Parker, et al. v. NGM Insurance Company, et al, No. 2:2015cv02123 - Document 60 (E.D. La. 2016)
Court Description: ORDER granting in part and denying in part 44 Motion for Partial Summary Judgment. IT IS ORDERED that Plaintiffs' motion for partial summary judgment, insofar as it seeks summary judgment finding Defendants liable for the property damage to P laintiff's vehicle, is GRANTED. FURTHER ORDERED that, with respect to the personal injuries alleged by Plaintiffs, the motion for partial summary judgment is DENIED, for the reasons set forth above. Signed by Judge Susie Morgan on 5/10/2016. (cms)
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Parker, et al. v. NGM Insurance Company, et al Doc. 60 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A ROBERT PARKER, ET AL., Plain tiffs CIVIL ACTION VERSU S N O. 15 -2 12 3 N GM IN SU RAN CE COMPAN Y, ET AL., D e fe n d an ts SECTION : “E” ( 3 ) ORD ER AN D REAS ON S Before the Court is a m otion for partial sum m ary judgm ent filed by Plaintiffs Robert Parker and Krista Elaine Parker. 1 Plaintiffs seek sum m ary judgm ent on the issue of liability. The m otion is opposed. 2 For the reasons that follow, the motion is GRAN TED IN PART and D EN IED IN PART. BACKGROU N D This personal-injury case arises from a m otor-vehicle collision in New Orleans, Louisiana, on August 21, 20 14. 3 On that date, Plaintiff Robert Parker was driving his 20 12 Hyundai Sonata in a southerly direction on Tulane Avenue near its intersection with Interstate 10 in New Orleans. 4 Also traveling southbound on Tulane Avenue at that tim e was Defendant Edson Rivera, who was operating a 20 0 3 Ford E250 van owned and operated by his em ployer, Multitec, LLC. 5 Rivera was driving directly behind Parker’s vehicle. 6 According to Parker, he began to slow down as he approached congested traffic. 7 It is undisputed that, as Parker slowed, he was rear-ended by Rivera. 8 1 R. Doc. 44. R. Doc. 47. 3 R. Doc. 44-3 at 1, ¶1; R. Doc. 47-1 at 1, ¶1. 4 R. Doc. 44-3 at 1, ¶1; R. Doc. 47-1 at 1, ¶1. 5 R. Doc. 44-3 at 1, ¶1; R. Doc. 47-1 at 1, ¶1. See also R. Doc. 1-1 at 2– 3. 6 R. Doc. 44-3 at 1, ¶1; R. Doc. 47-1 at 1, ¶1. The parties dispute how lon g Rivera was behind the vehicle driven by the Plaintiff, though it is undisputed that Rivera was directly behind Plaintiff im m ediately prior to the collision. R. Doc. 44-3 at 1, ¶¶1– 2; R. Doc. 47-1 at 1, ¶¶1– 2. 7 R. Doc. 1-1 at 3. 8 R. Doc. 44-3 at 1, ¶1; R. Doc. 47-1 at 1, ¶1. 2 1 Dockets.Justia.com As a result of the collision, on May 13, 20 15, Parker filed suit again st Rivera, his em ployer Multitec, LLC, an d NGM Insurance Com pany in the Civil District Court for the Parish of Orleans, State of Louisiana. 9 The action was rem oved to federal court on the basis of federal diversity jurisdiction on J une 16, 20 15. 10 Parker contends the accident was the sole fault of Edson Rivera, who “was actin g in the course and scope of his em ploym ent with Defendant Multitec, LLC.”11 Parker alleges, due to the collision, he “sustained serious bodily injuries, including but not lim ited to his back, neck, head, shoulders an d extrem ities,” and seeks dam ages for “past and future m ental anguish an d physical suffering, past and future expenses for m edical care, including expenses for travel to the physicians’ office, loss of enjoym ent of life, loss of consortium , and past and future lost earnings, along with property dam age to his vehicle.”12 Parker’s wife, Krista Elain e Parker, also seeks dam ages for “loss of consortium , services, and society of her husband.”13 Plaintiffs filed this partial m otion for sum m ary judgm ent on April 18, 20 16. 