Judgment rendered July 16, 2025. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 56,181-CW
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
LARESIA SEABERRY, ET AL Plaintiffs-Respondents
versus
GOAUTO INSURANCE Defendants-Applicants COMPANY, ET AL
On Application for Writs from the Monroe City Court for the Parish of Ouachita, Louisiana Trial Court No. 2023-CV-01142
Honorable Tammy Deon Lee, Judge
CYD SHEREE PAGE Counsel for Defendants-Applicants, GoAuto Insurance Company and Purvis Thompson
OFFICE OF ANTHONY J. BRUSCATO Counsel for By: Anthony J. Bruscato Plaintiffs-Respondents, Laresia Seaberry, Terdrick Wilson, and Tedrico Wilson
SHENITA HUMPHREY In Proper Person, Defendant-Respondent NANCY RUTH LANDRY Counsel for Secretary of State Defendant-Respondent, Imperial Fire & Casualty Insurance Company
Before COX, ROBINSON, and HUNTER, JJ. HUNTER, J.
The trial court denied a motion for summary judgment filed by
defendants, GoAuto Insurance Company and Purvis Thompson. Defendants
sought supervisory review of the ruling, and this Court granted defendants’
writ application to review the correctness of the trial court’s ruling. For the
following reasons, we grant the writ, reverse the judgment of the trial court,
grant the motion for summary judgment filed by GoAuto Insurance
Company and Purvis Thompson, and dismiss plaintiffs’ claims against them
with prejudice.
FACTS
On December 29, 2022, the driver of a red GMC Canyon pickup truck
backed into the rear passenger side of a 2009 Kia Spectra operated by
plaintiff, Laresia Seaberry. The Kia Spectra was occupied by Seaberry, her
minor son, Tedrico Wilson, and her son’s father, Terdrick Wilson. The
incident occurred in the parking lot of a convenience store on South 2nd
Street in Monroe, Louisiana. The male driver of the GMC Canyon did not
provide Seaberry with his driver’s license. However, an unidentified woman
approached Seaberry and handed her an insurance identification card and
booklet. The insurance card the woman provided was issued by GoAuto
Insurance Company (“GoAuto”), listed a silver 2017 Buick Envision as the
covered automobile, and named Purvis Thompson as the owner of the Buick
Envision and named insured under the policy.
Seaberry took photographs of the license plate of the GMC Canyon
and the insurance card at the scene. Subsequently, Seaberry called the
Monroe Police Department (“MPD”), and the dispatcher advised her to
exchange information with the other driver because the MPD did not investigate accidents that occurred on private property. Seaberry decided to
go to the MPD to file a police report. During the visit, she learned the
insurance card the woman had given her was “for a different truck,” and the
GMC Canyon involved in the accident was owned by Shenita Humphrey.1
On June 23, 2023, plaintiffs, Seaberry, Terdrick Wilson, and Tedrico
Wilson, filed a petition for damages against GoAuto and Thompson,
alleging Thompson was “operating his 2017 Buick” at the time of the
accident. Plaintiffs later amended the petition to allege as follows:
At the time of the crash, the party who exited the vehicle which backed into [Seaberry’s] vehicle identified himself as Purvis Thompson, and furnished an insurance ID card, showing his name and coverage by GoAuto, said documentation brought to the crash site following the crash, by an adult female. ***
On February 12, 2024, defendants, GoAuto and Thompson, filed a
motion for summary judgment and a request for sanctions. Defendants
attached photographs of the license plate of the GMC Canyon and the
insurance card provided to Seaberry at the scene, excerpts from the
deposition testimony of Seaberry and Thompson, and an affidavit from
Shelly Brooks, the underwriting manager for GoAuto.
In her affidavit, Brooks attested the only policy provided by GoAuto
to Thompson was for a 2017 Buick Envision. Brooks also attested GoAuto
did not provide a policy of insurance to Shenita Humphrey or issue a policy
covering the GMC Canyon involved in the accident.
In her deposition, Seaberry testified as to the facts of the case, as set
forth above. She also testified an unidentified woman approached her at the
1 Shortly after the accident, Seaberry obtained the security camera footage from the convenience store, which depicted the man driving the GMC Canyon. During her deposition, Seaberry testified she had not yet given the video to her attorney, and the record does not contain any additional reference to the video. 2 scene of the accident and handed her the insurance information. Seaberry
stated as follows:
A lady walked up, come from out of nowhere and gave me the insurance [card].” *** I don’t know if she was in the car with him. I didn’t see nobody [sic] in the truck with him. All I know is I was sitting in the back of the truck taking a picture. She just came out[.]
