O'Donnell v. Adriatic Insurance

792 So. 2d 858, 2001 La. App. LEXIS 1764, 2001 WL 770029
CourtLouisiana Court of Appeal
DecidedJuly 11, 2001
DocketNo. 34,994-CA
StatusPublished
Cited by1 cases

This text of 792 So. 2d 858 (O'Donnell v. Adriatic Insurance) 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
O'Donnell v. Adriatic Insurance, 792 So. 2d 858, 2001 La. App. LEXIS 1764, 2001 WL 770029 (La. Ct. App. 2001).

Opinion

| PEATROSS, J.

In this tort action, Defendants, Lee F. Ray, Kenneth Beaubouef and Alliance Casualty and Reinsurance Company (“Alliance”) (erroneously named as Adriatic Insurance Company ), the public liability insurer of the eighteen-wheeler involved in the accident, were dismissed on summary judgment; and Plaintiffs, Jennifer Anne O’Donnell and Tammy Cheryl Vines, appeal. For the reasons stated herein, we affirm.

FACTS AND PROCEDURAL BACKGROUND

This appeal arises out of an automobile accident which occurred on November 16, 1998, in Winnfield, Louisiana. Plaintiffs Jennifer Anne O’Donnell and Tammy Cheryl Vines were passengers in a pickup truck driven by Kenneth Evans. The evidence reveals that Mr. Evans crossed the center line and struck, head-on, an eighteen-wheeler driven by Kenneth Beau-bouef and owned by Lee F. Ray. Ms. [860]*860O’Donnell and Ms. Vines were seriously injured and a third passenger in the pickup truck, Larry Martin, Jr., was killed. The evidence also shows that Mr. Evans may have been driving the pickup truck with a pair of vice-grip pliers; no steering wheel was found by investigating officers. In addition, there were numerous empty alcohol containers found at the scene, in and around the pickup truck. Mr. Beau-bouef tested zero for alcohol immediately after the accident. The investigation disclosed that Mr. Beaubouef was driving within the posted speed limit; and, once he realized that the pickup truck was not going to return to its proper lane of travel, he applied his brakes and steered the eighteen-wheeler as much to the right as possible in an attempt to avoid the accident. The weather was clear at the time of the accident.

^Neither Ms, O’Donnell, Ms. Vines nor Mr. Evans recalls the events immediately preceding the accident. The only evidence of how the accident occurred, therefore, is the deposition testimony of Mr. Beaubouef and the investigating officer, Bobby L. Stephens. Mr. Beaubouef described the accident as follows: he noticed the pickup truck crossing the center line, but did -not slam on the brakes because he was afraid the eighteen-wheeler would jack-knife. When Mr. Beaubouef realized that the pickup truck was out of control, he applied the brakes and moved as far to the right as possible. According to Mr. Beaubouef, impact with the pickup truck was unavoidable. Officer Stephens concurred with Mr. Beaubouef s version of events. He did not issue Mr. Beaubouef a citation and concluded that the accident was in no way caused by the negligence of Mr. Beau-bouef. In addition, despite both Plaintiffs’ deposition testimony that there was a steering wheel on the pickup truck, Officer Stephens stated that he could find no steering wheel at the accident site. Officer Stephens also noted several six-packs of beer cans and empty wine containers strewn about the scene. He testified that Mr. Evans was known in the community for taking off the steering wheel to see how far the pickup truck would travel in a straight line with no steering wheel.

Ms. O’Donnell and Ms. Vines sued for damages, alleging that both Mr, Evans and Mr. Beaubouef were negligent. The petition named as defendants Automotive Casualty Insurance Company (“Automotive”), Lee F. Ray, Kenneth Beaubouef, Kenneth Evans, Choey Seals, the individual from whom Mr. Evans purchased the pickup truck, and Alliance. Louisiana Insurance Company was added as a defendant by amended petition. Suits 13filed by Mr. Evans and Economy Fire and Casualty Insurance Company (to recover $95,000 paid to the surviving parents of Larry Martin, Jr.) were consolidated with Ms. O’Donnell’s and Ms. Vines’ suit.

Two motions for summary judgment were filed: (1) by Automotive and Choey Seals and (2) by Alliance, Mr. Ray and Mr. Beaubouef. At the hearing on August 25, 2000, all parties agreed that Automotive’s and Choey Seals’ motion was valid; and it was, therefore, sustained in open court. Counsel argued the motion filed by Alliance, Mr. Ray and Mr. Beaubouef, and it was taken under advisement. On October 11, 2000, the trial court rendered judgment sustaining the motion for summary judgment, finding that Plaintiffs failed to produce any evidence of negligence on the part of Mr. Beaubouef. In the absence of any genuine issues of material fact regarding Mr. Beaubouefs negligence, the trial court concluded that Defendants were entitled to judgment as a matter of law. Plaintiffs appeal the judgment in favor of Alliance, Mr. Ray and Mr. Beaubouef only.

[861]*861 DISCUSSION

Appellate courts review summary judgments de novo under the same criteria that govern the trial court’s consideration of whether summary judgments are appropriate. Kennedy v. Holder, 33,346 (La.App.2d Cir.5/10/00), 760 So.2d 587; Fuggins v. Burger King, 33,473 (La.App.2d Cir.5/10/00), 760 So.2d 605.

Summary judgments are governed by La. C.C.P. art. 966, which provides that summary judgment procedure is favored and designed to secure the just, speedy and inexpensive determination of actions. If the pleadings, depositions, affidavits, answers to interrogatories and admissions Ron file show that there is no genuine issue as to a material fact, then the movers are entitled to summary judgment as a matter of law. The burden of proof on a motion for summary judgment is on the movers. If the movers, however, will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movers’ burden does not require them to negate all essential elements of the adverse party’s claim. The movers must 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. If the adverse party fails to produce factual support sufficient to establish that he will be able to'satisfy his evidentiary burden at trial, there is no genuine issue of material fact. La. C.C.P. art. 966(C); Provenza v. Central & Southwest Services, Inc., 34,162 (La.App.2d Cir.12/15/00), 775 So.2d 84; Tucker v. American States Insurance., 31,970 (La.App.2d Cir.9/22/99), 747 So.2d 620.

When a motion for summary judgment is made and supported, as provided by procedural law, an adverse party may not rest on the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided by procedural law, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him. La. C.C.P. art. 967.

In the case sub judice, the argument on appeal concerns whether or not the trial court properly applied the “guest passenger presumption of negligence” to this case. The rule is as follows:

When an innocent party is injured through the concurrent acts of two parties under circumstances ■ where one or the other must | ¿be at fault, the burden is upon these parties to exculpate themselves from negligence.

See Michel v. State Farm Mutual Automobile Insurance Co., 314 So.2d 535 (La. App. 1st Cir.1975); Eason v. Hartford Accident and Indemnity Co., 327 So.2d 187 (La.App. 2d Cir.1976); Snyder v. Taylor, 523 So.2d 1348 (La.App. 2d Cir.1988), writs denied, 531 So.2d 267 and 268 (La.1988). In Eason, supra, this court recognized the rule and agreed with the court in Michel, supra, that it is an evidentiary rule, hot a-rule of substantive law; and, therefore, it- does not exempt a plaintiff from the ultimate responsibility of proving his or her case.

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Bluebook (online)
792 So. 2d 858, 2001 La. App. LEXIS 1764, 2001 WL 770029, Counsel Stack Legal Research, https://law.counselstack.com/opinion/odonnell-v-adriatic-insurance-lactapp-2001.