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Saldana v. Larue Trucking, LLC

Court of Appeals of Louisiana, Second Circuit

April 10, 2019

FELIPA LENOR SALDANA Plaintiff-Appellant
v.
LARUE TRUCKING, LLC, NATIONAL INDEMNITY COMPANY, NATIONAL FIRE & MARINE INSURANCE COMPANY, CHRISTOPHER W. NOLAND, DAVID R. GLOVER, ROWLAND TIMBER CO., INC., BRYON K. SANDERS, AND ARMSTRONG HARDWOOD FLOORING COMPANY Defendants-Appellees

          Appealed from the Sixth Judicial District Court for the Parish of Madison, Louisiana Trial Court No. 2016-61 Honorable Michael E. Lancaster, Judge

          LAW OFFICE OF DAMON D. KERVIN By: Damon D. Kervin Counsel for Appellant

          BISHOP PAXTON CRIGLER & MOBERLEY By: Edwin Moberley

          FAIRCLOTH MELTON & SOBEL, LLC By: Lottie L. Bash Laura Beth Matthews Franklin “Drew” Hoffman Counsel for Appellees, Rowland Timber Company, Inc. and Bryon K. Sanders

          TAYLOR WELLONS POLITZ & DUHE By: Samuel Milton Rosamond, III Adam Devlin deMahy Jonathan B. Womack Counsel for Appellees, National Fire & Marine Insurance Company & National Indemnity Company

          NEUNER PATE By: James L. Pate Jason Thomas Reed Nicholas G. Jones Counsel for Appellees, LaRue Trucking, LLC, Christopher W. Noland, and David R. Glover

          Before PITMAN, GARRETT, and STONE, JJ.

          GARRETT, J.

         This appeal involves a three-vehicle accident, in which the plaintiff, Felipa Lenor Saldana, was injured when her vehicle collided with an 18-wheeler log truck on a rural highway. After the initial collision, Saldana then struck a parked vehicle. The trial court granted several motions for summary judgment. One judgment dismissed the alleged insurer of (1) the log truck driver, (2) the trucking company which employed him and leased the log truck, and (3) the individual who owned both the trucking company and the log truck on the basis that the policy had been cancelled prior to the accident. Another judgment dismissed the timber company which (1) was hired to cut and haul the timber and (2) hired the trucking company to assist in hauling the timber, and its insurer. Saldana appealed. We reverse the summary judgment in favor of the timber company and its insurer on the issue of signage and voluntary assumption of a duty to warn and remand the matter to the trial court. In all other respects, we affirm.

         FACTUAL AND PROCEDURAL BACKGROUND

         As explained below, the trial court was presented with a plethora of motions for summary judgment by different defendants and their insurers, which addressed multiple issues and bases for liability. As a result of the rulings on the motions, the only remaining defendants in this case are the log truck driver, his employer, and the owner of the log truck, none of whom have any liability insurance coverage.

         On appeal and after oral argument, the plaintiff contests only two of the many rulings made below - the granting of summary judgment in favor of the timber company and its insurer on (1) the signage and failure to warn issue and (2) the issue of direct and/or vicarious liability for the actions of the log truck driver under the Federal Motor Carrier Safety Regulations ("FMCSR").

         Based upon the numerous documents, depositions, and exhibits submitted in connection with the motions for summary judgment, we glean the following facts. On August 22, 2015, at about 7:40 a.m., a collision occurred on Highway 65 in Tensas Parish which involved three vehicles: a 2009 Honda Accord, which was driven by Saldana; a 1994 Peterbilt log truck, which was driven by David R. Glover, owned by Christopher W. Noland, leased to Noland's company, LaRue Trucking, LLC ("LaRue"), and insured by National Fire & Marine Insurance Company ("National Fire"); and a 1990 Mack log truck, which was driven by Bryon K. Sanders, owned by Rowland Timber Co., Inc. ("Rowland Timber")[1], and insured by National Fire. Pursuant to a written contract, Rowland Timber had been hired by Armstrong Hardwood Flooring Company ("Armstrong") to harvest timber it had bought from Somerset Plantation in Tensas Parish and to haul the logs to Armstrong's facility in Vicksburg, Mississippi. Rowland Timber transported some of the logs to Vicksburg. In order to complete the job, Rowland Timber also entered into a verbal agreement with LaRue to haul additional logs. Glover was employed by LaRue, and Sanders worked for Rowland Timber. Both Rowland Timber and LaRue were registered federal motor carriers, and each company's truck operated under its own United States Department of Transportation ("USDOT") number.

