Edwards v. Permobil, Inc. et al

Filing 221

ORDER AND REASONS re 219 Memorandum filed by Zurich Insurance plc, Zurich American Insurance Company, Permobil Ab, Permobil, Inc.. Signed by Chief Judge Sarah S. Vance on 8/27/13.(jjs, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DERRICK EDWARDS

CIVIL ACTION

VERSUS

NO: 11-1900

PERMOBIL, INC., ET AL.

SECTION: R
ORDER AND REASONS

Defendants have filed a memorandum of law in which they
contend that they are entitled to argue that defendants Praxair
and National Seating and Mobility (NSM), both of which were
dismissed on summary judgment, were at fault in causing the
accident that is the subject of this litigation.1 For the
following reasons, the Court finds defendants' argument without
merit.
Defendant relies on Golman v. Tesoro Drilling Corp., 700
F.2d 249 (5th Cir. 1983). There, the trial court had denied a
motion for summary judgment filed before discovery was conducted,
but, at the beginning of trial, the court dismissed one
defendant, B&W, on summary judgment after the plaintiff’s counsel
admitted in his opening statement that there was “no evidence
that implicate[d] B&W directly.” Id. at 250-51. The trial judge
then allowed the remaining defendant, Tesoro, to raise the
intervening fault of B&W as a defense to Tesoro's liability at
trial. Id. at 251. The Fifth Circuit affirmed, holding that the
trial court did not abuse its discretion in declining to treat
its ruling on the motion for summary judgment as the law of the

1

R. Doc. 219.

case. Id. at 251, 253. The court noted that "[a] trial court is
not inexorably bound to the precedent it establishes in the
course of a trial" and that a grant of summary judgment is an
interlocutory order subject to revision at any time before final
judgment is entered. Id. at 253. (citing Fed. R. Civ. P. 54(b);
Travelers Indem. Co. v. Erickson's, Inc., 396 F.2d 134, 136 (5th
Cir. 1968)).
Golman establishes that a ruling on a motion for partial
summary judgment is "not immutable" and that the trial court is
within its discretion to revise that ruling before entering final
judgment as to all parties. See id. (citing United States v.
Horton, 622 F.2d 144, 148 (5th Cir. 1980)). But Golman did
nothing to alter the "general rule" that "a decision on a motion
for partial summary judgment is the 'law of the case' on the
issues decided." Gulf S. Mach., Inc. v. Am. Standard, Inc., No.
97-0065, 1999 WL 102753, at *1 (E.D. La. Feb. 22, 1999) (citing
Horton, 622 F.2d at 148). Here, the Court determined in its order
granting summary judgment to Praxair and NSM that no reasonable
jury could find those defendants at fault for the subject
incident. See R. Doc. 184 at 7-8, 11-12. Accordingly, it is the
law of the case that Praxair and NSM have no responsibility for
plaintiff's injuries. Under Golman, this Court would be within
its discretion to revise its summary judgment ruling -- but it is
not required to do so, and defendants have provided no compelling
reason for the Court to depart from the "general rule" that a
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ruling on a motion for partial summary judgment resolves the
issues decided for the duration of the litigation. In fact, the
Court has already allowed Permobil an opportunity to present
evidence that summary judgment for Praxair and NSM was not
appropriate, see R. Doc. 184 at 1 n.2, and Permobil failed to
present evidence raising an issue of material fact regarding
their liability. The Court declines to offer Permobil yet another
bite at the apple.
Indeed, given developments in substantive Louisiana law that
have occurred after Golman was decided, the Court finds that it
is preferable to treat its ruling on the fault of Praxair and NSM
as conclusive for purposes of this trial. In Bowie v. Young, 813
So.2d 562 (La. Ct. App. 2002), the Louisiana Court of Appeal
considered the language of Louisiana Civil Code article 2323,
which provides that in a suit for damages, "the degree or
percentage of fault of all persons causing or contributing to the
. . . loss shall be determined, regardless of whether the person
is a party to the action or a nonparty." Id. at 568-69. The court
held that once certain defendants have been dismissed at the
summary judgment stage because they were not negligent, it would
be "illogical" to allow the jury to consider these parties in the
allocation of fault. Id. at 569. The effect would be that, while
the plaintiff cannot recover from the dismissed defendants
because they were not at fault, the remaining defendants can
reduce their liability by arguing that the dismissed defendants
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were at fault. Such a result would be inequitable. Id. at 569-70.
Bowie's analysis has been adopted by both state and federal
courts applying Louisiana tort law. See Regan v. Starcraft Mar.,
No. 06-1257, 2010 WL 4117184, at *2 (W.D. La. Oct. 12, 2010)
(following Bowie in a case governed by Louisiana law); Duzon v.
Stallworth, 866 So.2d 837, 853-54 (La. Ct. App. 2002) (finding
Bowie's analysis "persuasive" and adopting it).
In short, the Court finds no reason to revisit its earlier
ruling that no reasonably jury could find Praxair or NSM at fault
for plaintiff's accident. Accordingly, it remains the law of the
case that those defendants were not negligent, and the remaining
defendants may not raise the negligence of Praxair or NSM as a
defense at trial.
New Orleans, Louisiana, this 27th day of August, 2013.
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_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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