Fenner et al v. Elite Transportation Group, Inc. et al

Filing 92

ORDER AND REASONS granting 73 Motion for Summary Judgment. Signed by Judge Susie Morgan on 1/18/2016. (bwn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
PATRICIA FENNER, ET AL.,
Plaintiffs

CIVIL ACTION

VERSUS

NO. 14-1395

ELITE TRANSPORTATION
GROUP, INC., ET AL.,
Defendants

SECTION "E" (3)

ORDER AND REASONS
Before the Court is a motion for summary judgment filed by Defendants William
Gilfoil and the Louisiana Farm Bureau Insurance Company (collectively, “Gilfoil”). 1 The
motion is opposed by Defendants Elite Transportation Group, Inc.; Elite Transportation,
Calex Express, Inc.; Elite Transportation Risk Retention Group, Inc.; and Robert Rogers
(collectively, “Rogers”). 2 The parties have briefed the issues presented in the motion for
summary judgment extensively. 3 The Court has considered these briefs, the record, and
the applicable law, and now issues its ruling. For the reasons that follow, the motion for
summary judgment is GRANTED.
FACTUAL BACKGROUND
This matter arises out of a motor-vehicle collision that occurred on September 13,
2013, on Interstate 12 (“I-12”) in St. Tammany Parish, Louisiana. 4 On that date, Plaintiff
Patricia Fenner was driving her 2008 Ford Mustang eastbound on I-12 in St. Tammany
Parish. 5 Also driving eastbound on I-12 in close proximity to Fenner was William Gilfoil

R. Doc. 73.
R. Doc. 76.
3 R. Docs. 73, 76, 79, 82.
4 R. Doc. 73-3 at 1.
5 R. Doc. 73-3 at 1; R. Doc. 73-2 at
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in a 2008 Jeep Rubicon and Robert Rogers in a 2011 Volvo tractor-trailer. 6 The parties
agree that Fenner and Rogers were traveling in the right-hand lane, 7 and Gilfoil testified
in his deposition that, initially, he was traveling in the left-hand lane. 8 As the parties
approached the scene of an earlier motor-vehicle collision, traffic became congested due
to an immobilized vehicle that remained stalled in the left-hand lane. 9 Gilfoil has testified
that, as a result, he then merged into the right-hand lane behind Fenner’s vehicle and in
front of the tractor-trailer driven by Rogers. 10
Rogers testified in his deposition that Gilfoil was able to merge into the right-hand
lane “without any incident.” 11 Moreover, the parties agree that, after merging into the
right-hand lane, Gilfoil initially maintained a distance of about “one to two car lengths”
behind Fenner’s vehicle. 12 The parties also agree that, at some point thereafter, Fenner
began to brake due to traffic congestion and subsequently came to a complete stop. 13 It is
undisputed that Gilfoil also braked and came to a complete stop behind Fenner’s vehicle. 14
Rogers, however, whose tractor-trailer was positioned behind Gilfoil’s vehicle in the righthand lane, was unable to stop his tractor in time and collided with Gilfoil’s vehicle, which
caused Gilfoil to strike the vehicle driven by Fenner. 15
The preceding facts are not disputed. The parties disagree, however, with respect
to the ultimate cause of the collision and whether Gilfoil’s lane change played a part in
causing it. Rogers contends that Gilfoil, after changing lanes, came to an “abrupt stop”
R. Doc. 73-3 at 1–2; R. Doc. 73-2 at 1.
R. Doc. 73-3 at 1; R. Doc. 76 at 2. See generally R. Docs. 73-2, 76-3.
8 R. Doc. 76-1 at 3 (Deposition of William Gilfoil). See also R. Doc. 76 at 2.
9 R. Doc. 73-3 at 1–2; R. Doc. 76 at 2.
10 R. Doc. 73-3 at 1–2; R. Doc. 76-1 at 2–3 (Deposition of William Gilfoil).
11 R. Doc. 79-1 at 1 (Deposition of Robert Rogers).
12 R. Doc. 73-2 at 1, ¶1; R. Doc. 76-3 at 1–2, ¶1. See also R. Doc. 73-4 at 3 (Deposition of William Gilfoil).
13 R. Doc. 73-2 at 1, ¶3; R. Doc. 76-3 at 2, ¶3.
14 R. Doc. 73-2 at 1, ¶¶4–5; R. Doc. 76-3 at 2–3, ¶¶4–5.
15 R. Doc. 73-2 at 1, ¶¶4–5; R. Doc. 76-3 at 2 –3, ¶¶4–5.
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behind Fenner’s vehicle, which created a sudden emergency and made it impossible for
Rogers to stop his tractor before striking Gilfoil’s vehicle. 16 Gilfoil disagrees, noting that
he came to a complete stop behind Fenner and only rear-ended Fenner because Rogers
rear-ended him. 17 As a result, Gilfoil has moved for summary judgment, arguing he is not
liable for causing the accident under Louisiana law. 18 It is this motion for summary
judgment that it is presently before the Court.
LEGAL STANDARD
Summary judgment is appropriate only “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.” 19 “An issue is material if its resolution could affect the outcome of the action.” 20
When assessing whether a material factual dispute exists, the Court considers “all of the
evidence in the record but refrains from making credibility determinations or weighing
the evidence.” 21 All reasonable inferences are drawn in favor of the non-moving party. 22
There is no genuine issue of material fact if, even viewing the evidence in the light most
favorable to the non-moving party, no reasonable trier of fact could find for the nonmoving party, thus entitling the moving party to judgment as a matter of law. 23
If the dispositive issue is one on which the moving party will bear the burden of
persuasion at trial, the moving party “must come forward with evidence which would

