Hernandez v. United States of America et al
Filing
44
ORDER AND REASONS granting 33 Motion for Partial Summary Judgment. Signed by Judge Helen G. Berrigan on 09/22/2014. (kac) (Main Document 44 replaced on 9/22/2014) (kac).
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CAROL HERNANDEZ
CIVIL ACTION NO. 13-cv-06489
VERSUS
SECTION “C”
UNITED STATES OF AMERICA, STATE
FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY, AMERICAN
GUARANTEE AND LIABILITY
INSURANCE COMPANY and MITCH
BROWN
HON. HELEN BERRIGAN
MAG. 2
* * * * * * * * * * * * * * * * * * * * * * * * ** * * * * * * * * * * * * * * ** * * * * * * * * * * *
ORDER AND REASONS1
Before the Court is an uncontested Motion for Partial Summary Judgment by Plaintiff
Carol Hernandez (“Ms. Hernandez”) on the issues of liability, insurance coverage, and course
and scope of employment pursuant to Fed.R.CivP. 56. After reviewing the memoranda of the
moving party, the record in the case and the applicable law, the Court GRANTS partial summary
judgment as set forth below.
I. FACTUAL AND PROCEDURAL BACKGROUND
The following facts are uncontested. On August 16, 2011, Ms. Hernandez was driving
her vehicle south-bound on Girod Street near the Superdome. Rec. Doc. 1 at 13. Mr. Brown
was driving his vehicle on the Poydras Superdome exit ramp coming from Interstate 10 and
attempting to merge north-bound onto Girod St. Rec. Doc. 33-3 at 19. Mr. Brown slowed down
to enter the intersection, but failed to see Ms. Hernandez’s oncoming vehicle traveling
southbound on Girod. Rec. Doc. 33-3 at 19. Mr. Brown’s vehicle struck Ms. Hernandez’s
vehicle on the rear passenger’s side causing a motor vehicle accident. Rec. Doc. 1 at 3; Rec.
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Hannah Adams, a third year law student at Northeastern University, helped prepare this order.
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Doc. 33-3 at 19-20; Rec. Doc. 33-6 at 3. The motor vehicle accident was investigated by a New
Orleans Police Department officer, who found Mr. Brown in violation of New Orleans traffic
ordinance 154-400 for failure to maintain reasonable vigilance and issued him citation #J512129.
Rec. Doc. 33-4; Rec. Doc. 33-5. The officer found that Ms. Hernandez had not committed any
violations in connection to the accident and did not ticket her. Rec. Doc. 33-4 at 6. Mr. Brown
pled guilty to the charge of failure to maintain reasonable vigilance. Rec. Doc. 33-5; Rec. Doc.
33-3 at 22. When the accident occurred Mr. Brown was in the course and scope of his
employment with the Federal Deposit Insurance Corporation (“FDIC”). Rec. Doc. 1 at 3; Rec.
Doc. 13 at 2; Rec. Doc. 20 at 3; Rec. Doc. 16-1. At the time of the accident the FDIC had in full
force and effect a policy of liability insurance covering its employee drivers with policy limits of
$1,000,000 provided by the American Guarantee and Liability Insurance Company. Rec. Doc.
33-8.
Ms. Hernandez initially brought this action in state court in June 2012, but removed to
this Court in March 2013 on the basis that Mr. Brown was acting in the course and scope of his
employment with the United States at the time of the accident. See Hernandez v. State Farm
Mut. Auto. Section Ins. Co., No. CIV.A. 13-544, 2013 WL 5707795 (E.D. La. Oct. 18, 2013).
