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Fortner v. Lewis

Court of Appeals of Louisiana, Third Circuit

February 27, 2019

ELDA B. FORTNER, ETC., ET AL.
v.
QUINCY M. LEWIS, ET AL.

          ON WRIT OF CERTIORARI FROM THE THIRTY-FIRST JUDICIAL DISTRICT COURT PARISH OF JEFFERSON DAVIS, DOCKET NO. C-14-15 HONORABLE STEVE GUNNELL, DISTRICT JUDGE

          Jeff Landry, Attorney General, Donald Guidry Assistant Attorney General, Louisiana Department of Justice Litigation Division COUNSEL FOR DEFENDANT - RELATOR: State of Louisiana, through the Department of Transportation and Development

          Hunter W. Lundy, Jackey W. South, T. Houston Middleton, IV, Lundy, Lundy, Soileau & South, L.L.P. COUNSEL FOR PLAINTIFFS - RESPONDENTS: Elda B. Fortner, Individually and on Behalf of the Estate of Donald Fortner; Heather Fortner Kasak; Joshua W. Fortner; Christopher A. Fortner; and Matthew C. Fortner

          Court composed of Billy H. Ezell, Shannon J. Gremillion, John E. Conery, Van H. Kyzar, and Jonathan W. Perry, Judges.

          EZELL, J., dissents.

          JOHN E. CONERY JUDGE

         Relator, Louisiana Department of Transportation and Development (DOTD), seeks supervisory writs from the judgment of the Thirty-First Judicial District Court, the Parish of Jefferson Davis, the Honorable Steve Gunnell, presiding, which denied Relator's motion for summary judgment based on the immunity granted to DOTD pursuant to the provisions of the Louisiana Homeland Security and Emergency Assistance and Disaster Act (LHSEADA), La.R.S. 29:735. For the following reasons, DOTD's writ application is granted.

         FACTS AND PROCEDURAL HISTORY

         This case involves a fatal automobile accident which occurred at approximately five o'clock on the morning of January 24, 2014. The National Weather Service issued weather advisories and freeze warnings due to the likelihood of a major ice storm affecting the roadways in Jefferson Davis Parish. Governor Bobby Jindal declared a State of Emergency later the same day. In his affidavit in support of DOTD's summary judgment motion, Mr. Donald L. Duberville, Assistant District Administrator of Operations for the State of Louisiana, DOTD District 7, which includes Jefferson Davis Parish, attested that he oversaw the emergency preparedness activities in Jefferson Davis Parish prior to the storm. In accordance with DOTD's Operations Plan (OPLAN) 13-01, Winter Response, Phase III-Operations, in the early morning hours of January 24, 2014, the DOTD dispatched personnel to spray potassium acetate on Interstate 10 cattle crossing at Milepost 62 in Jefferson Davis Parish in order to melt the ice accumulating on the roadway. The affidavit of Mr. Damon Lee Cooler, a DOTD engineer, stated that the roadway at issue was sprayed at 12:10 a.m. and 1:43 a.m.

         At approximately five o'clock a.m., Mr. Donald Fortner was traveling on the portion of Interstate 10 at issue when, allegedly due to the icy roadway, he lost control of his vehicle and moved into the adjacent westbound lane of travel. His vehicle was struck on the driver's side by an eighteen wheeler driven by Mr. Quincy M. Lewis, who was accelerating to pass Mr. Fortner's vehicle. Mr. Fortner died as a result of the accident.

         Mr. Fortner's wife, Mrs. Elda B. Fortner, filed suit individually and on behalf of the Estate of Donald Fortner, along with their four adult children, against DOTD, Mr. Lewis, his employer B.E. Delivery, and its insurer, Hallmark Specialty Underwriter, Inc. (Hallmark), Mr. Lewis, B.E. Delivery and Hallmark settled with respondents and were dismissed from the litigation. DOTD, the only remaining defendant, filed a motion for summary judgment based on immunity pursuant to LHSEADA, La.R.S. 29:735.

         Following a hearing on July 3, 2018, the trial court denied DOTD's motion for summary judgement on the basis that there was a genuine issue of fact as to whether DOTD was entitled to immunity pursuant to La.R.S. 29:735. Respondents claimed DOTD's actions in addressing the icing conditions on Interstate 10 were prior to the actual signing of the Declaration of a State of Emergency by the Governor later in the day. The trial court ruled that there were questions of fact as to when the Governor signed the State of Emergency, and whether the immunity statute applied. The DOTD requested written reasons, which were issued by the trial court on July 16, 2018. The judgment was signed on the same date by the trial court. A timely request for supervisory relief was filed by DOTD on August 15, 2018.

         SUPERVISORY RELIEF

         Since the denial of a motion for summary judgment is an interlocutory ruling from which no appeal may be taken, the only practical remedy available to avoid a possible trial on the merits is to request that the appellate court exercise its supervisory jurisdiction to review the propriety of the trial court's ruling. Louviere v. Byers, 526 So.2d 1253 (La.App. 3 Cir.), writ denied, 528 So.2d 153 (La.1988.)

         On November 27, 2018 a writ was granted in this case pursuant to La.Code Civ.P. art. 966(H). We ordered this case assigned for briefing and possible oral argument.[1] This court required that DOTD submit any additional briefing by December 11, 2018, and that respondents were to file any additional briefing by December 18, 2018. The parties were to notify this court no later than December 11, 2018, if oral argument was requested. No additional briefing or request for oral argument was timely filed by either party. Therefore, DOTD's request for supervisory relief is in the proper posture for decision by this court.

         STANDARD ...


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