Malcolm Thomas VS Randall Hodges and State Farm Mutual Automobile Insurance Company (2010CA0678 Consolidated With 2010CA0679)

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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2010 CA 0678 MALCOLM THOMAS VERSUS r RANDALL HODGES AND STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY CONSOLIDATED WITH 2010 CA 0679 LARRY GRANT LISA DUNN THOMAS AND LAFAYE DUNN VERSUS RANDALL HODGES AND STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Judgment Rendered October 29 2010 On Appeal from the 20 Judicial District Court In and For the Parish of East Feliciana Trial Court Numbers 36 and 36 439 440 The Honorable George H Ware Jr Judge Presiding Baton Rouge LA Counsel for PlaintiffsFirst Appellants Larry Grant Lisa Dunn Thomas and LaFaye Dunn Terry L Bonnie Counsel for PlaintiffSecond Appellant Baton Rouge Malcolm Thomas Harold J Adkins Counsel for DefendantsAppellees Randall Hodges and State Farm Walter C Dumas Travis J Turner Baton Rouge LA Mutual Automobile Ins Co John T Roethele Counsel for Defendant Appellee Denham Springs LA State Farm Mutual Automobile Ins Co BEFORE PARRO GUIDRY AND HUGHES JJ 2 HUGHES J This is an appeal from a summary judgment dismissing the alleged tortfeasor and his insurance company also named as a defendant as the other driver uninsured motorist carrier in this automobile s underinsured accident case For the reasons that follow we affirm FACTS AND PROCEDURAL HISTORY On October 25 2003 a vehicular collision occurred on Louisiana Highway 67 north of Clinton Louisiana between a 1990 Chevrolet pickup truck driven by Fred Dunn Jr and a flatbed tandem axle trailer being pulled by a 2000 Chevrolet pickup truck driven by Randall Hodges After colliding with the Hodges trailer the Dunn pickup truck then struck head on a 1998 Chevrolet pickup driven by Brian Keith Yarborough Mr Dunn was killed in the accident and both Mr Yarborough and a passenger in Mr s Dunn vehicle Malcolm Thomas were injured In October of 2004 both Mr Thomas and the heirs of Mr Dunn brought separate suits against Mr Hodges and his insurer State Farm Mutual Automobile Insurance Company State Farm claiming that the accident was caused by Mr Hodges trailer crossing into Mr Dunn lane of s travel State Farm was also named as a defendant in its capacity as the underinsured uninsured motorist carrier for Mr Dunn These suits were consolidated for trial in the district court Subsequently Mr Hodges and State Farm filed motions for summary judgment contending that all the evidence that had been submitted showed that Mr Hodges was lawfully traveling in his own lane when Mr Dunn caused the accident by driving across the centerline and that the plaintiffs were unable to prove any negligence or fault on the part of Mr Hodges that contributed to the accident K After a November 4 2009 hearing on the motions for summary judgment the trial court rendered judgment in favor of the defendants dismissing the plaintiffs consolidated suits Plaintiffs have appealed asserting that the trial court erred in granting summary judgment as material issues of fact remain unresolved in the case LAW AND ANALYSIS The summary judgment procedure is designed to secure the just speedy and inexpensive determination of every action except those disallowed by LSA C art 969 the procedure is favored and shall be P construed to accomplish these ends LSA C art 966 Summary P 2 A judgment shall be rendered in favor of the mover if the 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 mover is entitled to judgment as a matter of law LSAC art P C B 966 Appellate courts review summary judgments de novo under the same criteria that govern a district court consideration of whether summary s judgment is appropriate Samaha v Rau 2007 1726 pp 3 4 La 2 08 26 977 So 880 882 Allen v State ex rel Ernest N MorialNew Orleans 2d Exhibition Hall Authority 20021072 p 5 La 4 842 So 373 03 9 2d 377 Boudreaux v Vankerkhove 20072555 p 5 La App 1 Cir 11 8 08 993 So 725 729 30 2d In ruling on a motion for summary judgment the judge role is not to s 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 All doubts should be resolved in the non moving party favor s Garrett 20040806 p 1 La 6 876 So 764 765 04 25 2d Ll Hines v A fact is material if it potentially insures or precludes recovery affects a litigant ultimate success or determines the outcome of the legal dispute s 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 20040806 at p 1 876 So at 765 66 2d On motion for summary judgment the burden of proof remains with the movant However if the moving party will not bear the burden of proof on the issue at trial and points out that there is an absence of factual support for one or more elements essential to the adverse party claim action or s defense then the non moving party must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial If the opponent of the motion fails to do so there is no genuine issue of material fact and summary judgment will be granted See LSAC P C art 966 2 C When a motion for summary judgment is made and supported as provided in LSA C art 967 an adverse party may not rest on the mere P allegations or denials of his pleading but his response by affidavits or as otherwise provided above must set forth specific facts showing that there is a genuine issue for trial If he does not so respond summary judgment if appropriate shall be rendered against