Thompson testified he lives in Lake Providence, Louisiana, he was
visiting family members in Texas when the accident occurred, and he was
not involved in the accident. Thompson also testified he owns two vehicles,
a silver Buick Envision, insured by GoAuto, and a blue Dodge Ram, insured
by Allstate Insurance Company. He further testified he did not own a GMC
Canyon, he did not know the identity of the driver of the GMC Canyon, he
did give anyone permission to use his insurance identification card, he did
not know the identity of the woman who was in possession of his insurance
information, and he did not know how the woman obtained possession of his
insurance identification card and booklet.
Seaberry attended Thompson’s deposition, and she was able to
confirm that Thompson was not the person who was driving the GMC
pickup truck involved in the accident. The following exchange occurred
between Thompson and plaintiffs’ counsel during Thompson’s deposition:
THOMPSON: [B]ut my thing is, your client never seen me before, because I never seen your client before. And the thing about it is that I don’t know – I mean if your client is telling the truth, she’ll tell you that I wasn’t the one driving the Canyon truck.
COUNSEL: Well, that’s why she’s not here. I asked her on the way out, is that Mr. Thompson? She says that’s not the gentleman.
THOMPSON: That’s not me.
3 COUNSEL: No, she said that’s not the gentleman that was involved in the accident with me. I said, “Well, fine. I’ll see you later.” And so someone was impersonating you with your name and someone, a lady produced an insurance ID that has your name on it, that has that Buick that is your Buick. Do you see why she filed a lawsuit against a Purvis Thompson?
THOMPSON: I see why now, but my thing is, like I said, again, I know it wasn’t me, and that’s the truth. ***
Defendants argued the evidence submitted in support of the motion
for summary judgment established the following facts: (1) Thompson was
neither the driver nor the owner of the GMC Canyon; (2) GoAuto did not
provide coverage to the GMC Canyon or to Humphrey, its registered owner;
and (3) the only policy GoAuto issued to Thompson was for a 2017 Buick
Envision which was not involved in the accident. Therefore, defendants
asserted they are not liable for any injuries plaintiffs incurred in the accident,
and plaintiffs’ claims should be dismissed with prejudice. Additionally,
defendants claimed that they were entitled to attorney fees and costs due to
plaintiffs’ failure to voluntarily dismiss the lawsuit.
The hearing on the motion for summary judgment was set for April 8,
2024. However, on March 25, 2024, plaintiffs filed an amended petition to
add the above-referenced allegation that the driver of the GMC Canyon
“identified himself as Purvis Thompson” and to add Humphrey and Imperial
Fire and Casualty Insurance Company as defendants.2
2 Plaintiff issued a notice of deposition for Humphrey and a subpoena requiring her to appear for the deposition. However, plaintiff was unable to secure service on the subpoena. Additionally, defense counsel’s staff spoke to Humphrey via telephone; however, Humphrey declined to provide them with a physical or mailing address. 4 On April 1, 2024, plaintiffs filed a motion to vacate the hearing date,
asserting plaintiff’s counsel was served with notice of the hearing date less
than 30 days prior to the hearing, in violation of La. C.C.P. art. 966.
Defendants opposed the motion, arguing plaintiffs’ counsel had agreed to the
April 8, 2024, hearing date, and was orally notified of the hearing date by
the clerk’s office on March 8, 2024. The trial court granted plaintiffs’
motion, and the hearing was reset for July 1, 2024.
Plaintiffs’ counsel appeared at the July 1, 2024, hearing and requested
a 60-day continuance to allow him to locate Shenita Humphrey, claiming
she had not been served despite “considerable efforts” to do so. The trial
court granted a 30-day continuance, and the hearing was reset for August 13,
2024.
On July 29, 2024, plaintiffs filed an opposition to the motion for
summary judgment, along with a motion to continue the hearing without
date to permit “additional investigation.” Plaintiffs argued that despite
multiple attempts, she had not been able to locate or serve Humphrey.
Plaintiffs also asserted that although “it appears” Thompson was “probably
not” the driver, they could not conclusively rule out the “possibility” that he
was the driver. Plaintiffs also attached Seaberry’s deposition and claimed
the following material facts remain in dispute: (1) the identity of the driver
of the GMC Canyon which struck Seaberry’s vehicle; (2) how the
unidentified woman gained possession of Thompson’s insurance card, if
Thompson was not the driver of the GMC; (3) whether there is a relationship
between the driver of the GMC Canyon and Thompson; (4) whether the
driver was a relative or member of Thompson’s household, which would
make him a “resident relative” with coverage under Thompson’s GoAuto 5 policy; and (5) whether Thompson conspired with the unidentified person to
commit deliberate fraud to avoid having the GMC Canyon impounded due
to lack of insurance coverage such that Thompson could be personally liable
to Seaberry for fraud even if GoAuto is not liable under the insurance policy.
