Patricia Aguiluz v. Mid-Century Insurance Company and Terry John Ursin, Jr.

• Court: Louisiana Court of Appeal
• Decided: April 14, 2025
• Docket: 2024-CA-0759
• Status: Published

Opinion

PATRICIA AGUILUZ * NO. 2024-CA-0759

VERSUS * COURT OF APPEAL MID-CENTURY INSURANCE * COMPANY AND TERRY FOURTH CIRCUIT JOHN URSIN, JR. * STATE OF LOUISIANA *******

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2023-05321, DIVISION “I-14” Honorable Lori Jupiter, Judge ****** Judge Tiffany Gautier Chase ****** (Court composed of Judge Paula A. Brown, Judge Tiffany Gautier Chase, Judge Dale N. Atkins)

Sean M. Regan SEAN REGAN LAW 4919 Canal Street, Suite 304 New Orleans, LA 70119

COUNSEL FOR PLAINTIFF/APPELLANT

Jack Etherton Truitt Michelle Mayne Davis Lou Anne Milliman Jennifer Cortes-Johnson Michael St. Romain Kaylin K. Storey THE TRUITT LAW FIRM 1321 Ochsner Blvd., Suite 200 Covington, LA 70433

COUNSEL FOR DEFENDANT/APPELLEE

REVERSED AND REMANDED APRIL 14, 2025 1

TGC PAB DNA

Patricia Aguiluz (hereinafter “Ms. Aguiluz”) seeks review of the trial court’s

August 19, 2024 judgment granting the motion for summary judgment filed by

Mid-Century Insurance Company and Terry John Ursin, Jr. (hereinafter

collectively “Mid-Century”). After consideration of the record before this Court

and the applicable law, we reverse the judgment of the trial court and remand the

matter for further proceedings.

Facts and Procedural History

On June 9, 2023, Ms. Aguiluz filed a petition for damages against Terry

John Ursin, Jr. (hereinafter “Mr. Ursin”) and his insurer, Mid-Century Insurance

Company, asserting that Mr. Ursin’s negligence caused an accident that occurred

on April 26, 2023. Mr. Ursin was traveling on South Alexander Street, a one-way

residential street, as Ms. Aguiluz was backing out of a driveway when the vehicles

collided. A security camera of a nearby business captured the collision.

Mid-Century filed a motion for summary judgment arguing there were no

genuine issues of material fact that Mr. Ursin was not liable for the accident.

Specifically, Mid-Century asserted that there was no evidence that Mr. Ursin

breached a duty of care to Ms. Aguiluz because he had the right of way as she

entered into the roadway. To the motion for summary judgment, Mid-Century

1 attached: (1) the petition for damages; (2) video surveillance of the accident; (3) an

affidavit of Dennis Rinker, Senior Field Claims Representative at Farmers

Insurance Casualty Company who was assigned to handle the claim and attested to

the authenticity of the video; (4) portions of the deposition transcript of Ms.

Aguiluz; and (5) portions of the deposition transcript of Mr. Ursin.1 Ms. Aguiluz

opposed the motion, contending that she was backing out of the driveway and Mr.

Ursin’s failure to observe her vehicle, which was already in the roadway,

constitutes negligence as he had a duty to observe what was ahead of him.2 By

judgment dated August 19, 2024, the trial court granted the motion for summary

judgment in favor of Mid-Century, dismissing Ms. Aguiluz’s case. This timely

appeal followed.

Assignment of Error

Ms. Aguiluz presents one assignment of error, which asserts the trial court

erred in granting the motion for summary judgment on the issue of liability.

Specifically, she contends there are genuine issues of material fact as to whether

Mr. Ursin was comparatively at fault.

Standard of Review

This Court reviews a trial court’s decision to grant or deny a motion for

summary judgment de novo. Reddick v. State, 2021-0197, p. 5 (La.App. 4 Cir.

9/29/21), 328 So.3d 504, 507. We have stated the applicable standard of review as

follows:

Appellate courts review the grant or denial of a motion for summary judgment de novo, using the same criteria applied by trial courts to

1 Mid-Century Insurance Company is a subsidiary of Farmers Insurance Casualty Company.

2 To her opposition, Ms. Aguiluz included photographs of the damage to the vehicles, portions of

her deposition transcript and portions of Mr. Ursin’s deposition transcript.

