Opinion
NUMBER 2015 CA 1622
04-15-2016
ROLAND LEGE, JR. v. FAS SERVICES, INC., RISCOM INSURANCE COMPANY, INTRACOASTAL LIQUID MUD, INC. AND MILTON L. LIVAS
Joseph F. Gaar, Jr. Jason M. Welborn Williard P. Schieffer Lucas S. Colligan Jacob H. Hargett Lafayette, LA Counsel for Plaintiff/Appellant, Roland Lege, Jr. James M. Dill Lafayette, LA Counsel for Defendants/Appellees, FAS Environmental Services, LLC, RISCOM Insurance Company, Milton L. Livas, and Houston Specialty Insurance Company, and Counsel for Defendant, Intracoastal Liquid Mud, Inc.
NOT DESIGNATED FOR PUBLICATION Appealed from the Sixteenth Judicial District Court In and for the Parish of St. Mary, Louisiana
Docket Number 127304
Honorable Keith Comeaux, Judge Presiding
Joseph F. Gaar, Jr.
Jason M. Welborn
Williard P. Schieffer
Lucas S. Colligan
Jacob H. Hargett
Lafayette, LA Counsel for Plaintiff/Appellant,
Roland Lege, Jr. James M. Dill
Lafayette, LA Counsel for Defendants/Appellees,
FAS Environmental Services, LLC,
RISCOM Insurance Company,
Milton L. Livas, and Houston
Specialty Insurance Company,
and
Counsel for Defendant,
Intracoastal Liquid Mud, Inc. BEFORE: WHIPPLE, C. J., WELCH AND DRAKE, JJ. WHIPPLE, C. J.
In this appeal, plaintiff challenges the trial court's judgment granting the motion for summary judgment filed by various defendants and dismissing all his claims with prejudice. For the following reasons, we reverse in part, vacate in part, and remand.
FACTS AND PROCEDURAL HISTORY
On March 30, 2014, at approximately 9:10 p.m., plaintiff, Roland Lege, Jr., ("Lege"), who was driving a 2011 GMC Sierra pickup truck westbound on U. S. Highway 90 near Garden City, Louisiana, collided into the rear of a tractor-trailer operated by defendant, Milton L. Livas ("Livas"). The 2010 Peterbilt tractor operated by Livas was owned by Livas's employer, FAS Environmental Services, LLC ("FAS"), and the 2000 Frat Tanker Livas was pulling was owned by Intracoastal Liquid Mud, Inc. ("ILM").
Lege later filed suit for damages against: Livas; FAS; Houston Specialty Insurance Company ("Houston"), FAS's insurer; and ILM. In the petition, Lege alleged that on the date of the accident, the 2000 Frat Tanker was swaying back and forth from the right lane of travel to the left lane while traveling on Highway 90 and, further, that the Frat Tanker's brake and/or running lights were not working, thus preventing Lege from seeing the tanker and causing him to collide into the rear of the tanker. Thus, Lege contended that Livas and FAS, as Livas's employer, were liable for his damages as a result of Livas's negligence in, among other things, being inattentive, operating the tractor-trailer in a reckless and careless manner, and failing to inspect the 2000 Frat Tanker and lights and/or failure to properly connect the brake and/or running lights.
Although RISCOM Insurance Company was listed as a defendant in the caption of the petition, it was not listed in the body of the petition as a defendant, nor does the petition list any allegations as to the liability of RISCOM herein. Additionally, the petition does not contain a request for service on, or an address for, RISCOM.
Lege further contended that ILM was negligent or at fault in failing to properly maintain, inspect, and repair the 2000 Frat tanker.
Livas, FAS, Houston, and ILM answered the petition, generally denying Lege's allegations of negligence and further averring that the accident was caused solely by the negligence of Lege in being inattentive, utilizing his cell phone while driving, failing to see what he should have seen, and running into the rear of the tanker.
Thereafter, on February 3, 2015, Livas, FAS, Houston, and RISCOM filed a motion for summary judgment, contending that there was no evidence to rebut the presumption that Lege's negligence, as the rear-ending motorist, caused the accident and, thus, that they were entitled to judgment dismissing Lege's claims with prejudice. Three days later, on February 6, 2015, Lege filed a motion to compel, contending that he had served interrogatories and requests for production of documents on Livas, FAS, and ILM on November 6, 2014, and that these defendants had still not fully complied with the discovery requests.
Notably, despite the lack of allegations against RISCOM and the lack of a request for service of the petition on it, as discussed in footnote 1, supra, and despite the lack of an answer being filed on its behalf, RISCOM is listed as a defendant moving for summary judgment. On the other hand, ILM was not listed as a defendant on whose behalf the motion for summary judgment was filed.