Defendants filed a supplemental memorandum in support of their
motion for summary judgment, arguing plaintiffs failed to timely file an
opposition before the July 1, 2024, hearing; therefore, plaintiffs’ counsel
should not have been permitted to argue or urge an untimely request for
another continuance. Defendants also argued plaintiffs had known of
Humphrey’s identity as the owner of the GMC Canyon since December
2022, and plaintiffs had ample time to conduct discovery and attempt to
locate Humphrey. Further, defendants asserted that even if plaintiffs can
locate Humphrey or the driver of the GMC Canyon, the evidence established
Thompson was not the owner or the driver of the GMC Canyon, and the
GMC was not insured by GoAuto.
At the hearing on August 13, 2024, the trial court allowed argument
from plaintiffs’ counsel over defendants’ objection. Following arguments,
the trial court denied the defendants’ motion for summary judgment and
request for sanctions, finding that there are genuine issues of material fact.
In its oral reasons for judgment, the trial court stated:
[C]ounsel for GoAuto has advised The Court that it’s immaterial as it relates to the issuance of the insurance ID card at the scene of the accident and The Court finds that that is material. The Court is concerned with how and why a card that would have belonged to Purvis Thompson would have even been presented at this case. You say that it’s for another vehicle but why would this particular card have been presented at the scene of an accident? So, The Court does find that there yet exists a genuine issue of material fact. ***
6 Defendants filed an application for supervisory review. By order
dated November 20, 2024, this Court granted the writ to docket.
DISCUSSION
Defendants contend the trial court erred in granting plaintiffs’ oral
motion to continue the hearing on the motion for summary judgment when
they failed to file an opposition to the motion or a written motion to continue
within the 15-day period set forth in La. C.C.P. art. 966. Defendants also
argue the trial court erred in allowing plaintiffs to file an untimely
opposition to the motion for summary judgment.
Any opposition to a motion for summary judgment shall be filed and
served not less than 15 days prior to the hearing on the motion. La. C.C.P.
art. 966(B)(2). In Hadwin v. ABC Ins. Co., 24-00072 (La. 4/9/24), 382 So.
3d 827, the defendants filed a motion for summary judgment, and the trial
court scheduled a hearing on the motion for June 1, 2023. Thereafter, the
hearing was reset to July 19, 2023, and pursuant to La. C.C.P. art. 966(B)(2),
the plaintiff’s opposition to the motion for summary judgment was due on
July 5, 2023. However, on July 10, 2023, the plaintiff filed a motion to
continue the hearing. The trial court granted the motion to continue, finding
the plaintiff had demonstrated good cause for a continuance. The Louisiana
Supreme Court reversed the ruling, stating:
In Auricchio v. Harriston, 2020-01167 (La. 10/10/21), 332 So. 3d 660, 661, we held that “in the absence of consent by the parties, a trial court has no discretion to extend that article’s fifteen-day deadline for filing an opposition.” Nonetheless, Auricchio recognized the trial court could have considered equitable concerns and continued the summary judgment hearing for good cause under the provisions of La. Code Civ. P. art. 966(C)(2), although the trial court in that case did not do so. Id. at 663.
7 We subsequently clarified this portion of Auricchio’s holding in Mahe v. LCMC Health Holdings LLC, 2023-00025 (La. 3/14/23), 357 So. 3d 322 (per curiam), in which we explained that a continuance under La. Code Civ. P. art. 966(C)(2), cannot serve as a pretext to circumvent the deadlines set forth in La. Code Civ. P. art. 966(B)(2). In Mahe, the plaintiff argued the fact that her expert was out of town constituted good cause for a continuance. However, plaintiff failed to move for a continuance prior to the expiration of the fifteen-day deadline. We concluded these facts did not constitute a showing of good cause for purposes of granting a continuance under La. Code Civ. P. art. 966(C)(2).
The facts of the case currently before us are strikingly similar to those in Mahe. As in Mahe, plaintiff in the instant case asserts his expert was unavailable, but plaintiff did not move for a continuance until five days after the fifteen-day opposition deadline expired. Plaintiff also cites purported confusion stemming from the court’s notice of hearing, which requested copies of pleadings be delivered to the judge eight days before the hearing but fails to show any reason why this language would supersede the mandatory deadlines set forth in La. Code Civ. P. art. 966(B)(2), nor does he indicate he made any effort to clarify any alleged conflict prior to expiration of the deadline.