Ms. Hernandez correctly pled jurisdiction under the Federal Tort Claims Act, 28 U.S.C. §2671,
et. Seq. That case was dismissed without prejudice in October 2013 under Fed.R.Civ.P. 12(b)(1)
for lack of subject matter jurisdiction due to Ms. Hernandez’s failure to exhaust administrative
remedies as required under the FTCA. The present case was filed against State Farm Mutual
Automobile Insurance Company (“State Farm”), American Guarantee and Liability Insurance
Company (“AGLIC”), Mitch Brown (“Mr. Brown”) and the United States of America (“U.S.”) a
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month later after exhausting administrative remedies.2 In February 2014 the U.S. was substituted
for Mr. Brown as party defendant and claims against Mr. Brown were dismissed by consent of
the parties pursuant to the Federal Employees Liability Reform and Tort Compensation Act of
1998, 28 U.S.C. §2679(d)(2). Rec. Doc. 18. In April 2014 claims against State Farm were
dismissed pursuant to Plaintiff’s motion. Rec. Doc. 31. The U.S. and AGLIC are the remaining
party defendants.
II. LAW AND ANALYSIS
A. Standard of Review
Summary judgment is appropriate where “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). Where the moving party bears the burden of proof at trial as the plaintiff, or
as a defendant asserting an affirmative defense, that party must support its motion with “credible
evidence . . . that would entitle it to directed verdict if not controverted at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 331 (1986). Credible evidence may include depositions, documents,
affidavits, stipulations, admissions, interrogatory answers, or other materials. Fed.R.Civ.P.
56(c). In the case of a traffic violation, Louisiana courts hold that a guilty plea is considered an
admission against interest relevant to show fault. Shephard on Behalf of Shepard v. Scheeler,
701 So. 2d 1308, 1315 (La. 1997).
Once the moving party has made its showing, the burden shifts to the non-moving party
to produce evidence that demonstrates the existence of a genuine issue of fact. Engstrom v. First
Nat. Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995) (citing Celotex, 477 U.S. at 322-
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Ms. Hernandez presented her claim in writing to the FDIC on May 14, 2013 and was required
to wait six months for the agency to review her claim before filing suit. 28 U.S.C. §2401; 39
C.F.R. §912.9(a).
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24). All justifiable inferences are to be drawn in the non-moving party’s favor. Anderson, 477
U.S. at 255.
B. Analysis
Ms. Hernandez alleges defendants’ liability under state and municipal law. First, LSAR.S. 32:123(D) states in pertinent part:
The driver or operator of a vehicle approaching a yield sign shall slow down to a speed
reasonable for the existing conditions, or shall stop if necessary . . . where the driver has a
view of approaching traffic on the intersecting roadway. Having slowed or stopped in
this manner, the driver shall yield the right-of-way . . . to any vehicle in the intersection
or approaching on another highway so closely as to constitute an immediate hazard.
A driver has a “continuing duty to exercise care and caution” after entering the intersection.
Mentel v. Boston Ins. Co., 144 So. 2d 441, 445 (La.App. 4 Cir. 1962). The fact that a driver fails
to see a vehicle that he should have seen, does not excuse the driver from liability. Id. at 444.
Second, New Orleans Municipal Code Sec. 154-400 states, “The operator of any vehicle
in this city shall maintain a reasonable vigilance at all times while driving, sufficient to avoid
collision with another vehicle, pedestrian, or other private or public property.” The ordinance
references LSA-R.S. 32:58 which states in pertinent part, “Any person operating a motor vehicle
on the public roads of this state shall drive in a careful and prudent manner, so as not to endanger
the life, limb, or property of any person.”
This uncontested motion is limited to the issues of liability, course and scope of
employment, and insurance coverage. Because the motion is uncontested the Court need only
examine whether the moving party has met her burden as to each element.
1. Liability
Ms. Hernandez has presented sufficient evidence that Mr. Brown was 100% at fault for
the accident due to his failure to yield to oncoming traffic, and his failure to maintain reasonable
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vigilance, such that no material issue of fact exists.3 In his deposition, Mr. Brown admitted that
he “failed to re-look to the left and failed to see oncoming vehicle” as he was merging onto
Girod Street from I-10. Rec. Doc. 33-3 at 19. The fact that Mr. Brown looked both ways before
entering the intersection and did not see Ms. Hernandez’s car does not absolve him of liability
for negligence. Mentel, 144 So. 2d at 444-445. The police report issued at the scene of the
accident states that Mr. Brown committed the violation of “failure to yield.” Rec. Doc. 33-4 at 4.