14 The m otion seeks sum m ary judgm ent on “liability.”15 Though the m otion is som ewhat vague, it appears that the Plaintiffs seek a ruling from the Court finding the Defendants liable for (1) the personal injuries Robert Parker allegedly sustained in the accident-in -question, and (2) the property dam age to Parker’s vehicle. 16 In sum , Plaintiffs contend there are no genuine issues of m aterial fact as to whether Defendants are “liable in this case,” arguing 9 R. Doc. 1-1. R. Doc. 1. 11 R. Doc. 1-1 at 3. Plaintiff attributes several acts of n egligence to Rivera: (1) “strikin g the rear of the Parker vehicle;” (2) “operatin g a vehicle in a careless m an ner;” (3) “failing to m aintain reasonable and proper control of said vehicle upon a public road;” (4) “operating the vehicle under his control in a reckless and negligent m ann er;” (5) “failing to see what should have been seen;” (6) “driving too fast;” (7) “failin g to use reasonable vigilance;” (8) “following too close;” and (9) “[a]ll other acts of fault which were the cause of the collision sued upon and will be shown at the trial of this m atter.” R. Doc. 1-1 at 3. 12 R. Doc. 1-1 at 4. 13 R. Doc. 1-1 at 4. 14 See generally R. Doc. 44. 15 R. Doc. 44-2 at 1, 8. 16 See R. Doc. 44-2 at 7– 8 . 10 2 that Rivera “collided with the rear of Plaintiff’s vehicle and caused him to incur significant injuries, dam ages, and losses. But for Rivera’s negligent actions, Parker would not have been injured.”17 Defen dants disagree, m aintaining there is a “significant contested issue of m aterial fact regarding whether Mr. Parker sustained any injuries from the m otor vehicle accident at issue in this litigation.”18 SU MMARY JU D GMEN T STAN D ARD Sum m ary judgm ent is appropriate only “if the m ovant shows that there is no genuine dispute as to any m aterial fact and the m ovant is entitled to judgm ent as a m atter of law.”19 “An issue is m aterial if its resolution could affect the outcom e of the action.”20 When assessing whether a m aterial factual dispute exists, the Court considers “all of the eviden ce in the record but refrains from m aking credibility determ inations or weighing the evidence.”21 All reasonable inferences are drawn in favor of the non-m oving party. 22 There is no genuine issue of m aterial fact if, even viewing the evidence in the light m ost favorable to the non-m oving party, no reasonable trier of fact could find for the nonm oving party, thus entitling the m oving party to judgm ent as a m atter of law. 23 If the dispositive issue is on e on which the m oving party will bear the burden of persuasion at trial, the m oving party “m ust com e forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial.”24 If the m oving party fails to carry this burden, the m otion m ust be denied. If the m oving party 17 R. Doc. 44-2 at 7– 8. R. Doc. 47 at 1. 19 F ED . R. CIV. P. 56. See also Celotex Corp. v. Catrett, 477 U.S. 317, 322– 23 (1986). 20 DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 20 0 5). 21 Delta & Pine Land Co. v. N ationw ide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 20 0 8 ). See also Reeves v . Sanderson Plum bing Prods., Inc., 530 U.S. 133, 150 – 51 (20 0 0 ). 22 Little v. Liquid Air Corp., 37 F.3d 10 69, 10 75 (5th Cir. 1994). 23 Sm ith v. Am edisy s, Inc., 298 F.3d 434, 440 (5th Cir. 20 0 2). 24 Int’l Shortstop, Inc. v. Rally ’s, Inc., 939 F.2d 1257, 1263– 64 (5th Cir. 1991) (quoting Golden Rule Ins. Co. v. Lease, 755 F. Supp. 948, 951 (D. Colo. 1991)). 18 3 successfully carries this burden, the burden of production then shifts to the non-m oving party to direct the Court’s attention to som ething in the pleadings or other evidence in the record setting forth specific facts sufficient to establish that a genuine issue of m aterial fact does indeed exist. 