Id., at 829.
Similarly, in Eilts v. Twentieth Century Fox Film Corp., 54,252 (La.
App. 2 Cir. 3/30/22), 336 So. 3d 1022, writ denied, 22-00691 (La. 6/22/22),
339 So. 3d 1184, the defendant answered the appeal, arguing the trial court
erred in denying their motion to strike the plaintiffs’ late opposition to the
motion for summary judgment. Citing Auricchio, supra, this Court reversed
the court’s denial of the motion to strike the untimely opposition and
conducted a de novo review of the record without considering the untimely
opposition.
In the instant case, the trial court rescheduled the hearing on the
motion for summary judgment for July 1, 2024. Consequently, pursuant to
La. C.C.P. art. 966, plaintiffs’ opposition to the motion for summary
judgment was due on June 17, 2024. Plaintiffs did not file an opposition 8 prior to this date. Rather, plaintiffs’ counsel appeared at the July 1, 2024,
hearing and orally requested a continuance to locate the registered owner of
the vehicle involved in the accident “and figure out what happened with the
accident.” Plaintiffs’ counsel asserted good cause for a continuance existed
because, despite a “determined effort,” he had been unable to locate the
owner of the GMC Canyon.3
Based on the Louisiana Supreme Court’s holdings in Hadwin, supra,
Mahe, supra, and Auricchio, supra, and our ruling in Eilts, supra, we find
the trial court erred in granting the motion to continue the hearing on the
motion for summary judgment and in considering plaintiffs’ untimely
opposition. Consequently, we will conduct our de novo review without
taking cognizance of the untimely opposition.
Defendants also contend the trial court erred in denying their motion
for summary judgment. They argue it is undisputed that Thompson was not
the owner or the driver of the GMC Canyon involved in the collision, and
GoAuto did not insure the vehicle involved in the accident. Defendants also
argue the question of how or why an unidentified woman provided Seaberry
with an insurance identification card issued for a Buick Envision owned by
Thompson does not create a genuine issue of material fact. Defendants also
maintain Seaberry learned the unidentified woman had provided her with the
wrong insurance information within days of the accident and that Humphrey
was the registered owner of the GMC Canyon. Further, both Seaberry and
3 For the first time on appeal, plaintiffs argue they were not served timely with notice of the hearing on the motion for summary judgment, and they did not agree to waive service of the notice. An argument raised for the first time on appeal will not be considered. Segura v. Frank, 93-1271 (La. 1/14/94), 630 So. 2d 714; Burch v. Burch, 51,780 (La. App. 2 Cir. 1/10/18), 245 So. 3d 1138. Therefore, plaintiffs’ contract argument will not be addressed.
9 Thompson agreed that Thompson was not the driver of the vehicle that
struck Seaberry’s vehicle.
The motion for summary judgment is a procedural device used when
there is no genuine issue of material fact for all or part of the relief prayed
for by a litigant. La. C.C.P. art. 966 (A)(1). A genuine issue is one about
which reasonable persons could disagree. King v. Town of Clarks, 21-01897
(La. 2/22/22), 345 So. 3d 422. A material fact is one that potentially ensures
or precludes recovery, affects the ultimate success of the litigant, or
determines the outcome of the dispute. Because it is the applicable
substantive law that determines materiality, whether a particular fact in
dispute is material for summary judgment purposes can be seen only in light
of the substantive law applicable to the case. Jackson v. City of New
Orleans, 12-2742 (La. 1/28/14), 144 So. 3d 876; Rugg v. Horseshoe Ent.,
55,239 (La. App. 2 Cir. 1/10/24), 378 So. 3d 323, writ denied, 24-00181 (La.
4/3/24), 382 So. 3d 108.
La. C.C.P. art. 966(D)(1) allocates the burden of proof on summary
judgment as follows:
The burden of proof rests with the mover. Nevertheless, if 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, the mover’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 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.
To avoid dismissal, the plaintiff in a negligence action must introduce
(for the purpose of summary judgment) prima facie evidence of the element
or elements of that claim challenged by the motion for summary judgment. 10 McGee v. Ashford Place Apartments, LLC, 54,795 (La. App. 2 Cir.
11/16/22), 351 So. 3d 899. Appellate courts review motions for summary
judgment de novo, using the same criteria that governed the trial court’s
determination of whether summary judgment is appropriate. Farrell v.
