Willie R. Thomas and Virlee Thomas VS Theresa Berry, American Century Casualty Company and State Farm Insurance Company
Annotate this Case
Download PDF
NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2011 CA 0926 WILLIE R THOMAS AND VIRLEE THOMAS VERSUS THERESA BERRY ACCC INSURANCE COMPANY ANDOR AMERICAN CENTURY CASUALTY COMPANY AND STATE FARM INSURANCE COMPANY On Appeal from the 20th Judicial District Court Parish of West Feliciana Louisiana Docket No 20 Division A Honorable George H Ware Jr Judge Presiding Chad A Aguillard Attorney for Appellants Plaintiffs New Roads LA Willie R Thomas and Virlee Thomas Charles J Duhe Jr Marvin H Olinde Taylor Wellons Politz Baton Rouge LA Duhe APLC Attorneys for DefendantsAppel lees Theresa Berry and American Century Casualty Company Harold J Adkins Attorney for Hammonds Defendant Appellee Sills Baton Rouge LA State Farm Mutual Automobile Insurance Company BEFORE CARTER C PARRO AND HIGGINBOTHAM JJ J Judgment rendered December 21 2011 PARRO J The plaintiffs Willie R Thomas and Virlee Thomas appeal a summary judgment in favor of the defendants dismissing the plaintiffs claims with prejudice For the reasons that follow we affirm FACTUAL AND PROCEDURAL BACKGROUND This matter arises out of a motor vehicle accident that occurred on May 3 2008 Plaintiff Willie R Thomas was operating a Yamaha motorcycle northbound on Solitude Road in West Feliciana Parish as defendant Theresa Berry was driving a 1990 Buick LeSabre southbound on the same road As Mr Thomas came around a steep downhill curve in the road he crossed the center line and collided with Ms Berry svehicle in her lane causing both vehicles to land in the ditch on Ms Berry side of the road s Mr Thomas also landed in the same ditch after the collision Mr Thomas subsequently filed suit against Ms Berry and her automobile liability insurer American Century Casualty Company American Century as well as against his uninsured motorist insurer State Farm Mutual Automobile Insurance Company State Farm seeking damages for the injuries he allegedly sustained in the accident His wife Virlee Thomas also joined in the petition seeking damages for loss of consortium past and future mental anguish and distress and loss of enjoyment of life Ms Berry and American Century filed a motion for summary judgment contending that because the accident occurred in Ms Berry lane of travel an adverse s presumption of negligence should be applied to Mr Thomas These defendants further argued that since Mr Thomas had no evidence to exculpate himself other than his own self serving testimony he could not rebut the presumption of negligence and his claims should be dismissed State Farm filed a separate motion for summary judgment adopting the arguments of the other defendants Both motions were tried together however at the first hearing the trial court deferred its ruling until the parties were able to consult with accident reconstruction In her deposition Ms Berry states her full name as Theresa Berry Hughes however in the pleadings and in other places throughout the proceedings she is referred to simply as Theresa Berry Therefore in this opinion we will refer to her as Ms Berry 2 experts At the second hearing the trial court determined that Mr Thomas could not carry his burden of proof Specifically the trial court stated Well the Court is of the opinion that Mr Thomas cannot now nor could he at trial come anywhere close to answering his burden and to the Court at least it appears that the evidence is overwhelming that he was at fault in this accident and that summary judgment should be granted So judgment will be signed accordingly It is from this judgment that the plaintiffs have appealed SUMMARY JUDGMENT The summary judgment procedure is designed to secure the just speedy and inexpensive determination of every action except those disallowed by LSAC art P C 969 the procedure is favored and shall be construed to accomplish these ends LSA P C art 966 Summary judgment shall be rendered in favor of the mover if the 2 A pleadings depositions answers to interrogatories and admissions on file together with the affidavits if any show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law LSAC art 966 P C 6 An appellate court review of a summary judgment is a de novo review based on s the evidence presented to the trial court using the same criteria used by the trial court in deciding whether a summary judgment should be granted sRun Enterprises Buck Inc v Mapp Const 993054 La App 1st Cir 2 808 So 428 431 In ruling 01 16 2d on a motion for summary judgment the judge role is not to evaluate the weight of s the evidence or to determine the truth of the matter but instead to determine whether there is a genuine issue of triable or material fact All doubts should be resolved in the non moving party sfavor Hines v Garrett 04 0806 La 6 876 So 764 765 04 25 2d A fact is material if it potentially insures or precludes recovery affects a litigant s ultimate success or determines the outcome of the legal dispute 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 Id at 765 66 On a motion for summary judgment the burden of proof remains with the 3 movant However if the moving party will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment the moving s party burden on the motion is to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party claim action s or defense Thereafter if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law See LSAC art 966 P C 2 C When a motion for summary judgment is made and supported as provided in LSAC art 967 an adverse party may not rest on the mere allegations or P C A denials of his pleading but his response by affidavits