him LSA C art 967 See P B also Board of Supervisors of Louisiana State University v Louisiana Agricultural Finance Authority 2007 0107 p 9 La App 1 Cir 2 08 8 984 So 72 7980 Cressionnie v Intrepid Inc 2003 1714 p 3 La 2d App 1 Cir 5 879 So 736 738 04 14 2d In the instant case the plaintiffs pleadings allege the accident was caused by Mr Hodges in negligently allowing the trailer he was pulling 5 with his truck to cross the centerline Plaintiffs also argue that Randall Hodges was further negligent in allowing a four wheeler to become loose and fall off his trailer into Mr Dunn lane of travel s Conversely the defendants produced affidavit and deposition testimony showing that Mr Hodges was not transporting a four wheeler that his trailer was empty prior to the accident and that he did not drive his vehicle or trailer into Mr s Dunn lane of travel Randall Hodges testified by affidavit and deposition that immediately prior to the accident he was traveling southbound on Highway 67 with passengers Cody Hodges his son and Lane Hodges his nephew Mr Hodges testified that he was pulling an empty flatbed trailer behind his truck Mr Hodges further stated that he was following a pickup truck driven by his brother Rodney Hodges Lane father and that he in turn s was followed by his friend Brian Keith Yarborough driving a third pickup Neither Rodney Hodges nor Mr Yarborough had passengers in their vehicles Rodney was also towing a trailer behind his truck and Mr Yarborough had a four wheeler in the bed of his truck Mr Hodges further testified that he and his companions were en route back to their respective homes in the Baton Rouge area after spending the day at a hunting camp in Mississippi Mr Hodges stated that although he had used the trailer he was towing to haul a tractor earlier that day he had left the tractor in Mississippi He further said that they were going to stop at a Mr Hooge barn near Clinton to store the trailer Rodney Hodges was s pulling Mr Hodges testified that his brother Rodney had already made the turn into the driveway leading to Mr Hooge barn when he saw the Dunn s truck swerving into his lane Mr Hodges had already slowed his vehicle and activated his turn signal in preparation for turning into the driveway which T he said was about 100 yards away and upon seeing the Dunn vehicle swerve into his lane he began to pull onto the shoulder of the road in an attempt to avoid an accident According to Mr Hodges Mr Dunn truck clipped s the left rear section of his trailer and then went on to collide head on with Mr Yarborough truck which was behind him s The testimony of Brian Keith Yarborough Cody Hodges and Lane Hodges reiterated and confirmed the testimony of Randall Hodges Rodney Hodges did not witness the accident itself but testified that after the accident he saw all of the vehicles resting in the southbound lane or on the southbound shoulder Mr Yarborough further testified that he had a four wheeler strapped down in the bed of his truck but that the impact of Mr s Dunn truck caused the straps to break and the four wheeler was thrown out onto the highway While Malcolm Thomas initially gave a March 6 2007 affidavit indicating that the Hodges trailer had crossed into Mr Dunn lane causing s the accident and that Mr Dunn did not cross into the southbound lane until after he was struck by the trailer he later withdrew these assertions in deposition testimony In Mr Thomas subsequent deposition testimony he s admitted that he never saw either Randall Hodges truck or trailer come into his lane before the accident Mr Thomas testified that immediately before the accident he heard something hit the truck on what he thought was the right side Mr Thomas stated that he turned his head to the right to look for the source of the noise and then when he turned his head back toward Mr Dunn he saw headlights and that was it consciousness At that point he lost Mr Thomas testified that the impact occurred in the southbound Mr Hodges lane of travel 7 The investigating officer for the accident Louisiana State Trooper Joe Billingsly testified by depositions taken on June 7 2005 and March 11 2009 He identified the accident report he prepared regarding the instant accident and the report was attached as an exhibit to his March 2009 deposition Based on the statements of the witnesses the position of the vehicles after the accident and physical markings on the roadway Trooper Billingsly concluded that the accident occurred when Mr Dunn vehicle s crossed the centerline and struck the other two vehicles in their lane of travel Trooper Billingsly also concluded that both Mr Hodges and Mr Yarborough were engaging in normal movement immediately prior to the accident Trooper Billingsly further testified that both Mr Hodges and a blood sample from Mr Dunn were subjected to blood alcohol testing and that the results of the blood alcohol testing showed blood alcohol levels of 0 for Mr Hodges and 0 for Mr Dunn 17 In support of their contention that Mr Hodges caused the accident plaintiffs submitted the deposition testimony of Irma Dyer who resided near the accident site at the time of the accident Early in her deposition Ms Dyer stated A four wheeler had fell sic off the back of some hunter s truck and Fred Dunn was trying to dodge it and he got hit headon Upon further questioning it became clear that Ms Dyer was inside her house at the time of the accident and did not see