Circle K Stores Inc., 22-00849 (La. 3/17/23), 359 So. 3d 467; Noland v.
Lenard, 55,342 (La. App. 2 Cir. 11/15/23), 374 So. 3d 1133, writ denied, 23-
01670 (La. 2/14/24), 379 So. 3d 32.
Every act whatever of man that causes damage to another obliges him
by whose fault it happened to repair it. La. C.C. art. 2315. In determining
whether to impose liability under La. C.C. art. 2315, Louisiana courts
perform a duty-risk analysis to determine whether liability exists under the
facts and circumstances of a particular case. Farrell v. Circle K Stores, Inc.,
22-00849 (La. 3/17/23), 359 So. 3d 467; Green v. E. Carroll Par. Sch.
Dist./Bd., 56,011 (La. App. 2 Cir. 12/18/24), 402 So. 3d 702, writ denied,
25-00153 (La. 4/15/25); Finch v. HRI Lodging, Inc., 49,497 (La. App. 2 Cir.
11/19/14), 152 So. 3d 1039.
Under the duty/risk analysis, the plaintiff must prove five separate
elements: (1) the defendant had a duty to conform his conduct to a specific
standard (the duty element); (2) the defendant’s conduct failed to conform to
the appropriate standard (the breach element); (3) the defendant’s
substandard conduct was a cause-in-fact of the plaintiff’s injuries (the cause-
in-fact element); (4) the defendant’s substandard conduct was a legal cause
of the plaintiff’s injuries (the scope of duty element); and, (5) proof of actual
damages (the damages element). Farrell v. Circle K Stores, Inc., supra;
Green v. E. Carroll Par. Sch. Dist./Bd., supra.
11 In the instant case, Thompson testified he was not the owner or driver
of the GMC Canyon that struck Seaberry’s vehicle. Moreover, during
Thompson’s deposition, plaintiffs’ counsel indicated Seaberry advised him
that Thompson was not the driver of the vehicle that struck him. Soon after
the accident, Seaberry learned the identity of the owner of the vehicle and
subsequently named her as a defendant in the lawsuit. Moreover, Seaberry
testified she received Thompon’s insurance information from an unidentified
woman who approached her at the scene of the accident. She also testified
she did not know whether the woman was a passenger in the GMC. She
unequivocally stated she did not see anyone in the truck with the driver; she
stated the woman came “from out of nowhere.” Further, Seaberry did not
testify that the woman identified herself as being related to or associated
with Thompson.
Based on our de novo review of the record, we find plaintiffs have not
introduced any evidence to establish Thompson’s conduct was a cause-in-
fact of their injuries. Although it is bizarre that an unidentified woman
provided Seaberry with Thompson’s insurance information, the actions of
the woman do not create a genuine issue of material fact as to whether
Thompson caused plaintiffs’ injuries. The evidence established Thompson
is the owner of two vehicles, a Buick Envision and a Dodge Ram, neither of
which was involved in this accident. Contrary to plaintiffs’ arguments, there
is no evidence to establish Thompson knew or had any relationship with the
driver of the GMC Canyon, and/or the unidentified woman. Further,
plaintiffs have not presented any evidence to establish Thompson conspired
with the woman, the driver of the Canyon, or anyone else to commit fraud.
12 We find GoAuto and Thompson met their burden of proving they are
entitled to summary judgment, as plaintiffs have shown no basis for liability
on their part. Accordingly, we find the trial court erred in denying their
motion for summary judgment. We hereby reverse the trial court’s
judgment, grant the motion for summary judgment filed by defendants, and
dismiss plaintiffs’ claims.4
CONCLUSION
For the reasons assigned, the judgment of the Monroe City Court is
reversed. Summary judgment is granted in favor of GoAuto Insurance
Company and Purvis Thompson, dismissing plaintiffs’ claims against them
with prejudice. All costs of the appeal are assessed to plaintiffs, Laresia
Seaberry, Terdrick Wilson, and Tedrico Wilson.
WRIT GRANTED; JUDGMENT REVERSED; JUDGMENT RENDERED; PETITION AGAINST GOAUTO INSURANCE COMPANY AND PURVIS THOMPSON DISMISSED WITH PREJUDICE.
4 Defendants did not assign as error the ruling as it pertains to sanctions and did not brief the argument. Thus, it is considered abandoned on appeal. Uniform Rules, Courts of Appeal, Rule 2-12.4(B)(4); Moss v. Town of Rayville, 50,189 (La. App. 2 Cir. 11/18/15), 181 So. 3d 809. 13