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Stelly v. National Union Fire Insurance Co.

Court of Appeals of Louisiana, Third Circuit

February 6, 2019

JOSEPH STELLY
v.
NATIONAL UNION FIRE INSURANCE COMPANY, ET AL.

          APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF IBERIA, NO. 122902 HONORABLE GREGORY P. AUCOIN, DISTRICT JUDGE

          André F. Toce The Toce Firm, APLC COUNSEL FOR: Plaintiff/Appellant - Joseph Stelly Jr.

          Christopher Shannon Hardy Penny & Hardy COUNSEL FOR: Defendant/Appellee - Allstate Property and Casualty Insurance Company

          Michael J. Remondet, Jr. Jeansonne & Remondet COUNSEL FOR: Defendant/Appellee - Cecila Auto Glass, LLC

          Bryan J. Haydel Porteous, Hainkel & Johnson COUNSEL FOR: Defendant/Appellee - Allstate Property and Casualty Insurance Company

          Joshua K. Trahan Juneau David, APLC COUNSEL FOR: Defendants/Appellees - National Union Fire Insurance Company, Lexington Insurance Company, Emanual J. Benoit, Brent C. Singleton, & American Eagle Logistics, LLC

          Jerome H. Moroux Broussard & David, LLC COUNSEL FOR: Plaintiff/Appellant - Joseph Stelly Jr.

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion, and Candyce G. Perret, Judges.

          ULYSSES GENE THIBODEAUX CHIEF JUDGE

         Plaintiff Joseph Stelly Jr. appeals the summary judgment dismissing his claims against Defendants National Union Fire Insurance Company, Lexington Insurance Company, Emanuel J. Benoit, Brent C. Singleton, and American Eagle Logistics, LLC (Defendants) on the issue of causation. Mr. Stelly was injured as a result of a rear-end collision between Mark Maras and Emanuel Benoit, after which Mr. Maras's vehicle spun into the lane in which Mr. Stelly was traveling as a guest passenger. The trial court found that the evidence presented of Defendants' negligence was insufficient to overcome the rebuttable presumption of Mr. Maras's liability as a following motorist and granted Defendants' joint Motion for Summary Judgment, thereby dismissing Mr. Stelly's personal injury claims against them.

         On appeal, Mr. Stelly seeks reversal of the summary judgment and the opportunity to prove comparative fault on the part of Defendants, asserting that a disputed factual issue remains as to whether Mr. Maras's negligence was the sole cause of the accident. Mr. Stelly contends that, pursuant to the sudden emergency doctrine, the evidence presents factual questions regarding whether Defendants negligently created a hazard that a following motorist could not reasonably avoid. Mr. Stelly also alleges that Defendants' negligence in hiring, supervising, and retaining Mr. Benoit as a driver-employee contributed to the accident.

         After conducting a de novo review of the evidence, we find that genuine issues of material fact preclude summary judgment. We reverse the judgment of the trial court and remand the case for further proceedings consistent with this opinion.

         Mr. Stelly has additionally filed a Motion to Strike the Original Brief of a later-added defendant, Cecilia Auto and Glass, alleging that it lacks standing to file an appellate brief in this matter because the judgment was not final as to Cecilia. For the reasons that follow, we disagree. Defendants also argue in their Original Appellee Brief that the Accident Reconstruction Report prepared by Mr. Stelly's expert, Michael Gillen, should be "stricken and disregarded" by this court because it is "unnecessary and unreliable" under La.Code Evid. art. 702. We decline to do so for the reasons set forth below.

         I.

         ISSUES

         We must decide:

(1) whether the trial court erred in granting Defendants' Motion for Summary Judgment;
(2) whether this court may strike Cecilia Auto and Glass's appellate brief written in support of Defendants' grant of summary judgment; and
(3) whether this court may strike and disregard Plaintiff's expert report.

         II.

