Barr et al v. Lee et al
Filing
88
ORDER denying 52 Motion for Partial Summary Judgment; denying 53 Motion for Partial Summary Judgment. Signed by Judge Mary Ann Vial Lemmon on 10/30/14. (cbn)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CAROL BARR, wife of and DAVID
BARR, individually and as surviving
parents of MATTHEW BARR and
CARON WILLEY and DOUGLAS
MORGAN, individually and as
surviving parents of HAILEY BARR
CIVIL ACTION
VERSUS
NO: 13-5839
JESSIE LEE, SOUTHEASTERN
FREIGHT LINES, TRAVELERS
INDEMNITY CO., KIMBERLY
BELLOMY, LANDSTAR RANGER,
INC., AND MARSH USA, INC.
SECTION: "S" (2)
ORDER AND REASONS
IT IS HEREBY ORDERED that the Motion for Partial Summary Judgment on Plaintiffs'
Survival Claims filed by defendants, Landstar Ranger, Inc., Old Republic Insurance Company,
Southeastern Freight Lines, Inc., and The Travelers Indemnity Company (Doc. #52), is DENIED.
IT IS FURTHER ORDERED that the Motion for Partial Summary Judgment on the
Wrongful Death Claim Related to the Death of Hailey Barr filed by defendants, Landstar Ranger,
Inc., Old Republic Insurance Company, Southeastern Freight Lines, Inc., and The Travelers
Indemnity Company (Doc. #53), is DENIED.
BACKGROUND
This matter is before the court on two motions for partial summary judgment filed by
defendants, Landstar Ranger, Inc., Old Republic Insurance Company, Southeastern Freight Lines,
Inc., and The Travelers Indemnity Company. Defendants argue that plaintiffs, Carol and David
Barr, cannot recover survival damages related to either Matthew or Hailey Barr's deaths. Defendants
also argue that plaintiffs cannot recover wrongful death damages related to Hailey Barr's death
because her husband, Matthew Barr, was never consciously aware of her death before his own death
three days later.
On July 23, 2013, Matthew Barr was driving a red Volkswagen on Interstate 12 near Walker,
Louisiana. His wife, Hailey Barr, was a passenger in the front seat of the vehicle. Matthew and
Hailey Barr were involved in a motor vehicle accident. When the first responders arrived at the
scene of the accident, they found that Hailey Barr was dead, and Matthew Barr was severely injured
and unconscious, but showed signs of life. Matthew Barr was transported via ambulance to Our
Lady of the Lake Hospital in Baton Rouge, Louisiana, where he was placed on life support. He was
declared brain dead, and died on July 26, 2013, after life support was removed.
Matthew Barr's parents, Carol and David Barr, and Hailey Barr parents, Caron Willey and
Douglas Morgan, filed this action seeking survival and wrongful death damages for the loss of their
children under Louisiana Revised Statutes §§ 2315.1 and 2315.2. Defendants filed a motion for
partial summary judgment regarding Hailey Barr's parents' claims, arguing that those claims are
precluded because she was survived by her spouse, Matthew Barr. The court granted the motion,
finding that the undisputed facts showed that Matthew Barr was rendered unconscious by the
accident, but under Louisiana law, he survived his wife Hailey Barr, thus precluding her parents
from bringing wrongful death and survival claims related to her death. Those claims vested in
Matthew Barr's heirs or legatees upon his death, and his parents amended their complaint to bring
survival and wrongful death claims related to Hailey Barr's death.
Thereafter, defendants filed two motions for summary judgment arguing that plaintiffs
cannot recover survival damages related to either Matthew or Hailey Barr's deaths because Hailey
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died instantly upon impact of the vehicles and Matthew was rendered unconscious and never
regained consciousness. Thus, neither Matthew nor Hailey Barr had any conscious suffering before
their deaths. Plaintiffs argue that survival damages are recoverable as to Hailey Barr because she
must have been aware that the impact was coming and experiences some fright. They also argue
that the affidavit of Dr. Jeffery S. Gruner demonstrates that Matthew Barr responded to deep pain
stimuli in his unconscious state and there is evidence that he vomited after the impact, which
demonstrates that he did feel pain prior to his death.
Defendants also argue that plaintiffs cannot recover wrongful death damages related to
Hailey Barr's death because her husband, Matthew Barr, was never consciously aware of her death
before his own death three days later, and there is no evidence that he paid her funeral expenses.