25 If the dispositive issue is one on which the non-m oving party will bear the burden of persuasion at trial, the m oving party m ay satisfy its burden of production by either (1) subm itting affirm ative evidence that negates an essential elem ent of the non-m ovant’s claim , or (2) affirm atively dem onstrating that there is no eviden ce in the record to establish an essential elem ent of the non-m ovant’s claim . 26 If the m ovant fails to affirm atively show the absence of evidence in the record, its m otion for sum m ary judgm ent m ust be denied. 27 Thus, the non -m oving party m ay defeat a m otion for sum m ary judgm ent by “calling the Court’s attention to supporting evidence already in the record that was overlooked or ignored by the m oving party.”28 “[U]nsubstantiated assertions are not com petent sum m ary judgm ent evidence. The party opposing sum m ary judgm ent is required to identify specific evidence in the record and to articulate the precise m anner in which that eviden ce supports his or her claim . ‘Rule 56 does not im pose upon the district court a duty to sift through the record in search of evidence to support a party’s opposition to sum m ary judgm ent.’”29 25 Celotex, 477 U.S. at 322– 24. Id. at 331– 32 (Bren nan, J ., dissentin g). 27 See id. at 332. 28 Id. at 332– 33. The burden would then shift back to the m ovant to dem onstrate the inadequacy of the evidence relied upon by the non-m ovant. Once attacked, “the burden of production shifts to the non m oving party, who m ust either (1) rehabilitate the evidence attacked in the m ovin g party’s papers, (2) produce additional evidence showin g the existence of a genuin e issue for trial as provided in Rule 56(e), or (3) subm it an affidavit explain in g why further discovery is necessary as provided in Rule 56(f).” Id. at 332– 33, 333 n .3. 29 Ragas v. Tenn . Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citin g Celotex, 477 U.S. at 324; Forsy th v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) an d quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 90 9, 915– 16 & n .7 (5th Cir. 1992)). 26 4 LAW AN D AN ALYSIS This is a diversity case stem m ing from a m otor-vehicle collision in New Orleans, Louisiana, 30 and the Court applies substantive Louisiana state law. 31 Plaintiffs’ causes of action in this m atter sound in negligence. 32 In negligence cases under Louisiana law, a duty-risk analysis, consisting of five elem ents, is used to determ ine liability. 33 The elem ents needed to establish liability are: (1) that the defendant had a duty to conform his conduct to a specific standard (the duty elem ent); (2) that the defendant’s conduct failed to conform to the appropriate standard (the breach elem ent); (3) that the defendant’s substandard conduct was a cause-in-fact of the plaintiff’s injuries (the causein-fact elem ent); (4) that the defendant’s substandard conduct was a legal cause of the plaintiff’s injuries (scope-of-the-risk elem ent); and (5) that the plaintiff actually suffered dam ages (the dam ages elem ent). 34 If the plaintiff fails to prove any one elem ent, the defendant is not liable. 35 Plaintiffs contend there is no genuin e dispute that Defendants are “liable in this case.” Plaintiffs argue, because Louisiana law presum es that a driver, like Rivera, who rear-ends another vehicle is at fault, and because Defendants have not rebutted the presum ption, sum m ary judgm ent on “the issue of liability” is appropriate. 36 Plaintiffs 30 See generally R. Docs. 1, 1-1. See, e.g., W olf v. PACT XPP Tech., AG, 811 F.3d 758 , 770 (5th Cir. 20 16); Martin Res. Mgm t. Corp. v . AXIS Ins. Co., 8 0 3 F.3d 766, 768 (5th Cir. 20 15); W eiser-Brow n Operating Co. v. St. Paul Surplus Lines Ins. Co., 80 1 F.3d 512, 517 (5th Cir. 20 15) (citing Sy m etra Life Ins. Co. v . Rapid Settlem ents, Ltd., 775 F.3d 242, 248 (5th Cir. 20 14)); see also Erie R.R. Co. v. Tom pkins, 30 4 U.S. 64 (1938 ). 