or as otherwise provided must set forth specific facts showing that there is a genuine issue for trial If he does not so P respond summary judgment if appropriate shall be rendered against him LSA C art 967 B DISCUSSION In the instant case the plaintiffs petition alleges that the accident occurred when Ms Berry negligently crossed the center line and entered his lane of travel on Solitude Road forcing him to take evasive action Mr Thomas contends that this evasive action ultimately resulted in his colliding with Ms Berry vehicle leaving the s roadway and landing in the ditch on Ms Berry side of the road s Conversely the defendants submitted affidavit and deposition testimony demonstrating that Ms Berry never crossed the center line and that the accident occurred entirely in her lane of travel Sergeant Lynn Bonaventure a supervisor for uniform patrol for the West Feliciana Parish Sheriff sOffice was the investigating officer for the accident at issue in this matter Sergeant Bonaventure testified by deposition that he responded to a notification from dispatch about the accident at approximately 11 p on May 3 39 m 2008 When he arrived at the scene of the accident representatives from the fire 4 department and EMS as well as other deputies from the sheriff office were already s present In his deposition Sergeant Bonaventure described Solitude Road and the scene of the accident According to Sergeant Bonaventure in the area of the accident there is a concrete bridge after which the road veers a little to the right followed by a straight area Solitude Road then continues uphill into a curve to the left At that point in the road there are no shoulders on the side of the road but there are ditches on both sides in some places occurred basically Sergeant Bonaventure testified that the accident at the bottom of the hill just coming out of that curve into that straight away going back toward the bridge He further noted that there were no lines marked on the road at that time but there were some reflectors although not all of them were in place Sergeant Bonaventure testified that when he arrived at the scene of the accident he saw Ms Berry car in the ditch on her side of the road s He also saw Mr Thomas and his motorcycle in the same ditch He further testified that the debris from the accident was in Ms Berry lane of travel or in the ditch on her side of the road s Sergeant Bonaventure also testified concerning a single line of skid marks that he saw at the scene of the accident According to Sergeant Bonaventure these skid marks which began in Mr Thomas lane and crossed into Ms Berry lane came from Mr s s smotorcycle Thomas Ms Berry testified by deposition that she was driving on the flat part of Solitude Road towards the curve after just having crossed over a bridge According to Ms Berry she was not driving more than thirty miles per hour when she saw a single light approaching from the other direction at a rapid rate of speed Ms Berry testified that the driver of the motorcycle skidded into her and collided with her vehicle in her lane of travel forcing her into the ditch after impact She stated that she had no opportunity 2 Sergeant Bonaventure appears to have described Solitude Road from the perspective Ms Berry would have had on the night of the accident 5 to stop or turn her vehicle to avoid the collision because it happened too quickly The defendants also submitted the report and affidavit of Michael G Sunseri an accident reconstruction specialist Mr Sunseri noted that the posted speed limit on Solitude Road in the area of the accident is thirtyfive miles per hour He further stated that he took measurements of the road in that area and that the northbound lane Mr s Thomas lane of travel is approximately nine feet wide and the southbound lane Ms s Berry lane of travel is approximately ten feet wide Mr Sunseri stated that based on these measurements he believed Mr Thomas had enough room to avoid the impact if he had simply stayed in his own lane Specifically he opined that Mr Thomas had approximately six feet on his side of the road in which to avoid the impact even if Ms Berry had strayed into the middle of the road He further stated that if Mr Thomas had been traveling the posted speed limit he should have been able to come to a complete stop on his side of the road before the collision opined based on his almost thirty years In addition Mr Sunseri of experience in investigating and reconstructing traffic crashes that it was very unusual for a driver to go to the left when confronted with a vehicle traveling in the middle of the road as Mr Thomas had claimed Finally Mr Sunseri noted that the investigating officer had not recorded sufficient physical evidence to determine whether Ms Berry had crossed into the middle of the roadway Although Mr Sunseri acknowledged that this may have occurred he believed it was more likely than not that Mr Thomas went to the outside of the downhill curve and entered the lane in which Ms Berry was traveling He further believed that the accident could have easily been avoided had Mr Thomas stayed in his own lane andor slowed to a stop on his side of the road Mr Thomas does not dispute that he entered Ms Berry lane of travel or that s the collision took place in her lane Instead he testified in his deposition that he was 3 Mr Sunseri based this finding on Mr Thomas sdeposition testimony that he had ten to fifteen seconds from the time he first saw Ms Berry headlights until the crash s He further based this finding on an assumption that his reaction time would have been 1 seconds Based on this data and the assumption 5 that Mr Thomas was traveling the posted speed limit Mr Sunseri