ELDA B. FORTNER, ETC., ET AL.
QUINCY M. LEWIS, ET AL.
WRIT OF CERTIORARI FROM THE THIRTY-FIRST JUDICIAL DISTRICT
COURT PARISH OF JEFFERSON DAVIS, DOCKET NO. C-14-15 HONORABLE
STEVE GUNNELL, DISTRICT JUDGE
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
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
composed of Billy H. Ezell, Shannon J. Gremillion, John E.
Conery, Van H. Kyzar, and Jonathan W. Perry, Judges.
E. CONERY JUDGE
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.
AND PROCEDURAL HISTORY
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.
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.
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.
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.
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
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. 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.