2 determine whether summary judgment is appropriate. This standard of review requires the appellate court to look at the pleadings, depositions, answers to interrogatories, and admission on file, together with the affidavits, if any, to determine if they show that no genuine issue as to a material fact exists, and that the mover is entitled to judgment as a matter of law. A fact is material when its existence or nonexistence may be essential to the plaintiff’s cause of action under the applicable theory of recovery; 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. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, no need for trial on that issue exists and summary judgment is appropriate. To affirm a summary judgment, we must find reasonable minds would inevitably conclude that the mover is entitled to judgment as a matter of the applicable law on the facts before the court.

Id., 2021-0197, p. 5, 328 So.3d at 507-08 (quoting Chatelain v. Fluor Daniel

Const. Co., 2014-1312, p. 3 (La.App. 4 Cir. 11/10/15), 179 So.3d 791, 793).

Summary Judgment

It is well settled that “[t]he summary judgment procedure is designed to

secure the just, speedy, and inexpensive determination of every action… . The

procedure is favored and shall be construed to accomplish these ends.” La. C.C.P.

art. 966(A)(2). A motion for summary judgment may be granted if the pleadings,

depositions, answers to discovery, admissions on file and affidavits demonstrate

that there is no genuine issue of material fact and the mover is entitled to a

judgment as a matter of law. Reddick, 2021-0197, p. 6, 328 So.3d at 508 (citation

omitted).

“A genuine issue is one as to which reasonable persons could disagree; if

reasonable persons could only reach one conclusion, there is no need for trial on

that issue, and summary judgment is appropriate.” Id. (citation omitted). “A fact is

material when its existence or nonexistence may be essential to the plaintiff’s

cause of action under the applicable theory of recovery; a fact is material if it

3 potentially insures or precludes recovery, affects a litigant’s ultimate success, or

determines the outcome of the legal dispute.” Id. (citations omitted). “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, 2012-

2742, p. 6 (La. 1/28/14), 144 So.3d 876, 882 (citation omitted).

La. C.C.P. art 966(D)(1) provides that:

The burden of proof rests with the mover [on a motion for summary judgment]. 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.

If the adverse party fails to set forth specific facts demonstrating a genuine issue of

material fact, summary judgment shall be rendered against the adverse party if

appropriate. La. C.C.P. art. 967(B). With these principles in mind, we now address

Mid-Century’s motion for summary judgment.

As the mover on the motion for summary judgment, the initial burden rests

with Mid-Century to demonstrate the absence of a genuine issue of material fact.

Ms. Aguiluz’s tort claims are based in negligence and therefore, she is required to

prove that Mr. Ursin was negligent under La. C.C. art. 2315.3 Since Mid-Century

3 “The Louisiana Supreme Court has adopted a ‘duty-risk’ analysis for assigning tort liability

under a [La. C.C. art. 2315] negligence theory. This theory requires a plaintiff to establish that (1) the plaintiff suffered an injury; (2) the defendant owed a duty of care to the plaintiff; (3) the duty was breached by the defendant; (4) the conduct in question was the cause-in-fact of the resulting harm; and (5) the risk of harm was within the scope of protection afforded by the duty breached.” Doe v. McKesson, 2021-00929, p. 7 (La. 3/25/22), 339 So.3d 524, 531 (citations omitted).

4 will not bear the burden of proof at trial, it is only required to identify a lack of

factual support as to one or more of the elements of Ms. Aguiluz’s tort claims. The

standard negligence analysis used in determining whether to impose liability under

La. C.C. art. 2315 is the duty-risk analysis.

Mid-Century’s motion for summary judgment focuses on the breach of duty

element of the duty-risk analysis. It contends that Mr. Ursin does not bear

responsibility for the accident because he did not breach his duty as a prudent

motorist. Title 32 of Louisiana’s Revised Statutes governs the duties and

responsibilities of each driver. La. R.S. 32:281(A) provides that “[t]he driver of a

vehicle shall not back [up] the [vehicle] unless such movement can be made with

reasonable safety and without interfering with other traffic.” A two-part duty is

imposed on a motorist reversing his vehicle: (1) the motorist reversing must first

ascertain that the maneuver is safe and (2) the motorist must maintain a diligent

and proper lookout while completing the reversing maneuver. Travelers Ins. Co. v.

