FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO.
257, 487 HONORABLE PATRICIA EVANS KOCH, DISTRICT JUDGE
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
composed of Sylvia R. Cooks, Marc T. Amy, and John E. Conery,
E. CONERY, JUDGE.
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.
AND PROCEDURAL HISTORY
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.
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.
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
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
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
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
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
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
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).
Code of Civil Procedure Article 966(D)(1) and (2) further
(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.
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
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).