Perry et al v. Zurich American Insurance Company et al, No. 2:2018cv04185 - Document 75 (E.D. La. 2019)

Court Description: ORDER AND REASONS - IT IS ORDERED that Plaintiffs' 42 Motion for Partial Summary Judgment on the issue of liability, be and hereby is DENIED. Signed by Judge Susie Morgan. (Reference: 18-4185)(bwn)
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Perry et al v. Zurich American Insurance Company et al Doc. 75 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A CLIN TON PERRY, SR., ET AL., Plain tiffs CIVIL ACTION VERSU S N O. 18 -4 18 5 ZU RICH AMERICAN IN SU RAN CE COMPAN Y, ET AL., D e fe n d an ts SECTION "E" ( 4 ) ORD ER AN D REAS ON S Before the Court is Plaintiffs’ Motion for Partial Sum m ary J udgm ent on the issue of liability. 1 Defendants David Wooldridge, Dade Paper & Bag Co., and Zurich Am erican Insurance Co. oppose the m otion. 2 For the following reasons, Plaintiffs’ Motion for Partial Sum m ary J udgm ent is D EN IED . BACKGROU N D This is a personal injury lawsuit arising from an autom obile accident that occurred on J anuary 16, 20 17. 3 Plaintiffs allege Defendant Wooldridge caused the accident by negligently changing lanes. 4 Am ong other things, Plaintiffs claim Wooldridge failed to yield, use lanes properly, and keep a good lookout. 5 Defendants claim Plaintiff Perry was contributorily negligent because eviden ce shows he m ay have been trying to pass Wooldridge at the tim e of the collision. 6 Further, Defendants argue Wooldridge was driving reasonably because he activated his turn signal and checked his m irrors before changing lanes. 7 1 R. Doc. 42. R. Doc. 64. 3 R. Doc. 1-1 ¶ III. 4 Id. 5 Id. ¶ IV. 6 R. Doc. 64, at 2. 7 Id. at 5. 2 1 Dockets.Justia.com SU MMARY J U 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.”8 “An issue is m aterial if its resolution could affect the outcom e of the action.”9 “A genuine issue of m aterial fact exists if the record, taken as a whole, could lead a rational trier of fact to find for the non-m oving party.”10 When assessing whether a m aterial factual dispute exists, the Court considers “all of the evidence in the record but refrains from m aking credibility determ inations or weighing the eviden ce.”11 All reasonable inferences are drawn in favor of the nonm oving party. 12 “[A] party seeking sum m ary judgm ent always bears the initial responsibility of inform ing the district court of the basis for its m otion[] and identifying those portions of [the record] which it believes dem onstrate the absence of a genuine issue of m aterial fact.”13 If the dispositive issue is one 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.’”14 If the m oving party fails to carry this burden, the m otion m ust be denied. If the m oving party successfully carries this burden, the burden of production then shifts to the nonm oving party to direct the Court’s attention to som ething in the pleadings or other evidence in the 8 F ED. R. CIV. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322– 23 (1986). DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 20 0 5). 10 Sm ith v. Am edisy s Inc., 298 F.3d 434, 440 (5th Cir. 20 0 2). 11 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 ). 12 Little v. Liquid Air Corp., 37 F.3d 10 69, 10 75 (5th Cir. 1994). 13 Celtic Marin e Corp. v. Jam es C. Justice Cos., 760 F.3d 477, 481 (5th Cir. 20 14) (quoting Celotex, 477 U.S. at 323). 14 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)). 9 2 record setting forth specific facts sufficient to establish a genuine issue of m aterial fact does in deed exist. 15 “[U]nsubstantiated assertions are not com petent sum m ary judgm en t evidence.”16 Rather, “the party opposing sum m ary judgm ent is required to iden tify specific eviden ce in the record and to articulate the precise m anner in which that eviden ce supports the claim .”17 “‘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.’”18 FACTS The following facts are undisputed. On J anuary 16, 20 17, Clinton Perry was driving his wife’s van with passengers Earl Perry (co-plaintiff) and Blanche and Ron ald Stevenson. 19 Perry was driving in the left-hand lane when his car collided with an 18 wheeler m oving from the center lane to the left lane; the 18 wheeler was operated by Defendant J ohn Wooldridge. 