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Brown v. Zurich American Insurance Co.

United States District Court, E.D. Louisiana

July 11, 2018


         SECTION "F"



         Before the Court is the plaintiff's motion for partial summary judgment. For the following reasons, the motion is GRANTED.


         The litigation arises from a car accident on an interstate in New Orleans.

         Around 4:30 AM on May 31, 2015, Bradley Ostrander was driving a Ford F-150 truck in the center lane of I-10 West in New Orleans. As Ostrander descended from a bridge, he noticed that cars were turning around on the oncoming ramp in order to exit I-10 and avoid traffic. Distracted from the unusual traffic pattern, Ostrander changed from the center lane to the left lane. As soon as he switched lanes, Ostrander collided with the vehicle in front of him, which belonged to Eric Brown. Almost immediately after, another vehicle struck Ostrander's truck from behind. A New Orleans Police Department officer investigated the accident, and issued a citation to Ostrander for careless operation of a vehicle. He did not issue a citation to Brown.

         On May 9, 2016, Brown sued Ostrander and his insurer, Zurich American Insurance Company, in the Civil District Court for Orleans Parish, seeking to recover for personal injuries and damage to his vehicle. Ostrander and Zurich removed the action to this Court on June 30, 2016. Brown moved for partial summary judgment on the issue of liability on June 22, 2018.


         Federal Rule of Civil Procedure 56 instructs that summary judgment is proper if the record discloses no genuine dispute as to any material fact such that the moving party is entitled to judgment as a matter of law. No genuine dispute of fact exists if the record taken as a whole could not lead a rational trier of fact to find for the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A genuine dispute of fact exists only "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         The mere argued existence of a factual dispute does not defeat an otherwise properly supported motion. See id. In this regard, the non-moving party must do more than simply deny the allegations raised by the moving party. See Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d 646, 649 (5th Cir. 1992). Rather, he must come forward with competent evidence, such as affidavits or depositions, to buttress his claims. Id. Hearsay evidence and unsworn documents that cannot be presented in a form that would be admissible in evidence at trial do not qualify as competent opposing evidence. Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987); Fed.R.Civ.P. 56(c)(2). "[T]he nonmoving party cannot defeat summary judgment with conclusory allegations, unsubstantiated assertions, or only a scintilla of evidence." Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007)(internal quotation marks and citation omitted). Ultimately, "[i]f the evidence is merely colorable . . . or is not significantly probative," summary judgment is appropriate. Id. at 249 (citations omitted); King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994) (“Unauthenticated documents are improper as summary judgment evidence.”).

         Summary judgment is also proper if the party opposing the motion fails to establish an essential element of his case. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In deciding whether a fact issue exists, courts must view the facts and draw reasonable inferences in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378 (2007). Although the Court must "resolve factual controversies in favor of the nonmoving party," it must do so "only where there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts." Antoine v. First Student, Inc., 713 F.3d 824, 830 (5th Cir. 2013)(internal quotation marks and citation omitted).


         "Every act whatever of man that causes damages to another obliges him by whose fault it happened to repair it." La. Civ. Code art. 2315(A). "Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill." La. Civ. Code art. 2316. Louisiana courts employ the duty-risk analysis to determine whether to impose liability based on these broad negligence principles. See Lemann v. Essen Lane Daiquiris, 923 So.2d 627, 633 (La. 2006); see also Mart v. Hill, 505 So.2d 1120, 1122-23 (La. 1987)(applying the duty-risk analysis as the appropriate ...

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