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Richey v. Miller

Court of Appeals of Louisiana, First Circuit

March 29, 2018

REBECCA RICHEY AND MARK RICHEY, INDIVIDUALLY AND ON BEHALF OF THEIR MINOR CHILDREN JEWEL RICHEY AND CAMERON RICHEY
v.
JASON P. MILLER, CISCO SYSTEMS, INC., LIBERTY MUTUAL INSURANCE COMPANY AND ABC INSURANCE COMPANY

          On appeal from the Twenty-Second Judicial District Court In and for the Parish of St. Tammany State of Louisiana Docket Number 2015-10922 Honorable Reginald T. Badeaux, III, Judge Presiding

          James E. Shields, Sr. Gretna, LA Counsel for Plaintiffs/Appellants Rebecca and Mark Richey, individually and on behalf of their minor children, Jewel and Cameron Richey

          D. Russell Holwadel Heather England Remik New Orleans, LA Counsel for Defendant/Appellee Cisco Systems, Inc.

          BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.

          GUIDRY, J.

         This is an appeal of a summary judgment dismissing claims of vicarious liability against an alleged tortfeasor's employer. For the following reasons, we affirm.

         FACTS AND PROCEDURAL HISTORY

         On February 24, 2015, Rebecca Richey was traveling north on LA 1088[1]driving her husband, Mark Richey, to work, while accompanied by their children, Jewel and Cameron Richey. Around the same time, Jason Miller was traveling south on LA 1088 after leaving Lakeshore High School, where he had been practicing football with his son. On approaching the westbound entrance to Interstate 12, Mrs. Richey turned left, traversing the southbound lanes of LA 1088, in the path of Mr. Miller's vehicle, which subsequently collided with the Richey vehicle. The collision caused the Richey vehicle to roll onto the driver's side, travel off the roadway, and impact a "One Way" traffic sign. The occupants of the Richey vehicle sustained injuries as a result of the collision.

         On March 6, 2015, [2] Mr. and Mrs. Richey, individually and on behalf of their minor children, filed a petition for damages against Mr. Miller, his employer, Cisco Systems, Inc., and their respective liability insurers, for the injuries and damages they sustained as a result of the February 24, 2015 accident. Cisco filed an answer denying any vicarious liability for the plaintiffs' claims. Sixteen months after the accident, on June 29, 2016, Cisco filed a motion for summary judgment, asserting that the plaintiffs would be unable to establish that Mr. Miller was acting in the course and scope of his employment at the time of the accident.

         A hearing on Cisco's motion for summary judgment was originally scheduled for September 6, 2016, but was reset for October 11, 2016, pursuant to an unopposed motion filed by Cisco. Then on September 23, 2016, the plaintiffs filed a motion to continue the hearing and an expedited motion to compel the deposition of three Cisco employees. In the motion to continue, the plaintiffs referred to their motion to compel, and to the corporate deposition of Cisco scheduled for September 30, 2016, as the basis for their motion. The plaintiffs further alleged in the motion to continue that "upon information and belief, " Cisco had no objection to removing the motion for summary judgment from the docket until the specified discovery was completed.

         On September 28, 2016, Cisco filed objections on the record to several of the topics listed in the notice of the September 30, 2016 corporate deposition, which the plaintiffs had served on Cisco on September 23, 2016.

         On September 30, 2016, the trial court continued the hearing on Cisco's motion for summary judgment to December 20, 2016. That date was maintained, despite Cisco filing an opposition to the plaintiffs' motion to continue on October 3, 2016, wherein it declared that it objected to and had always objected to any continuance of the hearing date. Cisco also filed an opposition to the plaintiffs' motion to compel the deposition of three of its employees, stating that the deposition of the three individuals sought to be deposed had never been "noticed, " that none of the individuals were ever Mr. Miller's supervisor or manager, that any relevant information could have been explored in Cisco's corporate deposition, and that Robert Covington, Mr. Miller's supervisor, was prepared to serve as the corporate representative for the corporate deposition. Cisco noted, however, that the plaintiffs had unilaterally cancelled the corporate deposition after erroneously construing its objections to the notice of the corporate deposition as a motion to quash.

         On November 3, 2016, the plaintiffs filed an expedited motion to determine what topics could be covered in the corporate deposition of Cisco.

         On December 5, 2016, the plaintiffs filed an opposition to Cisco's motion for summary judgment and filed a supplemental memorandum in opposition on December 13, 2016. The plaintiffs also filed a motion for partial summary "judgments" on December 13, 2016, seeking a ruling from the trial court on what they characterized as fourteen "issues as [involve] vicarious liability." Because the plaintiffs' supplemental memorandum in opposition to Cisco's motion for summary judgment was filed less than 15 days prior to date of the hearing on the motion, Cisco filed a motion to strike the supplemental memorandum in opposition based on La. C.C.P. art. 966(B)(2), which motion was later granted by the trial court.

         On December 20, 2016, the trial court considered not only Cisco's motion for summary judgment, but also the plaintiffs' motion to compel and the motion to determine the topics that could be covered at the corporate deposition. After hearing the arguments of counsel, the trial court granted summary judgment in favor of Cisco, dismissing the plaintiffs' claims against it, and denied the plaintiffs' motion to compel and motion to determine the topics for the corporate deposition. After prompting by plaintiffs' counsel, the trial court also denied the plaintiffs' motion for partial summary "judgments." The plaintiffs now appeal the judgment incorporating all of those rulings, which was signed by the trial court on January 19, 2017.

         ASSIGNMENTS OF ERROR

1. Appellants were entitled to pending discovery ... before Appellees' summary judgment was heard. ...
2. Appellants were entitled to have the court determine what topics would be allowed in the 1442 corporate deposition of Appellees ...

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