Plaintiffs' argue that they have the right to bring the claim because they inherited it from Matthew
Barr upon his death.
ANALYSIS
A.
Summary Judgment Standard
Summary judgment is proper when, viewing the evidence in the light most favorable to the
non-movant, “there is no genuine issue as to any material fact and ... the moving party is entitled to
judgment as a matter of law.” Amburgey v. Corhart Refractories Corp., 936 F.2d 805, 809 (5th Cir.
1991); FED. R. CIV. PROC. 56(c). If the moving party meets the initial burden of establishing that
there is no genuine issue, the burden shifts to the non-moving party to produce evidence of the
existence of a genuine issue for trial. Celeotex Corp. v. Catrett, 106 S.Ct. 2548, 2552 (1986). The
non-movant cannot satisfy the summary judgment burden with conclusory allegations,
unsubstantiated assertions, or only a scintilla of evidence. Little v. Liquid Air Corp., 37 F.3d 1069,
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1075 (5th Cir. 1994) (en banc). If the opposing party bears the burden of proof at trial, the moving
party does not have to submit evidentiary documents to properly support its motion, but need only
point out the absence of evidence supporting the essential elements of the opposing party’s case.
Saunders v. Michelin Tire Corp., 942 F.2d 299, 301 (5th Cir. 1991).
B.
Recovery for Survival Actions under Louisiana Law
Article 2315.1 of the Louisiana Civil Code provides that certain classes of persons may
recover damages for injury sustained by the decedent. The Supreme Court of Louisiana has held:
The survival action comes into existence simultaneously with the
existence of the tort and is transmitted to beneficiaries upon the
victim's death. The survival action permits recovery only for the
damages suffered by the victim from the time of injury to the moment
of death. It is in the nature of a succession right.
McGee v. AC& S, Inc., 933 So.2d 77,0, 780 (La. 2006). "Survival damages may be awarded for the
pre-death mental and physical pain and suffering of the deceased." Leary v. State Farm Mut. Auto.
Ins. Co., 978 So.2d 1094, 1098 (La. Ct. App. 2008) (citing Temple v. Liberty Mut. Ins. Co., 330
So.2d 891 (La. 1976)). An award for pain and suffering is permissible when there is evidence that
the decedent was sensitive to or aware of pain, even if the decent was rendered unconscious by the
accident. Miller v. Nat'l Fire and Marine Ins. Co., 578 F.2d 41215, 126 (5th Cir. 1978) (citing
Temple, 330 So.2d at 893). "There must nevertheless be some evidence by which the trier of fact
can reasonably infer a sensitivity to or awareness of pain by the decedent." Walker v. St. Paul Ins.
Co., 339 So.2d 441, 443 (La. Ct. App. 1977) (citing Temple, 330 So.2d 891). "Survival damages
are properly awarded if there is even a scintilla of evidence of pain or suffering on the part of the
decedent, and fright, fear, or mental anguish during an ordeal leading to the death is compensable."
Leary, 978 So.2d at 1098 (quoting Patrick v. Emp'rs Mut. Cas. Co., 745 So.2d 641, 652 (La. Ct.
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App. 1999)). Considerations in awarding survival damages include "the severity and duration of any
pain or any pre-impact fear experienced by the deceased, and any other damages sustained by the
deceased up to the moment of death." Id. (citing Guillot v. Valley Forge Ins. Co., 753 So.2d 891 (La.
Ct. App. 1999)). "Like other general damage awards, the amount of the award for the decedent's
pain and suffering is subject to the vase discretion of the trier of fact." Harvey v. State of La., Dep't
of Transp. and Dev., 799 So.2d 569, 577 (La. Ct. App. 2001) (citing Magee v. Pittman, 761 So.2d
731 (La. Ct. App. 2000)).
Defendants argue that there can be no recovery of survival damages for either Matthew or
Hailey because Matthew was rendered unconscious by the accident, and Hailey died instantly on
impact. However, Louisiana law provides that survival damages may be awarded "if there is even
a scintilla of evidence" of pre-death pain and suffering, or fear or mental anguish during the ordeal
leading to the death is compensable. See Leary, 978 So.2d at 1098. Plaintiffs have presented
evidence that Matthew may have experienced some pain after the accident, because he vomited and
was responsive to deep pain stimuli. Further, at this stage, it cannot be said with certainty that
Matthew and Hailey did not experience any fright in the moments before impact. See Miller, 578
F.2d at 127-28) (Neither judges nor juries can "know with certainty" the extent of the pain and
suffering or fear and mental anguish of a deceased accident victim, "[b]ut the peculiar genius of the
jury system is its reliance on the common sense and common experience of ordinary men and
women to determine definitely much that cannot be known absolutely."). Therefore, the motion for
summary judgment on survival damages is DENIED.
