STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
20-624
ALISHA ALLEN AND JASON ALLEN
VERSUS
FCCI INSURANCE COMPANY, ET AL.
**********
APPEAL FROM THE ALEXANDRIA CITY COURT PARISH OF RAPIDES, NO. 145440 HONORABLE RICHARD ERIC STARLING, JR., CITY COURT JUDGE
BILLY HOWARD EZELL JUDGE
Court composed of Billy Howard Ezell, Van H. Kyzar, and Jonathan W. Perry, Judges.
AFFIRMED. Allena W. McCain Butler Snow, LLP 445 N. Boulevard, Suite 300 Baton Rouge, LA 70802 (225) 325-8700 COUNSEL FOR DEFENDANTS/APPELLANTS: FCCI Insurance Company Zachary Waltenbaugh Sign Edge USA, LLC
Wilbert J. Saucier, Jr. 2220 Shreveport Hwy Pineville, LA 71360 (318) 473-4146 COUNSEL FOR PLAINTIFFS/APPELLEES: Alisha Allen Jason Allen
Michael L. Glass 1733 White Street Alexandria, LA 71301 (318) 484-2917 COUNSEL FOR PLAINTIFFS/APPELLEES: Alisha Allen Jason Allen EZELL, Judge.
Summary judgment was granted in this case on the issue of liability, finding
that Zachary Waltenbaugh was solely at fault for a vehicular accident he was
involved in with Alisha Allen. Mr. Waltenbaugh, Sign Edge USA, LLC, and FCCI
Insurance Company, appeal the judgment of the trial court. For the following
reasons, we affirm.
FACTS
At the time of the accident, Mr. Waltenbaugh was employed by Sign Edge
USA. On May 10, 2019, Mr. Waltenbaugh was in Alexandria, Louisiana
proceeding in a southerly direction on Jackson Street in a company truck, looking
for a location to install a sign for a real estate company. Meanwhile, Ms. Allen
was driving east on 4th Street. At the intersection of Jackson Street and 4th Street,
Mr. Waltenbaugh’s truck collided with Ms. Allen’s car.
Ms. Allen and her husband, Jason, filed suit against Mr. Waltenbaugh, Sign
Edge USA, and its insurer, FCCI Insurance Company, on November 14, 2019.
They subsequently filed a motion for partial summary judgment on the issues of
liability, insurance coverage, and marital status.
At the hearing on the motion for partial summary judgment on October 21,
2020, the parties agreed that there was no objection to the Allens’ position on
insurance coverage and marital status, so the hearing proceeded on the issue of
liability only. The trial court ruled that Mr. Waltenbaugh ran a red light and
granted summary judgment in favor of the Allens finding Mr. Waltenbaugh one-
hundred percent at fault for the accident. Judgment was signed that same day. In
addition to finding Mr. Waltenbaugh solely at fault for the accident, the judgment
also established that the policy issued by FCCI Insurance Company afforded coverage for the accident and that Alisha was married to Jason at the time of the
accident. The judgment was certified as a final judgment pursuant to La.Code
Civ.P. art. 1915, and Defendants filed the present appeal.
SUMMARY JUDGMENT
On appeal, Defendants claim that the trial court applied improper legal
standards, made inappropriate credibility determinations, and improperly weighed
conflicting testimony evidence in granting the Allens’ motion for summary
judgment on liability. They claim that there are genuine issues of material fact as
to whether Alisha Allen was at fault for the accident.
“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.” N. Am. Fire & Cas.
Co. v. State Farm Mut. Auto. Ins. Co., 03-300, p. 3 (La.App. 3 Cir. 10/1/03), 856
So.2d 1233, 1235, writ denied, 03-3334 (La. 2/13/04), 867 So.2d 694. Appellate
courts review motions for summary judgment de novo, using the same criteria that
the trial court considers in determining whether summary judgment is appropriate.
Dunn v. City of Kenner, 15-1175 (La. 1/27/16), 187 So.3d 404.
The summary judgment procedure is favored and “designed to secure the
just, speedy, and inexpensive determination of every action[.]” La.Code Civ.P. art.
966(A)(2). Appellate courts review the grant or denial of a motion for summary
judgment de novo, “using the same criteria that govern the trial court’s
determination of whether summary judgment is appropriate; i.e., whether there is
any genuine issue of material fact, and whether the movant is entitled to judgment
as a matter of law.” Samaha v. Rau, 07-1726, p. 4 (La. 2/26/08), 977 So.2d 880,
882-83; La.Code Civ.P. art. 966(A)(3).