concluded that Mr Thomas should have been able to come to a complete stop within four seconds and that his stopping distance would have been 144 feet 6 forced to enter Ms Berry lane because she was in the middle of the road or in his s lane Specifically Mr Thomas testified that he noticed the lights of an oncoming vehicle as he was approaching the curve at approximately forty to fortyfive miles per hour According to Mr Thomas as he came around the curve he realized that Ms s Berry car was in the middle of the road and that she was not moving over Mr Thomas then determined that he had only two choices 1 either he could pull out of the turn and pull into Ms Berry lane to try to avoid the collision or 2 he could lay s his motorcycle down in the road in his own lane Mr Thomas testified that he believed if he had chosen the second option Ms Berry would have run over him causing more severe injuries and perhaps death In addition the plaintiffs submitted the report of A McPhate a mechanical engineer and accident reconstruction expert Mr McPhate indicated that the damage to the vehicles as well as their final resting positions was consistent with Mr Thomas s description of the accident Specifically Mr McPhate indicated that the fact that both vehicles wound up in the ditch on Ms Berry side of the road was consistent with Mr s s Thomas claim that he was moving to his left as Ms Berry was moving to her right Mr McPhate acknowledged that the accident occurred in Ms Berry lane of travel s however he contended that speed was not a factor in the accident Most importantly in an effort to support Mr Thomas theory of how the accident occurred Mr McPhate s stated It has been my experience that motorists that encounter an oncoming vehicle in their lane of travel will often go left to avoid the collision In such cases more often than not the encroaching vehicle will move to its right and the collision will take place in the encroacherlds proper lane This scenario seldom leaves sufficient physical evidence to conclusively determine the sequence of events This is the case here While the defendants were the movants at the hearing on the motion for summary judgment the plaintiff would have borne the burden of proof on the issues of 4 The plaintiffs did not submit Mr McPhate sfindings in an affidavit 5 No support is provided for his contention that speed was not a factor in the accident 7 liability and negligence at trial Therefore the defendants only had to point out that there was a lack of support for one or more elements essential to the plaintiffs claim which would then require the plaintiffs to produce factual support sufficient to establish that they would be able to satisfy their evidentiary burden of proof at trial See LSA P C art 966 It is undisputed that the accident took place in Ms Berry lane 2 C s of travel At the hearing on the motions for summary judgment the defendants pointed out that there is a lack of physical evidence to suggest that Ms Berry ever crossed into Mr Thomas lane of travel which is Mr Thomas sole justification for s s crossing into Ms Berry lane s Rather the claim that Ms Berry was in Mr Thomas s lane is based on nothing other than Mr Thomas own self serving testimony and Mr s s McPhate opinion that drivers often go to the left to avoid vehicles that are encroaching into their lanes In addition while the evidence submitted by the plaintiffs would normally appear to require the trial court to make impermissible credibility decisions in a motion for summary judgment when compared to the evidence submitted by the defendants Mr Thomas was also subject to an adverse presumption of negligence because he was in the wrong lane at the time of the accident When a collision occurs between two vehicles one of which is in the wrong lane of travel there is a presumption that the driver in the wrong lane was negligent and the burden is on him to show that the collision was not caused by his negligence v Hano Louisiana Dept of Transp and Development 519 So 796 798 La App 1st Cir 1987 writ denied 523 So 861 2d 2d La 1988 see also Ferrell v Fireman Fund Ins Co 94 1252 La 2 650 s 95 20 2d So 742 746 Thomas v Hodges 10 0678 La App 1st Cir 10 48 So 29 3d 1274 1281 n writ denied 102637 La 2 54 So 1109 Gatlin v Kleinheitz 5 11 11 3d 090828 La App 1st Cir 12 34 So 872 875 writ denied 100084 La 09 23 3d 10 26 2 28 So 280 3d A de nova review of the record indicates that the plaintiffs failed to provide evidence to rebut this adverse presumption of negligence There is nothing in the record to support Mr Thomas claim that Ms Berry was ever in the middle of the road s or encroaching in his lane on the night of the accident There are no skid marks from Ms Berry vehicle and all of the debris from the accident was either in her lane or in s the ditch on her side of the road It is undisputed that the collision occurred in her lane There is simply no physical evidence to support Mr Thomas claim rather the s physical evidence contradicts Mr Thomas version of the events s Therefore after a thorough de novo review of the evidence submitted at the hearing on the motions for summary judgment and considering the adverse presumption of negligence against the plaintiffs in this matter we find that summary judgment was properly granted in favor of the defendants DECREE For the foregoing reasons the judgment of the trial court granting the motions for summary judgment filed by Theresa Berry American Century Casualty Company and State Farm Mutual Automobile Insurance Company is affirmed All costs of this appeal are assessed to the plaintiffs Willie R Thomas and Virlee Thomas AFFIRMED
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
