STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
15-116
LACY BERTHIAUME, ET AL.
VERSUS
KEITH GROS, ET AL.
**********
APPEAL FROM THE TWELFTH JUDICIAL DISTRICT COURT PARISH OF AVOYELLES, NO. 2014-0679-A HONORABLE MARK A. JEANSONNE, DISTRICT JUDGE
MARC T. AMY JUDGE
Court composed of Sylvia R. Cooks, Marc T. Amy, and James T. Genovese, Judges.
REVERSED AND REMANDED.
Peter F. Caviness Falgoust, Caviness & Bienvenu, L.L.P. Post Office Drawer 1450 Opelousas, LA 70571-1450 (337) 942-5812 COUNSEL FOR DEFENDANTS/APPELLANTS: Keith Gros Bitco General Insurance Company
Brian M. Caubarreaux Brian Caubarreaux & Associates Post Office Box 129 Marksville, LA 71351 (318) 253-0900 COUNSEL FOR PLAINTIFFS/APPELLEES: Lacy Berthiaume Gaynell Coco AMY, Judge.
The parties were involved in an automobile accident in which the
defendant‟s vehicle rear-ended the plaintiffs‟ automobile. The plaintiffs filed suit
alleging that they were injured as a result of the accident. The plaintiffs
subsequently filed a motion for summary judgment on the issue of liability. The
defendant conceded that he was at fault, but contested whether he was solely liable
for the accident. The trial court granted the motion for summary judgment and
entered judgment finding that the defendant was solely liable for the accident. The
defendant appeals. For the following reasons, we reverse and remand.
Factual and Procedural Background
The genesis of this lawsuit is an automobile accident which allegedly caused
injuries to the plaintiffs, Lacey Berthiaume1 and Gaynelle Coco. According to the
record, Ms. Berthiaume was driving along a busy highway with her mother, Ms.
Coco, as a passenger. An unknown vehicle (“Vehicle 1”) pulled out on to the
highway in front of the vehicle ahead of Ms. Berthiaume (“Vehicle 2”). Both
Vehicle 2 and Ms. Berthiaume were forced to stop short. Ms. Berthiaume testified
in her deposition that she was able to stop with approximately one foot between
her vehicle and Vehicle 2. However, Ms. Berthiaume‟s car was rear-ended by a
truck driven by the defendant, Keith Gros. Mr. Gros‟ truck was owned by his
employer, M.D. Descant, Inc., and insured by Bitco General Insurance
Corporation. The record indicates that the identities of Vehicle 1 and Vehicle 2‟s
owners or occupants are unknown.
Ms. Berthiaume and Ms. Coco filed suit against Mr. Gros and Bitco, seeking
damages for injuries they allegedly incurred as a result of the accident. The
1 Ms. Berthiaume‟s first name is also spelled as “Lacy” in the record. plaintiffs thereafter filed a motion for summary judgment on the issues of
insurance coverage and liability. After a hearing, the trial court granted the motion
as to both issues, finding that Mr. Gros was solely liable for the accident and that
there was coverage under the insurance policy. Mr. Gros and his insurer have
appealed, asserting error only as to the trial court‟s determination that Mr. Gros
was solely liable for the accident.
Discussion
Summary Judgment
Summary judgment is favored and is designed to secure the just, speedy, and
inexpensive determination of actions. La.Code Civ.P. art. 966(A)(2). A motion
for summary judgment shall be granted “if the pleadings, depositions, answers to
interrogatories, and admissions, together with the affidavits, if any, admitted for
purposes of the motion for summary judgment, show that there is no genuine issue
as to material fact, and that mover is entitled to judgment as a matter of law.”
La.Code Civ.P. art. 966(B)(2). Although the burden of proof remains with the
moving party,
if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant‟s burden on the motion does not require him to negate all essential elements of the adverse party‟s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party‟s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.
La.Code Civ.P. art. 966(C)(2).
A fact is considered “material” when its existence or nonexistence might be
essential to a plaintiff‟s cause of action under his or her applicable theory of
2 recovery. Ebarb v. Matlock, 46,243 (La.App. 2 Cir. 5/18/11), 69 So.3d 516, writ
denied, 11-1272 (La. 9/23/11), 69 So.3d 1164. Thus a fact is material if it
potentially insures or precludes recovery, affects a litigant‟s ultimate success, or
determines the outcome of the legal dispute. Id. “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.” Hines v. Garrett, 04-806, p. 1 (La. 6/25/04), 876 So.2d 764, 765-66.
Further, the trial court‟s determination in a motion for summary judgment is
reviewed de novo. Bernard v. Ellis, 11-2377 (La. 7/2/12), 111 So.3d 995.
Accordingly, the appellate court uses the same criteria as the trial court in
determining whether summary judgment is appropriate—whether there is a
genuine issue of material fact and whether the moving party is entitled to judgment
as a matter of law. Id.