2 The moving party has the burden of proof unless the mover “will not bear
the burden of proof at trial on the issue that is before the court on the motion for
summary judgment[.]” La.Code Civ.P. art. 966(D)(1). In that case, the mover
need only:
[P]oint out to the court the absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.
Id.
In the motion for summary judgment, Mrs. Allen argues that she had a green
light when she proceeded into the intersection and that Mr. Waltenbaugh
proceeded through a red light when he entered the intersection. Louisiana Revised
Statutes 32:232 governs the duty of drivers when faced with traffic-control signals.
In Amos v. Taylor, 51,595, pp. 4-5 (La.App. 2 Cir. 9/27/17), 244 So.3d 749,
753, the duty of a driver faced with a green signal was explained as follows:
A motorist with a green signal when approaching an intersection cannot depend exclusively on a favorable light. The motorist has a duty to watch for vehicles already in the intersection when the light changed. This duty does not extend to watching for traffic that has not yet entered the intersection. Mosely [sic] [v. Griffin, 50,478 (La.App. 2 Cir. 2/24/16, 191 So.3d 16] . . . In order to preempt an intersection, the motorist must show that he made a lawful entry, at a proper speed, after ascertaining that oncoming traffic was sufficiently removed to permit a safe passage and under the bona fide belief and expectation that he can negotiate a crossing with safety. He must show that he entered the intersection at a proper speed and sufficiently in advance of the vehicle on the intersecting street to permit him to cross without requiring an emergency stop by the other vehicle. Mosley, supra; Gardner v. State Farm Mut. Auto. Ins. Co., 43,499 (La. App. 2 Cir. 9/17/08), 996 So.2d 320.
3 Therefore, the Allens carried the burden of proof to establish that Mrs. Allen
entered the intersection on a green light at a proper speed and in advance of Mr.
Waltenbaugh entering the intersection.
According to Mrs. Allen in her deposition testimony, she left work early that
day and was just casually riding around. No one was with her, and she was not on
her phone. She turned onto 4th Street, two blocks before the intersection with
Jackson Street. At this point, 4th Street is two lanes of one-way traffic heading in
an easterly direction. The speed limit is about twenty to twenty-five miles per hour.
From the time she turned onto 4th Street, she had a green light at the intersection
with Jackson Street. There was a truck in the right lane, which was moving slowly,
so she moved into the left lane. Mrs. Allen explained that she was already moving
through the intersection and passed what she thought was a crosswalk when she
saw the truck driven by Mr. Waltenbaugh, so she applied her brakes. The
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
20-624
ALISHA ALLEN AND JASON ALLEN
VERSUS
FCCI INSURANCE COMPANY, ET AL.
**********
APPEAL FROM THE ALEXANDRIA CITY COURT PARISH OF RAPIDES, NO. 145440 HONORABLE RICHARD ERIC STARLING, JR., CITY COURT JUDGE
BILLY HOWARD EZELL JUDGE
Court composed of Billy Howard Ezell, Van H. Kyzar, and Jonathan W. Perry, Judges.
AFFIRMED. Allena W. McCain Butler Snow, LLP 445 N. Boulevard, Suite 300 Baton Rouge, LA 70802 (225) 325-8700 COUNSEL FOR DEFENDANTS/APPELLANTS: FCCI Insurance Company Zachary Waltenbaugh Sign Edge USA, LLC
Wilbert J. Saucier, Jr. 2220 Shreveport Hwy Pineville, LA 71360 (318) 473-4146 COUNSEL FOR PLAINTIFFS/APPELLEES: Alisha Allen Jason Allen
Michael L. Glass 1733 White Street Alexandria, LA 71301 (318) 484-2917 COUNSEL FOR PLAINTIFFS/APPELLEES: Alisha Allen Jason Allen EZELL, Judge.
Summary judgment was granted in this case on the issue of liability, finding
that Zachary Waltenbaugh was solely at fault for a vehicular accident he was
involved in with Alisha Allen. Mr. Waltenbaugh, Sign Edge USA, LLC, and FCCI
Insurance Company, appeal the judgment of the trial court. For the following
reasons, we affirm.