R. Doc. 76-3 at 2, ¶4.
R. Doc. 73-2 at 1, ¶¶4–5. See also R. Doc. 73-3 at 4–5.
18 R. Doc. 73.
19 Fed. R. Civ. P. 56. See also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).
20 DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2005).
21 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008). See also
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150–51 (2000).
22 Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
23 Smith v. Amedisys, Inc., 298 F.3d 434, 440 (5th Cir. 2002).
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‘entitle it to a directed verdict if the evidence went uncontroverted at trial.’” 24 If the
moving party fails to carry this burden, the motion must be denied. If the moving party
successfully carries this burden, the burden of production then shifts to the non-moving
party to direct the Court’s attention to something in the pleadings or other evidence in the
record setting forth specific facts sufficient to establish that a genuine issue of material
fact does indeed exist. 25
If the dispositive issue is one on which the non-moving party will bear the burden
of persuasion at trial, as in this case, the moving party may satisfy its burden of production
by either (1) submitting affirmative evidence that negates an essential element of the nonmovant’s claim, or (2) affirmatively demonstrating that there is no evidence in the record
to establish an essential element of the non-movant’s claim. 26 If the movant fails to
affirmatively show the absence of evidence in the record, its motion for summary
judgment must be denied. 27 Thus, the non-moving party may defeat a motion for
summary judgment by “calling the Court’s attention to supporting evidence already in the
record that was overlooked or ignored by the moving party.” 28 “[U]nsubstantiated
assertions are not competent summary judgment evidence. The party opposing summary
judgment is required to identify specific evidence in the record and to articulate the
precise manner in which that evidence supports his or her claim. ‘Rule 56 does not impose

24 Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263–64 (5th Cir. 1991) (quoting Golden Rule Ins. Co.
v. Lease, 755 F. Supp. 948, 951 (D. Colo. 1991)).
25 Celotex, 477 U.S. at 322–24.
26 Id. at 331–32 (Brennan, J., dissenting).
27 See id. at 332.
28 Id. at 332–33. The burden would then shift back to the movant to demonstrate the inadequacy of the
evidence relied upon by the non-movant. Once attacked, “the burden of production shifts to the nonmoving
party, who must either (1) rehabilitate the evidence attacked in the moving party’s papers, (2) produce
additional evidence showing the existence of a genuine issue for trial as provided in Rule 56(e), or (3) submit
an affidavit explaining why further discovery is necessary as provided in Rule 56(f).” Id. at 332–33, 333 n.3.

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upon the district court a duty to sift through the record in search of evidence to support a
party’s opposition to summary judgment.’” 29
LAW AND ANALYSIS
This is a diversity case 30 in which the Court must apply substantive Louisiana state
law. 31 Gilfoil argues that, under the Louisiana law of negligence, Rogers is presumed to be
at fault for the collision because Rogers was the “following motorist” in a rear-end
collision. 32 According to Gilfoil, because Rogers is presumed to be at fault, and because
Rogers has failed to rebut that presumption, Gilfoil cannot be deemed at fault for the
collision and should be dismissed from the case at this summary judgment stage. 33
As recognized in Johnson v. Magitt, “[t]he law has established a rebuttable
presumption that a following motorist who strikes a preceding motorist from the rear has
breached the standard of conduct prescribed by LSA-R.S. 32:81(A) and is therefore liable
for the accident.” 34
The rule is based on the premise that a following motorist whose vehicle
rear-ends a preceding motorist either has failed in his responsibility to
maintain a sharp lookout or has followed at a distance from the preceding
vehicle which is insufficient to allow him to stop safely under normal
circumstances. 35
The following motorist may rebut the presumption of negligence in one of two
ways. First, the following motorist may rebut the presumption by “proving that he had his

