LISA K. WATSON
MELISSA L. SMITH, ET AL.
FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2015-06035,
DIVISION "N-8" Honorable Ethel Simms Julien, Judge
R. Faucheux, Jr. Christophe L. Faucheux Lindsay M. Faucheux
FAUCHEUX LAW FIRM COUNSEL FOR PLAINTIFF/APPELLANT
H. Barnett Aaron J. Weidenhaft LAW OFFICES OF THOMAS H.
BARNETT COUNSEL FOR DEFENDANTS/APPELLEES
composed of Judge Edwin A. Lombard, Judge Rosemary Ledet,
Judge Paula A. Brown)
A. BROWN, JUDGE.
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.
AND PROCEDURAL HISTORY
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.
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.
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,  Ms. Smith's deposition,
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.
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. 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.
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
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.
devolutive appeal followed.
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
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).
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.
shall first examine whether a factual dispute exists
regarding the number of impacts between the Tannehill vehicle
and Plaintiff's vehicle.
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.
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?
Q. Do you know what was contained in Ms. Tannehill's
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 ...