FACTS
At the time of the accident, Mr. Waltenbaugh was employed by Sign Edge
USA. On May 10, 2019, Mr. Waltenbaugh was in Alexandria, Louisiana
proceeding in a southerly direction on Jackson Street in a company truck, looking
for a location to install a sign for a real estate company. Meanwhile, Ms. Allen
was driving east on 4th Street. At the intersection of Jackson Street and 4th Street,
Mr. Waltenbaugh’s truck collided with Ms. Allen’s car.
Ms. Allen and her husband, Jason, filed suit against Mr. Waltenbaugh, Sign
Edge USA, and its insurer, FCCI Insurance Company, on November 14, 2019.
They subsequently filed a motion for partial summary judgment on the issues of
liability, insurance coverage, and marital status.
At the hearing on the motion for partial summary judgment on October 21,
2020, the parties agreed that there was no objection to the Allens’ position on
insurance coverage and marital status, so the hearing proceeded on the issue of
liability only. The trial court ruled that Mr. Waltenbaugh ran a red light and
granted summary judgment in favor of the Allens finding Mr. Waltenbaugh one-
hundred percent at fault for the accident. Judgment was signed that same day. In
addition to finding Mr. Waltenbaugh solely at fault for the accident, the judgment
also established that the policy issued by FCCI Insurance Company afforded coverage for the accident and that Alisha was married to Jason at the time of the
accident. The judgment was certified as a final judgment pursuant to La.Code
Civ.P. art. 1915, and Defendants filed the present appeal.
SUMMARY JUDGMENT
On appeal, Defendants claim that the trial court applied improper legal
standards, made inappropriate credibility determinations, and improperly weighed
conflicting testimony evidence in granting the Allens’ motion for summary
judgment on liability. They claim that there are genuine issues of material fact as
to whether Alisha Allen was at fault for the accident.
“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.” N. Am. Fire & Cas.
Co. v. State Farm Mut. Auto. Ins. Co., 03-300, p. 3 (La.App. 3 Cir. 10/1/03), 856
So.2d 1233, 1235, writ denied, 03-3334 (La. 2/13/04), 867 So.2d 694. Appellate
courts review motions for summary judgment de novo, using the same criteria that
the trial court considers in determining whether summary judgment is appropriate.
Dunn v. City of Kenner, 15-1175 (La. 1/27/16), 187 So.3d 404.
The summary judgment procedure is favored and “designed to secure the
just, speedy, and inexpensive determination of every action[.]” La.Code Civ.P. art.
966(A)(2). Appellate courts review the grant or denial of a motion for summary
judgment de novo, “using the same criteria that govern the trial court’s
determination of whether summary judgment is appropriate; i.e., whether there is
any genuine issue of material fact, and whether the movant is entitled to judgment
as a matter of law.” Samaha v. Rau, 07-1726, p. 4 (La. 2/26/08), 977 So.2d 880,
882-83; La.Code Civ.P. art. 966(A)(3).
2 The moving party has the burden of proof unless the mover “will not bear
the burden of proof at trial on the issue that is before the court on the motion for
summary judgment[.]” La.Code Civ.P. art. 966(D)(1). In that case, the mover
need only:
[P]oint out to the court the absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.
Id.
In the motion for summary judgment, Mrs. Allen argues that she had a green
light when she proceeded into the intersection and that Mr. Waltenbaugh
proceeded through a red light when he entered the intersection. Louisiana Revised
Statutes 32:232 governs the duty of drivers when faced with traffic-control signals.
In Amos v. Taylor, 51,595, pp. 4-5 (La.App. 2 Cir. 9/27/17), 244 So.3d 749,
753, the duty of a driver faced with a green signal was explained as follows:
A motorist with a green signal when approaching an intersection cannot depend exclusively on a favorable light. The motorist has a duty to watch for vehicles already in the intersection when the light changed. This duty does not extend to watching for traffic that has not yet entered the intersection. Mosely [sic] [v. Griffin, 50,478 (La.App. 2 Cir. 2/24/16, 191 So.3d 16] . . . In order to preempt an intersection, the motorist must show that he made a lawful entry, at a proper speed, after ascertaining that oncoming traffic was sufficiently removed to permit a safe passage and under the bona fide belief and expectation that he can negotiate a crossing with safety. He must show that he entered the intersection at a proper speed and sufficiently in advance of the vehicle on the intersecting street to permit him to cross without requiring an emergency stop by the other vehicle. Mosley, supra; Gardner v. State Farm Mut. Auto. Ins. Co., 43,499 (La. App. 2 Cir. 9/17/08), 996 So.2d 320.