29 Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citing Celotex, 477 U.S. at 324;
Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) and quoting Skotak v. Tenneco Resins, Inc., 953 F.2d
909, 915–16 & n.7 (5th Cir. 1992)).
30 R. Doc. 1 at 1–2, 10.
31 See, e.g., Weiser-Brown Operating Co. v. St. Paul Surplus Lines Ins. Co., 801 F.3d 512, 517 (5th Cir. 2015)
(citing Symetra Life Ins. Co. v. Rapid Settlements, Ltd., 775 F.3d 242, 248 (5th Cir. 2014)).
32 R. Doc. 73-3 at 2–3 (citing La. R.S. § 32:81(A); Johnson v. Magitt, 12-0200, p. 3 (La. App. 1 Cir. 9/21/12),
111 So. 3d 11, 12; Lirette v. Ott, 562 So. 2d 1067 (La. App. 4 Cir. 1990)).
33 See generally R. Doc. 76.
34 Johnson, 111 So. 3d at 12.
35 Id. at 12–13.

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vehicle under control, closely observed the preceding vehicle, and followed at a safe
distance under the circumstances.” 36 Second, the following motorist may “avoid liability
by proving that the driver of the lead vehicle negligently created a hazard that he could
not reasonably avoid,” 37 which is known as the sudden-emergency doctrine. 38
In light of the foregoing, the Court finds that Rogers, as the following motorist, is
presumed to be at fault for the collision in this case, and it is his burden to rebut that
presumption in either of the two ways mentioned above. Rogers attempts to do so by
arguing that Gilfoil abruptly merged into the right-hand lane and braked, which created
a sudden emergency and caused, or at least contributed to, the multi-vehicle collision. 39
For the reasons that follow, the Court disagrees with Rogers and grants summary
judgment in favor of Gilfoil.
As an initial matter, it is unclear whether the sudden-emergency doctrine is even
applicable in this case. In Leblanc v. Bouzon, the Louisiana Third Circuit Court of Appeal
affirmed the trial court’s grant of summary judgment to the driver of the middle vehicle
involved in a three-vehicle, rear-end collision. 40 In that case, Linda Leblanc, Abbie Norris,
and Brody Bouzon were driving their vehicles in congested traffic on Johnson Street in
Lafayette, Louisiana. 41 All three were driving in the right-hand lane as they approached a
red traffic signal. 42 Leblanc brought her vehicle to a stop due to the red light, as did Norris
immediately behind Leblanc. 43 Bouzon, however, the driver of the third and final vehicle,