the collision Ms Dyer admitted that she was merely repeating remarks she had heard from unidentified person present at the accident scene during the subsequent s investigation Trooper Billingsly testified that he made an inquiry of persons present at the accident scene as to whether anyone had been a witness to the M accident He further testified that aside from the Hodgeses Mr Yarborough and Mr Thomas there were no other witnesses The plaintiffs further rely on the testimony of accident reconstruction expert Michael S Gillen Mr Gillen was provided with the statements and depositions that had been taken prior to his review of the accident along with the accident report including accident scene photographs prepared by Trooper Billingsly Although Mr Gillen was not hired to reconstruct the accident after reviewing the documents provided to him he stated that it was equally likely for the accident to have occurred in either lane In their appellate brief the plaintiffs also point to the testimony of Lane Hodges apparently in an attempt to show a remaining question of fact as to whether Randall Hodges did contrary to defense testimony have a four wheeler on his trailer prior to the accident The plaintiffs appellate brief states the following Lane Hodges testified as to two 2 4wheelers He testified that his dad Randall Hodges and Keith Keith Yarborough each had a 4wheeler His dad 4wheeler s was in the back of his truck and Keith Keith Yarborough 4 s wheeler was in the bed of his truck Lane Hodges testified they were going to drop off the 4wheeler in his dad truck on s the Hooge sic property Emphasis added s However plaintiffs have confused the two Hodges brothers in their argument Lane Hodges testimony actually reflects that Randall Hodges was his uncle while Rodney Hodges was his father facts which were also testified to by both Rodney and Randall Hodges Although Lane Hodges gave testimony indicating that his father Rodney Hodges may also have been transporting a second four wheeler in his truck none of the other While Mr Gillen stated in his deposition testimony that there were some sixty police photographs taken in conjunction with the accident investigation only about ten of these photographs were filed into the record annexed to the various depositions 0 witnesses were asked about this fact and since Rodney truck was not s involved in the instant accident it is not relevant to this inquiry In this same vein the plaintiffsappellants further point to the fact that Randall Hodges was questioned by the investigating law enforcement officers at the accident scene about whether he had a four wheeler on his trailer directing this court attention to the photograph of a four wheeler at s the accident scene introduced into evidence However Trooper Billingsly concluded that at the time of the accident Randall Hodges trailer was empty and that the four wheeler found at the scene was thrown from the back of Mr Yarborough truck coming to rest just off of the southbound s shoulder Next in brief to this court plaintiffsappellants attempt to raise as a question of fact some discrepancies in the testimony of the HodgesYarborough witnesses concerning their activities at their Mississippi hunting camp during the day leading up to the accident at issue Plaintiffsappellants point out that Randall Hodges testified he went to Mississippi for bow hunting and to drop off equipment Yarborough testified plots for deer However Keith Randall Hodges went to Mississippi to plant food Our review of the depositions at issue reveals that the questioning during the taking of the depositions did not focus on obtaining an exhaustive list of the activities engaged in by Mr Hodges and his companions at their hunting camp which may explain any differences in the witnesses statements Moreover these activities were not shown to have any relevance to the vehicular accident occurring later in the day Plaintiffsappellants also in brief to this court place some emphasis on the activities of Mr Dunn and Mr Thomas prior to their arrival at the accident site In particular the plaintiffsappellants recite deposition 10 testimony in the record of Mr Thomas and reference the affidavit of Lillie Matthews wherein these witnesses state that they did not see Mr Dunn drink alcoholic beverages when in their company during the time leading up to the accident Nonetheless just because these witnesses did not see Mr Dunn consume alcoholic beverages on the day of the accident does not mean that he did not do so Moreover direct evidence established that Mr Dunn s blood alcohol level was 0 17 In their appellate brief the plaintiffsappellants further enumerate as genuine issues of fact the following in addition to Trooper Billingsly four other troopers were involved in the accident investigation the accident report indicates Acadian Ambulance arrived at 19 7 p the 42 42 m accident report indicates that Trooper Billingsly arrived at 20 8 p 29 29 m photographs taken at the scene showed Acadian Ambulance paramedics performing CPR on Mr Dunn but miraculously the radio remote Mr Dunn allegedly had in his hand at the time of the accident did not fall out of his hand and that Trooper Billingsley testified that he witnessed the coroner draw a postmortem blood sample from Mr Dunn but that t procedure his likewise did not cause the remote to fall out of Mr Dunn hand s Nevertheless the plaintiffsappellants fail to state what