Jamie Gilmore Douglas VS Alan Lemon, Gulf Industries, Inc., National Fire & Marine Insurance Company, William C. Gremillion, Jr., Doortech, Inc. and Trinity Universal Insurance Company
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2011 CA 0084 JAMIE GILMORE DOUGLAS VERSUS ALAN LEMON NATIONAL FIRE MARINE INSURANCE COMPANY GULF INDUSTRIES INC WILLIAM C GREMILLION JR DOORTECH IN AND TRINITY UNIVERSAL INSURANCE COMPANY Judgment Rendered June 10 2011 Appealed from the Nineteenth Judicial District Court and for the Parish of East Baton Rouge Louisiana Trial Court Number 580 386 Honorable Janice Clark Judge Russell W Beall Attorney for Baton Rouge LA Plaintiff Brent E Kinchen Attorney for Benjamin H Dampf Defendants Baton Rouge LA Appellee Jamie Gilmore Douglas Appellees William C Gremillion Jr Doortech Inc and Trinity Universal Ins Co Howard Murphy Ashley Gilbert Raymond Augustine Jr New Orleans LA Attorneys for Defendants Appellants Alan J Lemon Gulf Industries Inc and National Fire Marine Ins Co BEFORE CARTER C GAIDRY AND WELCH JJ J WELCH J In this action for damages arising out of a multimotor vehicle collision the defendants Alan Lemon Gulf Industries Inc Fire Gulf Industries Marine Insurance Company National Fire Lemon defendants and National collectively referred to as the appeal a summary judgment granted in favor of the defendants William C Gremillion Jr Doortech Inc Doortech and Trinity Universal to Insurance Gremillion Company defendants that Trinity dismissed collectively the referred plaintiffs claims as the against the Gremillion defendants Based on our de novo review of the record we reverse the judgment of the trial court and remand for further proceedings FACTUAL AND PROCEDURAL HISTORY On July 21 2008 Jamie Gilmore Douglas was operating her vehicle on Florida Boulevard near the intersection and traffic light at Oak Villa Boulevard in Baton Rouge Louisiana Travelling directly behind Douglas was a vehicle operated by Gremillion and owned by Doortech and travelling directly behind Gremillion was a vehicle operated by Lemon and owned by Gulf Industries While all of the vehicles were near the traffic light at the intersection the Lemon vehicle rearended the Gremillion vehicle which in turn rear ended the Douglas vehicle At the time of the accident Lemon was employed by Gulf Industries and the vehicle he was operating was covered by a policy of liability insurance issued by National Fire Additionally at the time of the accident Gremillion was employed by Doortech and the vehicle he was operating was covered by a policy of liability insurance issued by Trinity 2 There does not appear to be any dispute that at the time of the accident Lemon was in the course and scope of his employment with Gulf Industries or that he had permission to drive the vehicle at issue 2 There does not appear to be any dispute that at the time of the accident Gremillion was in the course and scope of his employment with Doortech or that he had permission to drive the vehicle at issue 2 Thereafter on July 15 2009 Douglas commenced this action to recover damages for injuries she sustained as a result of the accident Named as defendants were Gremillion Doortech Trinity Lemon Gulf Industries and National Fire In the petition the plaintiff alleged that the accident and resulting damages were caused by the fault and negligent acts of Lemmon and also by the fault of Gremillion by virtue of the fact that the Gremillion vehicle struck the plaintiff s vehicle from the rear In response the Lemon defendants filed an answer asserting among other things that the damages claimed by the plaintiff were caused by the actions or activities of others Thereafter the Gremillion defendants filed a motion for summary judgment claiming that there were no genuine issues of material fact because Gremillion did not operate his vehicle in a negligent manner and was without fault in the accident Specifically the Gremillion defendants contended that the Gremillion vehicle had come to a complete stop behind the vehicle driven by the plaintiff and that the Gremi Ilion vehicle only struck the plaintiff vehicle as a result of the force exerted s on the vehicle after it was rearended by the Lemon vehicle Thus the Gremillion defendants contended that they were entitled to summary judgment dismissing the plaintiffs claims against them The plaintiff did not oppose the motion for summary judgment however the Lemon defendants did contending that there were genuine issues of material fact as to whether Gremillion was at fault or comparatively at fault in the accident which precluded summary judgment Specifically the Lemon contended that there were genuine issues of material fact as to defendants whether the Gremillion vehicle prematurely moved forward when the traffic signal turned green whether the Gremillion vehicle maintained a safe distance from the plaintiffs vehicle whether Gremillion maintained a careful lookout at the traffic ahead whether the brake lights on the Gremillion vehicle were operational and 91 whether the Gremillion vehicle created an unavoidable hazard for Lemon when it came to a sudden or abrupt stop Based on these disputed issues of material fact the Lemon defendants contended that summary judgment was inappropriate After a hearing the trial court granted summary judgment because there were no genuine issues of material fact as the record clearly shows that the Gremillion vehicle was stopped