Harris, 294 So.2d 588, 590 (La.App. 4th Cir. 1974). “The 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… .” La. R.S. 32:124. The

motorist reversing their vehicle also cannot interfere with other vehicles while

reversing. Schackai v. Tenneco Oil Co., 436 So.2d 729, 732 (La.App. 4th Cir.

1983) (citation omitted).

In support of its motion for summary judgment, Mid-Century attached: (1)

the petition for damages; (2) video surveillance of the accident; (3) an affidavit of

Dennis Rinker, Senior Field Claims Representative at Farmers Insurance Casualty

Company who was assigned to handle the claim and attested to the authenticity of

the video; (4) portions of the deposition transcript of Ms. Aguiluz; and (5) portions

5 of the deposition transcript of Mr. Ursin. The surveillance video shows Ms.

Aguiluz backing out of the driveway and Mr. Ursin’s vehicle can be seen traveling

in her direction. Ms. Aguiluz’s vehicle was partially in the roadway as she backed

into oncoming traffic. She failed to yield as Mr. Ursin, the motorist with the right

of way, approached when the collision occurred. La. R.S. 32:124 places the

primary duty on Ms. Aguiluz. Once Mid-Century supported its motion for

summary judgment with evidence that Ms. Aguiluz had the primary duty to avoid

the collision, the burden shifted to Ms. Aguiluz. See La. C.C.P. art. 966(D)(1).

Ms. Aguiluz contends that a genuine issue of material fact remains regarding

whether Mr. Ursin breached his duty as a prudent motorist. Under La. R.S. 32:58, a

motorist owes a legal duty to use reasonable care in the operation and control of his

vehicle. Ms. Aguiluz asserts that prior to the collision with Mr. Ursin, another

vehicle avoided her as she was backing into the roadway. She contends that Mr.

Ursin should have also seen her vehicle backing into the roadway and avoided the

collision. In his deposition, Mr. Ursin testified that prior to the collision, he

observed someone standing on a porch and another person walking a dog. Ms.

Aguiluz submits that Mr. Ursin’s testimony proves that he was not focused on the

road. The video of the accident confirms that a white SUV swerved in order to

avoid colliding with Ms. Aguiluz’s vehicle. Ms. Aguiluz yields to the white SUV,

allowing it to pass, then continues to back into the roadway. Mr. Ursin then struck

Ms. Aguiluz’s vehicle.4 “[A] motorist approaching another vehicle in the road

ahead of him has the duty to discover the vehicle if such discovery can be made

with the exercise of ordinary and reasonable care.” Travelers Ins. Co., 294 So.2d at

590. While Ms. Aguiluz had the primary duty to avoid the collision, the duty

4 Mr. Ursin contacted Ms. Aguiluz’s vehicle on the rear passenger side of her vehicle.

6 attributed to her does not completely absolve Mr. Ursin of his obligation to use

reasonable care, control the operation of his vehicle and discover a vehicle ahead

of him. See Travelers Ins. Co., 294 So.2d at 590. Thus, the material issue becomes

whether Mr. Ursin has any comparative fault for the accident considering the

competing duties of both motorists. A comparative fault issue is a question of fact

not appropriate for summary judgment. Louisiana’s adoption of “a pure

comparative fault system [] created a mandatory, substantive right to quantify the

fault of ‘all persons causing or contributing’ to the plaintiff’s damage.” Robinette

v. Lafon Nursing Facility of the Holy Family, 2015-1363, p. 7 (La.App. 4 Cir.

6/22/17), 223 So.3d 68, 74 (citation omitted). “[D]etermining how to apply the law

[of comparative fault] to the facts presented at trial is a question of fact for the

jury.” Williams v. Asbestos Defendants, 2011-0716, p. 8 (La.App. 4 Cir. 5/16/12),

95 So.3d 497, 503. Ms. Aguiluz and Mr. Ursin have competing duties and Ms.

Aguiluz demonstrated the existence of a genuine issue of material fact regarding

comparative fault. As such, the trial court erred in granting summary judgment and

dismissing Ms. Aguiluz’s claims against Mid-Century.

Decree

For the foregoing reasons, we reverse the August 19, 2024 judgment of the

trial court and remand the matter for further proceedings.

REVERSED AND REMANDED