         Both Saldana and Glover were southbound on a two-lane road. The trailer of Glover's log truck was empty as he was apparently en route to pick up a load. As Glover was turning left onto a private road leading to the Somerset Plantation logging site, Saldana attempted to pass Glover; their vehicles collided. Saldana then traversed the shoulder of the road and struck the front passenger side of Sanders's truck, which was parked alongside the dirt road, almost perpendicular to the highway. At the time of this collision, Sanders was outside of his truck, strapping down his load before proceeding to Vicksburg.

         On March 9, 2016, Saldana filed suit against the drivers, owners, and insurers of the two log trucks, as well as the alleged employers of the drivers and Armstrong. She alleged that Glover illegally stopped in the southbound lane, had no functioning brake and/or tail lights, and failed to give a left-hand turn signal. She asserted that Glover's vehicle collided with her Honda. After the initial collision with Glover, her vehicle then struck Sanders's vehicle, which she claimed was unlawfully parked and/or obstructing passage.

         In their answers, the defendants asserted that the accident was caused by Saldana's negligence. Additionally, Sanders and Rowland Timber alleged in their answer, as an affirmative defense, that "prior to the incident, Rowland Timber had placed orange warning signs that stated 'Log Trucks Entering Highway' that were visible from both lanes of travel along Highway 65 before the turn road."

         While National Fire admitted in its answer that it had a policy issued to Rowland Timber, it asserted that its policy with LaRue was cancelled on August 13, 2015, nine days before the accident. On August 26, 2016, National Fire moved for partial summary judgment on the basis that the policy was cancelled due to nonpayment of the premium at the request of Capital Premium Financing, Inc. ("Capital Financing"), the company with which LaRue had financed its premiums and which had a power of attorney from LaRue in its premium finance agreement.

         On June 13, 2017, Sanders and Rowland Timber filed a motion for summary judgment. They asserted that, since Sanders was properly stopped on a side road at the time of the collision, he neither caused nor contributed to the accident. Instead, Saldana's vehicle left the highway after impacting with Glover's truck and struck the front passenger side of Sanders's vehicle which was parked on a private roadway. Citing Saldana's deposition, they asserted that, as Glover slowed to make a left-hand turn into the private driveway, Saldana tried to pass Glover in the northbound lane. They also argued that (1) LaRue was an independent contractor hauling timber for Rowland Timber and, consequently, Rowland Timber had no vicarious liability for LaRue; and (2) Rowland Timber had no duty to provide signage warning in the area where log trucks entered or exited the highway. On June 22, 2017, National Fire filed a motion for summary judgment in its capacity as the insurer for Sanders and Rowland Timber and adopted their arguments.

         On January 12, 2018, Armstrong filed a motion for summary judgment. It requested that it be dismissed from the suit because Saldana could not meet her burden of proving that Rowland Timber or LaRue personnel were acting as its employees or that it was otherwise negligent. Armstrong stated that it had a written contract with Rowland Timber for Rowland Timber to log the Somerset Plantation site and transport the logs to Vicksburg. Rowland Timber subsequently entered into a separate oral agreement with LaRue; Armstrong did not contract with LaRue. Summary judgment in Armstrong's favor was granted by judgment signed February 8, 2018. No appeal was taken from this judgment.

         On January 22, 2018, Rowland Timber filed another motion for summary judgment, seeking dismissal of any claims against it under the Code of Federal Regulations ("C.F.R.") arising out of the actions of LaRue and Glover. This motion was filed solely to address Saldana's newly asserted theory that, under the C.F.R., Rowland Timber was Glover's statutory employer. Rowland Timber contended that LaRue and Glover were operating under LaRue's independent USDOT registration number and that it could not be held liable for their actions.