32 R. Doc. 1-1 33 See Goins v. W al-Mart Stores, Inc., 0 1-1136, p. 6 (La. 11/ 28/ 0 1), 80 0 So. 2d 783, 788; Perkins v. Entergy Corp., 0 0 -1372, p. 7 (La. 0 3/ 23/ 0 1), 782 So. 2d 60 6, 611; Boy kin v. Louisiana Transit Co., Inc., 96-1932, pp. 8 – 9 (La. 0 3/ 0 4/ 98), 70 7 So. 2d 1225, 1230 ; Roberts v. Benoit, 60 5 So. 2d 10 32, 10 51 (La. 1991). 34 See, e.g., Dural v. Discover Prop. & Cas. Ins. Co., No. 6:0 8-cv-0 281, 20 10 WL 3259416, at *3 (W.D. La. J uly 15, 20 10 ) (citin g Goins, 80 0 So. 2d at 788 ); see also Rea v. W isconsin Coach Lines, Inc., No. 12-1252, 20 14 WL 4999447, at *2 (E.D. La. Oct. 7, 20 14) (citing Pepper v. Triplet, 0 3-0 619, p. 27 (La. 0 1/ 21/ 0 4), 864 So. 2d 181, 199). 35 Dural, 20 10 WL 3259416, at *3 (citing Duncan v. Kansas S. Ry . Co., 0 0 -0 0 66, p. 4 (La. 10 / 30 / 0 0 ), 773 So. 2d 670 , 676; Mathieu v. Im perial Toy Corp., 94-0 952, p. 11 (La. 11/ 30 / 94), 646 So. 2d 318, 326). 36 See R. Doc. 44-2 at 4– 7. 31 5 point to Rivera’s deposition testim ony, where Rivera adm its he collided with the rear of Robert Parker’s vehicle, to establish that the Defendants are liable. 37 Defendants disagree that the issue of liability can be resolved on sum m ary judgm ent, arguing “significant questions of causation” and dam ages rem ain in dispute. 38 Defendants contend, irrespective of the presum ed fault of following m otorists in Louisiana, “plaintiffs have not presented any eviden ce to establish that the accident in question caused plaintiff to sustain any dam age.”39 The instant m otion is best analyzed in two distinct spheres—i.e., (1) whether the Defendants are liable for any property dam age to Parker’s vehicle, and (2) whether the Defendants are liable for the personal injuries that Parker allegedly sustained. With respect to the form er, there is no genuine dispute that the Defendants are liable for the dam age to Parker’s vehicle. Edson Rivera testified in his deposition that, as a result of his rear-ending Parker, he did in fact cause dam age to Parker’s vehicle. 40 Specifically, in Rivera’s deposition, Plaintiffs’ counsel asked: “Mr. Rivera, in the sim plest term s, did you see dam age that you caused to the bum per of Mr. Parker’s vehicle?”41 Rivera responded: “Yes, I did.”42 The Defen dants have not cited any evidence to show that Parker’s vehicle was dam aged before the accident with Rivera, nor have Defendants otherwise pointed to any facts or evidence showing why they are not liable for the dam age to Parker’s vehicle. Absent such eviden ce, there is nothing before the Court to raise a genuine issue of m aterial fact as to whether Rivera dam aged Parker’s vehicle in the rear-end collision. It is undisputed that (1) Rivera, as a following m otorist, owed a duty of care to Parker; (2) 37 R. Doc. 44-2 at 6 (citing R. Doc. 44-4 at 22– 23 (Deposition of Edson Rivera)). R. Doc. 47 at 3; R. Doc. 47-1 at 2, ¶1. 39 R. Doc. 47 at 5 (em phasis added). 40 R. Doc. 44-4 at 42– 43 (Deposition of Edson Rivera). 41 R. Doc. 44-4 at 43 (Deposition of Edson Rivera). 42 R. Doc. 44-4 at 43 (Deposition of Edson Rivera). 38 6 Rivera breached that duty when he rear-ended Parker; and (3) the rear-end collision caused dam age to Parker’s vehicle. As such, it is beyond dispute that the Defendants are liable to Parker for the dam age to his vehicle, though the specific am ount of dam ages owed is an issue to be determ ined at trial. Whether Defendants are liable for Parker’s personal injuries, however, is not as clear. In their statem ent of uncontested facts, Plaintiffs do not even include a statem ent that Parker suffered personal injuries as a result of the accident with Rivera, let alone offer eviden ce to support such a statem ent. 43 Even though it was not required of them , the Defendants offered com petent sum m ary judgm ent evidence to show that Parker’s injuries pre-existed the collision with Rivera and were not caused by his being rear-ended on August 21, 20 14. 