Livas et al v. ACE American Insurance Company et al

Filing 66

ORDER AND OPINION denying 25 Motion for Partial Summary Judgment. Signed by Judge Stanwood R. Duval, Jr on 7/3/2013. (my, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

DARRICK LIVAS, SR., DARRICK
LIVAS JR., CANTRELL LIVAS AND
DERRICK WALKER

CIVIL ACTION

VERSUS

NO. 12-912

ACE AMERICAN INSURANCE
COMPANY, HEARTLAND EXPRESS.
INC. OF IOWA AND RYAN
PAHLKOTTER

SECTION "K"(5)

ORDER AND OPINION

Before the Court is the "Motion for Partial Summary Judgment on Liability" filed on behalf
of plaintiffs Darrick Livas, Sr., Darrick Livas, Jr., and Cantrell Livas (Doc. 25). The Court
previously granted plaintiff Derrick Walker's motion to join in the motion for partial summary (Doc.
36). Having reviewed the pleadings, memoranda, and relevant law, the Court, for the reasons
assigned, DENIES the motion.
Background
This litigation involves a motor vehicle accident between an automobile driven by plaintiff
Darrick Livas, Jr. and an 18-wheel truck owned by defendant Heartland Express Inc. of Iowa and
driven by Ryan Pahlkotter. The accident occurred as both vehicles were entering the left-lane
entrance ramp to I-10 West off North Claiborne Avenue in New Orleans, Louisiana. Plaintiffs
contends that the truck operated by Mr. Pahlkotter in the right hand lane "suddenly and without
warning . . . switched lanes in an attempt to enter the ramp thereby colliding with the plaintiff on the
on-ramp to the I-10 west entrance." Doc. 25, p. 3. Plaintiffs assert that Mr. Pahlkotter is solely at
fault in causing the accident. In support of that assertion plaintiffs point to the fact that the police

officer who investigated the accident issued Ryan Pahlkotter a ticket for improper lane usage which
he paid without contesting. Defendant opposes the motion for summary judgment on liability
contending that a genuine issue of material facts exists as to the comparative fault of Darrick Livas,
Jr.
Summary Judgment Standard
Rule 56(a) of the Federal Rules of Civil Procedure provides that summary judgment should
be granted "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." The party moving for summary judgment bears
the initial responsibility of informing the district court of the basis for its motion, and identifying
those portions of the record "which it believes demonstrate the absence of a genuine issue of
material fact." Stults v. Conoco, 76 F.3d 651 (5th Cir.1996), citing Skotak v. Tenneco Resins, Inc.,
953 F.2d 909, 912-13 (5th Cir.), quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct.
2548, 2552-53, 91 L.Ed.2d 265 (1986). When the moving party has carried its burden under Rule
56, its opponent must do more than simply show that there is some metaphysical doubt as to the
material facts. The nonmoving party must come forward with "specific facts showing that there is
a genuine issue for trial." Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 588,
106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th
Cir.1995).
“A genuine issue of material fact exists ‘if the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.’ ” Pylant v. Hartford Life and Accident Insurance Company, 497
F.3d 536, 538 (5th Cir. 2007) quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct.
2505, 91 L.Ed.2d 202 (1986). Summary judgment evidence must be “viewed in the light most