         FACTS AND PROCEDURAL HISTORY

         On July 20, 2012, Joseph Stelly Jr. was involved in an automobile collision near the juncture of U.S. Highway 90 and Captain Cade Road in Iberia Parish. Highway 90 is a four-lane highway providing two lanes each for eastbound and westbound traffic, divided by a grassy center median, with a posted speed limit of 55 miles per hour. Captain Cade Road runs southbound and perpendicular to Highway 90. Although the road is visible from the highway, there is no intersection providing motorists direct access to the road from the highway. The only means of legally accessing Captain Cade Road from Highway 90 East requires motorists to continue three-quarters of a mile east past this juncture, take the exit ramp off of Highway 90 onto L.A. Highway 88, and then backtrack onto a service road which eventually becomes Captain Cade Road. Located at this juncture is a convenience store, Food-N-Fun; one side of its parking lot borders the right-hand lane of Highway 90 East, while the other side borders Captain Cade Road.

         The accident occurred at approximately 5:34 a.m. The sun had not yet risen, but the weather was clear and the roads were dry. Mr. Stelly was riding as a guest passenger in a Chevrolet Silverado hauling a boat and trailer driven by Joseph "Bobby" Belaire, traveling eastbound in the left-hand lane of Highway 90. In the right-hand lane, Emanuel J. Benoit was traveling eastbound in a Peterbilt eighteen-wheel tractor hauling a black, empty flatbed utility trailer owned by Brent C. Singleton, while in the course and scope of his employment with American Eagle Logistics, LLC. Approaching from the rear, a Hyundai Sonata driven by Mark Maras followed Mr. Benoit's tractor-trailer in the right-hand lane. On his way to pick up a shipment on Captain Cade Road, Mr. Benoit prepared to make a right turn off of the highway by slowing his vehicle and allegedly activating his right turning signal. Rather than properly using the exit ramp onto Highway 88, Mr. Benoit instead reduced his speed on the highway to an estimated speed of ten to twenty miles per hour, turned off the highway, and continued directly through the Food-N-Fun parking lot onto Captain Cade Road. For reasons unknown, Mr. Maras suddenly became aware of the turning vehicle ahead and attempted to avoid a collision by switching lanes ahead of Mr. Belaire's pickup truck in the left lane. In doing so, however, the front right corner of Mr. Maras's car clipped the left rear corner of the tractor-trailer, sending the car spinning clockwise into the path of Mr. Belaire's pickup truck traveling in the left lane, which thereafter struck the passenger side of Mr. Maras's car broadside. The impact caused a blowout of Mr. Belaire's right tire, which resulted in the pickup truck crossing the median and detaching from its trailer containing the fishing boat. Following an investigation of the accident, Mr. Benoit was issued a traffic citation for illegally cutting through a private lot in violation of La.R.S. 32:101(C), for which he pled guilty and paid the fine. Mr. Maras was also issued a traffic citation for careless operation in violation of La.R.S. 32:58.

         Mr. Stelly initially filed suit seeking damages against Mr. Benoit, American Eagle Logistics, LLC, National Union Fire Insurance Company, Lexington Insurance Company, and Brent C. Singleton (hereinafter, "Defendants"). In his petition, Mr. Stelly alleged that "Maras was unable to timely see the illegally-equipped tractor-trailer and did not have time to react to Mr. Benoit's illegal turn to cut-through [sic] the Food-N-Fun parking lot." He also alleged to have sustained severe and disabling injuries as a result of the accident that required him to undergo several surgeries.

         Following preliminary discovery, Defendants filed a joint Motion for Summary Judgment before the trial court. In support of their motion, Defendants argued that the evidence presented could not establish Defendants' actions as a cause-in-fact of the accident, and thus, Mr. Maras was solely liable because Mr. Stelly could not carry his burden in rebutting the presumption of Mr. Maras's fault as a following motorist. After the motion was filed, but before it was heard, Mr. Stelly filed a Fourth Amended Petition naming additional defendants, Cecilia Auto and Glass ("Cecilia") and Allstate Property and Casualty Insurance Company. Defendants' Motion for Summary Judgment was not amended to include either additional defendant.

         The trial court granted the Motion for Summary Judgment and dismissed Mr. Stelly's personal injury claims against Defendants. It concluded that Mr. Stelly failed to present evidence sufficient to overcome the presumption of Mr. Maras's sole liability for the accident.

