Richard v. Swiber

760 So. 2d 355, 1999 WL 814392
CourtLouisiana Court of Appeal
DecidedSeptember 24, 1999
Docket98 CW 1515
StatusPublished
Cited by5 cases

This text of 760 So. 2d 355 (Richard v. Swiber) 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
Richard v. Swiber, 760 So. 2d 355, 1999 WL 814392 (La. Ct. App. 1999).

Opinion

760 So.2d 355 (1999)

Paula RICHARD, Individually and as Natural Tutrix of Her Minor Child, Ashley Richard
v.
Michael M. SWIBER, State Farm Mutual Automobile Insurance Company, et al.

No. 98 CW 1515.

Court of Appeal of Louisiana, First Circuit.

September 24, 1999.

*356 Pascal M. Howard, Morgan City, for Plaintiff-Respondent Paula Richard, Individually, and on behalf of her minor child, Ashley Richard.

Michael R. Zsembik, Waller & Associates, Metairie, for Defendant-Relator Ourso Funeral Home, Airline Gonzales, Inc., d/b/a Hargrave Funeral Home.

Before: LeBLANC, FOGG, and PARRO, JJ.

PARRO, J.

Ourso Funeral Home, Airline Gonzales, Inc., d/b/a Hargrave Funeral Home, brings *357 this application for supervisory review of the trial court's denial of its motion for summary judgment. Finding merit in its argument, we grant the writ application, reverse the trial court, and grant the motion for summary judgment.

FACTUAL AND PROCEDURAL HISTORY

This case arises out of a collision that occurred in a residential neighborhood in Morgan City, Louisiana, when a participant in a funeral procession proceeded through an intersection without stopping at a stop sign. Paula Richard was driving her car along Elm Street, following the other vehicles in the procession; her daughter, Ashley Richard, was a passenger in the front seat of the car. The funeral procession was led by a police escort; there were four or five vehicles, including the hearse, between Ms. Richard and the police escort. Ms. Richard testified in her deposition that, although the vehicle ahead of her did not stop at the intersection with Onstead Street, she looked both ways as she approached the stop sign and did not see any oncoming vehicles. However, Michael Swiber was driving his pickup truck on Onstead and was approaching the intersection with Elm. Onstead was the favored street; it had no stop sign at the intersection. Mr. Swiber stated in his deposition that he was not aware there was a funeral procession, but he saw the Richard vehicle slow down and thought Ms. Richard was going to stop for the sign. When Mr. Swiber realized the Richard vehicle was proceeding, he swerved in an attempt to avoid the collision, but hit the front driver's side of her car. Ms. Richard and Ashley were injured.

The Richards sued Mr. Swiber and his liability insurer, State Farm Mutual Automobile Insurance Company (State Farm); State Farm as Ms. Richard's underinsured motorist carrier; the Morgan City Police Department and the City of Morgan City, which provided the police escort; the city's insurer, St. Paul Fire & Marine Insurance Company (St.Paul); and Ourso Funeral Home, Airline Gonzales, Inc., d/b/a Hargrave Funeral Home (Ourso), the funeral home in charge of the funeral arrangements. All of the defendants filed motions for summary judgment, supported by numerous depositions of the parties and other witnesses to the accident. The trial court found there were factual matters in dispute relative to the negligence of the police officer, the city, Mr. Swiber, and Ourso. The court also found that a policy exclusion relied on by St. Paul was inapplicable. Therefore, the trial court denied all motions for summary judgment. Concerning Ourso's liability, the court stated:

Next, I consider the Motion for Summary Judgment by Ourso Funeral Home, Airline Gonzales, Inc. Since the funeral home made arrangements for the police escort, and since the funeral home is aware and knows and understands that people in a funeral procession follow close behind one another with a police escort and that these persons regularly proceed through stop signs, yield signs, and red lights, Ourso Funeral Home had a duty to see that the arrangements with the police officers were adequate for the intersections to be traversed by the funeral procession, or a duty to warn persons in the funeral procession that they should not disregard any traffic signals. Since Ourso is the organizer of this funeral procession and the person employed by the family to handle the funeral arrangements, procession, and burial, [it has] a duty to see that the funeral procession is carried out in a safe manner or to warn participants of the known dangers.

Ourso applied to this court for supervisory relief, which was denied. Richard v. Swiber, 98-1515 (La.App. 1st Cir.11/20/98)(unpublished writ action). Ourso applied for supervisory and/or remedial writs to the Louisiana Supreme Court, which granted the writ and remanded the case to this court for briefing, *358 argument, and opinion. Richard v. Swiber, 98-3129 (La.2/5/99), 737 So.2d 734.

APPLICABLE LAW

Supervisory Jurisdiction and Summary Judgment

A court of appeal has plenary power to exercise supervisory jurisdiction over trial courts and may do so at any time, according to the discretion of the court. In cases in which a peremptory exception has been overruled by the trial court, the appellate court appropriately exercises its supervisory jurisdiction when the trial court's ruling is arguably incorrect, a reversal will terminate the litigation, and there is no dispute of fact to be resolved. Charlet v. Legislature of State of Louisiana, 97-0212 (La.App. 1st Cir.6/29/98), 713 So.2d 1199, 1202, writs denied, 98-2023, 98-2026 (La.11/13/98), 730 So.2d 934. In such instances, judicial efficiency and fundamental fairness to the litigants dictate that the merits of the application for supervisory writs should be decided in an attempt to avoid the waste of time and expense of a possibly useless future trial on the merits. Herlitz Const. Co., Inc. v. Hotel Investors of New Iberia, Inc., 396 So.2d 878 (La.1981) (per curiam). This supervisory jurisdiction may also be exercised to reverse a trial court's denial of a motion for summary judgment and to enter summary judgment in favor of the mover. See Hoover v. Livingston Bank, 451 So.2d 3 (La.App. 1st Cir.1984); Bonfiglio v. Bellsouth Advertising and Pub. Corp., 619 So.2d 135 (La.App. 1st Cir.), writ denied, 620 So.2d 864 (La.1993).

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. Guillory v. Interstate Gas Station, 94-1767 (La.3/30/95), 653 So.2d 1152, 1155. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of actions. The procedure is favored and shall be construed to accomplish these ends. LSA-C.C.P. art. 966(A)(2). The initial burden of proof is on the mover to show that no genuine issue of material fact exists. LSA-C.C.P. art. 966(C)(2). However, once the mover has made a prima facie showing that the motion should be granted, if the non-movant bears the burden of proof at trial on the issue before the court, the burden shifts to him to present evidence demonstrating that material factual issues remain. See LSA-C.C.P. art. 966(C)(2); Hayes v. Autin, 96-287 (La. App. 3rd Cir.12/26/96), 685 So.2d 691, 694, writ denied, 97-0281 (La.3/14/97), 690 So.2d 41. A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the 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. LSA-C.C.P. art. 966(B).

Negligence

Louisiana Civil Code articles 2315 and 2316 are the codal bases for a claim in tort.

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Cite This Page — Counsel Stack

Bluebook (online)
760 So. 2d 355, 1999 WL 814392, Counsel Stack Legal Research, https://law.counselstack.com/opinion/richard-v-swiber-lactapp-1999.