Liability
In order to impose liability under the general negligence principles of
La.Civ.Code art. 2315, a plaintiff must prove five elements: 1) that the defendant
had a duty to conform his conduct to a specific standard of care; 2) that the
defendant failed to do so; 3) that the substandard conduct was a cause-in-fact of the
plaintiff‟s injuries; 4) that the conduct was a legal cause of the plaintiff‟s injuries;
and 5) actual damages. Ebarb, 69 So.3d 516 (citing Pinsonneault v. Merchants &
Farmers Bank & Trust Co., 01-2217 (La. 4/3/02), 816 So.2d 270). Whether a duty
is owed is a question of law. Id. Although the determination of whether the
defendant‟s conduct was the cause-in-fact of the plaintiff‟s damages is a factual
question, whether that conduct is also the legal cause of the plaintiff‟s damages is
3 purely a legal question. Brown v. Entergy Corp., 03-1452 (La.App. 3 Cir. 2004),
870 So.2d 422.
“The driver of a motor 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 the condition of the highway.” La.R.S. 32:81(A). In a rear-
end automobile accident, the following motorist is presumed to have breached that
duty and is therefore presumed negligent. Ebarb, 69 So.3d 516 (citing Mart v.
Hill, 505 So.2d 1120 (La.1987)). “To avoid liability, a following motorist who
rear-ends another vehicle must prove he was not at fault by establishing that he had
his vehicle under control, closely observed the lead vehicle and followed at a safe
distance under the circumstances.” Id. at 520-21. Alternatively, the following
motorist may show that the lead motorist negligently created a hazard which could
not reasonably be avoided. Id.
Generally, when other vehicles are able to stop behind the lead vehicle
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
15-116
LACY BERTHIAUME, ET AL.
VERSUS
KEITH GROS, ET AL.
**********
APPEAL FROM THE TWELFTH JUDICIAL DISTRICT COURT PARISH OF AVOYELLES, NO. 2014-0679-A HONORABLE MARK A. JEANSONNE, DISTRICT JUDGE
MARC T. AMY JUDGE
Court composed of Sylvia R. Cooks, Marc T. Amy, and James T. Genovese, Judges.
REVERSED AND REMANDED.
Peter F. Caviness Falgoust, Caviness & Bienvenu, L.L.P. Post Office Drawer 1450 Opelousas, LA 70571-1450 (337) 942-5812 COUNSEL FOR DEFENDANTS/APPELLANTS: Keith Gros Bitco General Insurance Company
Brian M. Caubarreaux Brian Caubarreaux & Associates Post Office Box 129 Marksville, LA 71351 (318) 253-0900 COUNSEL FOR PLAINTIFFS/APPELLEES: Lacy Berthiaume Gaynell Coco AMY, Judge.
The parties were involved in an automobile accident in which the
defendant‟s vehicle rear-ended the plaintiffs‟ automobile. The plaintiffs filed suit
alleging that they were injured as a result of the accident. The plaintiffs
subsequently filed a motion for summary judgment on the issue of liability. The
defendant conceded that he was at fault, but contested whether he was solely liable
for the accident. The trial court granted the motion for summary judgment and
entered judgment finding that the defendant was solely liable for the accident. The
defendant appeals. For the following reasons, we reverse and remand.
Factual and Procedural Background
The genesis of this lawsuit is an automobile accident which allegedly caused
injuries to the plaintiffs, Lacey Berthiaume1 and Gaynelle Coco. According to the
record, Ms. Berthiaume was driving along a busy highway with her mother, Ms.
Coco, as a passenger. An unknown vehicle (“Vehicle 1”) pulled out on to the
highway in front of the vehicle ahead of Ms. Berthiaume (“Vehicle 2”). Both
Vehicle 2 and Ms. Berthiaume were forced to stop short. Ms. Berthiaume testified
in her deposition that she was able to stop with approximately one foot between
her vehicle and Vehicle 2. However, Ms. Berthiaume‟s car was rear-ended by a
truck driven by the defendant, Keith Gros. Mr. Gros‟ truck was owned by his
employer, M.D. Descant, Inc., and insured by Bitco General Insurance
Corporation. The record indicates that the identities of Vehicle 1 and Vehicle 2‟s
owners or occupants are unknown.
Ms. Berthiaume and Ms. Coco filed suit against Mr. Gros and Bitco, seeking
damages for injuries they allegedly incurred as a result of the accident. The
1 Ms. Berthiaume‟s first name is also spelled as “Lacy” in the record. plaintiffs thereafter filed a motion for summary judgment on the issues of
insurance coverage and liability. After a hearing, the trial court granted the motion
as to both issues, finding that Mr. Gros was solely liable for the accident and that
there was coverage under the insurance policy. Mr. Gros and his insurer have
appealed, asserting error only as to the trial court‟s determination that Mr. Gros
was solely liable for the accident.