20 The im pact shattered Perry’s passenger side win dow and dam aged his passenger side m irror and door. 21 After im pact, Wooldridge kept driving until Plaintiffs got him to pull over further down the road and told him what happen ed. 22 Wooldridge changed lanes in his 18 wheeler before the accident but did not feel the 15 Celotex, 477 U.S. at 322– 24. Ragas v. Tenn . Gas Pipelin e Co., 136 F.3d 455, 458 (5th Cir. 1998) (citin g Celotex, 477 U.S. at 324). 17 Id. 18 Id. (quoting Skotak v. Ten neco Resins, Inc., 953 F.2d 90 9, 915– 16 (5th Cir. 1992) and citing Celotex, 477 U.S. at 324; Forsy th v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994)). 19 R. Doc. 42-2 ¶ 1 (citing Perry Dep. at pp. 16, 18 , 19, 49). In R. Doc. 64, at 2 ¶ 1, Defendants deny the allegations set forth in R. Doc. 42-2 ¶ 1 but only provide evidence to bring in dispute whether Wooldridge’s truck “struck” Plaintiffs’ van. See R. Doc. 64, at 2 ¶ 1 (citing Moor Dep. at p. 41). Accordingly, the un rebutted facts in R. Doc. 42-2 ¶ 1 are deem ed adm itted. See F ED. R. CIV. P. 56(e)(2); Celotex, 477 U.S. at 322– 24. 20 R. Doc 42-2 ¶ 2 (citing Perry Dep. at pp. 23– 24, 32– 33). In R. Doc. 64, at 2 ¶ 2, Defendants deny the allegations set forth in R. Doc. 42-2 ¶ 2 but only provide evidence to bring in dispute whether Wooldridge’s truck “struck” Plaintiffs’ van. See R. Doc. 64, at 2 ¶ 2 (citing Moor Dep. at p. 41). Accordingly, the unrebutted facts in R. Doc. 42-2 ¶ 2 are deem ed adm itted. See F ED. R. CIV. P. 56(e)(2); Celotex, 477 U.S. at 322– 24. Likewise, the parties do not dispute a collision occurred. See R. Doc. 64, at 2 ¶ 3– 4. 21 R. Doc 42-2 ¶ 3; R. Doc. 64, at 2 ¶ 3. 22 R. Doc 42-2 ¶ 4, 6; R. Doc. 64, at 2 ¶ 4, 6. 16 3 collision. 23 Nevertheless, Wooldridge saw evidence of the collision on his vehicle and Perry’s vehicle after they pulled over. 24 A collision took place between Wooldridge’s 18 wheeler an d Perry’s vehicle. 25 The 18 wheeler was owned by Dade Paper & Bag Com pany (“Dade”) and insured by Zurich Am erican Insurance Com pany (“Zurich”). 26 Defendants argue there are disputed m aterial facts. Defendants claim whether Perry was accelerating or braking or going faster or slower than the 18 wheeler at the tim e of the accident are m aterial facts in dispute. 27 Defendants also claim whether Wooldridge activated his turn signal and whether he checked his m irrors before changing lanes are m aterial facts in dispute. 28 Lastly, Defendants claim whether Perry was attem pting to pass Wooldridge’s truck before the collision is a m aterial fact in dispute. 29 Defendants support their version of these disputed facts with eviden ce that “the side m irror of the Dodge Caravan was bent towards the rear of the Caravan” and with the analysis of “accident reconstruction expert Douglas R. Morr[].”30 Defendants also rely on Wooldridge’s testim ony he was traveling slowly because of traffic and the governor on his engine. 31 23 R. Doc. 42-2 ¶ 5 (citing Wooldridge Dep. at pp. 28, 32, 56). In R. Doc. 64, at 2 ¶ 5, Defendants deny the allegations in R. Doc. 42-2 ¶ 5 but only provide eviden ce to bring in dispute whether Wooldridge’s truck “hit” Plaintiffs’ van. See R. Doc. 64, at 2 ¶ 5 (citin g Moor Dep. at p. 41). Accordin gly, the un rebutted facts in R. Doc. 42-2 ¶ 5 are deem ed adm itted. See F ED. R. CIV. P. 56(e)(2); Celotex, 477 U.S. at 322– 24. 24 R. Doc 42-2 ¶ 7; R. Doc. 64, at 2 ¶ 7. 25 R. Doc 42-2 ¶ 8 (citing Wooldridge Dep. at pp. 38– 39). In R. Doc. 64, at 2 ¶ 8, Defendants deny the allegations set forth in R. Doc. 42-2 ¶ 8 , but only provide evidence to brin g in dispute how the accident occurred and why. See R. Doc. 64, at 2 ¶ 8 (citin g Moor Dep. at p. 41; Wooldridge Dep. at pp. 39– 40 ). Accordingly, the unrebutted facts in R. Doc. 42-2 ¶ 8 are deem ed adm itted. See F ED. R. CIV. P. 56(e)(2); Celotex, 477 U.S. at 322– 24. 26 R. Doc. 1-1 ¶ 6– 7; R. Doc. 5 ¶ 6– 7. 27 R. Doc 64-1 ¶ 1 (citin g Moor Dep. at p. 41). 28 Id. ¶ 2 (citin g Wooldridge Dep. at pp. 39– 40 ). 29 Id. ¶ 3 (citing Moor Dep. at p. 41). 30 R. Doc. 64 at 2, 5 (citin g Moor Dep. at p. 41). 31 Id. at 5 (citing Wooldridge Dep. at pp. 32– 33, 50 – 51, 58– 59). 4 LAW AN D AN ALYSIS To be entitled to sum m ary judgm ent, Plaintiffs, as m ovants, bear the burden of proving there exists no genuine dispute of m aterial fact and they are entitled to judgm ent as a m atter of law. 32 Plaintiffs fail to carry their burden of showing there are no m aterial facts in dispute. Instead, Defendants have carried their burden of directing the Court’s attention to evidence in the record setting forth specific facts sufficient to establish several genuine issues of m aterial fact do indeed exist. 