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Blanchard v. Hicks

Court of Appeals of Louisiana, Third Circuit

May 2, 2018



          Brian M. Caubarreaux Emily G. Meche Wesley K. Elmer Amira M. Roy Brian Caubarreaux and Associates COUNSEL FOR PLAINTIFF/APPELLANT: Christopher Blanchard

          Bradley John Gadel Bradley J. Gadel, APLC COUNSEL FOR DEFENDANTS/APPELLEES: Demetrius J. Hicks GoAuto Insurance Company

          Court composed of Sylvia R. Cooks, Marc T. Amy, and John E. Conery, Judges.

          JOHN E. CONERY, JUDGE.

         The trial court granted summary judgment in favor of the defendants, GoAuto Insurance Company (GoAuto), and its insured, Demetrius J. Hicks (Mr. Hicks), dismissing the plaintiff Christopher Blanchard's claim for damages allegedly sustained after the patrol car he was driving was struck by Mr. Hicks's vehicle. An unknown thief had stolen the Hicks's vehicle and had abandoned the vehicle just before the collision while the Hicks's vehicle was in gear and still running. Mr. Blanchard appeals. For the following reasons, we affirm.


         Mr. Blanchard filed suit against Mr. Hicks and his insurer, GoAuto, claiming that he was rear ended by a truck owned by Mr. Hicks and insured by GoAuto. Mr. Hicks and GoAuto denied liability and claimed in its motion for summary judgment that Mr. Hicks's truck had been stolen by an unknown thief. It claimed the unknown thief abandoned the truck while it was in gear and still moving, thus causing Mr. Hicks's truck to collide into the rear of Mr. Blanchard's vehicle, and causing the alleged damages to Mr. Blanchard.

         The following facts are undisputed. On August 5, 2016, Mr. Hicks, who is a carpenter and subcontractor, parked his truck in front of a home he was inspecting. Mr. Hicks and his helper exited the truck, leaving the keys in his vehicle with the engine and air conditioning running and the door unlocked. Mr. Hicks testified in both his deposition and affidavit submitted in support of his motion for summary judgment that no longer than four or five minutes had elapsed when the helper noticed a man sitting in the driver's seat of Mr. Hicks's truck. He alerted Mr. Hicks, who quickly walked to the driver's side door. Before Mr. Hicks could grab the handle of the truck door, the unknown thief looked at Mr. Hicks and drove off. Mr. Hicks began chasing the truck. Mr. Blanchard stopped his police unit at a red light and was waiting for the light to change. He was not aware of the stolen truck behind his police vehicle.

         Mr. Hicks saw his truck stop about six feet behind the police car. The passenger door opened, and the unknown thief jumped out and took off running. Mr. Hicks saw his truck begin to slowly roll forward and strike the back of the police car occupied by Mr. Blanchard. The unknown thief has never been apprehended.

         After being hit by Mr. Hicks's truck, Mr. Blanchard called the police station, which can be seen from the intersection, and reported the traffic accident. At the same time, Mr. Hicks was knocking on the passenger window and waving his arms to alert Mr. Blanchard to the fact that his truck was stolen, and the thief was getting away. After learning that the truck had been stolen Mr. Blanchard then made a second radio call for backup. None of the officers pursued the unknown thief because he had already fled the scene. Mr. Hicks subsequently filed a formal report with the Alexandria City Police stating that his truck was stolen before the accident by an unknown thief.

         Mr. Blanchard admitted in his deposition that he had no facts to contradict Mr. Hicks's claim that his truck was stolen. Both Mr. Hicks's statement of uncontested facts and the deposition filed in support of the motion of the summary judgment stated that the door to his truck was closed, the windows were up, and the air conditioner was on when he and his helper left the truck unattended for approximately four to five minutes. The trial court mentioned in its oral reasons for ruling that common sense would dictate that during daylight hours on August 5, 2016 in Alexandria, La., Mr. Hicks would have closed his truck door to allow his air conditioner to keep the truck cool while he made his inspection.

         The only evidence submitted into the record filed in support of the motion for summary judgment was filed on behalf of Mr. Hicks and GoAuto. The supporting documentation included the March 17, 2017 affidavit of Mr. Hicks and transcripts of the May 23, 2017 deposition testimonies of Mr. Hicks and Mr. Blanchard. In his opposition to the motion for summary judgment, Mr. Blanchard did not submit any documentation to dispute the facts stated in Mr. Hicks's affidavit and deposition.

         The trial court granted the motion for summary judgment for oral reasons assigned and dismissed Mr. Blanchard's claims with prejudice. A judgment was signed by the trial court on September 26, 2017, granting the motion for summary judgment on behalf of Mr. Hicks and GoAuto, dismissing Mr. Blanchard's claims with prejudice, and designating the judgment as final pursuant to La.Code Civ.P. art. 1915(B)(1). Mr. Blanchard now timely appeals the trial court's judgment.


         Mr. Blanchard asserts one assignment of error on appeal:

The Trial Court erred in granting defendants Motion for Summary Judgment in light of the defendant-driver's testimony that he violated Louisiana Revised Statute 32:145 by leaving his vehicle unattended with the keys in the ignition.

         Standard of Review

         Appellate courts review motions for summary judgment de novo, using the identical criteria that govern the trial court's consideration of whether summary judgment is appropriate. Samaha v. Rau, 07-1726 (La. 2/26/08), 977 So.2d 880. The reviewing court, therefore, is tasked with determining whether "the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law." La.Code Civ.P. art. 966(A)(3).

         Louisiana Code of Civil Procedure Article 966(D)(1) and (2) further provides:

(1) The burden of proof rests with 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.
(2) The court may consider only those documents filed in support of or in opposition to the motion for summary judgment and shall consider any documents to which no objection is made. Any objection to a document shall be raised in a timely filed opposition or reply memorandum.

         In Roy v. Kyrles, Inc., 07-1605 (La.App. 3 Cir. 5/14/08), 983 So.2d 975, 978, a panel of our court held that the legislature further clarified the burden of proof by enacting La.Code Civ.P. art. 966(C)(2) (now 966(D)(1) and (2)), stating:

This amendment parallels the language of Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The amended article places the initial burden of proof on the mover of the motion for summary judgment. If the mover meets this initial burden, the burden of proof then shifts to the nonmoving party that has the burden of proof on this particular issue at trial. This nonmoving party then must put forth evidence that shows he or she will be able to meet that burden at trial. If the nonmoving party cannot, then the motion for summary judgment should be granted. Marist & Lemmon, Louisiana Civil Law Treatise: Civil Procedure § 6.8 (1999).

         LAW ...

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