Discussion
Summary Judgment
Summary judgment is favored and is designed to secure the just, speedy, and
inexpensive determination of actions. La.Code Civ.P. art. 966(A)(2). A motion
for summary judgment shall be granted “if the pleadings, depositions, answers to
interrogatories, and admissions, together with the affidavits, if any, admitted for
purposes of the motion for summary judgment, show that there is no genuine issue
as to material fact, and that mover is entitled to judgment as a matter of law.”
La.Code Civ.P. art. 966(B)(2). Although the burden of proof remains with the
moving party,
if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant‟s burden on the motion does not require him to negate all essential elements of the adverse party‟s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party‟s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.
La.Code Civ.P. art. 966(C)(2).
A fact is considered “material” when its existence or nonexistence might be
essential to a plaintiff‟s cause of action under his or her applicable theory of
2 recovery. Ebarb v. Matlock, 46,243 (La.App. 2 Cir. 5/18/11), 69 So.3d 516, writ
denied, 11-1272 (La. 9/23/11), 69 So.3d 1164. Thus a fact is material if it
potentially insures or precludes recovery, affects a litigant‟s ultimate success, or
determines the outcome of the legal dispute. Id. “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.” Hines v. Garrett, 04-806, p. 1 (La. 6/25/04), 876 So.2d 764, 765-66.
Further, the trial court‟s determination in a motion for summary judgment is
reviewed de novo. Bernard v. Ellis, 11-2377 (La. 7/2/12), 111 So.3d 995.
Accordingly, the appellate court uses the same criteria as the trial court in
determining whether summary judgment is appropriate—whether there is a
genuine issue of material fact and whether the moving party is entitled to judgment
as a matter of law. Id.
Liability
In order to impose liability under the general negligence principles of
La.Civ.Code art. 2315, a plaintiff must prove five elements: 1) that the defendant
had a duty to conform his conduct to a specific standard of care; 2) that the
defendant failed to do so; 3) that the substandard conduct was a cause-in-fact of the
plaintiff‟s injuries; 4) that the conduct was a legal cause of the plaintiff‟s injuries;
and 5) actual damages. Ebarb, 69 So.3d 516 (citing Pinsonneault v. Merchants &
Farmers Bank & Trust Co., 01-2217 (La. 4/3/02), 816 So.2d 270). Whether a duty
is owed is a question of law. Id. Although the determination of whether the
defendant‟s conduct was the cause-in-fact of the plaintiff‟s damages is a factual
question, whether that conduct is also the legal cause of the plaintiff‟s damages is
3 purely a legal question. Brown v. Entergy Corp., 03-1452 (La.App. 3 Cir. 2004),
870 So.2d 422.
“The driver of a motor 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 the condition of the highway.” La.R.S. 32:81(A). In a rear-
end automobile accident, the following motorist is presumed to have breached that
duty and is therefore presumed negligent. Ebarb, 69 So.3d 516 (citing Mart v.
Hill, 505 So.2d 1120 (La.1987)). “To avoid liability, a following motorist who
rear-ends another vehicle must prove he was not at fault by establishing that he had
his vehicle under control, closely observed the lead vehicle and followed at a safe
distance under the circumstances.” Id. at 520-21. Alternatively, the following
motorist may show that the lead motorist negligently created a hazard which could
not reasonably be avoided. Id.
Generally, when other vehicles are able to stop behind the lead vehicle
without incident and the driver of the last vehicle is the one that causes the
collision, the driver of the last vehicle is negligent. Ebarb, 69 So.3d 516. See also
Viator v. Gilbert, 206 So.2d 106 (La.App. 4 Cir.), judgment amended, 216 So.2d
821 (La.1968); Billiot v. Noble Drilling Corp., 109 So.2d 96 (La.1959); Price-
Dunham-Fenet Brick Mfg. Co., Inc. v. Reeves, 85 So.2d 635 (La.App. 1 Cir. 1956).
In this matter, Mr. Gros has conceded that he is at fault for the accident. However,
he contests the trial court‟s determination that he was solely at fault. More
specifically, Mr. Gros argues that Vehicle 1 entered the highway negligently and
caused Vehicle 2, Ms. Berthiaume, and Mr. Gros to stop short. Accordingly, Mr.
Gros asserts that Vehicle 1 is partially at fault for the accident, or, at minimum, a
genuine issue of material fact exists with regard to this issue.
4 Comparative fault allows a percentage of fault to be allocated to each party
that contributes to an injury or loss. La.Civ.Code art. 2323(A); State Farm Mut.
Auto. Ins. Co. v. McCabe, 14-501, 14-502 (La.App. 3 Cir. 11/5/14), 150 So.3d 595.