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favorable to the nonmovant, with all factual inferences made in the nonmovant’s favor.” Bazan ex
rel Bazan v. Hildago County, 246 F.3d 481, 489 (5th Cir. 2001), citing Anderson v. Liberty Lobby,
Inc., 477 U.S. at 255, 106 S.Ct. at 2513.
[C]onclusory statements, speculation, and unsubstantiated assertions
cannot defeat a motion for summary judgment. The Court has no
duty to search the record for material fact issues. Rather, the party
opposing the summary judgment is required to identify specific
evidence in the record and to articulate precisely how this evidence
supports his claim.
RSR Corporation v. International Insurance Company, 612 F.3rd 851,857 (5th Cir. 2010).
Law and Analysis
It is undisputed that in this diversity case, Louisiana law applies. See Erie R. Co. v.
Thompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed.1188 (1938). Under Louisiana law "[e]very act
whatever of man that causes damage to another obliges him by whose fault it happened to repair it."
La. Civ. Code art. 2315. Additionally, Louisiana has adopted a comparative fault scheme.
Louisiana Civil Code Article 2323 specifically provides, in pertinent part, that "[i]n any action for
damages where a person suffers injury, death, or loss, the degree or percentage of fault of all persons
causing or contributing to the injury, death, or loss shall be determined . . .." Therefore, more than
one party may be at fault for damages resulting from a motor vehicle accident. Plaintiffs are entitled
to summary judgment on the issue of liability only if there is no genuine issue of material fact as to
the issue of the comparative fault of Darrick Livas, Jr.
Louisiana law provides that "[a] vehicle shall be driven as nearly as practicable entirely
within a single lane and shall not be moved from such lane until the driver has first ascertained that
such movement can be made with safety." La. Rev. Stat. 32: 79(1). Thus, it is well settled that "a
driver of a vehicle cannot suddenly change lanes without first determining whether it is safe to do
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so." Guillory v. Bledsoe, 2008 WL 1819983, *3 (MD La. April 21, 2008). "When there is a change
of lanes by a motorist immediately preceding an accident, the burden of proof is placed upon the
motorist changing lanes to show that it first ascertained that his movement could be made safely and
the resulting collision did not result from a sudden change of lanes. Id. It is also axiomatic that a
motorist has a duty to see what he should have seen. In discussing this duty, the Louisiana Supreme
Court opined: "[t]he jurisprudence provides, '[i]f a motorist fails to see what he should have seen,
the law charges him with having seen what he should have seen, and the court examines his
subsequent conduct on the premise that he did not see what he should have seen." Fontenot v.
Patterson Insurance, 23 So.3d 259, 269 (La. 2009).
The Court begins its analysis by noting that "[t]he mere fact that a motorist received a
citation an d paid it, without also entering a guilty plea, does not establish fault." Langhoff v. United
States, 805 F.Supp. 2nd 272, 277 (E.D. La. 2011).
Because plaintiffs are entitled to summary judgment on liability only if Ryan Pahlkotter is
solely at fault in this accident, the Court's analysis will focus on whether defendants have offered
any competent summary judgment evidence raising a genuine issue of material fact concerning
negligence on the part of plaintiff Darrick Livas, Jr. In his deposition, Mr. Pahlkotter described
the accident as follows:
A. He stop –I came– I was– I came up to an intersection right before
the ramp, I believe it is the last intersection with a light. I stopped at
that intersection. They were coming from my left, turning left onto
Claiborne, which is a two-laned road one way. After they made that
turn, they went about, I would guess, maybe 500 feet or so, stopped
in that lane, and put their four-ways on.
Q. And again what do you mean by four-ways?
A. The – their hazard lights.
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Q. Okay.
A. And so they stopped. I was in the left lane when the light turned
green, so I went through. I passed them on the right and I put my
blinker on to go back into the left lane. At that point they had their
hazard lights off and were just behind my truck, and they gave me
enough room to get over into that left lane. But from the left lane up
towards the ramp is where things got even tighter, and I thought they
were letting me in so I kind of crept forward still, and at that point
they seemed to speed up little bit and steer into my trailer tires on the
driver's side.
Doc. 25-5, Ex. 2, p. 26-27 (Depo. of Ryan Pahlkotter) (emphasis added). That description provides
competent summary judgment evidence that: 1) Mr. Pahlkotter had his blinker on; 2) that the
vehicle driven by Mr. Livas was behind the truck; 3) that the vehicle driven by Mr. Livas gave Mr.
Pahlkotter enough room to cross into the left lane; and 4) that the vehicle driven by Mr. Livas then
sped up and steered to the right.
Mr. Pahlkotter's description of the accident differs from that recounted by Darrick Livas,
Jr. and Darrick Livas, Sr. a passenger in the front passenger seat of the vehicle being his son Darrick
Livas, Jr., and is not entirely consistent with the description of the accident in the accident report.