         In challenging this presumption on appeal, Mr. Stelly contends that the trial court erred in granting summary judgment where several genuine issues of material fact remain as to whether Mr. Maras should be held solely liable for the accident. Invoking the sudden emergency doctrine, he specifically asserts that evidence of Mr. Benoit's receipt of a traffic citation for illegally cutting through a private lot and Defendants' failure to maintain required conspicuity devices on the tractor-trailer, when taken together, present factual questions regarding whether Defendants could have negligently created a hazard that Mr. Maras could not reasonably avoid.

         III.

         SUMMARY JUDGMENT

         Standard of Review

         An appellate court reviews summary judgments de novo, applying the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Schroeder v. Bd. of Supervisors of La. State Univ., 591 So.2d 342 (La.1991).

         The mover bears the burden of proving that he is entitled to summary judgment. La.Code Civ.P. art. 966(D)(1). However, if the mover will not bear the burden of proof at trial on the subject matter of the motion, he need only demonstrate the absence of factual support for one or more essential elements of his opponent's claim, action, or defense. Id. Thereafter, the non-moving party must "produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law." Id. (emphasis added). [1] If the non-moving party fails to produce evidence of a material factual dispute, the motion for summary judgment must be granted. Babin v. Winn-Dixie Louisiana, Inc., 00-78 (La. 6/30/00), 764 So.2d 37.

         Summary judgment is warranted only if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(A)(3). Although the summary judgment procedure is favored, it is not a substitute for trial on the merits. S.J. v. Lafayette Par. Sch. Bd., 06-2861 (La. 6/29/07), 959 So.2d 884. In ruling on a motion for summary judgment, the trial court's role is not to evaluate the weight of the evidence, but instead to determine whether there is a genuine issue of triable fact. Hines v. Garrett, 04-806 (La. 6/25/04), 876 So.2d 764. The trial court must construe factual inferences reasonably drawn from the evidence in favor of the party opposing the motion, and all doubt must be resolved in his favor. Stroder v. Hilcorp Energy Co., 17-1086, (La.App. 3 Cir. 4/4/18), 242 So.3d 1240. Stated another way, "[i]f . . . there is any evidence in the record from any source from which a reasonable inference in the [nonmoving party's] favor may be drawn, the moving party simply cannot obtain a summary judgment[.]" Hines, 876 So.2d at 767 (alterations in original) (quoting In re: Japanese Electronic Products Antitrust Litigation, 723 F.2d 238, 258 (1983), rev'd on other grounds sub nom. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348 (1986)).

         Law and Discussion

         While acknowledging the legal presumption of Mr. Maras's liability as a following motorist, Mr. Stelly argues that the evidence establishes several genuine issues of material fact as to whether Defendants could have negligently created a hazard that Mr. Maras could not reasonably avoid, which would sufficiently rebut the presumption pursuant to the sudden emergency doctrine. Specifically, he asserts that a factual dispute exists as to whether a sudden emergency was created by Mr. Benoit's unnecessary slowing down on a high-speed highway in order to illegally cut through a parking lot in violation of La.R.S. 32:101(C), coupled with evidence of Defendants' violations of mandatory federal and state safety regulations requiring adequate conspicuity devices.

         As stated above, this court must undertake an independent review of the record to determine whether genuine issues of material fact remain in this matter and whether Defendants are entitled to summary judgment as a matter of law. "A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate." Jackson v. City of New Orleans, 12-2742, pp. 5-6 (La. 1/28/14), 144 So.3d 876, 882. Material facts are those that potentially ensure or preclude recovery, affect a litigant's success, or determine the outcome of a legal dispute. Id. Because it is "substantive law that determines materiality, whether a particular fact in dispute is 'material' for summary judgment purposes can be seen only in light of the substantive law applicable to the case." Id.

         The Louisiana Supreme Court has applied the following duty-risk analysis in negligence cases to determine whether liability exists under the facts of a particular case:

Under this analysis, a plaintiff must prove five separate elements: (1) the defendant had a duty to conform his or her conduct to a specific standard of care; (2) the defendant failed to conform his or her conduct to the appropriate standard of care; (3) the defendant's substandard conduct was a cause-in-fact of the plaintiff's injuries; (4) the defendant's substandard conduct was a legal cause of the plaintiff's injuries; and (5) actual damages.