3 Therefore, the Allens carried the burden of proof to establish that Mrs. Allen
entered the intersection on a green light at a proper speed and in advance of Mr.
Waltenbaugh entering the intersection.
According to Mrs. Allen in her deposition testimony, she left work early that
day and was just casually riding around. No one was with her, and she was not on
her phone. She turned onto 4th Street, two blocks before the intersection with
Jackson Street. At this point, 4th Street is two lanes of one-way traffic heading in
an easterly direction. The speed limit is about twenty to twenty-five miles per hour.
From the time she turned onto 4th Street, she had a green light at the intersection
with Jackson Street. There was a truck in the right lane, which was moving slowly,
so she moved into the left lane. Mrs. Allen explained that she was already moving
through the intersection and passed what she thought was a crosswalk when she
saw the truck driven by Mr. Waltenbaugh, so she applied her brakes. The
headlight on his truck passenger side was in front of her when she applied her
brakes. She impacted with his rear passenger tire fender. She looked at the traffic
lights after the accident, and the light facing her was still green, while the light
facing Mr. Waltenbaugh was red. Mr. Waltenbaugh told Mrs. Allen that he was
looking at Google Maps to find the location at which he was supposed to place a
sign.
In his deposition testimony, Mr. Waltenbaugh explained that he was slowing
down looking for the location to put a sign for work. Mr. Waltenbaugh testified
that the light was green as he was coming up to the intersection. He was two car
lengths from the light when he saw it was green. As he proceeded ahead, he was
glancing back and forth to see where he was supposed to turn to place the sign. Mr.
Waltenbaugh attested: “So I was looking at the light, and I guess whenever I
4 turned, turned my head to see where to turn in at, it went from green to yellow, and,
of course, to red.” He was looking for the location to place the sign when the
impact occurred. Mr. Waltenbaugh further explained that he saw Mrs. Allen and
sped up to get out of the way. Mr. Waltenbaugh stated that he did not see the light
facing him turn yellow or red. He agreed that he does not know what color the
light was when he went through the intersection.
Kevin Broussard is an architect who works in an office on Jackson Street.
He was walking back to his office from lunch when he witnessed the accident. Mr.
Broussard explained that he had a clear view of the accident as he was walking
south down the Jackson Street sidewalk, the same direction Mr. Waltenbaugh was
travelling in the truck. He was facing the accident when it occurred. He stated that
the truck had a red light as it entered the intersection, and it remained red. The
truck did not stop, and Mr. Broussard saw no attempt of the truck to slow down. It
was Mr. Broussard’s observation that the truck proceeded through the red light.
He could not see the color of the light facing Mrs. Allen. Mr. Broussard stated that
Mr. Waltenbaugh made statements that he was distracted and did not notice the
light was red after he got out of the truck. Mr. Waltenbaugh was very apologetic
and acknowledged that he was in error.
Officer David Allen Moore with the Alexandria Police Department
investigated the accident. Officer Moore testified that Mr. Waltenbaugh told him
that he was distracted because he was looking for a place to put a sign and drove
through the red light. Mr. Waltenbaugh never mentioned anything about the light
being any other color. Officer Moore obtained no information that anything Mrs.
Allen’s actions caused or contributed to the accident.
5 After our de novo review of the testimony and evidence, we agree with the
trial court’s grant of summary judgment on the issue of liability in favor of the
Allens. Nothing in the record contradicts Mrs. Allen’s testimony that she was
going the speed limit and entered a clear intersection on a green light. There is no
evidence whatsoever that Mr. Waltenbaugh entered the intersection on anything
but a red light. His testimony was clear that he does not know what color the light
was and that he never saw it turn yellow or red. The last time he knows the light
was green was when he was at least two car lengths before the intersection. He
admittedly was distracted looking for the address of where he was supposed to be.
For the foregoing reasons, the judgment of the trial court is affirmed. Costs
of this appeal are assessed to Zachary Waltenbaugh, Sign Edge USA, LLC, and
FCCI Insurance Company.
AFFIRMED.