33 First, Perry m ay have been going faster than the 18 wheeler at the tim e of the acciden t. 34 Second, Wooldridge m ay have activated his turn signal and checked his m irrors before changing lanes. 35 Third, Perry m ay have been attem pting to pass Wooldridge’s truck at the tim e of the accident. 36 These disputed facts are m aterial because they could im pact the trier of fact’s allocation of fault between Plaintiffs and Defendants under Louisiana’s com parative fault schem e. 37 The jury m ust exam in e the evidence in this case an d determ ine whether Perry was travelling faster or slower than Wooldridge at the tim e of im pact, whether Wooldridge used his turn signal and checked his m irrors before changing lanes, an d whether Perry was passing Wooldridge at the tim e of the accident. These factual determ inations m ay factor into the jury’s decision on Wooldridge’s negligence and Perry’s contributory negligence. As a result, the Court finds these genuine disputes of m aterial fact defeat sum m ary judgm ent. 32 Celtic Marine Corp. v . Jam es C. Justice Cos., 760 F.3d 477, 481 (5th Cir. 20 14) (quoting Celotex, 477 U.S. at 323). 33 Celotex, 477 U.S. at 322– 24. 34 R. Doc 64-1 ¶ 1 (citin g Moor Dep. at p. 41). 35 Id. ¶ 2 (citin g Wooldridge Dep. at pp. 39– 40 ). 36 Id. ¶ 3 (citing Moor Dep. at p. 41). 37 Louisiana Civil Code article 2323 provides, “If a person suffers injury, death, or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons, the am ount of dam ages recoverable shall be reduced in proportion to the degree or percentage of n egligence attributable to the person suffering the in jury.” 5 Moreover, even if those facts were not disputed, this is a negligence case involving a contributory negligence defen se. “Sum m ary judgm ent is ordinarily (but not always) inappropriate when the issue involves n egligence or contributory negligence.”38 “Negligence is a com posite of the experiences of the average m an and is thus usually confined to jury evaluation.” 39 Accordingly, “[t]he use of sum m ary judgm ent is rarely appropriate in negligence . . . cases, even where the m aterial facts are not disputed.”40 “‘[I]t is usually for the jury to decide whether the conduct in question m eets the reasonable m an standard.’”41 As the Fifth Circuit has explained: Because of the peculiarly elusive nature of the term “negligen ce” and the necessity that the trier of facts pass upon the reasonableness of the conduct in all the circum stances in determ ining whether it constitutes negligence, it is the rare personal injury case which can be disposed of by sum m ary judgm ent, even where the historical facts are concededly undisputed. 42 This case presents no rare circum stances warranting sum m ary judgm ent. The jury will be required to consider “‘the reasonableness of the acts and conduct of the parties under all the facts and circum stances of the case.’”43 As a result, this case cannot “‘be disposed of by sum m ary judgm ent.’”44 38 Matthew s v. Ashland Chem ., 70 3 F.2d 921, 925 (5th Cir. 1983) Keating v. Jones Dev . of M o., Inc., 398 F.2d 10 11, 10 15 (5th Cir. 1968). 40 Davidson v. Stanady ne, Inc., 718 F.2d 1334, 1338 – 39 & n.8 (5th Cir. 1983) (“In tort actions in which determ inations of a less “elusive nature,” such as the existence of an agency relationship, waiver, or whether a plaintiff is in a class protected by a statute, are dispositive, sum m ary judgm ent m ay m ore often be appropriate.”). 41 Matthew s, 70 3 F.2d at 925 (quoting 10 W RIGHT, M ILLER , & KANE , F EDERAL P RACTICE AND P ROCEDURE , § 2729 (2d ed. 1983)). 42 Gauk v. Meleski, 346 F.2d 433, 437 (5th Cir. 1965). 43 Id. (quotin g Gross v. S. Ry . Co., 414 F.2d 292, 296 (5th Cir.1969)). 44 Id. (quotin g Gross v. S. Ry . Co., 414 F.2d 292, 296 (5th Cir.1969)). 39 6 CON CLU SION For the foregoing reasons, IT IS ORD ERED that Plaintiffs’ Motion for Partial Sum m ary J udgm ent on the issue of liability, 45 be and hereby is D EN IED . N e w Orle a n s , Lo u is ian a, th is 9 th d ay o f Se p te m be r, 2 0 19 . _____________________________ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 45 R. Doc. 42. 7