and not moving when it was struck from behind s court A judgment in favor of the Gremillion defendants reflecting the trial ruling and dismissing the plaintiffs claims against the Gremillion defendants was signed on September 17 2010 and it is from this judgment that the Lemon defendants have appealed On appeal the Lemon defendants assert that the trial court mistakenly believed that the accident occurred when the Douglas and Gremillion vehicles were stopped at a red light at the intersection however the evidence offered in opposition to the motion for summary judgment suggested that the accident occurred after the vehicles had proceeded forward through the intersection on a green traffic light Furthermore the Lemon defendants contend that the trial court erred in granting the motion for summary judgment because there were genuine issues of material fact as to whether Gremillion was operating the vehicle with the commensurate degree of care and caution the circumstances required and as to whether the brake lights on the Gremillion vehicle were operational and able to warn Lemon of the sudden impending stop LAW AND DISCUSSION Summary Judgment Law A motion for summary judgment is a procedural device used to avoid a full scale trial when there is no genuine issue of material fact Granda v State Farm Mutual Insurance Company 20042012 p 4 La App 1 Cir 2 935 st 06 10 2d So 698 701 Summary judgment is proper only if the pleadings depositions 11 answers to interrogatories and admissions on file together with any affidavits show there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law La C art 966 P B On a motion for summary judgment the initial burden of proof is on the moving party If the issue before the court on the motion for summary judgment is one on which the party bringing the motion will bear the burden of proof at trial the burden of showing that there is no genuine issue of material fact remains on the party bringing the motion La C art 966 Buck Run Enterprises P 2 C s Inc v Mapp Construction Inc 993054 p 4 La App P Cir 2 808 01 16 2d So 428 431 However if the moving party will not bear the burden of proof at trial on the matter before the court the moving party burden of proof on the s motion is satisfied by pointing out to the court that there is an absence of factual support for one or more elements essential to the adverse party claim action or s defense Thereafter the nonmoving party must produce factual support sufficient to establish that it will be able to satisfy its evidentiary burden of proof at trial Failure to do so shows that there is no genuine issue of material fact art 966 2 C La C P Accordingly once the motion for summary judgment has been properly supported by the moving party the failure of the non moving party to produce evidence of a material factual dispute mandates the granting of the motion Babin v Winn Dixie Louisiana Inc 2000 0078 p 4 La 630 764 So 00 2d 37 40 see also La C art 967 P B Summary judgments are reviewed on appeal de novo Granda 2004 2012 at p 4 935 So at 701 Thus this court uses the same criteria as the trial court in 2d determining whether summary judgment is appropriate whether there is a genuine issue of material fact and whether mover is entitled to judgment as a matter of law Jones v Estate of Santiago 20031424 p 5 La 4 870 04 14 2d So 1002 1006 Ordinarily the determination of whether negligence exists in a 5 particular case is a question of fact therefore cases involving a question of negligence ordinarily are not appropriate for summary judgment Freeman v Teague 37 p 4 La App 2n Cir 1 862 So 371 373 see also 932 03 10 2 2d Powers v Tony Auto Repair Inc 981626 p 2 La App 4 Cir 4 s th 99 28 733 So 1215 1216 writ denied 991552 La 7 747 So 28 2d 99 2 2d principle extends to a question of comparative fault as well This However where reasonable minds cannot differ a question of comparative fault is a question of law that may be resolved by summary judgment See Rance v Harrison Company Inc 31 pp 78 La App 2 Cir 1 737 So 806 810 writ denied 503 nd 99 20 2d 990778 La 4 743 So 206 99 30 2d A genuine issue is a triable issue that is an issue on which reasonable persons could disagree If on the state of the evidence reasonable persons could reach only one conclusion there is no need for a trial on that issue Jones 2003 1424 at p 6 870 So at 1006 In determining whether an issue is genuine a 2d court should not consider the merits make credibility determinations evaluate testimony or weigh evidence Fernandez v Hebert 20061558 p 8 La App 1 Cir 5 961 So 404 408 writ denied 20071123 La 9 07 964 07 4 2d 21 2d So 333 A fact is material if it potentially ensures or precludes recovery affects a litigant ultimate success or determines the outcome of the legal dispute s Anglin v Anglin 2005 1233 p 5 La App 1 Cir 6 938 So 766 769 St 06 9 2d Because it is the applicable substantive law that determines materiality whether a particular fact in dispute is material for summary judgment purposes can only be seen in light of the substantive law applicable to the case Dickerson v Piccadilly Restaurants Inc 99 2633 pp 3 4 La App 1 51 1 0 m St Cir 1222 785 So 842 00 2d Applicable Legal Precepts Louisiana Revised Statutes 32 provides that t driver of a motor A 81 he 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 condition of the highway In addition to the duty to follow at a reasonable and prudent distance the driver of a motor vehicle