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Bloxham v. HDI-Gerling America Insurance Co.

Court of Appeals of Louisiana, Second Circuit

June 27, 2018

TAMMY BLOXHAM AND CHRISTOPHER OGDEN Plaintiff-Appellees
v.
HDI-GERLING AMERICA INSURANCE COMPANY, 31 ENERGY SERVICES, LLC, AND ANDY L. GIBBS, JR. Defendant-Appellants

          Appealed from the Twenty-Sixth Judicial District Court for the Parish of Bossier, Louisiana Trial Court No. 149, 515 Honorable Michael O. Craig, Judge

          COOK, YANCEY, KING & GALLOWAY By: Brian A. Homza Robert Kennedy, Jr. Jena Bourgeois Hogan Counsel for Appellants

          MORRIS, DEWETT & SAVOIE, LLC By: B. Trey Morris G. Adam Savoie Meagan E. Shadinger Counsel for Appellee Tammy Bloxham

          CHRISTOPHER A. OGDEN In Proper Person

          Before MOORE, STONE, and STEPHENS, JJ.

          MOORE, J.

         The defendants, Andy L. Gibbs Jr., his employer, 31 Energy Services LLC, and the employer's insurer, HDI-Gerling America, appeal a partial summary judgment in favor of the plaintiff, Tammy Bloxham, on the issue of liability only, in this tort suit arising from a rear-end collision. For the reasons expressed, we reverse and remand.

         FACTS

         The accident occurred on May 18, 2015, in Bossier City. Ms. Bloxham was driving her Honda Pilot west on Hwy. 511 (Jimmie Davis Hwy.). She alleged that she stopped at the red light at Sunflower Blvd., and was in the left lane when she was struck from behind by Gibbs, who was driving 31 Energy's Freightliner tractor and Dragon tanker trailer.

         Ms. Bloxham filed this suit in March 2016, individually and on behalf of her minor son. In addition to vicarious liability, Ms. Bloxham alleged that 31 Energy was negligent in hiring Gibbs and in failing to inspect the brakes on its rig. The defendants answered asserting plaintiff fault, and requested a jury trial. The defendants filed a motion for summary judgment on grounds that Ms. Bloxham failed to report this claim as an asset in her pending bankruptcy case, and both sides have engaged in vigorous discovery, but these issues are not currently before the court.

         In August 2017, Ms. Bloxham filed the instant motion for partial summary judgment as to Gibbs's liability and her own lack of comparative fault. She cited Louisiana's "following too close" law, La. R.S. 32:81 A, and the presumption of negligence when a following vehicle rear-ends another vehicle, Brewer v. J.B. Hunt Transp. Inc., 2009-1408 (La. 3/16/10), 35 So.3d 230. She attached Gibbs's deposition, in which he admitted he "ran into the back of this car" and that he was "not blaming anybody but" himself, and the deposition of Gibbs's supervisor, Mike Cummings, who agreed with Gibbs's statement. She argued that the defendants would not be able to allege any facts that would support a showing that she was at fault, La. C. C. P. art. 966 D(1).

         The defendants opposed the motion. In support, they cited another portion of Gibbs's deposition: he admitted he would not be able to stop in time to avoid hitting the car in front of him, so he tried to move to the other lane, "and when I swerved over to change lanes it looked like she tried to change too, but I bumped the back of her car." The defendants also cited the incident form Gibbs filled out for 31 Energy: "I swerved to miss her[;] she got in the same lane and I Bumped [her] car[, ]" and the official state crash report: "The vehicles in front of him stopped suddenly and he could not stop fast enough to keep from hitting Vehicle #1." The defendants argued that Ms. Bloxham's attempted lane change and sudden stop rebutted the presumption of Gibbs's negligence, Robinson v. Flowers, 41, 798 (La.App. 2 Cir. 1/24/07), 949 So.2d 549. They submitted that this evidence created a genuine issue that she was comparatively negligent, thus precluding summary judgment.

         ACTION OF THE DISTRICT COURT

         After a hearing on September 25, 2017, the district court granted Ms. Bloxham's motion for partial summary judgment. The court cited R.S. 32:81 and the "bright-line presumption" of the following driver's negligence, Mart v. Hill, 505 So.2d 1120 (La. 1987), found that Gibbs was the rear-following driver who struck the back of Ms. Bloxham's SUV, and accepted Gibbs's admission that he was the sole cause of the accident. The court recognized the exception to R.S. 32:81, but reasoned that if both Ms. Bloxham and Gibbs were changing lanes at the same time, "the tailing vehicle * * * had a duty to watch for any lead vehicles and operate his vehicle safely," which he failed to do. The court concluded that Ms. ...


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