44 In fact, there is am ple evidence that Parker was being treated for sim ilar injuries prior to being rear-en ded by Rivera. 45 Whether Parker sustained any personal injuries as a result of being rear-en ded by Rivera is a disputed fact, and the Plaintiffs are not entitled to sum m ary judgm ent on liability for personal injuries. 46 The Court notes there is no dispute that Rivera’s negligence was the cause of the underly ing accident, irrespective of whether the Plaintiffs sustained any personal in juries or related dam ages in connection therewith. Under Louisiana law, “[a] legal presum ption exists that a following m otorist who collides into the rear end of a leading autom obile is at fault.”47 “For the following m otorist to exculpate him self, he m ust show that he kept his vehicle under control, that he closely observed the forward vehicle, that he followed at a 43 See generally R. Doc. 44-3. See R. Doc. 47 at 2– 3. See infra note 45. 45 R. Doc. 47 at 2– 3. See also R. Doc. 47-3 at 2– 10 (Deposition of Robert Parker); R. Doc. 47-4 (Certified Medical Records, Culicchia Neurological Clin ic); R. Doc. 47-5 (Certified Medical Records, St. Tam m any Parish Hospital); R. Doc. 47-6 (Deposition of Dr. K. Sam er Sham ieh). 46 “To establish liability, a plaintiff m ust prove that [a] defendant’s fault caused som e legally com pensable dam age.” Hall v. Brookshire Bros., Ltd., 0 2-240 4, p. 11 (La. 0 6/ 27/ 0 3), 848 So. 2d 559, 567. 47 Matherne v . Lorraine, 0 3-2369, p. 2 (La. App. 1 Cir. 0 9/ 17/ 0 4), 88 8 So. 2d 244, 246. 44 7 safe distance under the circum stances, or that the driver of the lead vehicle n egligently created a hazard which the following vehicle could not reasonably avoid.”48 In this case, it is undisputed that Parker was rear-en ded by Rivera, and Rivera is thus presum ed to be at fault for the rear-en d collision. 49 The Defen dants have not pointed to any evidence or established the presen ce of disputed issues of fact to show that Rivera, as the following m otorist in a rear-end collision, was not som ehow liable for the underlying accident. Therefore, it is clear that Rivera was the cause-in-fact of the accident and the legal cause of the Plaintiffs’ injuries, if there were any. Although the Court is not granting sum m ary judgm ent on the personal injury claim s, the Court will instruct the jury that the first four elem ents of the duty-risk analysis have been m et. At the trial, evidence will center on the am ount of dam ages to the Plaintiffs’ vehicle and whether the Plaintiffs suffered any personal injuries as a result of the accident and, if so, to what extent. CON CLU SION For the foregoing reasons, IT IS ORD ERED that Plaintiffs’ m otion for partial sum m ary judgm ent, insofar as it seeks sum m ary judgm ent finding Defendants liable for the property dam age to Plaintiff’s vehicle, is GRAN TED . IT IS FU RTH ER ORD ERED that, with respect to the personal injuries alleged by Plaintiffs, the m otion for partial sum m ary judgm ent is D EN IED , for the reasons set forth above. N e w Orle an s , Lo u is ian a, th is 10 th d ay o f May, 2 0 16 . ______ _____ ______ ___________ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 48 See, e.g., Mustifal v. Strickland, 98-1294, p. 5 (La. App. 3 Cir. 0 4/ 0 7/ 99), 732 So. 2d 741, 744 (em phasis om itted) (quoting Rudd v. United Servs. Auto. Ass’n , 626 So. 2d 568, 570 (La. App. 3 Cir. 1993)). 49 R. Doc. 44-3 at 1, ¶1; R. Doc. 47-1 at 1, ¶1. 8
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