also has a duty to maintain a careful lookout observe any obstructions present and exercise care to avoid them Ly v State Department of Public Safety and Corrections 633 So 197 201 La 2d App 15t Cir 1993 writ denied 93 3134 La 2 634 So 835 94 25 2d A following motorist in a rearend collision is presumed to have breached the duty to follow at a reasonable and prudent distance and hence is presumed negligent Ly 633 So at 201 The effect of the presumption is that the burden 2d of proof shifts to the driver of the following vehicle to prove a lack of fault to avoid liability Cheairs v Department of Transportation State Development 2003 0680 p 15 La 12 861 So 536 545 03 3 2d and In order to exculpate himself from liability the following motorist must show that he kept his vehicle under control closely observed the forward vehicle followed at safe distance under the circumstances or that the driver of the lead vehicle negligently created a hazard which the following vehicle could not reasonably avoid Veal v Forrest 543 So 1121 1123 La App I Cir 1989 The following motorist 2d bears the burden of showing he was not negligent Cox v Shelter Insurance Company 20090958 p 14 La App 3rd Cir 4 34 So 398 408 writ 10 7 3d denied 2010 1041 La 9 45 So 1044 10 17 3d Discussion Because Gremillion was a following motorist the Gremillion defendants have the burden of proving that Gremillion lacked fault or was not negligent Thus on the motion for summary judgment the Gremillion defendants bore the 7 burden of proving that there were no genuine issues of material fact with regard to that issue In support of their motion for summary judgment the Gremillion defendants offered the March 18 2010 affidavit of Gremillion which states in pertinent part that he was involved in the July 21 2008 accident involving the plaintiff that before the accident the vehicle he was driving had come to a complete stop that while he was stopped the vehicle he was driving was struck in the rear by a vehicle driven by Lemon and that as a result of being rear ended his vehicle was knocked into the vehicle in front of him driven by the plaintiff In opposition to the motion for summary judgment the Lemon defendants offered the deposition testimony of Lemon and the affidavit of Justin Austin who was the guest passenger in the vehicle operated by Lemon According to the deposition testimony of Lemon the Doortech vehicle or the vehicle driven by Gremillion was ahead of him at the traffic light and when the traffic light changed from red to green traffic began proceeding through the intersection After the Doortech vehicle had proceeded through or mostly through the intersection the driver of that vehicle Gremillion hit his brakes hard and the front portion of the vehicle dipped down Lemon stated that he had his eyes on the Doortech vehicle through the entire incident and never saw the vehicle brake lights illuminate and s that the only reason he knew the vehicle was braking hard was because he saw the back of the vehicle rise up and the front of the vehicle dip down According to the affidavit of Justin Austin at the time of the accident he was a passenger in the vehicle operated by Lemon He stated that the vehicle driven by Lemon was stopped behind the Doortech vehicle on Florida Boulevard at a traffic light intersection When the light turned green the Doortech vehicle moved forward and then the vehicle that he and Lemon were in also started to move forward From the time the vehicle he and Lemon were in started moving until the accident occurred he was looking at the back of the Doortech vehicle During that time he saw the back end of the Doortech vehicle rise up as it suddenly came to a stop but he never saw the Doortech vehicle brake lights s come on Although the evidence offered by the Gremillion defendants indicates that Gremillion had come to a complete stop before the accident and that his vehicle only rearended the plaintiff vehicle because of the force exerted on his vehicle s after being rearended by Lemon the evidence offered by the Lemon defendants suggested that after the traffic signal turned green and as the vehicles were proceeding forward through the traffic light the Gremillion or Doortech vehicle abruptly stopped with such force that the front of the vehicle dipped down and the back rose up and further that the brake lights did not illuminate so as to warn These are factual details material to a Lemon of the impending abrupt stop determination of fault and under these facts a reasonable person might conclude that Gremillion was negligent at fault or comparatively at fault in this accident For this reason we find that genuine issues of material fact exist with regard to s Gremillion fault or comparative fault and conclude that the trial court erred in granting the motion for summary judgment and dismissing the plaintiffs claims against the Gremillion defendants CONCLUSION For the above and foregoing reasons we reverse the September 17 2010 judgment of the trial court granting summary judgment in favor of defendants William C Gremillion Jr Doortech Inc and Trinity Universal Insurance Company and dismissing the plaintiff claims against them and remand this case s for further proceedings All costs of this appeal are assessed to defendants appellees William C Gremillion Jr Doortech Inc and Trinity Universal Insurance Company REVERSED AND REMANDED 9
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