Finally, Mr. Brown received a citation for failure to exercise reasonable vigilance, to which he
pled guilty.4 Rec. Doc. 33-5 at 1. This guilty plea is an admission against interest that supports
Ms. Hernandez’s allegation of liability. Shephard, 701 So. 2d at 1315.
Furthermore, Ms. Hernandez has presented sufficient evidence that she was not
contributorily negligent in causing the accident. The police report states that Ms. Hernandez
committed “no violations,” and she was not issued a citation. Rec. Doc. 33-4 at 6; Rec. Doc. 336 at 4. Mr. Brown admitted under oath that he was not aware of anything Ms. Hernandez did
wrong to cause the accident. Rec. Doc. 33-3 at 22. Neither party is aware of any other
eyewitnesses to the accident. Rec. Doc. 33-3 at 27; Rec. Doc. 33-6 at 3. Moreover, defendants
have failed to allege, or present any evidentiary support for, the existence of a factual dispute
over Mr. Brown’s level of fault or the U.S.’s liability in this matter.
2. Course and Scope of Employment
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The U.S. was substituted for Mr. Brown and claims against Mr. Brown were dismissed
pursuant to the Federal Employees Liability Reform and Tort Compensation Act of 1998. Rec.
Doc. 18. Thus the U.S. accepts liability for Mr. Brown’s conduct while in the course of his
duties as a federal employee.
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The Court notes the failure of Plaintiff’s counsel to address discrepancies in the name of the
defendant as listed on the police report and citation, documents upon which the Plaintiff heavily
relies. The defendant’s voluntary statement lists “Mitch Brown,” while the police report names
“Ray B Brown” and the citation names “Ray Mitchell.” The Court was only made aware that
Mitch Brown’s full name is Ray B. Mitch Brown because of the witness list provided by
defendant AGLIC in its Rule 26(a) disclosures. Rec. Doc. 22.
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There is also no material dispute regarding the fact that Mr. Brown was acting in the
scope of his employment for the FDIC at the time of the accident. Ms. Hernandez has submitted
a certification from U.S. Attorney Kenneth Allen Polite stating that Mr. Brown was in fact acting
within the scope of his employment with the U.S. at the time of the accident. Rec. Doc. 16-1.
Defendants have alleged no issue of material fact on this point; rather they have admitted that
Mr. Brown was acting within the course of his duties in their responsive pleadings. Rec. Doc. 13
a 2; Rec. Doc. 20 at 2.
3. Insurance Coverage
Finally, there is no issue of material fact regarding the U.S.’s insurance coverage by
AGLIC, or the coverage limit of $1,000,000. Plaintiffs have produced the insurance policy
(provided by Defendant in discovery) that was in full force and effect at the time of the accident.
Rec. Doc. 33-9. The policy lists “FDIC” as the insured, and $1,000,000 as the most AGLIC will
pay for liability coverage for any one accident or loss. Id. Defendants have not alleged or
produced evidence that an issue of material fact exists regarding coverage under the
aforementioned policy.
C. Conclusion
After examining the evidence presented by Ms. Hernandez, and the defendant’s decision
not to contest her motion, the Court finds that no genuine issue of material fact exists regarding
(a) defendants’ liability for the accident, (b) defendant’s status as a federal employee at the time
of the accident, and (c) the availability of insurance coverage of $1,000,000 by AGLIC.
Accordingly,
IT IS ORDERED that the motion for partial summary judgment filed by the plaintiff is
GRANTED.
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New Orleans, Louisiana this 22nd day of September, 2014.
_________________________________
HELEN G. BERRIGAN
UNITED STATES DISTRICT JUDGE
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