         On February 26, 2018, an amended petition for damages was filed. Among other things, it added additional claims pertaining to Saldana's alleged injuries, replaced allegations about Armstrong with claims against Rowland Timber, and added additional allegations against Glover. However, a motion to strike allegations of intoxication against Glover was subsequently granted.

         On that same day, Saldana filed an opposition to the three motions for summary judgment involving Sanders, Rowland Timber, and National Fire as their insurer, as well as a separate opposition to National Fire's motion for partial summary judgment based on the cancellation of LaRue's policy. Attachments to the oppositions included excerpts from or whole depositions of Rowland, as an individual and on behalf of Rowland Timber; Noland; Saldana; Sanders; Blaine Burroughs, Armstrong's Director of Lumber procurement; State Trooper David Cummings, who investigated the accident; Lt. Mark Guy, an investigator from the Tensas Parish Sheriff's Office ("TPSO"); Sgt. Evelyn Guy, one of the responding TPSO officers; Steven Hisaw, a volunteer first responder; and David Stopper, Saldana's expert on trucking safety standards (along with a copy of his report); and photos of the accident scene.

         A hearing on the Rowland Timber/Sanders/National Fire motions for summary judgment was held on April 19, 2018. Summary judgment was granted in favor of Sanders and Rowland Timber, with the trial court finding that Sanders's truck, which was on a private driveway, had no causal relationship with the accident and that no law required Rowland Timber to place warning signs; in favor of Rowland Timber on the issue of its alleged vicarious liability for LaRue and Glover pursuant to the Federal Motor Carrier Act ("FMCA"), based on a finding that LaRue was an independent contractor under both Louisiana law and the FMCA; and National Fire, as alleged insurer of Sanders and Rowland Timber. A judgment granting all three motions for summary judgment was signed April 26, 2018, and the matter was designated a final judgment. Saldana filed a motion for new trial on May 8, 2018. The trial court denied the motion at a hearing on June 12, 2018, and by judgment signed on June 22, 2018.

         On June 25, 2018, National Fire filed another motion for summary judgment based on cancellation of the LaRue policy. It specifically sought to refute Saldana's argument that National Fire could not cancel LaRue's policy on less than 35 days' notice because of rules in the USDOT regulations at 49 C.F.R. § 387.7, which concern certain policies issued to federally certified motor carriers. National Fire asserted that, since LaRue did not request that National Fire certify the policy with the USDOT and the policy was, consequently, not certified to the USDOT, the cancellation was proper and effective. Saldana filed another opposition to National Fire's motion for summary judgment on July 10, 2018.

         At a hearing on July 25, 2018, the trial court found that National Fire's policy was properly cancelled. Consequently, it granted National Fire's motion for summary judgment, and dismissed with prejudice Saldana's claims against it as the alleged insurer of LaRue, Noland, and Glover. Judgment was signed August 6, 2018, and designated a final judgment under La. C.C.P. art. 1915. As a result of all of these rulings, the only remaining defendants are LaRue, Noland and Glover, none of whom have liability insurance.

         Saldana appealed the following judgments: the April 26, 2018 judgment dismissing her claims against Sanders, Rowland Timber and its insurer, National Fire; the June 22, 2018 judgment denying her motion for new trial; and the August 6, 2018 judgment dismissing her claims against National Fire as the insurer of LaRue, Noland, and Glover. However, Saldana states in her brief that she does not contest the dismissal of Sanders in the April 26, 2018 judgment. Additionally, at oral argument, Saldana stipulated that she was waiving consideration of the August 6, 2018 judgment dealing with the cancellation of LaRue's policy with National Fire. Accordingly, we address only the remaining issues pertaining to the summary judgments in favor of Rowland Timber and its insurer.

         MOTION FOR SUMMARY JUDGMENT

         A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Schultz v. Guoth, 10-0343 (La. 1/19/11), 57 So.3d 1002. The procedure is favored and shall be construed to secure the just, speedy, and inexpensive determination of actions. La. C.C.P. art. 966(A)(2). It is reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court's determination of whether summary judgment is appropriate, i.e., whether there is ...


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