Id. at 13 (citing Taylor v. Voigtlander, 36,670, p. 4 (La. App. 2 Cir. 12/11/02), 833 So. 2d 1204, 1206).
Id. (citing Daigle v. Mumphrey, 96-1891, pp. 2–3 (La. App. 4 Cir. 3/12/97), 691 So. 2d 260, 262).
38 See, e.g., Harbin v. Ward, 13-1620, p. 5 (La. App. 1 Cir. May 29, 2014), 147 So. 3d 213, 219.
39 R. Doc. 76 at 2–3, 5–6; R. Doc. 82 at 1–2, 4.
40 Leblanc v. Bouzan, 14-1041, p. 8 (La. App. 3 Cir. 3/4/15), 159 So. 3d 1144, 1149.
41 Id. at 1145.
42 Id.
43 Id.
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was unable to stop and, as a result, rear-ended Norris’s vehicle, which pushed it into
Leblanc’s vehicle. 44 Leblanc sued both Norris and Bouzon for negligence under Louisiana
law. 45 Norris—the driver of the middle vehicle—then moved for summary judgment,
arguing Bouzon was presumptively at fault as the “following motorist” and had failed to
rebut that presumption. 46 The trial court agreed, dismissing Norris from the suit with
prejudice. 47 Bouzon appealed, however, contending Norris created a sudden emergency
and was partly at fault for the collision. 48 The appellate court affirmed Norris’s summary
judgment dismissal, relying on a Louisiana Second Circuit Court of Appeal decision which
held that, “where other vehicles are able to stop behind the lead vehicle, the driver of the
last vehicle that precipitates the chain reaction collision is negligent.” 49 The court further
ruled that, because Leblanc and Norris were able to stop their vehicles in time and avoid
a collision, “the sudden emergency doctrine is inapplicable.” 50
The Leblanc decision is factually similar to the instant case. Both cases involve
three-vehicle, rear-end collisions. 51 Both cases also involve motions for summary
judgment filed by the drivers of the middle vehicles based upon the presumptive
negligence of the following motorists. 52 In the present case, as in Leblanc, the driver of
the middle vehicle—here, Gilfoil—was able to stop his vehicle and, at least initially, avoid
a collision with the lead vehicle. 53 The facts are undisputed in this case that Gilfoil did not
rear-end Fenner until Rogers rear-ended Gilfoil; that is, Fenner was struck from behind
Id.
Id. at 1145–46.
46 Id.
47 Id. at 1146.
48 Id.
49 Id. at 1147–48 (citing Ebarb v. Matlock, 46,243, p.8 (La. App. 2 Cir. 5/18/11), 69 So. 3d 516, 521).
50 Id. at 1149.
51 Compare id. at 1145–46, with R. Doc. 73-3 at 1–2.
52 Compare Leblanc, 159 So. 3d at 1146, with R. Doc. 73.
53 R. Doc. 73-2 at 1, ¶¶4–5; R. Doc. 76-3 at 2–3, ¶¶4–5.
44
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only once, not twice. 54 The Leblanc decision holds the sudden-emergency doctrine does
not apply to circumstances such as this, where the driver of the middle vehicle was able
to come to a complete stop behind the lead vehicle, only to be rear-ended by a following
motorist and then pushed into the lead vehicle. 55 This Court agrees with the reasoning
espoused in Leblanc and finds that the sudden-emergency doctrine is not applicable in
light of the facts of this case.
Moreover, even if the sudden-emergency doctrine did apply to this case, Rogers
has pointed to no evidence to show Gilfoil created a sudden emergency or is otherwise at
fault, even in part, for the collision. The undisputed facts establish that Gilfoil merged into
the right-hand lane in front of Rogers without incident and that, after merging, Gilfoil
maintained a distance of about “one to two car lengths” behind Fenner’s vehicle. 56
Moreover, Gilfoil and Fenner both testified that Gilfoil was able to come to a complete
stop behind Fenner’s vehicle, 57 which Rogers does not dispute. 58 It was only after Gilfoil
safely merged into the right-hand lane, maintained a safe distance, and came to a
complete stop that the accident occurred. Based on these facts, the Court finds that Gilfoil
did not create a sudden emergency in this case, and Rogers has failed to otherwise rebut
the presumption of negligence. As a result, Gilfoil’s motion for summary judgment must
be granted.

R. Doc. 73-2 at 1, ¶¶4–5; R. Doc. 76-3 at 2–3, ¶¶4–5.
See generally Leblanc, 159 So. 3d 1144.
56 R. Doc. 79-1 at 1 (Deposition of Robert Rogers). See also R. Doc. 73-2 at 1, ¶1; R. Doc. 76-3 at 1–2, ¶1; R.
Doc. 73-4 at 3 (Deposition of William Gilfoil).
57 R. Doc. 73-3 at 4; R. Doc. 73-5 at 4 (Deposition of Patricia Fenner) (“I was hit once.”) (Q: “Did you feel
more than one bump at all?” A: “No.”). See also R. Doc. 73-3 at 5; R. Doc. 73-4 at 2 (Deposition of William
Gilfoil) (“And then as we approached the vehicle Ms. Fenner came to a stop and I stopped and then the
truck didn’t have the time to stop and it hit me and knocked me into Ms. Fenner.”).
58 R. Doc. 76-3 at 3, ¶5; R. Doc. 73-6 (Deposition of Robert Rogers) (Q: “And did [Gilfoil] come to a stop or
not?” A: “I don’t remember. . . . I think he did, but I don’t remember.”).
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CONCLUSION
For the foregoing reasons, IT IS ORDERED that the motion for summary
judgment filed by Defendant William Gilfoil and the Louisiana Farm Bureau Insurance
Company be and hereby is GRANTED.
New Orleans, Louisiana, this 18th day of January, 2016.
_________ __ ________ _______
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

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