Darrick Livas, Jr. stated in his deposition that:
A. And he got over to the right lane, which I thought he was going
to pass me. I'm in the lane to enter the onramp. It's a one-way
entrance to go onto the ramp. And he sped up as if he was passing
me up, but at the very last minute, he just got over. And when he hit
the car, I tried to go to my left to get away from him. But I noticed
they didn't have no more room, and he just continued to coming over,
and he hit me again for the second time.
Doc. 44, Ex. A, p. 23 (Depo. of Darrick Livas, Jr.). When counsel for defendants deposed Darrick
Livas, Sr., the following colloquy occurred:
Q. Prior to your noticing the vehicle just before impact, did you
notice that 18-wheeler at all?
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A. Yeah. He was like passing us up. And, like, we was in the left
lane. He was in the right lane. Like Darrick stated, he looked like he
was going straight. And I don't know if he noticed at the last minute
that, Oh, I needed to get on this intersection. He merged over. And
as he merged over, he hit us.
Doc. 44, Ex. B, p. 26-27 (Depo. of Darrick Livas, Sr.).
The accident report states in pertinent part:
Driver of Vehicle One [Ryan Pahlkotter] informed Officer
Guggenheim that he was traveling in the left lane of North Claiborne
Avenue. He was behind Vehicle Two [vehicle driven by Darrick
Livas, Jr]. Vehicle Two began merging onto the Interstate 10 West
on ramp. Vehicle On [sic] began passing Vehicle Two on the right
side of Vehicle Two. Driver of Vehicle Two appeared to be slowing
to allow Vehicle One to merge left onto the on ramp. The left side of
Vehicle One struck the right side of Vehicle Two. Driver of Vehicle
One noticed Vehicle Two had swerved to the right. This action was
possibly to avoid striking the curb on the left side according to the
driver of Vehicle One.
The crash occurred at a speed of approximately fifteen miles per
hour.
Driver of Vehicle Two informed the reporting officer he was
traveling west in the left lane of North Claiborne Avenue. He entered
the on ramp of Interstate 10 West. The right side of Vehicle Two was
struck by the left side of Vehicle One. Vehicle One was in the left
lane of North Claiborne Avenue then changed lanes into the Interstate
10 West on ramp.
Doc. 25, Ex. 1, p. 9. Mr. Pahlkotter submitted an affidavit in which he addresses the accident
description contained in the accident report. The affidavit states, in pertinent part:
5.
As I testified the first paragraph [of the accident report] referring to
the statements of Driver of Vehicle One, are "mostly accurate." From
reviewing the report, it appeared to me that "Vehicle One" refers to
my tractor trailer, and "Vehicle Two" refers to the other vehicle
involved in this accident.
6.
The statement in the police report attributed to me which says "Driver
of Vehicle Two appeared to be slowing to allow Vehicle One to
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merge left on the ramp" is not verbatim of what I told the
investigating officer. However, it accurately represents that I
observed the other vehicle involved in this accident slowing down.
I interpreted this maneuver as an indication that it was safe to move
towards my left.
7.
The statement in the police report that "Driver of Vehicle one noticed
Vehicle Two had swerved to the right" is not verbatim of what I told
the investigating officer. However it accurately represents that I
observed the other vehicle involved in this accident swerving to its
right, and towards my lane before impact.
Doc. 35, Ex. 1, p. 2-3.
Mr. Pahlkotter's version of the facts differs substantively from plaintiffs' description of the
facts. Ultimately, the credibility of the witnesses to the accident, all of whom are parties to the
litigation, will play a critical role in determining the liability question in this matter. In reviewing
the evidence on summary judgment the Court may not make any credibility determinations or weigh
any evidence. Moore v. Willis Independent School District, 233 F.3d 871, 874 (5th Cir. 2000).
Construing the evidence in the light most favorable to the non-movant, as the Court is
required to do in analyzing a motion for summary judgment, the Court concludes that the statements
cited from Mr. Pahlkotter's deposition and affidavit constitute evidence sufficient to raise a genuine
issues of material fact with respect to Darrick Livas Jr.'s comparative fault. Mr. Pahlkotter's
statements raise issues with respect to whether Mr. Livas saw what he should have seen in
connection with Mr. Pahlkotter's change of lanes; whether Mr. Livas acted in a manner that could
be reasonably perceived and construed to indicate that he was going to allow Mr. Pahlkotter to
merge into the left lane, and whether Mr. Livas accelerated his vehicle and steered towards Mr.
Pahlkotter's vehicle. The Court does recognize that Mr. Pahlkotter changed lanes and received a
citation and that in all likelihood the task of the factfinder will be determining if there is
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comparative negligence on behalf of Darrick Livas, Jr. Accordingly, because there are genuine
issues of material fact, the Court DENIES the motion for partial summary judgment.
New Orleans, Louisiana, this 3rdday of July, 2013.

STANWOOD R. DUVAL, JR.
UNITED STATES DISTRICT JUDGE

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