significance should be attached to these facts nor is it immediately apparent that these facts were contested or what other evidence in the record conflicts with this evidence The affidavit of Lillie Matthews states that she is the mother of LaFaye Dunn one of Fred s Dunn children that Mr Dunn and Mr Thomas were at her home at about 5 p on the day 00 m of the accident that she offered Mr Dunn a beer but that he did not accept the beer or drink any other alcoholic beverages at her home Ms Matthews further averred that she had been in Mr s Dunn presence over the course of twenty two years on many occasions when he had consumed alcohol and that Mr Dunn did not display any of his ways andor actions after he consumed alcohol on the date of the accident This photograph does not appear in the record on appeal 11 Furthermore the plaintiffsappellants emphasize the fact that accident reconstructionist Michael Gillen questioned whether a gouge mark noted by Trooper Billingsly as having been made in the roadway following the collision of the vehicles involved in the accident was in fact related to the accident In his deposition testimony Mr Gillen cited the roadway construction in the area of the accident and particularly the fact that the surface of the roadway had been scarified the top layer having been mechanically scraped off as making it difficult to determine whether the gouge marks preexisted or were caused by the accident Mr Gillen admitted that he did not personally examine the surface of the roadway though he did drive through the area and he acknowledged that the roadway has since been resurfaced eliminating all evidence More importantly Mr Gillen unequivocally stated that he could not reach a conclusion as to which lane the accident occurred in At most Mr Gillen testimony would result s in discounting the gouge mark as evidence in resolving the issues before the court on motion for summary judgment Nevertheless the remaining uncontroverted testimony still places the accident in Randall Hodges lane with no affirmative evidence having been produced to show any fault on his part in causing the accident 4 We note that Mr Gillen in his first deposition noted a discrepancy in Trooper Billingsly s accident report in that on the legend for the diagrams of the accident scene he indicated that the reference point and line for his measurements was the fog line while on the diagram an arrow was drawn to the edge of the roadway and marked as the reference line However subsequent to Mr Gillen first deposition Trooper Billingsly was informed of the discrepancy by one of the s attorneys involved in the case After receiving this information Trooper Billingsly testified in his 2009 deposition that he reviewed his accident report and the photographs he had taken of the accident scene and realized he had made a mistake in the legend in that he had mistakenly labeled the reference point and line as the fog line when he should have labeled it as the edge of the road as indicated on the actual diagrams attached to the report Trooper Billingsly then completed a narrative supplement to the original accident report clarifying that rather than stating that the reference point and line used was the fog line the accident report legend should have stated that the reference point and line used was the roadway edge We conclude that the discrepancy recognized by Mr Gillen was thus resolved by the supplement to the accident report along with Trooper Billingsly testimony therefore we conclude that no question of material s fact remains as to this issue particularly as plaintiffs have produced no evidence to contradict the s trooper testimony 12 As pointed out hereinabove when a motion for summary judgment is made and supported as provided in LSA C art 967 an adverse party P may not rest on the mere allegations or denials but must respond with affirmative evidence Plaintiffs have failed to meet their burden to show any fault on the part of Randall Hodges in the instant accidents Therefore we find no error in the trial court grant of summary judgment in this case s CONCLUSION For the reasons assigned herein the summary judgment granted by the trial court in favor of Randall Hodges and State Farm Mutual Automobile Insurance Company in both capacities is hereby affirmed All costs of this appeal are to be borne by plaintiffsappellants Malcolm Thomas Larry Grant Lisa Dunn Thomas and LaFaye Dunn AFFIRMED 5 We note that in this case not only were the plaintiffs unable to show fault on the part of defendant Randall Hodges but they also had the burden to justify Mr Dunn movement outside s his lane of travel which they likewise failed to do Under LSA R 32 the driver on a S 79 roadway laned for traffic must drive as nearly as practicable entirely within a single lane and must not move from that lane until he or she has first ascertained such movement can be made with safety 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 Hano v Louisiana Department of Transportation and Development 519 So 796 798 La App 1 Cir 1987 2d writ denied 523 So 861 La 1988 citing Simon v Ford Motor Company 282 So 126 2d 2d 128 La 1973 Jones v Continental Casualty Company of Chicago Illinois 246 La 921 942 43 169 So 50 57 1964 See also Gatlin v Kleinheitz 20090828 p 6 La App 1 2d Cir 12 34 So 872 875 writ denied 20100084 La 2 28 So 280 09 23 3d 10 26 3d 13

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