Both the motion to compel and the motion for summary judgment were set for hearing on March 26, 2015. At the close of the hearing, at which both motions were argued, the trial court stated that it was granting the summary judgment. In accordance with its oral ruling, the trial court signed a judgment on June 26, 2015, granting the motion for summary judgment filed by Livas, FAS, Houston, and RISCOM and dismissed "all claims of [Lege] with prejudice and at [Lege's] costs."
While the motion to compel was not specifically addressed in the judgment, we note that silence in a judgment as to any issue placed before the trial court is deemed a rejection of the claim and a denial of the relief sought. Schoolhouse, Inc. v. Fanguy, 2010-2238 (La. App. 1st Cir. 6/10/11), 69 So. 3d 658, 664.
We also note that while ILM was not a party to the motion for summary judgment, as discussed in footnote 3, supra, the judgment dismissed all of Lege's claims with prejudice, thereby improperly granting relief to a party not requesting such relief.
From this judgment, Lege appeals, contending that the trial court erred in: (1) granting the motion for summary judgment where adequate discovery had not been completed; (2) weighing the merits of the facts, assessing the credibility of witnesses, and selecting between conflicting testimony regarding the condition of Livas's tail lamps at the time of the collision; and (3) finding that there was no genuine issue of material fact on liability as to the cause of the accident, particularly in light of the conflicting testimony and evidence as to the condition of Livas's tail lamps. Finding merit to the second and third assignments of error, we pretermit discussion of the first.
BURDEN OF PROOF AND STANDARD OF REVIEW FOR
SUMMARY JUDGMENT
After adequate discovery, a motion for summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits, if any, admitted for purposes of the motion, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B)(2) & (C)(1) (prior to amendment by 2015 Acts, No. 422, effective January 1, 2016). The summary judgment procedure is expressly favored in the law and is designed to secure the just, speedy, and inexpensive determination of non-domestic civil actions. LSA-C.C.P. art. 966(A)(2).
Now, see LSA-C.C.P. art. 966(A)(3).
The mover bears the burden of proving that he is entitled to summary judgment. 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. LSA-C.C.P. art. 966(C)(2) (prior to amendment by 2015 Acts, No. 422, effective January 1, 2016). If the moving party points out that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense, then the nonmoving party must produce factual support sufficient to satisfy his evidentiary burden at trial. LSA-C.C.P. art. 966(C)(2) (prior to amendment by 2015 Acts, No. 422, effective January 1, 2016). If the nonmoving party fails to make this requisite showing, there is no genuine issue of material fact, and summary judgment should be granted. LSA-C.C.P. art. 966(C)(2) (prior to amendment by 2015 Acts, No. 422, effective January 1, 2016). If, however, the movant fails in his burden to show an absence of factual support for one or more of the elements of the adverse party's claim, the burden never shifts to the adverse party, and the movant is not entitled to summary judgment. LeBlanc v. Bouchereau Oil Company, 2008-2064 (La. App. 1st Cir. 5/8/09), 15 So. 3d 152, 155, writ denied, 2009-1624 (La. 10/16/09), 19 So. 3d 481.
Now, see LSA-C.C.P. art. 966(D)(1).
In ruling on a motion for summary judgment, the trial court's role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. Hines v. Garrett, 2004-0806 (La. 6/25/04), 876 So. 2d 764, 765. In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court's determination of whether summary judgment is appropriate. East Tangipahoa Development Company, LLC v. Bedico Junction, LLC, 2008-1262 (La. App. 1st Cir. 12/23/08), 5 So. 3d 238, 243-244, writ denied, 2009-0166 (La. 3/27/09), 5 So. 3d 146.
DISCUSSION
Louisiana courts have adopted a duty-risk analysis in determining 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 conduct to a specific standard of care; (2) the defendant failed to conform his 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 conduct was a legal cause of the plaintiff's injuries; and (5) the plaintiff suffered actual damages. Brewer v. J.B. Hunt Transport, Inc., 2009-1408, 2009-1428 (La. 3/16/10), 35 So. 3d 230, 240. Pertinent to the instant case are the duties of a driver to have functioning lamps and illuminating devices on his vehicle and the duties of a following driver to exercise due care and any presumptions associated with those duties.