Brewer v. J.B. Hunt Transport, Inc., 09-1408, 09-1428, p. 14 (La. 3/16/10), 35 So.3d 230, 240.

         Whether a duty is owed is a question of law; whether a defendant has breached a duty owed is a question of fact. Rando v. Anco Insulations, Inc., 08-1163, 08-1169, (La. 5/22/09), 16 So.3d 1065. The duty owed by a following motorist is set forth in La.R.S. 32:81(A), which provides that "[t]he driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the highway." Thus, a following motorist who strikes the rear-end of a leading vehicle is presumed to have breached this statutory duty. Mart v. Hill, 505 So.2d 120 (La.1987).[2]

         While this court has held that "[a] motion for summary judgment can be granted on the presumption that a following motorist who strikes a leading motorist is negligent[, ]" we also recognize that a following motorist may exonerate himself in a number of ways. Lewis v. Old Republic Ins. Co., 17-456, p. 3 (La.App. 3 Cir. 8/23/17), 226 So.3d 557, 559. Generally, a following motorist may rebut the presumption "by demonstrating that he or she had his car under control, closely observed the preceding vehicle, and followed at a safe distance under the circumstances[.]" Leblanc v. Bouzon, 14-1041, p. 4 (La.App. 3 Cir. 3/4/15), 159 So.3d 1144, 1146 (quoting Garcia v. Stalsby, 11-350, p. 5 (La.App. 3 Cir. 12/14/11), 78 So.3d 873, 877, writ denied, 12-422 (La. 4/9/12), 85 So.3d 703). Alternatively, the following motorist may also avoid statutory liability through invocation of the sudden emergency doctrine, chiefly "by proving that the driver of the preceding vehicle negligently created a hazard which the following motorist could not reasonably avoid." Id. (alterations in original).

         As an exception to the general rule stated above, the sudden emergency doctrine is available to a person who finds himself in a position of imminent peril and does not have sufficient time to consider and weigh all of the best means available to avoid that impending danger; such a person is not guilty of negligence if he fails to adopt what subsequently and upon reflection may appear to be the better method, unless the emergency is brought about by his own negligence. Hickman v. S. Pac. Transp. Co., 262 La. 102, 262 So.2d 385 (1972). However,

[t]he sudden emergency doctrine is not limited to situations where the person claiming the benefit of the defense is the person in immediate peril. Rather, it is the unanticipated hazard which is the foundation for invoking the sudden emergency doctrine. The rationale for the doctrine is the principle that a person confronted with a sudden emergency, who does not have sufficient time to weigh and consider the best means to avoid an impending danger, should not be held to the same standard of control, care, and caution as someone who has ample opportunity to fully exercise judgment and reason.

Whiddon v. Hutchinson, 94-2000, p. 6 (La.App. 1 Cir. 2/23/96), 668 So.2d 1368, 1374, writs denied, 96-731, 96-775 (La. 5/10/96), 672 So.2d 923 (citations omitted). Therefore, by invoking the sudden emergency doctrine in defending against the presumption of Mr. Maras's sole liability, it became Mr. Stelly's burden to present facts demonstrating that a genuine issue existed not only regarding whether the following motorist was the sole cause of the accident, but specifically as to whether Mr. Maras faced an unanticipated hazard in encountering the tractor-trailer driven by Mr. Benoit, who had superior capacity in exercising judgment and reason as the favored motorist on the highway.

         Causation is the primary issue here. In support of their joint Motion for Summary Judgment, Defendants argued that Mr. Stelly could not establish that any actions on the part of Defendants caused or contributed to the accident giving rise to his injuries.

         Cause-in-fact, by definition, is a question of fact. As the Louisiana Supreme Court has explained,

Defendant's conduct need not be the sole cause of the harm but it must be a necessary antecedent. Stated another way, if plaintiff can show that more probably than not he would not have suffered damage, absent defendant's wrongful ...

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