Trevor Charles, et al v. Thomas Atkinson, et al

Filing

UNPUBLISHED OPINION FILED. [16-31120 Affirmed ] Judge: PEH , Judge: ECP , Judge: CH Mandate pull date is 05/11/2017 [16-31120]

Case: 16-31120

Document: 00513961223

Page: 1

Date Filed: 04/20/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-31120
Summary Calendar
TREVOR CHARLES; JENNIFER CHARLES,

United States Court of Appeals
Fifth Circuit

FILED
April 20, 2017
Lyle W. Cayce
Clerk

Plaintiffs–Appellants,
v.
CONSOLIDATED FABRICATIONS CONSTRUCTION, INCORPORATED;
AMERISURE INSURANCE COMPANY,
Defendants–Appellees.

Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:14-CV-538
Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM:*
Plaintiffs–Appellants Trevor Charles and Jennifer Charles appeal the
district court’s grant of summary judgment in favor of Defendants–Appellees
Consolidated Fabrications Construction, Inc. (“Consolidated”) and Amerisure
Insurance Company (“Amerisure”). The Charleses were injured in a hit-andrun accident in October 2013. The driver of the vehicle that hit them, Thomas
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
*

Case: 16-31120

Document: 00513961223

Page: 2

Date Filed: 04/20/2017

No. 16-31120
Atkinson, was an employee of PLS Construction, Inc., a subsidiary of
Consolidated. Amerisure is the automobile liability insurer of Consolidated.
The district court found there was no genuine issue of material fact as to the
Charleses’ respondeat superior or implied permission theories of liability. We
AFFIRM.
I. BACKGROUND
On October 29, 2013, Thomas Atkinson was one of four Consolidated
employees working on a project near Sorrento, Louisiana. The employees were
staying at a motel. That evening, Atkinson and another employee, Chris
Turner, were drinking alcohol in their motel room, and at some point Atkinson
offered to go purchase more alcohol. Turner states that because there was a
convenience store within walking distance, he did not know Atkinson would
drive one of the company vehicles. Atkinson did not have a driver’s license and
was not authorized to drive the vehicle. Nevertheless, Atkinson took one of the
vehicles and was subsequently involved in an accident with the Charleses.
Although he initially fled the scene, Atkinson was later stopped and arrested
for a hit-and-run violation.
The Charleses filed suit against Atkinson, Consolidated, and Amerisure
in Louisiana state court on July 16, 2014. Consolidated and Amerisure
removed the case to federal district court on the basis of diversity jurisdiction.
On May 20, 2015, Consolidated and Amerisure moved for summary judgment.
They argued that (1) Consolidated was not liable for Atkinson’s negligence
because he was acting outside the course and scope of his employment when
the accident occurred and (2) Amerisure was not liable because Atkinson was
not a permissive user of the vehicle. In response to the motion, the Charleses
argued only that there was a factual issue as to whether Atkinson had been
given implied permission to use the vehicle.
2

Case: 16-31120

Document: 00513961223

Page: 3

Date Filed: 04/20/2017

No. 16-31120
The district court granted the Defendants’ motion. 1 First, the district
court held that Atkinson acted outside the scope of his employment when he
travelled to purchase alcohol after work hours. Additionally, the court found
there was no genuine factual dispute as to whether Atkinson had permission
to drive a company vehicle. The Charleses relied on two affidavits—one from
Vincent Sotile, Jr., their former attorney, and one from Chris Turner. The
Sotile affidavit was based on a phone conversation between Sotile and
Atkinson, during which Atkinson told Sotile he had been given permission on
prior occasions to use the company vehicle. The district court stated that “even
if Sotile’s statements are admissible, they do not create a genuine issue of
material fact.” Additionally, the only relevant portion of the Turner affidavit
contained inadmissible hearsay and thus did not create a fact dispute.
The district court entered judgment pursuant to Rule 54(b) on October
4, 2016. The Charleses appealed. On appeal, they concede that Atkinson was
not acting within the course and scope of his employment; they argue only that
a genuine issue of material fact exists as to whether Atkinson was ever given
permission to drive the vehicle.
II. DISCUSSION
This Court reviews a district court’s grant of summary judgment de novo.
Smith v. Reg’l Transit Auth., 827 F.3d 412, 417 (5th Cir. 2016). We will affirm
summary judgment “if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). We view the evidence and all factual inferences taken
from that evidence in the light most favorable to the nonmoving party—here,
the Charleses. Smith, 827, F.3d at 417.