First, as to defendant Livas's duties, in addition to other requirements with regard to lighting equipment set forth in Title 32, Chapter 1, Part V, Subpart A of the Louisiana Revised Statutes, LSA-R.S. 32:304(A) provides as follows:
Every motor vehicle, trailer, semi-trailer and pole trailer and any other vehicle which is being drawn at the end of a train of vehicles, shall be equipped with at least one tail lamp mounted on the rear, which, when lighted as required in La. R.S. 32:301, shall emit a red light plainly visible from a distance of one thousand feet to the rear, provided that in the case of a train of vehicles only the tail lamps on the rearmost vehicle need
actually be seen from the distance specified. Every vehicle listed in this Subsection, other than a motorcycle or motor driven cycle registered in this state and manufactured or assembled after December 31, 1962, shall be equipped with at least two tail lamps mounted on the rear, on the same level and as widely spaced laterally as practicable, which, when lighted as herein required, shall comply with the provisions of this Section.These lighted tail lamps shall be displayed at any time between sunset and sunrise and also when, due to insufficient light, persons and vehicles on the highway are not clearly discernable at a distance of five hundred feet ahead. LSA-R.S. 32:301(A)(1) & (2).
Second, with regard to plaintiff Lege's duty as a following motorist, LSA-R.S. 32:81(A) 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." The law has established a rebuttable presumption that a following motorist who strikes a preceding motorist from the rear has breached the standard of conduct established by LSA-R.S. 32:81(A) and is therefore liable for the accident. While a following motorist may assume that the vehicle in front is being driven with care and caution, he must drive at an appropriate speed and must maintain an interval between the two vehicles as would enable him to avoid a collision with the lead vehicle under circumstances which should be reasonably anticipated. Harbin v. Ward, 2013-1620 (La. App. 1st Cir. 5/29/14), 147 So. 3d 213, 218.
A rear-ending following motorist, however, may rebut the presumption of negligence by proving that he had his vehicle under control, closely observed the preceding vehicle, and followed at a safe distance under the circumstances. Alternatively, the following motorist may also avoid liability by proving that the driver of the lead vehicle negligently created a hazard that he could not reasonably avoid. Harbin, 147 So. 3d at 218; Bates v. Prater, 42,149 (La. App. 2nd Cir. 5/9/07), 956 So. 2d 814, 818.
In moving for summary judgment, defendants focused their arguments on Lege's duty as a following motorist, arguing that there was no evidence to rebut the presumption of Lege's negligence as a rear-ending motorist. Defendants also averred that there was no evidence to support Lege's contention that the rear tail lamps on the 2000 Frat Tanker were not illuminated at the time of the accident. Thus, defendants asserted that there was no genuine issue of material fact and that they were entitled to judgment in their favor as a matter of law.
The evidence offered by defendants in support of their motion for summary judgment demonstrates that on the night of the accident, Livas was traveling west on U. S. Highway 90, transporting the ILM Frat Tanker to Intracoastal City. He had stopped at a truck stop in Centerville to take a break and had just reentered Highway 90 shortly before the accident. Lege was also traveling west on Highway 90 on the night of the accident, and according to his deposition testimony offered by defendants in support of the motion for summary judgment, Lege crossed the Centerville overpass about one minute before the collision. Lege acknowledged that about thirty seconds before the impact, he had picked up his cell phone from his right leg and placed it in his cup holder. However, Lege testified that this action took only a second and that he did not look down at the cup holder while moving his phone.
Lege further testified that he had placed his cell phone on his leg when leaving Berwick, fifteen to eighteen miles from the accident site, but had not used the cell phone and had not texted or checked emails from the time he entered Highway 90 in Berwick.
With regard to the tractor-trailer, Lege further testified in his deposition that he saw an object in his lane "less than a second" before impact and that he did not see any lights on the trailer. Lege stated that he was traveling approximately 70 to 75 miles per hour and did not apply the brakes at all or make any steering maneuvers prior to impact.
In contrast, with regard to the rear lamp lights, Livas testified in his deposition that before he left the truck stop in Centerville, he had performed a visual inspection of the tractor and trailer, as he had done when he picked up the tanker earlier that day in Lafitte, and his inspection revealed that the lights on the rear of the trailer were working. He also testified that shortly after the accident, he took pictures of the accident scene with his cell phone. Defendants offered copies of the photographs of the accident scene taken by Livas, which had been produced in response to Lege's request for production of documents. While the copies are black and white and some are not very clear, they appear to depict some illuminated lights on the rear of the tanker. The time stamp log of the photographs indicates that the photographs of the rear of the tanker were taken between 9:22 p.m. and 9:36 p.m.
