASH, AND ALLSTATE PROPERTY AND CASUALTYINSURANCE COMPANY

         Appealed from the 19th Judicial District Court in and for the Parish of East Baton Rouge, Louisiana Trial Court No. C637958 Honorable Todd Hernandez, Judge

          CHRIS 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

          KEITH S. GIARDINA BATON ROUGE, LA ATTORNEY FOR DEFENDANT -APPELLEE OHIO SECURITY INSURANCE CO.

          STACEY MOAK BREANN CRANE BATON ROUGE, LA ATTORNEYS FOR DEFENDANTS -APPELLEES LOUISIANA FARM BUREAU CASUALTY INSURANCE COMPANY AND ANTHONY AMEDEE

          JEANNE P. HENDERSON BATON ROUGE, LA ATTORNEY FOR DEFENDANT -APPELLEE ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY

          BEFORE: GUIDRY, PETTIGREW, McCLENDON, CRAIN, AND PENZATO, JJ.

          PETTIGREW, J.

         In this 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.

         FACTS AND PROCEDURAL HISTORY

         This 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.

         In 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.

         In 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.[1] 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.

         Following 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[2] 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 employees.
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 hearsay.[3]

         SUMMARY JUDGMENT

         A 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. 966(A)(4).

         The 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 So.3d 481.

         Appellate 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 ...


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