Although named and served in the case, Atkinson never appeared. The district court
entered the order in question under Rule 54(b) and administratively closed the rest of the
case.
1

3

Case: 16-31120

Document: 00513961223

Page: 4

Date Filed: 04/20/2017

No. 16-31120
Under Louisiana law, automobile liability policies cover the person
named in the insurance policy as well as “any other person” using the vehicle
“with the express or implied permission of the named insured.” La. Stat. Ann.
§ 32:900(B)(2). Implied permission “generally arises from a course of conduct
by the named insured involving acquiescence in, or lack of objection to, the use
of the vehicle.” Francois v. Ybarzabal, 483 So. 2d 602, 605 (La. 1986). Once an
individual has been given initial permission, “any subsequent changes in the
character or scope of the use do not require additional specific consent of the
insured.” Manzella v. Doe, 664 So. 2d 398, 402 (La. 1995). It is the plaintiff’s
burden to prove the driver received express or implied permission from the
insured. Id. Determining whether an individual had implied permission to
operate a vehicle “will rarely be appropriate in a motion for summary
judgment” due to the fact-sensitive nature of the inquiry. Hartzo v. Am. Nat’l
Prop. & Cas. Ins., 951 So. 2d 1120, 1125 (La. Ct. App. 2006). Nonetheless, “a
court may consider only admissible evidence in ruling on a summary judgment
motion.” Mersch v. City of Dallas, 207 F.3d 732, 735 (5th Cir. 2000); accord
Fed. R. Civ. P. 56(c)(2).
Consolidated and Amerisure argue that Atkinson was never given
permission to drive any company vehicle because he did not have a driver’s
license. They point to deposition testimony of several Consolidated employees,
including Turner, who testified to the following: Consolidated and its
employees knew Atkinson did not have a driver’s license; Atkinson was not
authorized to drive company vehicles; no one had ever given him permission to
drive company vehicles; and Atkinson took the vehicle that night without
permission or the knowledge of anyone else.
On appeal, the Charleses rely only on the Sotile affidavit to rebut the
Defendants’ evidence. “An affidavit . . . used to support or oppose a motion must
be made on personal knowledge, set out facts that would be admissible in
4

Case: 16-31120

Document: 00513961223

Page: 5

Date Filed: 04/20/2017

No. 16-31120
evidence, and show that the affiant . . . is competent to testify on the matters
stated.” Fed. R. Civ. P. 56(c)(4). According to Consolidated and Amerisure, the
Sotile affidavit meets none of these criteria. The district court did not reach
the question of whether the Sotile affidavit was based on inadmissible hearsay,
instead finding that even if the statements were admissible they did not create
a genuine dispute of material fact.
The Charleses argue that Atkinson’s out-of-court statements are not
hearsay because they are statements of a party opponent. Fed. R. Evid.
801(d)(2). Federal Rule of Evidence 801(d)(2) states that a statement is not
hearsay if it “is offered against an opposing party and . . . was made by the
party in an individual or representative capacity.” Atkinson’s statements fit
the exception, the Charleses contend, because “Atkinson is a named party” and
“the statement is being offered against him.” Fed. R. Evid. 801(d)(2). This
argument fails. The out-of-court statements made by Atkinson are being
offered against Consolidated and Amerisure rather than Atkinson; therefore,
Rule 801(d)(2) does not apply. Nor could the out-of-court statements have been
made in a representative capacity, as Atkinson had been fired from
Consolidated long before he made these statements. Thus, the affidavit is
based on inadmissible hearsay.
Because we find that the affidavit does not set out facts that would be
admissible, we do not need to address whether the affidavit meets the other
criteria of Federal Rule of Civil Procedure 56(c)(4). Furthermore, because the
Charleses cannot produce any admissible evidence suggesting that Atkinson
had permission to drive the company vehicle, there is no genuine issue of
material fact. Accordingly, we AFFIRM.

5