Nonetheless, the evidence introduced by defendants in support of their motion for summary judgment further establishes that when volunteer fireman William Jackson arrived on the scene minutes after the accident, the emergency flashers on the trailer had been activated and were flashing. However, when asked if the rear lights to the trailer were on, Williams responded, "I believe that was the only thing that I remember seeing was flashers."
Moreover, because Williams considered the emergency flashers to present a fire hazard given that Lege's truck engine was positioned directly under the flashing lights, he asked Livas to disconnect power to the trailer. And, according to the deposition excerpts of State Trooper Kevin Riggs, which were also offered in support of the motion for summary judgment, when Master Trooper Riggs had Livas reconnect the trailer lights later that night to conduct his investigation, he observed that the turn signals and brake lights were working properly, but that the "rear running lights" were not working. Master Trooper Riggs acknowledged that his observation at the scene would match Lege's statement that there were no "running lights" on the trailer. Indeed, when Livas was asked in his deposition if he had observed that the rear running lights were not working when reconnected, Livas acknowledged that he had observed that.
In support of their motion for summary judgment, defendants pointed to testimony by Master Trooper Riggs regarding whether the filament in the rear running lights had experienced "hot shock." Trooper Riggs explained that when a light is illuminated at the time of a collision, the filament in the light will bend out of its proper position, a phenomenon referred to as "hot shock." In the instant case, he and State Police Lieutenant Eric Burson examined the filament in the rear running lights three days after the accident, but according to Trooper Riggs, their examination was "inconclusive." Specifically, while he testified that the filament had experienced some "hot shock," he noted that any trailer that has been used to haul goods and has been bouncing on the roadways for any length of time will have some degree of "hot shock" in the filament of its lights. Moreover, he testified that he is not an expert in examining lights and that an expert would be needed to examine the filament of the lights. Given Master Trooper Riggs's qualification of his evaluation of the filament, we do not see how this testimony supports the grant of summary judgment herein.
Considering the foregoing, we conclude that defendants failed in their burden to demonstrate that there are no genuine issues of material fact that remain herein as to whether the rear tail lamps of the Frat Tanker were operational at the time of the accident. Indeed, the evidence offered by defendants is conflicting as to whether the rear tail lamps were properly functioning on the night of the accident and provides no explanation as to why the lights may have been working at some times, but not at others, and suggests that the rear tail lamps on the Frat Tanker may have been working only intermittently. Given defendants' failure to establish the lack of any factual support for Lege's claim that Livas breached his statutory duty of properly displaying lighted tail lamps on the night of the accident, and the factual support of record for Lege's claim that Livas negligently created a hazard that he could not reasonably avoid, which would operate to rebut the presumption of Lege's negligence as the rear-ending motorist, we further conclude that defendants are not entitled to judgment in their favor as a matter of law, as the burden never shifted to Lege to oppose the motion. In sum, defendants are not entitled to summary judgment. See generally MAPP Construction, LLC v. Amerisure Mutual Insurance Company, 2013-1074 (La. App. 1st Cir. 3/24/14), 143 So. 3d 520, 529-530.
We further note that even if the burden had shifted to Lege, he introduced deposition excerpts of Jason Albert, who was also traveling on U. S. Highway 90 on the evening of the accident. The excerpts offered by Lege establish that when Albert was traveling on Highway 90 near Raceland, he observed a truck pulling a green trailer with no lights on the trailer. Also, defendants attached and offered additional excerpts of Albert's deposition, wherein Albert testified that the lighting at that time was "very, very minimal" and that headlights were needed to see. Albert further testified that after stopping to eat dinner, he and his party came upon the accident scene at issue before any police officers or emergency personnel arrived. According to Albert, what he saw at the accident scene corresponded with what he had observed miles before, namely, he saw lights on the side of the trailer involved in the accident, but none illuminated on the rear of the trailer.
CONCLUSION
For the above and foregoing reasons, the portion of the district court's June 26, 2015 judgment granting the motion for summary judgment filed by FAS Environmental Services, LLC, RISCOM Insurance Company, Milton L. Livas, and Houston Specialty Insurance Company and dismissing with prejudice Roland J. Lege, Jr.'s claims against these parties is reversed. To the extent that the June 26, 2015 judgment further dismissed with prejudice plaintiff's claims against Intracoastal Liquid Mud, Inc., that portion of the judgment is vacated. This matter is remanded to the trial court for further proceedings consistent with the views expressed herein. Costs of this appeal are assessed against defendants Milton L. Livas, FAS Environmental Services, LLC, and Houston Specialty Insurance Company.
REVERSED IN PART; VACATED IN PART; AND REMANDED.