This allocation is made “regardless of whether the person is a party to the action or
a nonparty, . . . or that the other person‟s identity is not known or reasonably
ascertainable.” La.Civ.Code art. 2323(A). The allocation of fault is a factual
finding. Ly v. State Through Dept. of Pub. Safety & Corr., 633 So.2d 197 (La.App.
1 Cir. 1993), writ denied, 93-3134 (La. 2/25/94), 634 So.2d 835. Where
reasonable minds could differ as to the comparative fault of the parties, summary
judgment is inappropriate. See Favre v. Boh Bros. Const. Co., L.L.C., 11-451
(La.App. 5 Cir. 3/13/12), 90 So.3d 481, writ denied, 12-1024 (La. 6/22/12), 91
So.3d 976; Brown, 870 So.2d 422; Allen v. Integrated Health Servs., Inc., 32,196
(La.App. 2 Cir. 9/22/99), 743 So.2d 804; Chapman on Behalf of Arvie v. Liberty
Mut. Ins. Co., 96-458 (La.App. 3 Cir. 11/6/96), 682 So.2d 906.
In Bertrand v. Henry, 01-348 (La.App. 3 Cir. 12/19/01), 815 So.2d 868, writ
denied, 02-190 (La. 3/28/02), 811 So.2d 945, the plaintiff-driver successfully
stopped in time to avoid an accident with a Cadillac that was at a dead stop in the
middle of the Atchafalaya Basin Bridge. However, a truck immediately behind the
plaintiff‟s vehicle was unable to stop and rear-ended her vehicle. Id. After a trial,
the jury determined that the driver of the truck was not “the cause” of the
plaintiff‟s accident. Id. However, a panel of this court determined that the jury‟s
conclusion in that regard was manifestly erroneous. Id. Having made that
determination, the panel then addressed the proper apportionment of fault, finding
that “[c]learly, had [the other driver] not stopped his Cadillac in the travel lane,
[the plaintiff] and [the truck driver] would not have been forced to brake and
5 presumably there would have been no accident.” Id. at 874. Accordingly, the
panel assessed fault at 25% to the Cadillac‟s driver and 75% to the truck driver. Id.
See also Harbin v. Ward, 13-1620 (La.App. 1 Cir. 5/29/14), 147 So.3d 213; Ly,
633 So.2d 197.
In contrast, in Billiot, 109 So.2d 96, which was decided before the enactment
of Louisiana‟s comparative fault scheme,2 the plaintiff‟s vehicle was the second in
a line of three cars. When the first vehicle slowed to make a right turn, the
plaintiff‟s car struck the first vehicle from behind, although this impact did not
cause any damage to the two vehicles. Id. Thereafter, the plaintiff‟s vehicle was
subsequently rear-ended by the third vehicle. Noting that the first accident caused
no damage and that the plaintiff‟s actions violated no duty to the defendant, the
supreme court opined that
[the plaintiff‟s] negligence, if any, in following [the first] car too closely, has no causal connection with the collision and does not absolve the operator of the [third car] from liability for failing to perform his duty . . . in violating the rule that „the driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard to the speed of such vehicle and the traffic upon and the condition of the highway.‟
Id. at 98.
Pursuant to La.R.S. 32:124, “[t]he driver of a vehicle about to enter or cross
a highway from a private road, driveway, alley or building, . . . shall yield the right
of way to all approaching vehicles so close as to constitute an immediate hazard.”
According to the evidence submitted in support of the motion for summary
judgment, Vehicle 1 entered the highway in front of Vehicle 2 in a manner that
caused Vehicle 2 to stop short. The record indicates that both Vehicle 2 and Ms.
Berthiaume were able to avoid an accident. Noting the differing results in
2 See 1979 La. Acts 431, § 1, eff. August 1, 1980.
6 Bertrand, 815 So.2d 868, and Billiot, 109 So.2d 96, we conclude that reasonable
minds could differ about the other drivers‟ responsibility for the accident. Thus,
our review of the record indicates that genuine issues of material fact remain with
regard to the comparative fault of the various actors. Accordingly, we reverse the
trial court‟s grant of the motion for summary judgment with regard to the issue of
liability and remand for further proceedings.3
DECREE
For the foregoing reasons, the trial court‟s judgment granting the plaintiffs‟
motion for summary judgment with regard to liability is reversed, and this matter is
remanded for further proceedings. Costs of this matter are assessed to the
appellees, Lacey Berthiaume and Gaynell Coco.
3 Partial summary judgment is inappropriate where the determination of a particular element of liability when that determination is not completely dispositive of the question of liability between the parties and where other issues such as comparative fault remain unresolved. Tye v. Co-Mar Offshore Operators, Inc., 95-94 (La.App. 1 Cir. 10/6/95), 669 So.2d 438, writ denied, 96-1051 (La. 6/7/96), 674 So.2d 975.