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Watson v. Smith

Court of Appeals of Louisiana, Fourth Circuit

May 16, 2018

LISA K. WATSON
v.
MELISSA L. SMITH, ET AL.

          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2015-06035, DIVISION "N-8" Honorable Ethel Simms Julien, Judge

          Robert R. Faucheux, Jr. Christophe L. Faucheux Lindsay M. Faucheux FAUCHEUX LAW FIRM COUNSEL FOR PLAINTIFF/APPELLANT

          Thomas H. Barnett Aaron J. Weidenhaft LAW OFFICES OF THOMAS H. BARNETT COUNSEL FOR DEFENDANTS/APPELLEES

          (Court composed of Judge Edwin A. Lombard, Judge Rosemary Ledet, Judge Paula A. Brown)

          PAULA A. BROWN, JUDGE.

         This matter involves a three-car vehicular accident. Plaintiff, Lisa K. Watson ("Plaintiff"), appeals the district court's grant of summary judgment in favor of Defendants, 21st Century Centennial Insurance Company ("21st Century") and Shelley Tannehill ("Ms. Tannehill"). For the reasons that follow, we affirm the judgment.

         FACTUAL AND PROCEDURAL HISTORY

         On or about June, 24, 2014, at approximately 7:40 a.m., Plaintiff was traveling on the Interstate-10 ("I-10") South Carrollton exit in New Orleans. Plaintiff's lead vehicle was followed by a middle vehicle operated by Ms. Tannehill and a third vehicle driven by Melissa Smith ("Ms. Smith"). After Plaintiff's vehicle had come to a complete stop, Ms. Smith's vehicle (the "Smith vehicle") struck the rear of Ms. Tannehill's vehicle (the "Tannehill vehicle"), pushing it into the rear of Plaintiff's vehicle.

         On June 23, 2015, Plaintiff filed a Petition for Personal Injuries and Damages (the "Petition") against Ms. Smith and her liability carrier, Allstate Property and Casualty Insurance Company ("Allstate"), and Ms. Tannehill and her insurer, 21st Century (collectively referred to as "Ms. Tannehill"). The Petition alleged, in part, that Plaintiff was stopped on the I-10 South Carrollton exit lane when the Tannehill vehicle followed her too closely and struck her from the rear; and she was also struck from the rear when the Smith vehicle rear-ended the Tannehill vehicle after the Tannehill vehicle had come to a sudden stop.

         On March 15, 2017, after witness depositions had been completed, Ms. Tannehill filed a motion for summary judgment seeking to dismiss Plaintiff's action. Ms. Tannehill's Statement of Uncontested Material Facts and Affidavit attested that her vehicle was at a complete stop when it was struck in the rear by the Smith vehicle. Ms. Tannehill stated that her vehicle struck Plaintiff's vehicle only once, after the impact from the Smith vehicle caused the Tannehill vehicle to be pushed into the rear of Plaintiff's vehicle. Ms. Tannehill supported her motion with excerpts from Plaintiff's deposition, [1] Ms. Smith's deposition, [2] and the police accident report which contained her written statement. Ms. Tannehill argued that she was entitled to summary judgment relief as a matter of law.

         In opposition, Plaintiff contended that a genuine issue of material fact existed as to whether the Tannehill vehicle struck her vehicle before the impact between the Smith vehicle and the Tannehill vehicle.[3] In support, Plaintiff attached her Affidavit, attesting that her vehicle was struck by the Tannehill vehicle, and excerpts from Ms. Smith's deposition, wherein she testified regarding the number of impacts to Plaintiff's vehicle. Plaintiff argued that the number of impacts to her vehicle, and whether or not Ms. Tannehill's vehicle was following too closely behind her vehicle are factual disputes which precluded Ms. Tannehill's entitlement to summary judgment.

         Plaintiff also objected to the district court's consideration of the police accident report arguing that, pursuant to La. C.C.P. art. 966(A)(4), a police report is not the type of document that may be filed in support of a motion for summary judgment.[4]

         The district court heard argument on the motion for summary judgment on July 7, 2017. On August 21, 2017, the district court granted the motion, dismissing Plaintiff's claims against Ms. Tannehill with prejudice.

         This devolutive appeal followed.

         STANDARD OF REVIEW

         It is established jurisprudence that "[t]he summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of actions. The procedure is favored and shall be construed to accomplish these ends." La. C.C.P. art. 966 A(2). This Court, in Chanthasalo v. Deshotel, discussed the standard of review for a district court's ruling on a motion for summary judgment:

Appellate courts review the grant or denial of a motion for summary judgment de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate. This standard of review requires the appellate court to look at the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, to determine if they show that no genuine issue as to a material fact exists, and that the mover is entitled to judgment as a matter of law. A fact is material when its existence or nonexistence may be essential to the plaintiff's cause of action under the applicable theory of recovery; a fact is material if it potentially insures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, no need for trial on that issue exists and summary judgment is appropriate. To affirm a summary judgment, we must find reasonable minds would inevitably conclude that the mover is entitled to judgment as a matter of the applicable law on the facts before the court.

2017-0521, p. 5 (La.App. 4 Cir. 12/27/17, 5), 234 So.3d 1103, 1107 (citations omitted). Where a defendant moves for summary judgment based on the lack of proof of a material fact, "the judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other, but whether a fair-minded jury could return a verdict for the non-moving party on the evidence presented." Huber v., Liberty Mut. Ins. Co., 2000-0679, p. 7 (La.App. 4 Cir. 2/7/01), 780 So.2d 551, 554 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). "Argument of counsel and briefs, no matter how artful, are not sufficient to raise a genuine issue of material fact." Huber, 2000-0679, p. 8, 780 So.2d at 555 (citation omitted).

         DISCUSSION

         Plaintiff argues that the district court erred in granting summary judgment, and asserts two assignments of errors: (1) whether a genuine issue of material fact exists as to the number of impacts to Plaintiff's vehicle; and (2) whether a genuine issue of material fact exists as to whether Ms. Tannehill was following Plaintiff's vehicle too closely.

         We shall first examine whether a factual dispute exists regarding the number of impacts between the Tannehill vehicle and Plaintiff's vehicle.

         Plaintiff argues that her Affidavit and portions of the deposition transcript of Ms. Smith support her claim that a material factual dispute exists as to whether the Tannehill vehicle rear-ended her vehicle before the Smith vehicle struck the Tannehill vehicle. Plaintiff's Affidavit provides: (1) "[t]hat on June 24, 2015 she was travelling eastbound on Interstate 10 in the right lane" and (2) "[t]hat her vehicle was struck from behind by a vehicle being driven by Shelley D. Tannehill."

         Plaintiff submitted into evidence the following relevant portions of Ms. Smith's deposition:

Q. Did you see her write up a statement?
A. Everybody did it in their vehicles.
Q. Okay. So you-all didn't get out and talk to each other and then go write the statements? You-all just stayed apart and wrote you-all own statements?
A. Correct.
Q. Do you know what was contained in Ms. Tannehill's statement?
A. I couldn't tell you right now, but I know it's in the police report.
Q. Okay. And how about Ms. Watson's statement?
A. The same. I have read them, but I don't remember what --word for word.
Q. Ms. Tannehill's statement was that she was traveling in the right-hand lane when she was hit from behind very hard and was forced into the car in front of her.
A. Tannehill is the middle ...

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