Matthews v. Shelter Mutual Insurance Co.

959 So. 2d 910, 2007 La. App. LEXIS 242, 2007 WL 437337
CourtLouisiana Court of Appeal
DecidedFebruary 9, 2007
DocketNo. 2006 CA 0640
StatusPublished

This text of 959 So. 2d 910 (Matthews v. Shelter Mutual Insurance Co.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Matthews v. Shelter Mutual Insurance Co., 959 So. 2d 910, 2007 La. App. LEXIS 242, 2007 WL 437337 (La. Ct. App. 2007).

Opinion

McDonald, j.

| „The issue in this case is whether a person who heard a driver describe a “miss and run” accident on her cellular phone as it happened, and also heard glass popping and breaking as the driver’s car was damaged, qualifies as an independent and disinterested witness to the accident for purposes of La. R.S. 22:680(l)(f). We find that she does not under the facts of this case.

The plaintiff, Robin Matthews, was injured in an automobile accident on November 2, 2003 in the Copiah County, Mississippi on Highway 55 (1-55) near mile marker 72. Ms. Matthews filed suit against Shelter Mutual Insurance Company (Shelter Mutual), which had issued her a policy of automobile liability insurance that provided underinsured/uninsured motorist coverage. Ms. Matthews asserted that an unknown vehicle traveling in the right-hand lane of 1-55 attempted to merge into the left-hand lane of the highway, causing her to swerve left off 1-55 into the median to avoid a collision, and that this caused her vehicle to begin rolling -without warning, resulting in her injuries. She asserted that the cause of the accident was the negligence of the driver of the unknown vehicle, and she prayed for judgment in her favor against Shelter Mutual.

Shelter Mutual answered the petition, and thereafter filed a motion for summary judgment, asserting that it was entitled to judgment as a matter of law because there was no genuine issue of fact concerning the absence of an independent and disinterested witness that could offer any testimony that Ms. Matthews’ actions were the result of the actions of a phantom driver. Without such testimony, Shelter Mutual asserted, Ms. Matthews could not meet her burden of proof as required by La. R.S. 22:680(1)®.

Ms. Matthews opposed the motion for summary judgment. At the hearing she entered into evidence, among other things, her deposition, and lathe affidavit of Darlene Bourgeois. In Ms. Matthews’ deposition she states that she was talking on the phone with her good friend, Ms. Bourgeois, as the accident occurred. Ms. Matthews testified in her deposition that as she was chatting with Ms. Bourgeois on the phone, a white minivan in the lane next to hers began to drive into her lane.

The affidavit of Ms. Bourgeois states that she was talking to Ms. Matthews on the phone when Ms. Matthews began to fearfully describe what she was witnessing, stating than an unknown vehicle traveling in the right-hand lane was carelessly merging into the left-hand lane where Ms. Matthews was traveling. Ms. Bourgeois states in her affidavit that Ms. Matthews screamed “that white van is coming, oh my [G]od” and that Ms. Matthews screamed “Oh my God” again. Then Ms. Bourgeois heard “cracking, popping and glass breaking.”

After a hearing, the trial court found that Ms. Bourgeois did not qualify as an independent witness to the accident and ruled in favor of Shelter Mutual, granting the summary judgment. The trial court stated in its reasons for judgment “[Ms. Bourgeois] is just simply not in a position to say how the accident occurred... That there was an accident, no doubt, but how it occurred, she can offer nothing as an independent witness that the accident occurred and the injuries were sustained because of the actions of the driver of the white van.”

[912]*912Ms. Matthews is appealing that judgment and makes two assignments of error:

1. The Trial Court erred in failing to recognize Darlene Bourgeois as an independent, disinterested witness, capable of establishing that the injuries sustained by Robin Matthews were the result of the actions of the white van whose identity is unknown, in accordance with LSA R.S. 22:680(1)®.
|42. The Trial Court erred in requiring Appellant’s independent and disinterested witness to prove “unequivocally” ... the cause of the motor vehicle accident.

THE STANDARD OF REVIEW

Appellate courts review summary judgments de novo under the same criteria that govern the trial court’s consideration of whether a summary judgment is appropriate. Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342, 345 (La.1991). The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with supporting affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

THE APPLICABLE STATUTE

Louisiana Revised Statute 22:680(l)(f) provides:

Uninsured motorist coverage shall include coverage for bodily injury arising out of a motor vehicle accident caused by an automobile which has no physical contact with the injured party or with a vehicle which the injured party is occupying at the time of the accident, provided that the injured party bears the burden of proving, by an independent and disinterested witness, that the injury was the result of the actions of the driver of another vehicle whose identity is unknown or who is uninsured or un-derinsured.

ANALYSIS

Ms. Matthews asserts that Ms. Bourgeois meets the definition of an independent, uninterested witness to the accident, as required under La. R.S. 22:680(l)(f) because she heard Ms. Matthews describing the accident as it occurred and she heard the noise as the accident was occurring. Ms. Matthews cites Wheat v. Wheat, 2003-0173 (La.App. 1 Cir. 11/7/03), 868 So.2d 83, as support for her argument.

In Wheat, the plaintiff struck an object in the roadway, which caused him to lose control of his vehicle, leave the roadway and sustain injury. The | ^witness supplied by the plaintiff was an investigating police officer who discovered that the plaintiffs vehicle had struck a transmission that was left in the road. Plaintiff filed suit against his automobile liability insurer after it denied uninsured motorist coverage for the accident. The insurer in Wheat filed a motion for summary judgment, asserting that the plaintiff could not present an independent and disinterested witness to the accident. The trial court granted the motion for summary judgment and the plaintiff appealed that judgment. On appeal, this court reversed the trial court’s ruling, analyzing La. R.S. 22:1406 (which was re-designated as La. R.S. 22:680 by Acts 2003, No. 456, § 3) as follows:

[Tjhere is nothing in the language of [the statute] requiring that the witness actually see the accident occur. The statute only requires that the claimant prove, by an independent and disinterested witness, that the injury was the result of the actions of the driver of another vehicle.
⅜ ⅜ ⅜ ⅜
[913]*913Trooper Clay Smith was an independent and disinterested witness. Trooper Smith stated in his affidavit that his investigation revealed that the transmission left in the roadway caused the accident involving the Wheat vehicle. Trooper Smith did not get this information from Sidney Wheat; in fact, Wheat testified that he thought he had been struck from behind by another vehicle until Trooper Smith told him that he had struck a transmission left on the road. Additionally, Trooper Smith does not stand to benefit from proof that the accident was caused by another vehicle dropping a transmission in the roadway. Finally, ....

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Schroeder v. Board of Sup'rs
591 So. 2d 342 (Supreme Court of Louisiana, 1991)
Jackson v. STATE FARM MUT. AUTO. INS.
665 So. 2d 661 (Louisiana Court of Appeal, 1995)
Wheat v. Wheat
868 So. 2d 83 (Louisiana Court of Appeal, 2003)

Cite This Page — Counsel Stack

Bluebook (online)
959 So. 2d 910, 2007 La. App. LEXIS 242, 2007 WL 437337, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matthews-v-shelter-mutual-insurance-co-lactapp-2007.