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C.
Recovery for Wrongful Death Actions under Louisiana Law
Article 2315.2 of the Louisiana Civil Code provides that certain classes of persons may
recover damages for a decedent's wrongful death. "[T]he wrongful death action does not arise until
the victim dies and it compensates the beneficiaries for their own injuries, separate and distinct from
the primary victim's injuries." McGee, 933 So.2d at 780. When the beneficiary dies and the right
is inherited by his heirs or legatees, those heirs or legatees are entitled to receive "the amount the
surviving beneficiary was entitled to receive from the time of death of the tort victim until the time
of the beneficiary's death." Wakefield v. Gov't Emp. Ins. Co., 253 So.2d 667, 671 (La. Ct. App.
1972). The elements of damages for wrongful death are loss of love and affection, loss of services,
loss of support, medical expenses, and funeral expenses. Todd v. Sauls, 647 So.2d 1366 (La. Ct.
App. 1994). "The measure of damages for loss of love, affection and companionship is analogous
to that for pain and suffering; that is, there must be an awareness of the loss by the deceased before
he dies (here a conscious awareness is necessar[y], since the loss is by its nature a mental condition)
and a consideration by the trier of fact of the duration of the anguish." Walker, 339 So.2d at 443-44
(citing Wakefield, 253 So.2d 667); see also Baudoin v. Acadia Parish Police Jury, 620 So.2d 453,
459 (La. Ct. App. 1993); Haynes v. Calcasieu Med. Transp., Inc., 702 So.2d 1024, 1035 (La. Ct.
App. 1988). "No lengthy period of realization of the loss is necessary to give value to this claim,"
and "any proof of [the beneficiary's] conscious recognition of the [loss] may warrant an award for
this item of damages." Wakefield, 253 So.2d at 672. Whether the beneficiary "was conscious so
as to experience any loss of love, affection and companionship are questions of fact and relate to the
elements of damage for which a recovery" may be had. Blanchard v. Tinsman, 445 So.2d 149, 150
(La. Ct. App. 1984).
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Defendants argue that plaintiffs cannot recovery any damages for Hailey's death because
Matthew, the beneficiary of the wrongful death action related to Hailey's death, was rendered
unconscious at the time of the accident and never regained consciousness so was never aware of
Hailey's death. They also argue that there is no evidence that Matthew paid Hailey's funeral
expenses. The Louisiana jurisprudence on this issue provides that any proof of Matthew's conscious
recognition of Hailey's death before his own death may warrant an award for this item of damages,
regardless of the length of the period of the realization, and Matthew's conscious awareness of the
loss is a factual issue. Wakefield, 253 So.2d at 672; Blanchard, 445 So.2d at 150. Thus, "plaintiffs
are entitled to attempt to prove their case as to this item of damages in the claim they inherited from
[Matthew] for her loss of love and affection caused by the wrongful death[] of [his wife]."
Wakefield, 253 So.2d at 672. Further, plaintiffs may be entitled to recover for any medical bills or
funeral expenses related to Hailey's death that were incurred before Matthew died. See Baudoin, 620
So.2d at 459. Therefore, defendants' motion for summary judgment on plaintiffs' wrongful death
claims related to Hailey's death is DENIED.
CONCLUSION
IT IS HEREBY ORDERED that the Motion for Partial Summary Judgment on Plaintiffs'
Survival Claims filed by defendants, Landstar Ranger, Inc., Old Republic Insurance Company,
Southeastern Freight Lines, Inc., and The Travelers Indemnity Company (Doc. #52), is DENIED.
IT IS FURTHER ORDERED that the Motion for Partial Summary Judgment on the
Wrongful Death Claim Related to the Death of Hailey Barr filed by defendants, Landstar Ranger,
Inc., Old Republic Insurance Company, Southeastern Freight Lines, Inc., and The Travelers
Indemnity Company (Doc. #53), is DENIED.
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30th
New Orleans, Louisiana, this _____ day of October, 2014.
____________________________________
MARY ANN VIAL LEMMON
UNITED STATES DISTRICT JUDGE
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