United States District Court, W.D. Louisiana, Lake Charles Division
REPORT AND RECOMMENDATION
KATHLEEN KAY UNITED STATES MAGISTRATE JUDGE.
the court is a Motion for Summary Judgment filed by
plaintiffs Russell and Stacia Henry ("plaintiffs").
Doc. 28. Defendants Reinaldo Quintanilla, Sunrise Freight,
Inc., and National Specialty Insurance Company (collectively
referred to as "defendants") oppose the motion.
motion has been referred to the undersigned in accordance
with the provisions of 28 U.S.C. § 636. For the reasons
that follow it is recommended that the motion be
case arises from an automobile accident that occurred on
Interstate 10 in Calcasieu Parish, Louisiana. Doc. 1, art. 1,
pp. 2-3. Plaintiffs allege that defendant, Mr. Quintanilla,
was driving an 18-wheeler tractor-trailer westbound in the
inside lane of Interstate 10 when he twice swerved in Mr.
Henry's lane striking his pickup truck. Id. Mr.
Henry's vehicle was travelling in the right lane of
Interstate 10 and when Mr. Quintanilla's 18-wheeler
entered his lane the second time the vehicles became
entangled. Id. at p. 2. Mr. Henry's pickup was
dragged for a short distance on Interstate 10 before
dislodging and crashing into a guardrail. Id.
Following the accident, Quintanilla's 18-wheeler
continued to travel down Interstate 10 and was flagged down
by another motorist and eventually pulled to the shoulder.
move for summary judgment alleging that the undisputed facts
show that Mr. Quintanilla was 100% at fault in causing the
accident, that he was in the course and scope of his
employment with Sunrise Freight, Inc. at the time of the
accident, and that he is insured under the National Specialty
Insurance Policy as a permissive driver and employee of
Sunrise Freight, Inc. Doc. 28.
maintain that Mr. Quintanilla, "did not realize he was
in an accident." Doc. 30, p. 6. According to Mr.
Quintanilla's deposition testimony, he "never felt
the hit." Doc. 28, art. 8, p. 5. In opposing the motion
defendants maintain that summary judgment is not proper
because there are two versions of events surrounding the
accident which create issues of material fact that must be
resolved by the trier of fact. Doc. 30, p. 2. Defendants
further maintain that factual issues remain regarding whether
or not Mr. Henry's negligence contributed to the
accident. Id. at pp. 6-8. Defendants do not dispute,
however, that Mr. Quintanilla was in the course and scope of
his employment with Sunrise Freight, Inc. at the time of the
accident and that he was a permissive driver under the policy
of insurance issued to National Specialty Insurance.
Id. at p. 8.
Summary Judgment Standard
should grant a motion for summary judgment when the movant
shows "that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law." FED. R. CIV. P. 56. The party moving for
summary judgment is initially responsible for identifying
portions of pleadings and discovery that show the lack of a
genuine issue of material fact. Tubacex, Inc. v. M/V
Risan, 45 F.3d 951, 954 (5th Cir. 1995). The court must
deny the motion for summary judgment if the movant fails to
meet this burden. Id.
movant makes this showing, however, the burden then shifts to
the non-moving party to "set forth specific facts
showing that there is a genuine issue for trial."
Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505,
2511 (1986) (quotations omitted). This requires more than
mere allegations or denials of the adverse party's
pleadings. Instead, the nonmovant must submit
"significant probative evidence" in support of his
claim. State Farm Life Ins. Co. v. Gutterman, 896
F.2d 116, 118 (5th Cir. 1990). "If the evidence is
merely colorable, or is not significantly probative, summary
judgment may be granted." Anderson, 106 S.Ct.
at 2511 (citations omitted).
may not make credibility determinations or weigh the evidence
in ruling on a motion for summary judgment. Reeves v.
Sanderson Plumbing Prods., Inc., 120 S.Ct. 2097, 2110
(2000). The court is also required to view all evidence in
the light most favorable to the non-moving party and draw all
reasonable inferences in that party's favor. Clift v.
Clift, 210 F.3d 268, 270 (5th Cir. 2000). Under this
standard, a genuine issue of material fact exists if a
reasonable trier of fact could render a verdict for the
nonmoving party. Brumfield v. Hollins, 551 F.3d 322,
326 (5th Cir. 2008).
Applicable Law and Analysis
diversity case federal courts must apply state substantive
law. Erie R.R. Co. v Tompkins, 58 S.Ct. 817 (1938);
In re Katrina Canal Breaches Litigation, 495 F.3d
191 (5th Cir.2007). Both parties agree that Louisiana Revised
Statute 32:79 is applicable here. That statute provides, in
Whenever any roadway has been divided into two or more
clearly marked lanes for traffic, the following rules, in
addition to all others consistent herewith, shall apply.
(1) A vehicle shall be driven as nearly as practicable
entirely within a single lane and shall not be moved from
such lane until the driver has first ascertained that such
movement can be made with safety.
La. Rev. Stat. § 32:79. The case of Bethel v
National Indemnity Ins. Co., 2017 WL 125028 (M.D. La.
Jan. 12, 2017), a case cited by plaintiffs in brief is
instructive on the law. In that case an 18- wheeler changed
lanes from the left to the center lane and struck
plaintiff's vehicle that was travelling in the center
lane. Id. at *1. The driver of the 18-wheeler
claimed that he checked his mirrors and turned on his turn
signal before moving into the center lane but because
plaintiff s car was "beyond his sight" he did not
see her as he moved into the center lane. Id. The
defendant also alleged that plaintiff contributed to the
collision by failing to appropriately react to the situation.
Id. The court granted plaintiffs motion for summary
judgment finding the driver of the 18-wheeler solely at fault
in causing the accident. Id. at *4. Relying on
Louisiana Revised Statute 32:79(1) and the Louisiana Supreme
Court case of Brewer v. J.B. Hunt Transport, Inc.,
35 So.3d 230, 241 (La.2010), the court noted that
'Louisiana law requires that [the driver of the
18-wheeler] must have ascertained, before he moved from the
left to center lane, that he could have done so safely
without hitting [plaintiff's ] car." Id. at
*2. The court further found that the driver of the 18-wheeler
owed "a greater duty of care as a motorist changing
lanes than the duty owed by [plaintiff] who was travelling
straight in the center lane." Id.
rejecting defendant's argument that plaintiff was
contributorily negligently, the court stated that under
Louisiana law, "the defendant bears the burden of
proving contributory negligence/comparative fault by a
preponderance of the evidence" and must also prove that
"such negligence was a contributory cause''
Id. at *3 (citing Barnes v. Quinlan, 2002 WL
31375606 (E.D. La Oct. 22. 2002, and Hano v. La. Dept. of
Trans, and Dev., 519 So.2d 796, 798 (La.App.1 Cir.
10/29/2010 (emphasis original)). Noting defendant's lack
of any summary judgment evidence of fault on the part of
plaintiff or any evidence that plaintiff was a cause-in-fact
of the accident, the court determined that defendant was 100%
at fault for the accident.
case before us presents a similar factual scenario. While
defendants urge the court to find that there are "two
different versions" of the accident and that material
facts regarding the cause of the accident are in dispute, the
evidence does not support their argument. Doc. 30, pp 1-2.
Henry's deposition, which is offered as evidence in
support of the motion, he testified as follows regarding the
A. We were on the ...